“No question about it. None. Zero.” That’s the view of President Biden — speaking on a tarmac in December on the question of whether President Trump is an insurrectionist subject to being  banned from the ballot under Section Three of the 14th Amendment. Curious then that Mr. Biden’s Department of Justice has  taken neither that, nor any, position on the matter, as the Supreme Court gets ready to consider the issue nine months ahead of election day.  

This constitutional shyness on the part of the president — and the famed solicitor general of the United States, Elizabeth Prelogar — is all the more intriguing given that Mr. Biden has tried to palm off on our noble public the idea that Mr. Trump is a threat to democracy and that preserving the aforementioned democracy is the very raison d’être of his bid for reelection. Certainly the administration hasn’t been shy, generally, about pursuing Mr. Trump in criminal court.

Its remarkable reticence on disqualification, though, was caught by a one-time New York Sun reporter, the eagle-eyed Josh Gerstein. He notes in Politico that the solicitor general, the government’s top lawyer, is “often referred to as the tenth justice because of the weight the court has historically accorded to the official legal voice of the executive branch.” Yet that weight is not being thrown around, even as deadlines to file amicus briefs come and go.

The Trump docket discloses that more than three dozen amicus briefs have already been filed, throwing into sharper relief Mr. Biden’s decision — and General Prelogar’s — to hang back. Mr. Gerstein notes the “unprecedented sensitivities” of a case that pits an incumbent president against his leading political opponent. Who would one guess is less eager to jump into that political swamp, the talkative president or the silent solicitor general?

Mr. Biden is suggesting to reporters that the case for Mr. Trump’s disqualification is a lead pipe cinch. “Certain things are self-evident,” is the way Mr. Biden expressed his opinion. “You saw it all.” Yet the whole reason disqualification has been tangled up with our greatest sages is that nothing in the case is self-evident. No wonder Mr. Biden says that “whether the 14th Amendment applies, I’ll let the court make that decision.”  

One of disqualification’s most pestiferous backers is a former judge of the United States Court of Appeals for the Fourth Circuit, Michael Luttig. He took to X to venture that he could not “imagine the United States not offering its views — whether asked or not — on this foundational question of our republic. It, too, would invite justified criticism and political suspicion if it did not.” He urges the court to summon Ms. Prelogar to spill the beans.

We’d like to think that General Prelogar is too smart to take that advice. She is not the only high-octane member of the Justice Department who is hanging back on the issue at the core of the question. Not even Special Counsel Jack Smith, who leads what has started to look like a political push against Mr. Trump, has been prepared to charge him with insurrection. He has handed up 44 charges against Mr. Trump, and not one is insurrection.

Mr. Trump contends, and we have long noted, that he was charged with insurrection at impeachment and discovered by the Senate to be not guilty. We can imagine, if only that, that Mr. Biden’s camarilla grasps that any position he takes on insurrection will be subject to torrents of criticism. More than three years after January 6, though, there has not been a single federal official willing to, in a court of law, take the position that what happened was an insurrection.