The Disqualification Scenario

By Nick Catoggio

Thursday, February 08, 2024

 

The fecklessness and civic corruption of congressional Republicans is an almost inexhaustible topic. But after writing about it for three straight days, I confess to a degree of exhaustion.

 

So let’s keep it light and breezy today by imagining that the Supreme Court disqualifies Donald Trump from being president again.

 

Earlier today, the court heard arguments on whether Section 3 of the 14th Amendment bars Trump from office due to his insurrectionary behavior on January 6. Many brilliant and learned legal minds, including our own Sarah Isgur, have weighed the constitutional merits of the case and ended up on opposite sides. Court challenges to Trump’s eligibility have succeeded in two states and been dismissed in several others. It’s a matter of fascinating academic debate.

 

And it’s all noise. Trump will not be disqualified. What I wrote in December is truer today following his victories in Iowa and New Hampshire: The Supreme Court won’t trigger the gravest crisis of government legitimacy since the Civil War by kicking the presumptive Republican nominee off the ballot nine months before Election Day.

 

Whether it should makes for a fine watercooler conversation in the local law school faculty lounge. Whether it’s ever proper for a court to let political considerations influence its jurisprudence is heady stuff for a colloquy among legal theorists. But the result of the case is not in doubt. Trump will win, probably with at least one vote in his favor from the liberal justices. Any suspense about the outcome has to do with how close to a 9-0 ruling John Roberts can get.

 

Which is a bummer, and for more than one reason. There’s no news development less inspiring for a pundit to write about than “Status quo prevails.”

 

Let’s pretend, then. Let’s imagine that, against all odds, five votes materialize on the court for disqualifying Trump. The three liberals somehow persuade Brett Kavanaugh and Amy Coney Barrett to pull the plug on the man who appointed them. (Normally Roberts would be the first target for a crossover vote, but the chief is famously an institutionalist. He won’t compromise public respect for his court by moving to oust Trump.) Americans wake up one day this spring to find that the odds-on favorite to become the next president has been excommunicated from politics. What happens then?

 

A lot of stuff happens then, and none of it is good. Today won’t be so light and breezy after all.

 

***

 

There are many moving parts in the disqualification scenario. Let’s tick through them one by one.

 

I. Trump.

 

No one is more dangerous than a sociopath with nothing to lose. And if SCOTUS disqualifies him, Trump would lose more than just his career.

 

Part of the reason he’s running for president again is to grant himself a “get out of jail free” card. If he wins reelection, he’ll have the federal criminal cases against him dismissed and will move to have the criminal cases against him in New York and Georgia suspended, alleging that to proceed would make it impossible for him to carry out his duties as president. He’ll win that argument.

 

If he’s disqualified from office, all of that goes up in smoke. The power to spare himself from prison would be yanked from his grasp.

 

He won’t react well. Trump is a manchild so obsessively vindictive that the actual theme of his presidential campaign is “retribution.” If he’s kicked off the ballot, retribution will consume whatever’s left of his rational mind. He’ll want to see the country burn for having thwarted him, just as he wanted to see his vice president hanged on January 6 for doing so.

 

And there’ll be nothing to restrain his most destructive impulses this time—no prospect of holding future office that might encourage him to play nice and certainly no altruistic concern about sparing America from civil unrest. Any fear of being prosecuted for incitement to violence might also evaporate as it dawns on him that he’s likely to face prison anyway from one of the other pending prosecutions.

 

Even if he doesn’t explicitly ask his diehards to riot, some will oblige him. There’s no harsher indictment of the state of the right than the fact that it’s all but universally assumed that grassroots Republicans will begin breaking things if their hero is held legally accountable for the coup he tried to stage.

 

Violence will be one part of Trump’s response, but there are others.

 

His political goal, short of maximizing the chaos inflicted on a constitutional order that defied him, will be to delegitimize the coming election. Naturally, he’ll ask his fans not to vote in November; the whole point of the “Republican hostage crisis” since 2016 is to teach conservatives that they can’t and won’t win elections unless he’s in charge. Being thrown off the ballot by SCOTUS will require Trump and his supporters to prove they’re willing to finally shoot the hostage.

 

In fact, I’d expect him to demand that the Republican Party protest the court’s ruling by refusing to choose a replacement nominee. The last thing he would want to come from all this is his substitute on the ballot defeating Biden and becoming the new locus of power in the GOP. Yes, granted, Republican victory in November would guarantee Trump a criminal pardon, but at what price? He’d have lost his crown. For a narcissist, that’s a fate worse than death.

 

His movement is a cult, and you know how cults tend to end. The Jim Jones of the GOP would doubtless prefer to see Joe Biden win handily in an election that will forever carry an asterisk due to a widespread boycott by Republican voters than to see Ron DeSantis usurp him. Trump has spent four years claiming that the president didn’t win his first term fair and square; he’ll be quite comfortable spending the next four the same way.

