E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Disqualification Won’t Keep Trump out of the White House
Guest Blogger
Tom
Ginsburg
As
the impeachment trial of Donald Trump proceeds, the House managers are arguing
that disqualification from future office is critical for our democracy.It is true that expressing condemnation of
the Capitol riots is a worthy goal.But
keeping Trump out of office will not keep him out of politics, and it won’t
even keep him out of the White House. Trumpism is alive and well in the
grassroots of the Republican party, and likely to remain so for the foreseeable
future.
We
have seen many leaders in other countries, especially populists, who have found
ways to wield power from behind the throne without formal office.In the early 2000s, for example, Jaroslaw Kaczyński served as Prime Minister of
Poland while his brother was President.After his brother died in a plane crash, Kaczyński ran for the
Presidency and lost. But he remains the most powerful person in the Law and
Justice Party, and in 2015, engineered a massive victory, with Andrzej Duda winning the presidency. Some refer to Kaczyński by the
informal title of “Chief of State” even though he has only been an ordinary
member of parliament for most of this time.
Other
leaders have had their spouse or siblings run for office, sometimes when they
are no longer able to. After he was exiled from Thailand in a military
coup, Thaksin Shinawatra changed the name of his political party, and his
sister Yingluck won the prime ministership.Thaksin was widely believed to be calling the shots from Dubai, and
having his sister in office from 2011-2014 extended his influence.It did not end up well for Thailand, which
suffered another coup and remains in turmoil today. Such nepotism seems
attractive to certain kinds of populists and authoritarians, which are both
qualities associated with Trumpism.
Trump
is what the German sociologist Max Weber called a charismatic, which means his
authority doesn’t come from holding office, or from any rational process by
which his followers examine evidence and make a calculation of costs and
benefits. His supporters have so little faith in institutions of any
kind—courts, elections, legislatures, the press—that they believe the word of
their leader over demonstrable fact.This quasi-religious form of Trump’s power is a fact of our national
life now.
With
an audience eager to hear him, any lifetime ban on running for office will not keep
Trump out of politics, and might even help him with his brand of victimhood. He
will still hold rallies and raise money. Indeed, this might be his major source
of income: the line between his personal brand and the political action
committees he controls is nearly invisible, since he can pay himself a salary
and purchase services from his own companies.The Stop the Steal scam has been a lucrative one, perhaps the most
successful of his long career.Politically, he can use these funds as a war-chest to fund his preferred
candidates, and go after disloyal Republicans, such as those who failed to
obstruct the ballot counting on January 6 or dare to vote for impeachment.True, he no longer has Twitter, but he can and will find
other ways of communicating with his many supporters, who heard the “perfect”
speech as a sign of “strength.” When people want to hear something, they will
find a way to do so.
Just
because you can’t run for the U.S. presidency doesn’t mean you can’t move into
the White House. If the Senate disqualifies Trump, imagine that Don Jr., Eric,
or Ivanka decides to run for president; they’d hold the campaign rallies, at
which they would serve as the warmup act for Donald. In the unlikely event they win the presidency,
Donald would be back in the White House as “First Father” and run things from
behind the throne, or perhaps even from the Oval Office—there is no law
dictating who gets to sit there.Indeed,
this might be a better role for Trump than being President, which is a job with
actual duties.There was talk early in
his presidency of him asking Mike Pence to do the day-to-day work while he
focused on making America great again. If he wanted, he could be referred to as
“Dear Leader”: so long as any title does not involve a government appointment
or funding, it would not count as an office of the United States, and so no
disqualification would apply.
To
be sure, a Trump family candidacy could probably not win an American election,
but stranger things have happened. And the family is creating a political
movement to control politics in the many places where Trump remains popular.If the job is to remain relevant while making
money, it would suit Donald Trump perfectly, especially since his actual
businesses are rumored to be in big trouble.Who doesn’t like a good news cycle?
Populist
President Erdogan of Turkey once said: “Democracy is like a streetcar. You ride
it till you arrive at your destination, then you get off.”Trump got off the streetcar this Fall. But
our democracy is not rid of him, and he can still send the rest of us to darker
destinations.
Tom Ginsburg is the Leo Spitz Professor of International Law and Professor of Political Science at the University of Chicago. You can reach him by e-mail at tginsburg at uchicago.edu. Posted
2:10 PM
by Guest Blogger [link]