Symposium on The Legacies of Trumpism and Constitutional Democracy in the United States | Part II | The Dilemma of Democratic Disqualification: The New Trump Impeachment Process in Comparative Perspective

[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a five-part symposium on the state of US constitutionalism after Trump. The introduction to the symposium can be found here.]

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—Aziz Huq, University of Chicago Law School; David Landau, Florida State University College of Law; and Tom Ginsburg, University of Chicago Law School

What role should disqualification from public office play in a democracy? The question is as old as democracy itself. The Cleisthenic democracy of fifth-century Athens had a procedure called ostraka. Once a year, the Assembly was asked whether it wished to conduct an ostracism. If the Assembly assented, votes would be cast by placing an ostraka, or potsherd, scratched with the name of one citizen who would be exiled from the polis for ten years (although not deprived of his property or his name). No less democratic a solution to the problem of toxic leadership might be imagined—perhaps. But consider the case of statesman and general Aristidies the Just. Having commanded navies against the Persian host, he was stopped by an illiterate fellow citizen, and asked for help spelling the name “Aristides” for an ostraka. On being asked why by the puzzled general, the ignorant citizen explained: “I’m sick of hearing him called the just.”    

The obvious place to begin thinking about disqualification in a contemporary context is, of course, impeachment. In an earlier article, we indeed explored the problem of impeachment from a comparative perspective. In that piece, we found that impeachment processes often have pro-democratic effects (or at least tend to avoid anti-democratic ones), although there may be democratic risks posed for countries that rely on the process too frequently. We also found that impeachment serves a fundamentally political role as an exit from severe political crises. Further, we suggested that politics is a hard constraint on the process regardless of sanctionable conduct by chief executives. Impeachment processes tend to succeed only in cases where the members of a president’s own party or coalition turn against him or her.

Unlike last year’s impeachment over the Ukraine call, where Trump enjoyed nearly monolithic support from his own party, this time it seems that the political calculus for Republicans have shifted, at least to a degree. Ten Republican members of Congress defected in the impeachment vote in the House, making it the most bipartisan presidential impeachment in history. Senate Republican leader Mitch McConnell seems to be openly weighing conviction as a weigh to lessen Trump’s future influence over the party. The result of the changing calculus is a possibility (even if a slight one) that a second trial may succeed at obtaining the two-thirds vote required for conviction; a possibility that was entirely absent from the first trial held last year.

The most striking thing about the second Trump impeachment (which is only the fourth presidential impeachment in US history) is that its obvious ambition will be to disqualify Trump from seeking future office. Removing him is irrelevant since his term has already concluded by the time the impeachment trial has begun. The U.S. constitution is explicit that judgment of conviction by the Senate for impeachment offenses includes two possible consequences: removal from current office and disqualification from seeking future ones. Scholars and practitioners have begun debating, drawing upon text, history, and function, questions about the procedures and voting thresholds needed to impose disqualification;[1] some have also debated whether an impeachment trial may even be held after a president has left office, and thus where disqualification is the only potential penalty.

There are a surfeit of good reasons for the disqualification of President Donald Trump from further public office-holding. But the dazzling simplicity and asymmetrical clarity of the instant case before us should not occlude the difficulty of the rather more general question of democratic disqualification in democratic regimes.  As Aristides reminds us, it is not at all obvious when and how should a democratic constitution, if ever, countenance disqualification for public office. Not every impeached president has a “movement” that tilts against the institutional pivots of democratic choice (today, with Quixotic abandon, tomorrow perhaps with more effectively lethal force).  The Trump case raises a general issue of backlash from the excluded person, introducing political considerations as an inevitable element of the calculus as to when to exclude.  We leave this issue aside for now. Instead, in this brief blog post, we offer some preliminary considerations in the positive and normative analyses of disqualification rules.  Our aim, to be clear, is not to offer any definitive answers, but instead to offer a framework for thinking about the problem of disqualification.   