 

II. Legislatures.

 

It’s almost too obvious to mention, but here it is: Trump being disqualified from the ballot on “insurrection” grounds would instantly trigger an effort in red states to disqualify Joe Biden for the same reason.

 

Forever desperate to ingratiate himself to populists, the always thirsty DeSantis has already floated the possibility. “Could we just say Biden can’t be on the ballot because he let in eight million illegals into the country and violated the Constitution, which he has?” the governor wondered in December. Retribution and delegitimization—that would be the essence of Trump’s response to being struck from the ballot and so it would also be the essence of the response among state-level GOP apparatchiks.

 

We might even hear semi-serious chatter in red-state legislatures about seceding, reasoning that a country that would bar its people from electing a candidate whom a near-majority supports is no longer meaningfully a democracy. Opportunistic Republican officials would flog it ceaselessly, angling to one-up each other in the endless game of “who’s most theatrically outraged at the libs?” that ambitious right-wing politicians play to build a national profile. 

 

Propelled by that dynamic, and egged on by Trump, there’s no telling how much steam the secession push might build.

 

Meanwhile, Republicans in Congress would be looking to leverage the text of the 14th Amendment. Section 3 provides that a candidate for office who’s disqualified due to insurrection can be reinstated if two-thirds of the House and the Senate agree. “For the sake of civic harmony and public faith in our democracy, we must reinstate Trump,” congressional Republicans would say, setting up a win/win for them. Either Democrats will agree and join the GOP in restoring Trump to the ballot or they’ll refuse, shifting the focus of right-wing anger over Trump’s disqualification from a relatively  sterile political target like the Supreme Court to a much juicier one, the Democratic Party.

 

What would congressional Democrats do?

 

A few would say “you’re right” and reluctantly support the Republican effort for the good of the country, I suspect. But most would decline. They won’t want to absolve a repulsive demagogue from the legal consequences of his coup attempt, and they surely won’t want to face the wrath of Trump-hating Democratic voters demanding that they not rescue an authoritarian at the very moment the country finally seems to be rid of him.

 

Even the cynical argument that Democrats should want to face Trump in the general election because he’s the weakest potential nominee wouldn’t move them. For one thing, the likelihood of multiple constitutional crises in his second term has hopefully scared liberals straight about wishing to see him back on the ballot. For another, to the extent Trump was ever a pushover in November, he no longer is. If anything, the prospect of a MAGA boycott of a Trump-less election would arguably ensure a Democratic win. He’s the weakest potential Republican nominee if and only if GOP voters turn out at the same rate for all potential Republican nominees. But they assuredly will not.

 

So congressional Democrats would block the Republican effort to reinstate Trump. And the American right, which already perceives his legal ordeal as little more than a left-wing ploy to rig democracy in their favor, will feel confirmed in its suspicions.

 

III. The Republican Party.

 

The leadership of the GOP will face two impossible choices after Trump is disqualified. Do they dare nominate a replacement? If so, who?

 

It seems preposterous that one of America’s major parties might choose not to offer a candidate for president, but the reality of the party’s long-running hostage crisis argues in favor of it. The calculus for the Republican National Committee and other leaders would be this: If it defies Trump’s wishes (unlikely!) by nominating Nikki Haley or Ron DeSantis instead, will it alienate his populist base so enduringly that it ends up losing multiple elections because of it?

 

Forfeiting 2024 is crazy … unless refusing to forfeit leads to losing in 2024 and 2028 and 2032 and so on.

 

Besides, leaving Trump on the ballot even though he’s ineligible to serve could work out for them. He might get more electoral votes than Biden anyway, which would mean either Trump’s Republican vice president takes power next year or Joe Biden suffers the ultimate crisis of legitimacy by serving a second term despite having lost the election. I say “either” because no one knows how the law would work in this circumstance. Such absurd questions are yet another perverse civic bequest of the Republican electorate’s absurd fascination with an absurd person.

 

Let’s say the RNC decides that the party must have an option on the ballot, though. “America can’t survive another term of Joe Biden, we need to win the White House to exact revenge on the courts and on Democrats for cruelly striking Trump from the ballot,” yadda yadda. Who should be the nominee?

 

Nikki Haley? She’s guaranteed to finish with the second-most delegates of any primary candidate, but a refugee from the pre-Trump GOP establishment seems singularly ill-suited to unite a party furious at Trump’s disqualification from the ballot. She’s the candidate of college graduates in a movement dominated by working-class populists. Her popularity has slipped since becoming Trump’s last obstacle to the nomination too, enough so that she got crushed a few days ago in Nevada’s primary by “none of the above.” Replacing Trump with Haley would lead the Steve Bannons of the world to howl that the substitution amounts to nothing less than a “uniparty” coup.

 

Ron DeSantis, then? The governor of Florida may be the Republican best positioned on paper to unite a fracturing coalition of populists and conservatives. But he ran a terrible campaign distinguished by infighting and wasteful spending and arguably underperformed expectations more pitifully than any candidate in modern political history. Despite claiming to have been more electable than Trump, by the end of his run he performed worse against Biden head-to-head than Trump does and considerably worse than Haley does.

