Balkinization: Disqualification Won’t Keep Trump out of the White House

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]