Only democratic politics can resolve the problem of Donald Trump

06 September 2023

The Times and the Post have recently run stories rounding up the various unrelated legal efforts that are currently underway to prevent the criminal former president from appearing on primary ballots in critical states.

The idea is that Donald Trump, as leader of an attempted paramilitary takeover of the US government, is disqualified from holding the presidency according to a constitutional provision regarding officials found to have “engaged in insurrection or rebellion” or to have given “aid or comfort to the enemies” of the US Constitution, which Trump had sworn to uphold.

Section 3 of the 14th Amendment was ratified after the Civil War. Its purpose was to prohibit southerners who supported or served the Confederacy – traitors, in plain English – from wielding federal power. At least two nonprofit organizations are preparing lawsuits aimed at pressuring elections officials and election boards in states like New Hampshire, Michigan and Arizona into declaring Trump ineligible.

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The theory of disqualification, as it’s called, has been gaining some traction lately. It is the focus on a forthcoming and highly anticipated legal paper by two conservative scholars associated with the Federalist Society, a conservative advocacy. They say the 14th Amendment “disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election.”

The theory was raised, moreover, during the first Republican debate. “More people are understanding the importance of [disqualification], including conservative legal scholars, who say [Trump] may be disqualified under the 14th Amendment from being president again as a result of the insurrection,” said Republican candidate and former Arkansas Governor Asa Hutchinson.

But the disqualification theory, and legal efforts that are based on it, didn’t really work after the Civil War. I don’t think they will now. While there’s utility to forcing the Trump campaign, directly and indirectly, to spend resources fighting for access to primary ballots, these things almost certainly won’t live up to the expectations that are increasingly being put on them. And if and when they fail, there’s the political risk of lost hope.

We don’t need to do that.

Indeed, the expectations that are being put on the theory of disqualification are starting to look like the expectations that were put on Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

Despite the whitewashing of the resulting report, it was never intended to save democracy. It was intended to inform voters who care about whether their president conspired with a hostile foreign power to defraud them. Given that the Trump administration couldn’t last more than a term, you could say that the Mueller report accomplished what it set out to do.

The same thing goes for the four criminal indictments against Donald Trump. Each has merit and could result in conviction. It’s possible, to be sure. But they should not be expected to save democracy from a ruthless man who has the backing of a ruthless party. They should be understood, instead, as having the same purpose as the Mueller report – to give voters the information they need to make decisions that are best for democracy.

Democracy is the product of choices made amid struggle. This fact of politics is so normal as to be invisible, which is to say, it isn’t newsworthy. What gets our attention is The New Thing – in this case, the theory of disqualification or, before that, four criminal indictments or, before that, the Robert Mueller report. Yet by giving The New Thing so much attention, we end up imbuing it with such importance, such that many Americans seem to believe that the only way to stop a criminal former president is for something outside democratic politics to swoop in and save democracy.

This belief is rooted in a reasonable desire – for the problem of Donald Trump to simply go away. But short of death, which is always possible, Trump isn’t going away. Indeed, he is the outcome of political consensus that has long outlived its usefulness and that has, for the past decade, sunk into decay and corruption. A problem that deep and rotten can’t be resolved with an indictment, a conviction or a lawsuit, however serious, important and well-intended they may be. Only democratic politics can resolve that.

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