 

It’s not clear to me that he’d even accept the GOP nomination if a disqualified Trump insisted that the party not replace him on the ballot. DeSantis is a young man whose future has already been damaged by challenging Trump this cycle. Why would he damage that future further by agreeing to fill in as nominee, only to lose the general election badly anyway when you-know-who demands that his supporters not turn out to support a “traitor”?

 

It may be that GOP chieftains would conclude that their one plausible option to replace Trump is Donald Trump Jr. (They wouldn’t even need to change the name on the ballot!) Only someone from within the family, of the royal bloodline, might prove acceptable enough to the king to dissuade him from commanding his populist troops to shoot the Republican hostage in November.

 

IV. Joe Biden and the Democratic Party.

 

The president would face an immediate conundrum after Trump’s abrupt court-ordered exit from the race. Is there anything he could do to try to calm the country, especially the American right?

 

He could pardon Trump as a gesture of goodwill. But if he does that, suspicions that the federal cases against him were mere political ploys would deepen. Why was a pardon warranted the moment Trump was no longer a candidate for office and not before?

 

Democrats would face their own crisis following Trump’s disqualification. Namely, do they want to stick with a nominee who can’t remember when his son passed away and keeps recounting recent conversations he’s had with foreign leaders who died years ago?

 

The argument for renominating Joe Biden in 2024 has always been shaky, but there’s logic to it. He defeated Trump once before, after all. And the advantage of incumbency is no small thing to concede when the other guy on the ballot is an authoritarian scheming for ways to consolidate power once he’s elected. The risk of a second Trump term is already unacceptably high; ushering a sitting president toward the exit in the idle hope that Kamala Harris or Gavin Newsom would do better in November makes it that much higher.

 

But if the Supreme Court were to suddenly eliminate that risk, the calculus would change. Running Gavin Newsom is less existentially risky when the alternative is President Nikki Haley, not President Donald Trump.

 

The question is what Biden’s polling might look like after Trump’s disqualification. It’s such a black box that I think one can plausibly argue that his chances at reelection would soar—or crumble.

 

The “soar” scenario is straightforward. After Trump orders his supporters to boycott the election in protest, support for the Republican Party’s new nominee (assuming there is one) collapses. Millions of right-wing populists resolve to either stay home or to divert their votes toward writing in Trump; meanwhile, violence committed by rogue Trump supporters drives a backlash toward the president among frightened undecideds. Biden quickly opens a double-digit lead over his new GOP opponent and never looks back.

 

But the “crumble” scenario is also easy to imagine. First, swing voters angry at seeing a major candidate lawfare-d off the ballot in the thick of a campaign shift to the GOP. So do the so-called “double haters” who dislike both Biden and Trump; with the latter no longer a candidate, they start to view the election as a pure referendum on the president and swing toward the right decisively. Then populist Republicans who were swayed initially by Trump’s pleas to boycott the race begin to have misgivings, irritated by the thought of handing Biden a second term on a silver platter simply to spite the Supreme Court. Grudgingly, they too begin to back the new GOP nominee.

 

The coup de grace comes when progressives disgusted with Biden over the war in Gaza and numerous other minor ideological betrayals desert him en masse, no longer driven by the specter of Trump on the ballot to hold their noses and vote for their party’s nominee.

 

As Biden’s polling tanks, anxious Democratic leaders are left wondering whether an eleventh-hour replacement as nominee wouldn’t be the most judicious move. A pressure campaign at the top quietly begins to convince him to step aside, driven by the reassurance that Trump won’t be president again if he does.

 

Before you know it, a campaign between two men whom most of the country dislikes will have transformed into a campaign between Kamala Harris and Nikki Haley. Two women whom, er, most of the country dislikes.

 

***

 

The bottom line on Trump being disqualified is that it would instantly become impossible for the outcome of the election to be seen as legitimate, regardless of who won.

 

If Democrats defeated a Trump-less GOP, Republicans would insist that their chosen nominee would have prevailed. If a Trump-less GOP defeated the Democrats, liberals would insist that they would have prevailed over a weakened, legally compromised Trump.

 

Of course, the outcome of the election won’t be seen as legitimate if Trump isn’t disqualified either. If he runs and loses, Republicans will claim that years of lawfare unfairly undermined his campaign. If he runs and wins, Democrats will claim that he should have been deemed ineligible under the 14th Amendment to begin with.

 

There’s no truly good scenario, but there never is anymore. A politics deformed by corruption and authoritarianism, and then by hamfisted institutional attempts to restrain it, is a politics where all possible outcomes are merely different shades of bad. It’s very third-world. 

 

But it’s also academic. As I say, the Supreme Court won’t disqualify Trump. The particular form of illegitimacy produced by the election will be one in which he remains a participant. Lucky us.