September 5, 2023 | Reading Time: 3 minutes

The ‘theory of disqualification’ can’t resolve a problem like Donald Trump

Only democratic politics can do that.

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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 who were found to have “engaged in insurrection or rebellion” or to have given “aid or comfort to the enemies” of the US Constitution. 

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. 

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. 

The theory of disqualification is gaining some traction lately. It’s the focus on a forthcoming and highly anticipated legal paper by two conservative scholars who are associated with the Federalist Society. 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 primary 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 presidential 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 to spend resources fighting, directly and indirectly, for access to ballots, these things almost certainly won’t live up to the expectations that are increasingly being put on them. If they fail, there’s a political risk of lost hope.

We don’t need to do that. 

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

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

The same goes for the four criminal indictments against Trump. Each has merit and could result in conviction. (It’s possible!) 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 is so normal as to be invisible. It isn’t newsworthy. What gets our attention is The New Thing – 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 democracy politics to swoop in and a 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. He is the outcome of a decades-long political consensus — some call it “neoliberalism” — that has outlived its usefulness and that has, for the last 10 years, sunk into corruption and decay. 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 do that.


John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

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