On Thursday, 180 Republican members of Congress submitted a brief to the United States Supreme Court urging it to reverse the Colorado Supreme Court’s decision to disqualify Donald Trump from that state’s primary ballot in the 2024 presidential race. The brief offers another example of how Republican devotion to the former president and partisan loyalties reveal themselves beneath the veneer of high principle and legal rhetoric.
We can see the hypocrisy of many of those who signed the brief if we compare its seemingly neutral defense of congressional prerogative with what they did, or didn’t do, to defend that prerogative when Trump was in the Oval Office. Now, rallying to the GOP front-runner’s cause, the brief asserts that the Colorado decision “tramples the prerogatives of members of Congress […] to ensure that Congress controls the enforcement and (if necessary) removal of Section 3’s ‘disability’ on holding office.”
The brief claims that “enforcing Section 3 requires implementing legislation from Congress, thereby protecting candidates from abuse by state officials; and second, Congress, by a two-thirds vote of both Houses, has the power to remove a Section 3 ‘disability’ and thereby authorize an otherwise disqualified individual to ‘hold’ office any time it wants, including during a campaign or after an election.” The decision by the Colorado Supreme Court, the brief argues, “short-circuited both of those congressional roles.”
“As members of Congress,” the Republicans say, “amici have a strong interest in vindicating and protecting the role of Congress in the context of Section 3 of the Fourteenth Amendment.”
Such a statement would have made James Madison proud.
In Federalist 51 he wrote, “The great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. … Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”
But the lawmakers who signed the brief are hardly paragons of Madisonian virtue. They have not devoted themselves to protecting the “constitutional rights” of the institutions in which they serve.
In fact, many of them stood by and said nothing when the Trump administration regularly defied or refused to cooperate with House or Senate committees.
Indeed, they actively encouraged such defiance. As the nonpartisan group Co-Equal observed, “With a few notable exceptions, Republican members of Congress endorsed President Trump’s noncompliance with congressional oversight, reversing positions they asserted when a Democrat was president.”
Over the course of Trump’s four years in office, Congress had many opportunities to assert their powers; Trump’s executive branch officials refused “to provide information sought by Congress in over 100 congressional investigations and inquiries.” The administration did not comply with congressional requests for documents and witnesses, and directed officials and private individuals not to provide information to Congress. They even filed lawsuits “to prevent third parties from obeying congressional subpoenas.”
Last week, one of those who most enthusiastically backed such stonewalling and non-compliance, Ohio Rep. Jim Jordan, signed onto the Republican brief’s defense of congressional authority, because this time it helps Trump. Examples of Jordan’s hypocrisy about the use of that authority are legion.
For example, as Co-Equal says, in 2019, Jordan objected to congressional subpoenas “seeking records on the Trump Administration’s migrant child separation policy, security clearance process, and decision to include a citizenship question on the 2020 Census.”
When Democrats wanted to take depositions during the House’s impeachment inquiry into Trump’s effort to get Ukraine to dig up dirt on political opponent Joe Biden, GOP opposition to the depositions, Co-Equal observes, “grew so intense … that over 30 Republican members forced their way into a witness deposition that they were not authorized to attend.”
They did so even though congressional committees routinely take depositions during their investigations.
At the time of the impeachment inquiry, Jordan, who participated in the disruption, asserted, “The American people understand fairness and they instinctively know that what is happening here is not fair.” House Republican Whip Steve Scalise, one of the lead organizers of the brief submitted to the Supreme Court, called the depositions in the impeachment case “a Soviet-style process” that “should not be allowed in the United States of America.”
I guess Jordan and Scalise hope that people won’t recall what they said or did during the Trump presidency. Or maybe they just care about demonstrating their loyalty to the former president.
When the brief is not being hypocritical, it indulges in unfettered “whataboutism” on the question of whether Trump engaged in insurrection after he was voted out of office.
It argues that the Colorado Supreme Court’s definition of insurrection is so broad that it invites the use of the term to describe what it calls “partisan grievances,” and it tries to normalize what Trump did in the aftermath of the 2020 election, by saying, “There are frequent, even routine, disputes among Americans about election outcomes.”
Along the way, the Republican brief claims that “Stacey Abrams believes she ‘won’ her 2018 election for Governor of Georgia. Hillary Clinton believes Donald Trump ‘stole’ the 2016 election. Many believe that ‘high-tech voting machines’ fabricated decisive votes for President Bush in 2004, and efforts to challenge the Ohio slate of electors sought to change the outcome of that election.”
It adds that “Politicians from both parties have repeatedly voted against certifying some states’ electoral votes in presidential elections since 2000. At the time, some of these disputes were accompanied by rioting.”
And it argues, ignoring the violence that occurred on Jan. 6, 2021, “In polarized times, it is easy to cast an opponent’s rhetoric about the outcome of elections as encouraging others to obstruct the peaceful transfer of power.”
Adding to its list of “what abouts,” it says that “According to President Biden, a sizable portion of the Republican electorate, if not all of it, is determined to destroy democracy. … When partisan state officials believe so much is at stake, they may go to great lengths to interfere with the ordinary democratic process.”
In the end, the Republican brief urges the Supreme Court to leave Donald Trump on the ballot to “minimize the partisan incentive to boot opponents off the ballot using the incredible sanction of Section 3.”
Whatever the Supreme Court decides in the Trump disqualification case, it should not be taken in by the brief’s transparent effort to throw up a smokescreen by labelling others as insurrectionists. And, should former President Trump be returned to office, will Jim Jordan, Steve Scalise, and the 178 other Republicans who signed last week’s brief be as vigilant in defending congressional prerogatives? Hard to imagine.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.