Trump’s Trials for Democracy

It is hard to imagine a stable democracy having to confront the legal challenges presented by Donald Trump’s bid for reelection.  Courts have found him to be responsible for sexual assault, defamation and fraud, all in relatively quick succession.  Yet he continues to be the commanding figure in the Republican Party and, by most polling accounts, the single dominant candidate for the presidency this year.  The charges against him thus far are civil claims that have no formal bearing on his bid for office.  Nor do they seem to affect public opinion as the polarized electoral environment has little intermediate play that might be swayed by scandal, legal condemnation, or even the sense that enough is enough.

Pending now are four sets of criminal charges that range from the marginal (the NY prosecution for paying hush money to a porn star mistress) to the serious (election interference in Georgia, misuse of government documents in Florida, and electoral obstruction in Washington).  While the NY case is set to proceed to trial this spring, the others are caught up in legal brambles ranging from the bizarre (extramarital affairs among the state prosecutors in Georgia) to the difficult (can one bring criminal charges against Trump for public declarations while he was still president?).

The President’s Two Bodies

American law has tried to grapple with what Harvard law professor Daphna Renan terms the president’s two bodies, the individual who must be accountable to legal norms, and the head of state whose actions are primarily judged politically.  The most recent opinion by the D.C. Circuit Court of Appeals repeatedly invoked both concepts in ruling that Trump could be tried criminally for his efforts to prevent the formalization of President Biden’s election on January 6, 2021.  For all the rhetorical invocation of the maxim that no man is above the law, there is also the recognition that the president “occupies a unique position in the constitutional scheme,” as framed by the Supreme Court.

As unfathomable as it might be, none of these criminal cases stand as an obstacle to Trump being selected as the Republican nominee nor even of being elected. Even were Trump to be convicted in one of these cases before the November election, there are fraught issues on appeal that will stretch well beyond the electoral cycle.  Democracy is always at risk of becoming an “aristocracy of orators,” per Hobbes, or succumbing to the temptations of passion, as Thucydides wrote of ancient Athens.  Still, it is painful to watch the lack of democratic resilience play out in real time and with dangerous repercussions not just in the U.S., but in Ukraine, the Middle East and beyond.

Taken together with repeated acts of demagogy and cruelty, the various legal proceedings reinforce the sense that Trump simply does not belong within the bounds of legitimate democratic contestation. For European observers, this draws up the post-WW II debates over militant democracy, the realization that there must be limits to what is permitted within democratic tolerance.  Goebbels once quipped: “This will always remain one of the best jokes of democracy—that it gave its deadly enemies the means by which it was destroyed.”  Once tragedy, never again.

Section 3’s Rise from Obscurity

Enter an obscure, never invoked provision of the U.S. Constitution, a remnant of America’s experiment with militant democracy and lustration to keep political control after the Civil War between the Union under Lincoln and the slaveholding South.  Under Section 3 of the Fourteenth Amendment, public officials who engage in insurrection or gave material aid to an enemy are presumptively disqualified from federal elective office.  The provision was written at a time when keeping Confederates who had lost the war from assuming office in the post-Civil War South was an obvious need, and quite obvious in its implementation.  Unfortunately, time has eroded whatever evident application this provision was intended to have.  The text is a lawyer’s nightmare of distinctions between offices and officers, oaths in specific prior capacities, and even the reliance on the uncertain term of insurrection.

So great is the sense of dismay that Trump may render lasting harm to American democracy that two states, thus far, turned to the language of Section 3 to find Trump ineligible to appear on primary ballots in those states.  One of these acts was taken unilaterally by the Maine Secretary of State as a matter of official fiat, assessing the question of whether January 6 was an insurrection as a ministerial matter, akin to the constitutional requirement that the president be 35 years old.  The Colorado decision was the product of judicial proclamation, and so it is now presenting the Supreme Court with its first opportunity to oversee presidential selection under this constitutional provision.

The Supreme Court’s Considerations

At the oral argument last week, it was evident that two considerations weigh on the Supreme Court, quite independent of the formal dissection of the obscure constitutional language.  The first is a familiar problem in law that the question of what is the right answer must follow and not precede the question of who should decide the issue.  Can it really be that one public official in Maine can remove a national presidential candidate on her own say-so?  Can it be that Colorado, even with greater legal process, can decide that the candidate of choice of another state can be removed from national eligibility?  And how can it be that a Democratic-leaning state such as Colorado banning Trump will not beget a Republican-leaning state such as Missouri not retaliating by finding that Biden is also giving comfort to America’s enemies across the southern border?  As I previously wrote, “down that path lies nothing good for democracy.”

The doctrinal mooring for this institutional concern is unclear.  There is reference in Section 3 of the ultimate power of Congress to oversee disqualification and there is the general enforcement provision in Section 5 of the Fourteenth Amendment which places the implementation of constitutional guarantees in the hands of Congress as well.  Perhaps, as I have suggested previously, the Court might find that Colorado and Maine were not free to act absent congressional implementation.  What became clear at the oral argument was that the Court, perhaps even unanimously, recoiled with some horror at the prospect of a balkanized electoral system using disqualification to predetermine electoral results.  There was no mistaking the institutional tones in the questions, particularly those of Chief Justice Roberts, and Justices Kagan and Barrett.

The (F)utility of Militant Democracy

More troubling than the doctrinal nuances is a deeper question about whether disqualification or exclusion of insincere democrats can really work.  Every European country now has some form of militant democracy power in its arsenal.  Yet the examples of successful use are scant.  It is possible to ban parties that have their loyalties manifestly with the enemies of democracy.  In Germany, the banned Socialist Reich Party was an obvious invocation of the Third Reich, complete with symbols, uniforms and ideology.  Similarly, the German Communist Party was dissolved in 1957 upon a finding that it served as the propaganda arm of East Germany, at the time a foreign enemy.  These examples say little about the new populist parties that are not loyal to alien authority but emerge from vehement opposition within the current democratic order.  And, in reality, by the time of the banning of both the Socialist Reich Party and the Communist Party, West German democracy was consolidating with strong military oversight from NATO.  The party bans played no major role in democratic stabilitzation.

Militant democracy tends to be invoked too early or too late.  Germany may today remove legal benefits from the neo-Nazi National Democratic Party, but that follows an earlier ruling that the NDP was too inconsequential as a political force to justify an actual party ban.  On the other hand, hundreds of thousands of Germans rally to protest the real menace posed by the right-wing AfD.  At this point, however, the AfD has major backing in the electorate and it won the most votes in recent legislative elections in an area which strikingly retraces the map of former East Germany.  It should give pause that 35 years after reunification there is a push to remove the revealed voting preferences of former East Germany from electoral consideration – in the name of democracy, no less.

Which brings us back to Trump.  Only three years ago, then President Trump received close to 75 million votes in his bid for reelection.  He continues to command the Republican Party, a foundation of American democracy for almost two centuries.  Removing him from the ballot in states where Democrats already command might seem expedient but will likely just cement existing divisions.  Democracy must ultimately depend on the collective wisdom of the demos, even in moments of doubt.