Later this month, the Senate will come back into session and will soon consider whether to convict Donald Trump, following his bipartisan impeachment by the House of Representatives. The Senate must vote to convict Trump, even though by then he will be out of office and a private citizen. The reason is that only by convicting Trump can the Senate proceed to an even more important vote: to disqualify him from ever holding public office again. And this is absolutely necessary for preserving American democracy in faith with the history, and the principles, that undergird the United States Constitution.
Disqualification may seem, at first glance, like simple retribution or partisan posturing. It is anything but. Disqualification is in fact the fulcrum on which the Constitution’s democratic institutions, and its underlying theory, turn. Its roots run to the ancient observations about democracy’s core fragility that guided the Framers in their design of the Constitution. In this president’s case, disqualification is imperative, fulfilling the Constitution’s essential purpose of defending democracy from the most lethal foe: a homegrown demagogue like Trump.
Ancient philosophers and statesmen saw such demagogues as keys to a devastating “cycle of regimes.” The Greek historian Polybius observed that a demagogue who was “sufficiently ambitious and daring” could capture the people’s favor, where they “once more found a master and a despot.” What followed the demagogue’s “reign of mere violence”? “Tumultuous assemblies, massacres, banishments.”
Ancient Athens had tried to break this cycle. After suffering through ruinous wars and rampant corruption brought on by a spate of demagogues, Athens passed a law allowing citizens to vote, using small pieces of pottery on which they scratched names, to ostracize—to exile for 10 years—any politician “violating democratic principles.” As The Economist recently noted, Athenian ostracism was equivalent to impeachment and was “at the heart of the Athenian political system.”
The Framers knew this, and this concept made its way into their work. In “Federalist No. 1,” Alexander Hamilton writes, “Of those men who have overturned the liberty of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.” And in the last Federalist Paper, No. 85, Hamilton urged the adoption of the Constitution’s checks and balances to protect against the “military despotism of a victorious demagogue.”
Article I of the Constitution not only allows Congress to impeach the president by a majority vote in the House and convict him by a two-thirds vote in the Senate. It also gives the Senate the opportunity to deliver an additional, more profound remedy, with only a majority vote: “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” (On the question of whether Trump can be disqualified after he’s a private citizen, the constitutional authority Michael Gerhardt has persuasively argued that a president who “leaves office and retains the potential to return someday should still be subject as well to the unique processes set forth in the Constitution to sanction his abuse of his office.” Moreover, as Harvard Law School’s Laurence Tribe has recently written, “The clear weight of history, original understanding and congressional practice bolsters the case for concluding that the end of Donald Trump’s presidency would not end his Senate trial.”)
By giving Americans the drastic option of not only removing an impeached president but permanently excising them from formal politics altogether, the Framers were following the ancient model and providing a structural solution to the problem of the demagogue-cum-tyrant.
Trump is the exemplar of the ancient menace, insatiable for power. Too little attention has been paid to the connection between the January 6 putsch and Trump’s deployment of federal forces (including DHS personnel and a U.S. Army helicopter) to clear out peaceful protesters in Lafayette Square last summer. Or his deployment of federal forces in Portland, Oregon, wearing combat fatigues and lacking identification, last summer against Black Lives Matter protesters, in violation of the Posse Comitatus Act preventing the deployment of military forces on domestic soil.
Optimists might think the conviction will be enough, the additional measure of disqualification a bridge too far. But neither Trump nor the mob that supports him has any intention of disappearing from public life. He told us himself, tweeting two days after the putsch: “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”
And, as the Cook Political Report’s Dave Wasserman noted, “If you don’t think Donald Trump could reemerge as a formidable candidate for the presidency in four years, you haven’t been watching the last four+ years.” Moreover, Trump is still quite popular: 74 million Americans voted for him; a recent HuffPost/YouGov poll found that 46 percent of Republicans said the insurrectionists “went too far, but they have a point.”
Disqualification would recognize Trump not as someone to put in the country’s rearview mirror, but as a tumor that must be removed from the body politic. The country is, at this moment, under attack from the very enemy our Founders feared most. So we must inoculate democracy with the strongest medicine they gave us. History shows no other way of breaking the cycle that has haunted democracy since its inception.