Trump’s apologists say it doesn’t matter if he’s guilty of insurrection. That’s not true

Donald Trump may be the only person about whom prominent conservatives think innocence is irrelevant. Voters in many states filed lawsuits arguing that Trump was constitutionally disqualified from the presidency, under section 3 of the 14th amendment, having committed treason against the United States when resisting by force the peaceful transfer of presidential power. The Colorado supreme court agreed. Trump and his lawyers responded by waving numerous constitutional technicalities that they claimed exempted traitors from constitutional disqualification, while barely making any effort to refute charges that the former president committed treason on 6 January 2021.

On Monday, all nine justices on the US supreme court agreed that Donald Trump should remain on the presidential ballot even if he is, in the words of Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, “an oathbreaking insurrectionist”. No one challenged that finding.

Proponents of law and order – who, for decades, railed against judicial decisions that freed from criminal sanction suspected and convicted criminals based on due process rights that are unconnected to guilt or innocence – now celebrate the possibility that a contemporary Benedict Arnold may hold the highest office of the land. They rejoice that the supreme Court kept the former president on the ballot in all 50 states by relying on alleged constitutional rules that do not require Trump to defend himself against treason allegations.

The charge is treason, that Trump is a traitor. Section 3 of the 14th amendment disqualifies past and present officeholders who engage in insurrection or rebellion against the United States. Case law and legal treatises from the American Revolution until the