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Court cases brought against a former president who also happens to be the frontrunner for a third go atop his party’s national ticket are inevitably political, regardless of high-minded claims by prosecutors and judges that they are pursuing them only because democracy demands that no man stands above the law.
The latest to make this argument is the Colorado supreme court. In an explosive opinion on Tuesday barring Donald Trump from his state’s primary ballot, a majority of justices on the bench were “mindful of our solemn duty to apply the law, without fear or favour, and without being swayed by public reaction to the decisions that the law mandates we reach”.
The Colorado court — plus the local and federal prosecutors who have indicted Trump four times, and the congressional leaders who impeached him twice — is not wrong. Equality before the law is arguably the most sacrosanct of democratic principles, particularly at a time when Trump and many of his fellow travellers elsewhere have begun to wrap themselves in the trappings of authoritarianism.
But even before the ink was dry on the Colorado decision, the political hand-wringing had begun. Wouldn’t it only embolden Trump and his acolytes, giving them a concrete example of the political elites hell-bent on denying the former president another shot at the White House? Trump has already used the federal and state indictments as rallying cries (and fundraising tools), as he did the “witch hunts” of his two impeachment trials.
Indeed, the majority’s forthrightness may not be long-lasting. The US Supreme Court, with its Republican-leaning majority, is likely to over-rule the Colorado decision in a matter of weeks, putting Trump back on the state’s primary ballot and killing off similar anti-Trump initiatives in other states.
Tuesday’s ruling puts his Republican rivals for the nomination in a particularly difficult spot, especially Nikki Haley, the former South Carolina governor, who was just gaining momentum in Iowa and New Hampshire polling. Instead of focusing her fire on the frontrunner with just weeks to go before Republican voters cast their first ballots, Haley now has to fall in line behind Trump in his legal battle. She was already there on Tuesday night: “I will beat him fair and square. We don’t need to have judges making these decisions, we need voters to make these decisions.”
So yes, in the day-is-night and night-is-day of 21st-century American politics, being labelled an insurrectionist by one of the highest courts in the US may actually help Trump become the 2024 Republican presidential nominee. It may even gin up enough outrage to win over fence-sitters in the November general election.
But what is the alternative? Even though US civics textbooks extol the virtues of free speech and the right to vote, the true backbone of any democracy are its legal and bureaucratic institutions. Ask anyone in a country that has free and fair elections, but corrupted or politically-tainted courts and enforcement agencies — think India, Turkey or Hungary — whether they really live in a democratic society and you’ll get a highly equivocal answer.
Which means special counsel Jack Smith, who has been appointed to oversee federal cases against the former president, as well as local prosecutors in Manhattan and Georgia, must continue to pursue their cases against Trump. And the judges in Colorado were right to stick out their collective legal necks and strike the former president from the state’s ballot. Those legal moves may well help Trump politically. But the alternative for democracy would be even worse.
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This column has been amended to correct the authors of the Colorado supreme court decision.
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