Should Trump be disqualified from office?

24 January 2024
Ben Hillier

The preservation of democracy requires its curtailing. That is the logic of those attempting to strike Donald Trump from the ballot in the Republican presidential primaries and general election this year. Panicking that they may be unable to build a political coalition to defeat the far-right buffoon in November, a section of American liberals and old-establishment conservatives have leaned on the power of state institutions to compensate for their own unpopularity.

The Colorado Supreme Court and Maine’s Democratic secretary of state last month ruled that Trump is ineligible to run in the Republican presidential primaries in those areas. There have been efforts to strike the former president from the Republican ballot in at least 35 states. Most of the petitioners and litigants have invoked section three of the US Constitution’s fourteenth amendment, which disqualifies from office former state officials who participate in “insurrection or rebellion” against the government, or who have “given aid or comfort to the enemies thereof”.

While many of the cases have been dismissed, a majority of the Colorado bench declared that Trump had engaged in insurrection due to his encouragement of the 6 January 2021 protest that stormed the US Capitol building in Washington, D.C. On that day, a motley assembly of Trump supporters disrupted the confirmation count of the presidential election. More than eighteen of the disqualification attempts are unresolved, including Colorado and Maine, the rulings of which are being appealed to the Supreme Court by Trump’s legal team.

Many people, for good reasons, fear a second Trump term. But the basis of the efforts to disqualify him don’t stand up to scrutiny.

First, there is a legal issue. The US Attorney’s Office for the District of Columbia and the FBI’s Washington Field Office have come down hard on the 6 January protestersprosecuting more than 1,000 people with a range of crimes, including assault and sedition. But they have not charged a single person with insurrection. In August, a federal grand jury also voted to charge Trump for his role in the event. None of those indictments relate to insurrection either.

Some people might argue that federal authorities erred in not laying insurrection charges against the fascist militia members involved on 6 January. A more sober assessment is that the event was not an armed attempt to overthrow the government; that, while it was a far-right riot, “insurrection” is a sensationalist exaggeration.

Either way, Trump has been denied the right to appear on the ballot in Colorado and Maine despite not having been charged with the crime used as the pretext for his disqualification. Those states, at the very least, have limited due process to draw conclusions that federal prosecutors themselves have avoided. Anyone interested in democracy ought to seriously consider the gravity of this precedent were the disqualifications to be upheld.

Second, there are several political issues. The constitutional provision being used against Trump was originally drafted in the Reconstruction era following the American Civil War. The aim was to reintegrate the Southern states into the union while purging the “Slave Power”—the confederate ruling classes who had waged war against the North. At the time, it was legitimate to limit formal democratic procedures to prevent counter-revolutionaries from gaining elected office while the slavocracy was being dismantled.

But it is dubious to invoke this provision in current circumstances. If Trump had indeed led a fascist insurrection and was now using existing democratic channels only as means to set up a dictatorship, there would be an arguable case to legally exclude him from office. But the proposition that this is what is going on appears to be more liberal shibboleth than accurate appraisal of reality.

It is true that a second Trump term would be different from the first, which was characterised more by paralysis than fascist takeover. A range of pro-Trump think tanks and organisations have created a transition blueprint to avoid Trump’s agenda being stymied by the bureaucracy. Dubbed Project 2025, it has been described in the New York Times as “a plan to consolidate power in the executive branch, dismantle federal agencies and recruit and vet government employees to free the next Republican president from a system ... [considered] stacked against conservative power”.

In a recent television interview, political commentator Rachel Maddow declared that this effort, combined with Trump’s authoritarian tendencies, would result in “the end of politics, the end of elections, the end—or the sidelining or the domesticating ... of the judiciary and the Congress”. Ruth Ben-Ghiat, a history professor at New York University, was not quite as apocalyptic, but drew on similar themes, telling PBS News Hour last July:

“It’s autocratic capture ... When you remake government, you remake civil service. So you purge people who will not be loyal to you. So, loyalty becomes a requirement, not expertise, and you restaff government with people who will do your bidding and, in this way, hugely centralizing and increasing presidential power.”

It sounds awfully menacing. Yet the idea of an “apolitical” US federal bureaucracy is a liberal mystification worthy of an Aaron Sorkin script overlaid with an uplifting Snuffy Walden composition. It strains credulity, for example, to suggest that Democratic President John F. Kennedy appointed his younger brother as attorney general because he believed him to be impartial and independent. Robert H. Jackson, attorney general under Franklin Roosevelt, another Democrat, described some of his legal advice as “partisan advocacy”. That’s politics, not its negation.

The reality is that incoming presidents are responsible for around 4,000 political appointments, many of which come with their own hiring and firing power within the federal bureaucracy. It is a feature of all US administrations to assert themselves in the public service. As William P. Marshall, professor of law at the University of North Carolina, wrote more than a decade ago:

“President George W. Bush has been able to circumvent congressional efforts to delegate decision making to office holders and to retain such authority for himself ... President Clinton was able to use directives and other measures to more effectively control and claim ownership of agency action. The Clinton and Bush presidencies will likely serve as lessons to future administrations, suggesting that increased control of the federal bureaucracy is yet another way that presidential power will continue to expand.”