Democratic institutional design entails a series of boundary choices.  A great deal of attention flows to the threshold question of qualifications for belonging to the polity, to the enfranchised portion of the polity, and to the slice of the polity entitled to stand for public office. At the outer edge of all these questions is the so-called “boundary problem”: If the normative basis for democracy rests upon its enfranchisement of all those affected by a state’s decisions, then should not “all affected interests” be entitled to participate?  A negative correlate of this pressure is the risk of ends-oriented gerrymandering of the polity redounding to the benefit of established elites. For many over time, from Athens’ metics and London’s Chartists to Birmingham’s African-Americas, the democratic boundary has been a line carved to exclude and to entrench a regressive and repressive status quo.  Drawing democratic bounds necessarily implicates both an exercise in core self-determination and the possibility of a invidious entrenchment in political power.

Nor is the determination of outward facing limits the only point this problem arises. In a softer form, the same Janus-faced problematic is raised by gerrymandering within a single-member districted electoral system. It is also implicated, as U.S. Commerce Department has realized as, by the decision of how to measure baseline population for apportionment purposes. More circuitously, determinations of who can be members of a new polity does too. It’s not incidental to the quality of early democratic rule for example, that the first American law of naturalization in 1790 was limited to white applicants only.

These are cases in which the entry conditions of democracy are being spelled out. Disqualification rules can be understood as their functional inverse: a specification of when mandatory exit from the polity can be compelled. Like the entry-related cases, exit-related rules have a dual character. On the one hand, disqualification might be a necessary defense mechanism in an imperiled democracy; they define the outer bounds of permissible conduct within the polis. Alternatively, it might be an instrument for entrenching one faction in power. But while entry-related rules have garnered a considerable degree of attention, exit and disqualification have yet to receive systematic attention as an important margin in the design of democratic constitutions.    

This is understandable. The exit-related margin of democracy sweeps in otherwise diverse set of design decisions—term limits, the punishment for specific officials’ wrongdoing, transitional justice lustration measures, and felon disenfranchisement provisions—under a single rubric. Even in the famously terse U.S. constitutional text, the issue is raised by a seemingly unrelated collection of elements: the impeachment provisions; the voting rule for the expulsion of representatives from Congress; the implicit embrace of felon disenfranchisement; the broad power of states over election processes; the disqualification of officials who support insurrections (applied only to former Confederates, and then from 1868 to 1872; and (negatively) the prohibition on bills of attainder. As illustrated by the current debate about the Fourteenth Amendment’s application to President Trump for his “aid and comfort” of an insurrection, some of provisions are at least potential substitutes. States can produce these restrictions too. Should President Trump be convicted of a state criminal offense, one might imagine that sufficient states enact new restrictions on felons’ eligibility to appear on the presidential ballot that he would be unable to really run again. These different elements of a constitution have been addressed separately, without thinking about unexpected interaction effects.   

The design of each of these disparate mechanisms, therefore, raises parallel questions of when and how a polity can purge itself of perceived endogenous hazards. As such, they present a similar moral and predictive dilemma: Like any decision about the design of a constitutional auto-immune response, they raise in acute form the practical problem of calibrating a democratic defense mechanism that is sufficient for prophylaxis, but not so robust as to cascade into sepsis. The ensuing question is in part empirical—resting on estimates of the likely effect of different arrangements—but also normative.  Rather like the familiar question of when and how democracies should be able to set their own borders, it at once embodies a matter that seems at the heart of democracy’s self-authorship and simultaneously the kernel of its unravelling. 

In future work, we hope to explore these questions; this blog post, however, should be taken more simply as a promissory note of the theoretical and practical questions raised by democratic disqualification. 

Suggested citation: Aziz Huq, David Landau, and Tom Ginsburg, Symposium on the Legacies of Trumpism and Constitutional Democracy in the United States — The Dilemma of Democratic Disqualification: The New Trump Impeachment Process in Comparative Perspective, Int’l J. Const. L. Blog, Jan. 21, 2021, at: http://www.iconnectblog.com/2021/01/the-dilemma-of-democratic-disqualification-the-new-trump-impeachment-process-in-comparative-perspec/

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[1] Historically, the Senate has rarely bothered with disqualification, focusing instead on removal. Alcee Hastings, for example, was impeached as a federal judge in 1989 for alleged bribery and perjury, before winning election to the US House of Representatives in 1992. But in the two cases where the Senate did disqualify judges from future office, it held two separate votes, a first on conviction and removal, and a second on disqualification. Also, while it required a two-thirds vote for conviction and removal; it considered a simple majority vote sufficient for disqualification. See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 80 (3d ed. 2019).