Some advocates for Donald Trump have argued that, regardless of what the former president did, it is too late for the Senate to convict him and disqualify him from being president again, because his term has expired. Others argue that it is too early—that Democrats are improperly trying to supplant the will of the people by preventing Trump from running for a second term in 2024. Trump’s new lead lawyer, David Schoen, has made both arguments.
The too-late argument has already been thoroughly rebutted. The too-early argument is just as wrong and dangerous. The notion behind it is that no one should prevent voters from deciding whom they want for president. Schoen contends that barring Trump from running again is “about as undemocratic [as] you can get, a slap in the face to the 75 million people who voted for Donald Trump.” It is very much not that. It is enforcing one of several rules in the Constitution that preclude certain people from running for and becoming president, regardless of what voters may want.
Perhaps the largest group of Americans who are constitutionally ineligible to be president are the tens of millions of naturalized citizens who were born in another country and immigrated here. The Constitution requires that the president be a “natural born Citizen.” This excludes, for example, former Governors Arnold Schwarzenegger and Jennifer Granholm, Senator Mazie Hirono, and the two-time Cabinet member Elaine Chao from eligibility, no matter how many people would want to vote for them. The same ineligibility applies to scores of accomplished immigrants, including business leaders like Elon Musk, distinguished professionals like the brilliant appellate attorney Miguel Estrada, and too many Nobel Prize winners to name just one.
In addition, even if you were born here, the Constitution says you must have resided in the United States for at least 14 years to be eligible to be president. No exception is made for anyone who was born here but who has lived and worked abroad for all but 13 years and 11 months, no matter how many Americans would vote for such a person. What difference that one extra month would make to the person’s ability to be a good president is indiscernible.
Another large group that the Constitution makes ineligible to be president is Americans who are younger than 35. That would have prevented 33-year-old Senator Jon Ossoff of Georgia and eight newly elected members of the House from running in the 2020 presidential election, should they have wanted to.
Perhaps the most significant ineligibility in practical terms is the two-term limit set in the Twenty-Second Amendment. Without that limit, Presidents Barack Obama, Ronald Reagan, and others might well have been elected to additional terms. This is also, perhaps, the restriction with the most significant theoretical underpinnings: The term limit is meant to safeguard against a potential tyrant, even or especially one who is very popular.
Indeed, many of the Constitution’s limits on presidential power were designed to protect against popular demagogues. As Alexander Hamilton explained in “Federalist No. 1,” “Of those men who have overturned the liberties of Republics, the greatest number have begun their careers by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”
(Also, although not an ineligibility, the Constitution can prevent, via the Electoral College, those who run and actually do win the popular vote from becoming president, as the 2000 and 2016 elections demonstrated.)
In addition to the list of people who are ineligible for reasons of mere demographic chance, the Constitution adds a category of people who cannot be elected as a result of their misdeeds. This category includes presidents (along with vice presidents and federal “civil officers”) who are impeached, convicted by two-thirds of the Senate, and disqualified for serious misconduct committed while they were in office. Like the two-term limit, this limit protects the country from potential tyrants.
Beyond being, in constitutional terms, an expressly available remedy, disqualification is an essential deterrent against a president who contemplates serious misconduct near the end of a term. The Framers knew that great power—and the desire to retain such power—often corrupts. As Elbridge Gerry told the Constitutional Convention, “A bad [president] ought to be kept in fear of” the impeachment process. A crucial part of that fear is potential disqualification. This is because disqualification of a president constitutes, as Hamilton wrote in “Federalist No. 65,” “a perpetual ostracism from the esteem and confidence, and honours and emoluments of his country.” Any president would want to avoid that fate.
This fear is not hypothetical. On January 22, The New York Times reported that potential consequences from Congress helped dissuade Trump from misusing the Department of Justice to stay in power. According to the Times, as late as January 3, Trump favored appointing a new acting attorney general who would falsely tell Georgia legislators that the DOJ “was investigating accusations of voter fraud” in the state, and that therefore the legislators “should move to void Mr. Biden’s win there”—when, in fact, the department had already investigated and rejected those allegations. The Times warned that, under the plan, the new acting attorney general could have then tried “to stop Congress from certifying the Electoral College results.” Of course, it would be unconstitutional for a federal attorney general to insert himself into a state’s appointment of its electors, much less by lying, and to prevent Congress from counting the electoral votes of all 50 states following each election.
Trump ultimately chose not to pursue this plan, according to the Times, in substantial part because DOJ and White House Counsel leadership put the fear in him of “congressional investigations and possibly recriminations from other Republicans.” One can only imagine what Trump would have done if the Senate did not have the option to convict him or disqualify him from running in 2024.
Ultimately, as with the too-late argument, under the logic of the too-early argument, even a president who in the last month of his first term contemplates subverting our democracy by invoking martial law—or worse—to stay in office would not face potential disqualification from running for a second term. That is both wrong and dangerous.
The Senate must decide on the merits whether former President Trump’s conduct warrants conviction and, if so, disqualification. As with the too-late argument, the too-early argument provides no basis for senators to dodge their duty.