The Historical Precedent for Trump's Disqualification

with David Kaiser

The attempt to disqualify Donald Trump from the presidency may be extraordinary, but it is not quite unprecedented. We did have a civil war in this country, and in its aftermath, as the historian David Kaiser reminds me, some former Confederates were disqualified from public office under the new 14th Amendment. They had rebelled against the US government, and the Senate deemed them too radical to qualify for the post-war exemptions offered to most other rebels.

Even if we could agree that the events of January 6, 2021 constituted an “insurrection” (and I don’t know that they did), comparing them to the Confederacy’s rebellion against the Union seems wildly overblown. In this clip from this week’s episode, David does not argue that the two things are comparable in a general sense, only that the same principle was violated in both. If you believe that Trump had a hand in fomenting the January 6 riot and directing the rioters to stop the election certification, if you believe his communications with state governments during the ballot counting rise to level of interference, then perhaps you’ll agree with David that he should have been disqualified from the presidency three years ago.

But as I’ve already said, disqualifying Trump would, I believe, pose an even greater threat to democracy than allowing him to run despite the possible constitutional issue. We know that tens of millions of voters want to elect Trump. They have their own ways of reckoning with January 6. If we held the general election today, there’s a very good chance they would put him back into office. Now the Supreme Court—the least democratic branch of government—is being asked, essentially, to decide whether or not those voters will get to have their say.

We find ourselves at a dismal crossroad, where an arguably legitimate legal case for disqualifying a popular candidate diverges from the will of a great many American voters. We can only choose one of those paths—in fact, “we” are not doing the choosing, the Court is. Despite my agreement with some of their recent rulings, I do not believe this choice should be theirs to make. I can only hope they have the wisdom to understand the consequences of their decision.

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This is a clip from the episode that went out to paying subscribers on Monday. To get access to the full episode, as well as an ad-free podcast feed, Q&As, and other exclusive content and benefits, click below.

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GLENN LOURY: We should talk about the book, [States of the Union]. But I want to ask. You've just written a book focused around the US presidency and the remarks that people make from that lofty position. And we're in the midst of a campaign. We're in a campaign year. The Supreme Court is going to hear challenges to the Colorado disqualification of Trump from the primary ballot based on the fact that he supported insurrection, interpreting the 14th Amendment of the US Constitution, which I'm sure you're intimately familiar with.

What do you make of that? I have taken the position, I'll just say for the record, that I don't know from the 14th Amendment. I'm not going to claim to be a historian or a constitutional lawyer. I can see that there'd be arguments. But what seems very clear to me is that if you disqualify Donald Trump from participation in the 2024 election based upon that, you're making a grave mistake in terms of the legitimacy of our institutions.

It's not just that you're giving ammunition to Trump to trumpet that he's been made a victim. You're basically telling the electorate that the Democrats are going to continue to govern the country and that the strongest opponent to their program is not going to be allowed to stand. And that strikes me as a disaster for the country. Please tell me where I'm wrong.

DAVID KAISER: All right. Let me say that some of what I say may be in the devil's advocate role, which you enjoy so much yourself. My blog where I try to post every week is called History Unfolding. I blogged about this, and I did so with the help of a short article about the history of that clause, which was very good and explained how that clause was applied after the Civil War as it was.

And what the clause said was that anybody had first taken an oath to support the constitution and who had then participated in an insurrection was ineligible to hold any federal or state office. End of story. And they could only be relieved of that disability by a two-thirds vote in Congress. Which in fact is what happened in 1872, only a few years later, when almost all the former Confederates were pardoned, in fact, by two-thirds majority of Congress. It was a big step towards the end of Reconstruction. But meanwhile, they had all accepted that, and they identified 67 cases where people had tried to take some office who had been part of the rebellion, and they were disallowed from doing so by state courts or by federal courts or in one case by a state official. And they did not have to be convicted of insurrection, you see, because disqualification from office isn't a criminal punishment.

So what I said in the blog is the originalists on the Supreme Court are going to have a problem with this case, because what the Colorado court did and what the official in Maine did is totally within the precedent of what was done after the Civil War.

Now, here's the problem. The circumstances matter. There wasn't any doubt at the time of the passage of the 14th Amendment that we had a huge insurrection, and there wasn't any doubt who would have been part of it. Anybody who served in the Confederate army, in the Confederate government, obviously. It was a prima facie case. Things aren't quite as clear now, obviously. Plus nobody could deny, even if you were sad the South lost or whatever, that there had been this war and that they had lost. So that was straightforward.

Now today that's not so straightforward, because we don't have the same political consensus about what happened and who won and who turned out to be an insurrectionist because they lost instead of a freedom fighter if they had won. This is all part of the collapse of our institutions which I talked about in the latter stages of the book in connection with the election of Trump. Trump was a total outsider, and in 2016 neither political party could come up with somebody who could beat him. That showed that our political order was in a state of collapse.

And in some ways that's continued. In some ways it's gotten worse. The great tragedy was that Mitch McConnell, in January of 2021, lost his nerve, was not willing to rally enough Republican senators, as I'm sure he could have, to convict Trump in the second impeachment trial, which would have ruled him out as a candidate for all time.

You think he should have been defeated?

Of course. I think he should have been convicted. And yes, he was clearly guilty. He should have been convicted, and we would have been through with that. But they didn't do that.

I'm sorry to interrupt. What was he guilty of that ought to have been ratified by the second impeachment?

What was he guilty of? He was guilty of illegally trying to overturn the results of the election, including the incitement of the insurrection. And if that isn't a high crime or misdemeanor, I don't know what is. And remember, a majority of the Senate agreed with that. That's not a trivial fact, even though you need two thirds of the Senate to convict.

Again, forgive my naiveté, and I maybe expose myself to certain kind of criticisms, but what were the high crimes and misdemeanors of which Trump was guilty in his resistance to ratification of the November 2020 election results?

He attempted many ways to overturn the result of the election in about half a dozen states.and to get Mike Pence to take an unconstitutional step to refuse to certify the results of the election. And the incitement of the mob to go into the Capitol and try to intimidate the Congress or whatever into doing his bidding.

“Peacefully and patriotically assembled.”

That didn't look to me to be peaceful.

But those were his words. He didn't say, go down there and make a ruckus of things.

He used words like “fight.” I haven't prepared a full bill of particulars here. But I think what he wanted was clear enough. Also, his reaction to it when it happened made that clear, his long delay in making any statements.

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