As Donald Trump continues to rack up criminal charges, there is ongoing interest in addressing the threat he poses to American democracy by seeking to keep him off the ballot. One possible means to this end that the prosecutorial choices of special counsel Jack Smith have seemingly foreclosed is to convict him of plotting an insurrection, which would trigger the 14th Amendment’s ban on letting those who “engage in insurrection or rebellion” hold public office.
Elie Mystal, writing in The Nation, argues that it was a reasonable decision for Smith to pursue other charges he is more likely to win:
He’s got Trump, dead to rights, on obstruction; he doesn’t have him on insurrection. Smith is working with the laws and the evidence he has. If he could make a rock-solid case for sedition, I think he would have charged it. He couldn’t, so he didn’t. I can only hope that it is enough.
Mystal, who knows much more about these things than I do, lays out in explicit detail why, even if convicted, Trump will not see the inside of a prison cell before the 2024 election, however much that might help with his fundraising. As things stand now, he writes, “Trump will be allowed to run for president again” and “the prospect of actually incarcerating him while he is actively campaigning for that office is incredibly dim.”
So I say: let Trump run. Let the party’s longtime standard-bearer be its nominee for the highest office in the land. Let us fight him over his lack of moral fitness, his manifest incompetence, the devastating blow he dealt to abortion rights, his sweeping disdain for the rule of law, his promises to again use the powers of his office to seek retribution against his opponents, and the fact that he’s an idiot in the truest sense of the word. But don’t try to keep him off the ballot. It will only make him stronger, and it’s the wrong thing to do.
And yet, people keep trying.
Last month, the advocacy groups Free Speech For People and Mi Familia Vota Education Fund wrote letters to officials in nine states—California, Colorado, Georgia, Michigan, Massachusetts, New York, North Carolina, Oregon, and Pennsylvania—demanding that they “carry out their responsibility” by barring Trump from being on the 2024 ballot for violating the 14th Amendment’s prohibition on insurrection.
“The evidence is overwhelming that Donald Trump incited and mobilized the insurrection on January 6, 2021, at our nation’s Capitol,” said Alexandra Flores-Quilty, campaign director for Free Speech for People. “The US Constitution is clear that anyone who takes an oath of office and then engages in insurrection is forever barred from holding public office again. Election officials must carry out their duty, follow this constitutional mandate, and bar Trump from the ballot.”
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Added Irving Zavaleta, national programs manager for Mi Familia Vota: “Secretaries of state and state election officials are well within their authority to bar former president Donald Trump from the ballot.”
He may be right. But is it a good idea?
Think of what would happen if, say, the secretary of state of New York were to take action to prevent Trump from being on that state’s ballot—for both the primary and likely also general election. It would likely not survive legal challenge, and it would certainly send Trump’s persecution complex into overdrive. It’s a lose-lose, in a situation where we should let Trump do the losing.
But, the counterargument goes, Trump could in fact win the presidency again. The polls are close, voters fickle, and you never know how these things are going to turn out.
That’s right. That’s why we have elections.
Not long before Trump’s third indictment, The Messenger ran an op-ed under the headline, “A Trump Plea Deal That Could Heal the Country.” In the piece, Douglas E. Schoen and John LeBoutillier say the risk of Trump’s being reelected is so great that his ability to run for office should be negotiated away through something known as a universal plea agreement. This would require Trump to plead guilty and accept responsibility in exchange for not going to prison.
Schoen is an attorney and Democratic pollster, LeBoutillier a former Republican member of Congress; both cohosted the Fox News show Political Insiders from 2011 to 2016. They acknowledge the difficulty of what they ask: A universal plea deal would require not just Trump’s cooperation but also sign-off from the prosecutors and judges in each of his three-going-on-four criminal prosecutions. But the pair suggest that Trump might give up the ability to hold public office once the prospect of actually spending time behind bars becomes real to him.
“Mr. Trump may be publicly defiant about his fate in these cases, but privately he must know that his liberty is in serious jeopardy,” they wrote. A negotiated ending would spare us all “the distraction of endless pretrial court appearances, speculation about testimony, witnesses, judicial rulings, jury selection, the trials themselves, the verdicts, and then, of course, the biggest issue of all: the sentencing.”
Political commentator Jill Lawrence, writing in The Bulwark (to which I am a regular contributor), interviews LeBoutillier, who has known Trump for decades, about his op-ed. LeBoutillier says he thinks Trump might just go along, even though he would later deny any wrongdoing and rail against the prosecution. But his necessary guilty plea would be a matter of public record—and the deal would erase the possibility of a second Trump presidency and the dismantling of US democracy that it’s sure to bring. The chance, however remote, that Trump could return as “King Donald, with his own personal army of federal leaders and policymakers to harness the government to the benefit of himself, his family, and his friends and cronies,” is just too great for Lawrence to accept.
“I have no illusions that a universal plea agreement would ‘heal the country,’” she wrote, “but it might head off political, policy, and administrative disasters that would take generations to repair. We’ve got to try.”
Actually, we don’t. And we shouldn’t.
Leaving aside the wild unlikelihood that Trump would ever admit guilt and accept personal responsibility for his misbehavior, there is just too much irony in the idea that people should not be allowed to vote for Donald Trump because of the danger that he poses to democracy.
Trump has, under the law, as much right as anyone to run for president. If he gets enough votes (and not just in his opinion), he can return to office and set about doing all of the awful things he’s promised to do. That’s what democracy is all about.
Trump is never going to withdraw from the race. And even if he were somehow forced into abandoning his candidacy, he would immediately and shrewdly proclaim that he would certainly have won had if only he’d been allowed to compete. Instead of being the former president who decisively lost yet another election, he’d be the guy against whom all charges were dropped just so that he would stop running for president.
The good news is that if Trump loses the election, his conviction and ultimate incarceration are all but assured. As Mystal explains, “Trump’s only defense to these charges is ‘I’m about to be president again.’ Once that is off the table, he’s got nothing else to fall back on.” Not even the Supreme Court is likely to step in and save him.
It’s time to stop trying to dream up ways to keep Trump from running and focus on finding ways to keep him from winning, in as free and fair an election as it is possible to pull off. American democracy might not survive a second Trump presidency. But we must make sure that it survives his third campaign.