We asked some of the smartest political analysts, legal scholars and security experts out there on what would happen next in such an extraordinary circumstance. Here’s what they said.
‘Violence is likely no matter what happens’
BY RACHEL KLEINFELD
Rachel Kleinfeld is a senior fellow at the Carnegie Endowment for International Peace, where she advises governments and philanthropists on how democracies can address violence and polarization.
Concerns that a Supreme Court decision might catapult the country back into Jan. 6-like mass violence are misplaced.
Over the last year, Trump has been
unable to muster large violent crowds despite his setbacks in multiple
court cases. His tweets can catalyze his followers to threaten particular targets — such as
judges, prosecutors,
witnesses and
the FBI. While a Supreme Court decision would likely garner multiple armed protests at state capitols and individual acts of violence in states like Colorado, a major violent event like Jan. 6 is much less likely. But that doesn’t mean we’re out of the woods.
The question carries the implicit suggestion that we should worry about violence from a Supreme Court decision more than from other possible outcomes. In fact, violence is likely no matter what happens.
If the Supreme Court doesn’t disqualify Trump and he continues his campaign, his speech and campaign style will probably generate so many violent incidents that a group of violence researchers recently drafted a forthcoming seven page document listing likely concerns, from
increased hate crimes to violence
against journalists.
Should Trump lose the election, his disbelieving supporters are likely to engage in major violence. While Trump’s ability to draw out large crowds now has
been dented by fear of false flags, DOJ’s beheading of the Oath Keepers and other factors, his capacity will likely return after months of campaigning.
If the court doesn’t kick him off the ballot and Trump wins, he has already telegraphed plans to create
mass internment and deportation camps, which will undoubtedly lead to the untimely deaths of American citizens as well as hapless undocumented immigrants and their mixed-status families. He has also shared his desire to use the
Insurrection Act to deploy the military on American streets, and again
misuse federal police. These tactics could be expected against the protests that are likely to accompany his inauguration as well as (Democratic) cities experiencing crime.
Bad policing is a major cause of peaceful protests turning into riots.
Given that, a court deciding to nip this in the bud now is the least of our worries.
‘The court could increase its perceived public legitimacy’
BY AARON TANG
Aaron Tang is a law professor at the University of California, Davis, and the author of the book Supreme Hubris: How Overconfidence Is Destroying the Court — and How We Can Fix It.
My best guess is that a Supreme Court decision disqualifying Donald Trump from holding the presidency would come with great risk and great reward for the country and the court.
On the risk side, the most pressing concern is how Trump’s most ardent supporters would react. We know all too well from Jan. 6 that some of his supporters were willing to engage in armed violence on his behalf — and so the concern is that a disqualification ruling would precipitate more of the same. But there is also a longer-term legal concern: Once Section 3 is used to disqualify a major candidate from the ballot, the temptation for state election officials and state courts to use it in the future for partisan purposes will be immense, even in circumstances that seemingly fall far short of an insurrection. For instance, Texas Lt. Governor Dan Patrick has already
floated the idea of arguing that President Joe Biden should be disqualified based on his immigration policies. Even if many people believe that does not constitute a Section 3 insurrection, there is great risk that some judges will disagree, leading to great uncertainty and additional Supreme Court intervention in future election contests.
On the potential reward side, I think it is quite possible that the court could increase its perceived public legitimacy, assuming it is able to draw sensible distinctions to explain why Jan. 6 was an insurrection and other more commonplace policy choices are not. After all, Democrats and moderates who oppose Trump will surely think the court less partisan if it disqualifies him, and any disfavor among Republicans is likely to dissipate once Republicans choose a new nominee who may be a stronger general election candidate than Trump anyhow (and who would express at least some of the same substantive policy preferences).
Paradoxically, though, this enhanced legitimacy could have downsides for Democrats and moderates in the longer run. Most significantly, the court may feel emboldened in its substantive project of moving the law rightward on guns, environmental law, abortion, voting rights and more. The conservative justices may feel, in other words, that the Trump disqualification ruling “banks” them a certain amount of political capital that they can spend elsewhere to advance conservative preferences. Whether that is a worthwhile trade off from the perspective of the nation is the million dollar question — and one on which I lack the confidence to hazard a guess.
