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
I want to respond to an argument, exemplified by Ross Douthat's recent column in The New York Times, against using Section Three to disqualify Trump. (Andrew Coan offered some thoughtful comments on that argument in a post the other day). The argument is a practical one that says exclusion is dangerous in a democracy. It's wiser to just let the voters decide. David French has a column responding that this would be "appeasing" Trump's supporters. I don't like that loaded term. I have a different take.
The "let the voters decide" argument is basically just a sophisticated version of kicking the can. Kicking the can is sometimes a wise solution. Maybe things will just work themselves out. Let's take a wait-and-see posture when the action being contemplated is broad. Thus, I understand the skepticism that some people have about disqualification, especially if they have only just started thinking about that option.
The problem is that we've tried kicking the can on Trump's misconduct more than once. And things have gotten worse, not better. Let's go back to February 2020. An argument for a Senate acquittal in the first impeachment trial was "Let the voters decide." And that made sense. It was an election year. The case that Trump committed a high crime and misdemeanor was not so clear. (Indeed, I said in a post here that I was not convinced that he should be convicted.) The voters did decide, but then Trump refused to accept that verdict and (allegedly) committed crimes and (in my view) engaged in insurrection to stay in power.
Now let's revisit February 2021. An argument for acquittal in the second Trump impeachment was "Let the voters decide." He was out of office, so the only point of an impeachment was to disqualify him from serving again. But the next election was three years away. Was it really necessary to bar him from office? Maybe he wouldn't run again. Maybe the voters wouldn't support him. Let's kick the can again. This did not work either. Instead, we face the dilemma of a strong presidential candidate under multiple criminal indictments, which creates an unprecedented and volatile situation heading into next year.
Now many of the same people want to kick the can again. Don't apply Section Three to Trump. Let the voters decide. What could go wrong? At this point, this is just magical thinking. The third time is not the charm.
UPDATE: I've added links to the Douthat and French columns. They are excellent presentations of the opposing views on this issue.