There is plenty of outrage and anguish being vented in connection with the current election campaign. Social media, the loss of civility, an epidemic of self-righteousness – we’re all convinced that the other side has never been so evil or so crazy, and that we’ve never been so divided. That’s not true; try 160 years ago.
But we do stand on the shore of uncharted waters. No avoiding it: unprecedented questions are ahead and we will have to face them. Let’s examine the prospects without, for today, taking sides.
Just the facts: first, Donald Trump leads the race for the Republican presidential nomination. At this point, I’d say – conservatively — the probability of his being the nominee is about 75%.
Second, he’s being criminally prosecuted, most notably in the District of Columbia for, among others, obstructing an official proceeding, namely the certification of the 2020 election result. Trial is scheduled to start on March 4, 2024.
Trump raised an immunity defense that the trial judge rejected; he has appealed to the D.C. Circuit. The case is on hold pending the appeal. Prosecutor Jack Smith has petitioned the Supreme Court to take the appeal on an expedited basis and without waiting for the circuit court to rule; I expect the Court will agree there is a strong national interest in resolving the criminal case prior to the election and accordingly hear and decide the appeal – and that it will affirm the trial court. Chances of the D.C. criminal trial starting on or soon after March 4th, about 60%.
Third, the outcome: it is very likely – 80% — that a District of Columbia jury will convict Trump, although a hung jury is possible if at least one Trumper is on the panel. The jury need not connect Trump directly to leading or inciting the January 6 attack on the Capitol; there are many other acts alleged in the 45-page indictment, especially concerning attempts to certify false Electors.
Next, the nomination. Thus far, Republican voters have been unshaken in supporting Trump. Despite all the litigation, his support has only grown; Trump has attacked the cases and the legal system itself as a conspiracy to persecute him and block his election. I see no reason to think a conviction would change that. As stated above, 75% chance he is the nominee – even assuming a criminal conviction prior to the Republican convention in August.
Then what about the election? As I write this, Trump is a nose ahead of Joe Biden in the polls and Biden’s approval ratings are low. Views of the economy, currently a drag on Biden, could improve next year. Or not. And polling indicates that a relatively small – but potentially decisive – percentage of voters would be swayed by a Trump conviction. But there are wild cards: it’s safe to say Vladimir Putin would prefer Trump in office; what wouldn’t he do to help ensure that result? Such things can always backfire, but how about a public meeting with Trump and announcement of “fruitful” talks on Ukraine? Trump’s participation would contravene the Logan Act (1799) against private citizens conducting U.S. foreign policy. Fill in for yourself whether that would deter Trump from acting in the (his) best interests of America.
Given the above, including the possibility he runs as a convicted felon, I’d put Trump’s chance of winning at 40%. (To be clear, that’s not a prediction of his vote total; it’s that he has a 40% chance of winning the election.)
But wait, there’s more: If he is the Republican nominee, and certainly if he’s been convicted in the D.C. case, somebody somewhere will file suit for a declaration that he is barred by Section 3 of the 14th Amendment from holding office as president. (The Supreme Court’s summer recess until the “first Monday in October” might be busier than usual.) The section provides that
“No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath, … as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. …”
I’m not going to analyze the argument here. Suffice it to say that in their article [Baude, William and Paulsen, Michael Stokes, The Sweep and Force of Section Three (August 9, 2023); University of Pennsylvania Law Review, Vol. 172, forthcoming , read at SSRN: https://ssrn.com/abstract=4532751], Profs. Baude and Paulsen provide a thorough analysis and conclude that Trump is barred from serving as president, that the section is self-executing, and that any official charged with qualifying candidates can sue to enforce it. Scholars are divided about the conclusions.
But surely some (partisan) official would file the case. In fact some suits based on this provision already have been filed. For example, one went to judgment in Colorado, but the court there held – correctly in my view – that the section did not bar Trump’s running in the Republican primary, which is what that suit targeted. (A political party can nominate whomever it wishes, eligible or not.) The constitutional question was not reached.
Suppose the Court heard this case next October. Now we are truly in new and murky waters. Let’s look at possible outcomes.
The Court could rule the question is premature until the election takes place, at which point it may be moot as Biden might have won. This seems both incorrect and irresponsible: voters need to know whether a candidate can serve if elected.
The Court could rule on the merits, either that Trump is not barred, or that he is barred and therefore must be struck from the ballot. Then the GOP presumably would scramble to choose a new nominee. (Might state rules on election procedures prevent a late switch? What a mess.)
Or the Court could rule that Trump is barred from holding office (reflecting the words of the Amendment) but not from running. As a textualist I think that would be right. More weirdly, the 20th Amendment might then come into play. That amendment moved the start of the president’s term from March 4 to January 20. But Section 3 of the amendment provides in part:
“… If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.” [emphasis added]
This does not seem aimed at our predicament – “until a President shall have qualified”?? – but by its terms might apply. This effect, not to mention other political considerations, would behoove the Republican party to have Trump this summer choose a running mate untainted by the January 6 attack.
So Nikki… you’re saying there’s a chance.