‘It will be hard to paint it as a “partisan” or “liberal” decision’
BY RICHARD L. HASEN
Richard L. Hasen is professor of law and political science at UCLA, where he directs the Safeguarding Democracy Project. He’s the author of A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy.
No matter how the Supreme Court rules in the Trump disqualification case some people are going to be angry. The questions posed by the case are legally, factually and procedurally complex, and there is very little precedent for the court to rely on in resolving the case. That means that views of the case’s merits, whether by the public, other lawyers or the justices themselves, are likely to be consciously or subconsciously colored by the question of whether Trump should be disqualified from serving. And any ruling that comes out opposite of one’s normative views of Trump is likely to be viewed by many with suspicion.
If the ruling comes out that Trump is in fact disqualified, it will be hard to paint it as a “partisan” or “liberal” decision. There are only three Democratic-appointed justices on the court, so a ruling against Trump would require the votes of at least two Republican-appointed judges. This stands in contrast to a possible 6-3 ruling in which the justices divide along party lines with the conservatives keeping Trump on the ballot and the liberals voting to keep him off. Perhaps if Trump is disqualified with the vote of at least two conservative justices, some voters in the middle who thought Trump should remain on the ballot might be assured by the bipartisan nature of the decision.
My greatest concern of a ruling disqualifying is not therefore about a hit to the court’s legitimacy, but the potential for violence. The idea that the Supreme Court would remove from the ballot a candidate, who has millions of strong followers, in the midst of an election runs the risk of social unrest during a period of intense political polarization. That’s not a reason for the court to avoid doing what’s right. But it is a reason to be prepared for anything, especially given Trump’s track record in encouraging violence when he doesn’t get his way, which is what got us to this point in the first place.
‘The beginning of a further bloody unraveling’
BY AZIZ HUQ
Aziz Huq teaches law at the University of Chicago and is the author of
The Collapse of Constitutional Remedies.
If the Supreme Court follows the overwhelming facts and the law, it will find Donald Trump is disqualified from the presidency. I don’t expect the court to rule that way, but if it did, would the matter be settled? Hardly. Formally, the decision binds only the parties — Trump and the Colorado state litigants. What of the balance of the country? I would anticipate that such a decision would trigger serial, overlapping waves of resistance.
First, it is not clear to me that legislators and officials in Republican states would honor that decision in preparing general election ballots for November. As the ongoing tussle between the federal government and Texas Gov. Greg Abbott over the border illustrates, it is no longer a given that state officials aligned with the Trump side of the Republican Party will heed federal law — especially when it would come at a great cost to their own electoral prospects. Nullification, once a fanciful idea, is in the air again.
Second, state legislators might instruct their slate of Electoral College electors to vote for Trump regardless of whether he’s kept off the ballot all the way through November. It’s not hard to imagine the arguments that could be offered to justify this — that Trump was unjustly disqualified, that fixing this would simply be restoration, not retribution; and so forth.
Now imagine the Electoral College votes go to Congress. Even though majorities voted to impeach and convict Trump on an insurrection charge (albeit not the two-thirds of senators needed for conviction), it is not hard to imagine lawmakers trying to overturn the “injustice” of disqualification — something the Electoral College Reform Act doesn’t preclude.
Finally, what of rank-and-file Trump voters? Are they going to peaceably accept that result, or see it as another manifestation of the “deep state?” I suspect that a Supreme Court ruling disqualifying him from office would elevate the violent rhetoric and acts of some.
A win for the Colorado plaintiffs, in other words, would not be the end; it could instead be the beginning of a further bloody unraveling of democratic norms.
‘Many MAGA voters may simply not participate in the election’
BY ASHLEY JARDINA
Ashley Jardina is assistant professor of public policy at the Frank Batten School of Leadership and Public Policy at the University of Virginia. She is the author of the 2019 book White Identity Politics.
