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Michael Cianchette is a Navy reservist who served in Afghanistan. He is in-house counsel to a number of businesses in southern Maine and was a chief counsel to former Gov. Paul LePage.
Play this out with me.
Back in January 2021, I wrote that I did not think the U.S. Senate had the authority to put a former official on trial. Instead, if there were to be charges levied against then-former President Donald Trump, they should be brought by Attorney General Merrick Garland and contested in court.
What if that had happened? If Trump were charged under 18 U.S.C. 2383, the federal statute governing “insurrection,” and then acquitted, would that have made a difference to Maine Secretary of State Shenna Bellows when she considered challenges to his candidacy?
While criminal charges are not necessary to implicate under the 14th Amendment, Special Counsel Jack Smith has chosen — for whatever reason — to not charge Trump with insurrection.
That creates the opportunity for gamesmanship. A prosecutor could decide not to pursue cases because they are iffy, skip the judicial branch altogether, and instead punt it to executive officials to make the determination. Which is what happened with Bellows, who determined last month that Trump should be removed from the primary ballot after he was challenged by several Mainers, including former elected officials.
Then we add in the complicating political factors, like Bellows’ 2021 tweets declaring that Trump “should have been impeached” or the fact she was an Electoral College elector for President Joe Biden in 2020.
Taken all together, that is why I believe Gov. Janet Mills, former Gov. John Baldacci, Sen. Susan Collins, Sen. Angus King, and Rep. Jared Golden all got it right. They all said this matter should be addressed directly by the courts, not bureaucratic fiat.
If someone thinks Trump provided “aid or comfort” to an insurrection, then file a suit in a court and make the accusation plain. As of Jan. 5, 2024, there has yet to be an actual trial, with Donald Trump as a defendant, making accusations of “insurrection.”
The Maine secretary of state is not a court. While there was a nominal trial in Colorado before the case was sent to that state’s Supreme Court, which decided to keep Trump off the ballot, the actual case was a lawsuit by voters against their secretary of state. Trump was allowed to intervene in the case, but the plaintiffs withdrew their suit against him.
One of the retorts is that the 14th Amendment, which bars from office those who have “engaged in insurrection,” doesn’t require a criminal conviction. That’s absolutely true. But the structure of both the federal and Maine Constitutions provide that factual disputes — including civil cases — are resolved by courts, not bureaucrats.
Article I, Section 20 of the Maine Constitution guarantees the right to a jury in nearly all civil trials. The 7th Amendment to the United States Constitution is similar. British jurist and scholar William Blackstone believed a jury to be one of the great checks upon government, lest “magistrates” leverage the law to get the outcomes they want.
None of that is to say juries are magic or infallible. I would wager that Central Maine Power corridor opponents believe the jury that found CMP had “vested rights” in their project was wrong. Plenty of people have wrongfully been convicted of crimes with a jury verdict.
Yet regardless of whether or not we like the outcome we get from the court system, the essence of due process is going through the process appropriately.
And until someone actually, successfully proves Trump liable on a claim of “insurrection” and he has his day to defend himself in a courtroom, his name should appear on the ballot. Even if I think he’s too old for the GOP nomination.