If elected, Trump might more effectively use executive power for thoroughly reactionary ends. If that’s the case, though, people in the US will just have to fight him. Again, that’s politics—not the end of it.

There’s a further issue buried under the “Trump dictatorship” narrative: most of the attacks on democracy in the United States are conducted not by insurrectionists, but by constitutionalists using the powers conferred by the country’s archaic founding document. As political theorist Corey Robin notes in one of his characteristically thought-provoking essays, “Trump and the Trapped Country”:

“Seeking to counter their waning position, the Republican Party and the conservative movement have come to depend upon three pillars of counter-majoritarian rule: the Senate, the Electoral College, and the Supreme Court. These institutions are not authoritarian or fascist—indeed, they are eminently constitutional—but they are antidemocratic. They are also mainstays of the right ...

“Fascism’s most resonant image—of a triumphant will bending the nation to its vision—was born in the long shadow of the French Revolution. Against the mass movements of the left and the constitutional state of the center, fascism called the young to the cause of novelty and creation. Today’s right is nothing like that. It is an artifact of the world’s most ancient and extant legal order, holding on to the Constitution, and the institutions it authorizes, for dear life.”

There’s yet another issue: section three of the fourteenth amendment states that those who have “given aid or comfort to the enemies” will be denied the ability to assume any federal or state office. “Comfort” here casts a wide net. Prior to 2021, section three was used only once outside of the Reconstruction era, when it was invoked to prevent the Socialist Party’s Victor Berger from taking his congressional seat after World War One.

Berger was editor of the Socialist Party publication the Milwaukee Leader when the US entered the war. He was convicted under the Espionage Act in 1919 and sentenced to twenty years in prison because of his opposition to the war—a sentence that was overturned on appeal. While under indictment, voters in Wisconsin elected Berger to the House of Representatives, but a congressional committee subsequently disqualified him from office, affirming:

“[H]aving previously taken an oath as a Member of Congress to support the Constitution of the United States, and having subsequently given aid and comfort to the enemies of the United States during the World War ... [Berger] is absolutely ineligible to membership in the House of Representatives under section 3 of the fourteenth amendment to the Constitution of the United States.”

Again, the gravity of the precedent ought to be clear: were the Maine and Colorado decisions to be upheld, eligibility challenges invoking this constitutional provision would almost certainly be used, again and more frequently, against the left.

Third, there is a strategic consideration, at least for those interested not simply in defeating Trump but tackling the far right: the disqualification attempts are counterproductive. A central talking point of the former president is that Democrats and “the deep state” are behind a series of conspiracies to disenfranchise his supporters. From claims of a “stolen” 2020 election to the string of other indictments, everything is framed as a form of election interference. In fact, almost any criticism of the man is deemed to be part of the plot to defraud democracy.

With these ballot challenges, the political establishment is providing the Trump movement with a legitimate grievance that, in the eyes of his backers, validates every other claim of persecution. “They’re trying to tell us who we can and can’t vote for”, is a common, and not entirely baseless, refrain of his supporters. The martyr complex grows along with the feeling, among a growing section of the population, that there really is a conspiracy against Trump—and against them.

Meanwhile, the so-called defenders of democracy are shifting the terrain from the political sphere into the judicial sphere, where it is to be settled by the “experts”. (Rachel Maddow’s warning about “the end of politics”, then, ought really to be levelled against the people trying to settle the contest through the state.) In doing so, they simply display their own pro-establishment prejudices: that they are “saving democracy” from the unwashed masses who don’t understand the greatness of US capitalism’s institutions. How this is supposed to prevent the growth of a fascist movement is anyone’s guess.

Perhaps predictably, Trump’s polling in the Republican primaries has increased by nearly half since the ballot challenges began early last year—from 45 percent to more than 60 percent nationally, according to the average published by the US ABC news. The former president has forced all but one of his challengers to withdraw from the race.

Not only has Trump gained a vice-like grip on the Republican base; his general election polling has also flipped the script. The New York Times reported late last year that his support among Hispanics had increased to 43 percent, up from 29 percent in 2016. And support among non-white voters younger than 45 had climbed from 29 percent in 2020 to 42 percent. President Joe Biden’s support among the same cohort dropped from 68 percent to 49 percent.

Of thirteen national polls conducted this year, Trump has led Biden in six, they have been tied in five and Biden has led in only two. If anything, the disqualification strategy has come across as a cynical establishment attempt to avoid a contested election that Trump has a strong chance of winning legitimately (at least by US election standards).

Of course, this raises the question of how socialists should approach the contest between Democrats and Republicans in November. But that’s for another article.

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