Political scientists have found that there are a surprising number of Americans who say
they condone political violence when asked on public opinion surveys. That evidence, coupled with the events of Jan. 6, suggest there’s certainly potential for unrest if Trump is disqualified from running for a second term. At the same time, the prosecution of many of Trump’s most devoted and violent supporters following the Jan. 6 insurrection may deter any widespread or organized violent responses.
I’m skeptical that the Supreme Court will disqualify Trump from running for president. But if Trump isn’t on the ballot, we might see lower turnout among Republican voters than expected. In 2016, Trump’s appeals to white grievance politics were uniquely mobilizing for white Americans opposed to immigration and dismayed by the country’s growing racial and ethnic diversity. It’s unlikely that these same white voters, who tend to be Trump’s most enthusiastic supporters, would shift their allegiance to Nikki Haley. It’s especially unlikely given that Trump has highlighted Haley’s South Asian identity and (falsely) questioned her eligibility to run for president given her parent’s immigrant status. Without an alternative candidate to throw their support behind, many MAGA voters may simply not participate in the election.
‘They would simply ignore the Supreme Court’
BY SCOTT JENNINGS
Scott Jennings is a longtime Republican adviser and a senior CNN political commentator.
If the Supreme Court does this, it would rip the country apart. Biden would have no choice but to stand down, because the assumption by most Americans (and all Republicans) would be that he and his party personally orchestrated the ditching of his chief rival, who is beating him in the polls. Failure to stand down would cement for most Republicans that we live in a banana republic where the ruling elites are above the rules and the law.
I also assume that several Republican-run states would simply ignore the Supreme Court and put Trump on the ballot anyway (even if the RNC nominated someone else). Why not? Just last week Joe Biden tweeted the following statement: “
The Supreme Court blocked me, but it didn’t stop me.” If Biden can operate in defiance of Supreme Court orders, why should Republicans play by different rules? Come to think of it, I doubt the RNC would nominate someone different as they would simply ignore the Supreme Court and demand that states place him on the ballot anyway.
I doubt that Nikki Haley or any anti-Trump candidate could even get the nomination in these circumstances. Mechanically I suspect the party could move to install a Trump proxy for the nomination, which at this point is decidedly not Haley. Could be Donald Trump Jr., for all I know, to keep the Trump name on the ballot (if they don’t follow through on my earlier idea). But the idea that the reaction to Trump getting booted would be the RNC installing functionally a never Trump alternative is lunacy, in my opinion.
In states where he was not on the ballot, there would be massive write in campaigns to elect him president. States would have to decide after the election whether to count those votes or not. I suspect you’d have a huge breakdown on state election boards across the country, where some would argue you can’t count his votes (whether he was on a ballot or simply written in). Post election litigation would ensue, and I suspect state legislatures would get involved and, depending on their partisan lean, could send up Electors who didn’t match electoral outcomes.
Basically, it would be like the end of the original Ghostbusters movie except in every state capital and in every county clerk’s office in the country.
‘Mass far-right protests involving gun-toting vigilantes’
BY STEVEN SIMON AND JONATHAN STEVENSON
Steven Simon is visiting professor of practice in Middle East Studies at the University of Washington and served on the National Security Council staff in the Clinton and Obama administrations.
Jonathan Stevenson is a senior fellow at the International Institute for Strategic Studies (IISS) and served on the National Security Council staff in the Obama administration.
This is a vexing and necessary question. Section 3 of the 14th Amendment plainly bars Donald Trump from becoming president again. From a strictly legal standpoint, it should be a no-brainer even for this Supreme Court to apply it to preclude his candidacy. But the political landscape is dry tinder, and the consequences of Trump’s exclusion from the presidential race could be incendiary.
Trump’s MAGA Republican base, which includes heavily armed militia groups, is seething over what they believe was his fraudulent defeat in 2020 and many assume they will get their revenge in November. Trump himself has declared that he will exact retribution on their behalf. Were he preemptively denied the chance to fulfill this pledge, some would no doubt resort to violence. The critical variables are how many and how much.
