Saturday, December 23, 2023



In the wake of the Colorado Supreme Court’s outrageous ruling that bars Donald Trump from the ballot in that state, many Republicans have urged that states controlled by the GOP do the same thing to Joe Biden. My point here is not to endorse that strategy–partisan majorities banning their political opponents from participating in elections is obviously not a good thing–but rather to note that, if Republican-leaning courts in some states are so inclined, there is a rather clear legal path to barring Joe Biden.

I wrote here about the federal bribery statute, 18 U.S. Code § 201, and the fact that an officeholder (Joe Biden) need not have personally benefited in order to be guilty. Rather, if he is involved in the sale of his influence, he is guilty of bribery no matter who cashed the checks (Hunter Biden and other relatives). An officeholder found guilty of bribery can be sentenced to 15 years in prison and “disqualified from holding any office of honor, trust, or profit under the United States.”

But, you may say, Joe Biden has not been found guilty of bribery. True. But there is also a federal law that a makes insurrection and rebellion a crime, duplicating the language of Section 3 of the 14th Amendment. Donald Trump has been neither charged nor found guilty under that law, either.

The Colorado courts relied on the report of the Democrats’ January 6 Committee in finding Trump to be an insurrectionist. So the Republicans’ House impeachment committee could issue a report finding that Joe Biden knowingly participated in his family’s influence peddling scheme, and thus is guilty of bribery under Section 201. There is ample evidence already in the public record to support such a finding.

So it seems to me that the cases are exactly parallel. If a Congressional committee finds that Biden has violated Section 201, a Republican-leaning court could use that as a basis for a finding that Biden should be “disqualified from holding any office of honor, trust, or profit under the United States,” and bar him from the 2024 ballot.

Would that be a good idea? In principle, no. But the Democrats can be deterred from their anti-democratic conduct only by the realization that the tables can be turned against them.