Federal law enforcement agencies’ vigorous post-Jan. 6 pursuit and prosecution of those who participated in the insurrection appear to have had a deterrent effect. The pool of true believers who would take up arms on Trump’s behalf has probably diminished. Heightened monitoring and ongoing enforcement efforts have also made a centrally organized and orchestrated rebellion harder to mount. Yet, in light of Trump’s persistent popularity and relentless agitation among nearly half of the United States’ voting population, excluding him from the ballot could reverse the gains made by the Department of Justice in the wake of Jan. 6. Mass far-right protests involving gun-toting vigilantes, sometimes met by far-left counter-demonstrations, would be a given, as would instances of political violence akin to Kyle Rittenhouse’s fatal shooting of two people in Wisconsin in 2020.
Whether such instances would spiral and coalesce into regional unrest is hard to say, but it seems plausible. MAGA forces have already disrupted the electoral process once; further escalation could emerge as a rational step after such a ruling. The fallout from Jan. 6 itself has afforded federal authorities sufficient strategic and tactical warning to preclude a comparable operation to decapitate the federal government. But significant offsetting factors could arise from Trump’s disqualification. In particular, state and local law enforcement officials already sympathetic with pro-Trump militants and dubious about their answerability to federal authorities could defiantly abdicate their enforcement duties, allowing otherwise containable conflagrations of political violence to go unchecked.
Were these to reach critical mass, federal civilian authorities might be unable to subdue the violence and restore general order. The president might in turn feel compelled to invoke the Insurrection Act and deploy the U.S. military against American citizens — one of the extraordinary powers that
Trump has signaled he’d unleash if he’s elected.
‘Unprecedented violations of basic due process’
BY HANS VON SPAKOVSKY
Hans von Spakovsky is a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. He was formerly a member of the Federal Election Commission.
That could only happen if the Supreme Court fails to properly apply the text and legislative history of Section 3 of the 14th Amendment and ignores prior precedents. But in the very unlikely event that the court held that the Colorado State Supreme Court had the authority to find a candidate guilty of insurrection and remove him from the ballot, it would open up a legal quagmire that would lead to electoral chaos, political mayhem and the disenfranchisement of millions of voters who would have their right to choose a candidate taken away from them.
Electoral chaos would result from the risk of totally conflicting opinions and outcomes in the 50 states and the District of Columbia, with a presidential candidate such as Trump who meets the qualifications to be president in Article II on the ballot in some states but not others. This could lead to political mayhem and partisan manipulation of the election process, particularly since a lone election official — such as the secretary of state of Maine, who was an elector for Joe Biden in 2020 — could use that power to disqualify candidates of the opposition party, making the U.S. look like a third-world country.
It would set the stage for unprecedented violations of basic due process, given that it would allow state officials to in essence “convict” a candidate of serious crimes in a truncated civil proceeding, even if that individual has never been indicted, much less convicted, for those crimes via a criminal trial in which he would have to be found guilty under the higher standard of proof and would be afforded many substantive due process rights. That could include, for example, a president running for reelection being disqualified as a candidate because a state election official “convicts” him of committing treason for intentionally refusing to enforce federal immigration law and deliberately opening up the border to allow millions of undocumented immigrants, drug smugglers, human traffickers, criminals and terrorists to flood into the country.
‘A tough spot for a constitutional republic’
BY RICK WILSON
Rick Wilson is a veteran political strategist who co-founded the Lincoln Project.
I’m of the opinion that if the court somehow blocks Trump’s participation due to his role in the insurrection, we’re in for violence and chaos that makes Jan. 6 look like a Sunday picnic. I’m deeply troubled by the problem of a fight between rule of law and the threat of civic violence. It’s a tough spot for a constitutional republic.
‘A marked rise in violent extremism’
BY DONELL HARVIN
Donell Harvin is a homeland security expert and educator with over 30 years of public safety service and a POLITICO Magazine contributing writer. He oversaw the Fusion Intelligence Center for the District of Columbia on Jan. 6, 2021. Follow him
@donell_harvin
The potential disqualification of the former president from seeking reelection by the Supreme Court would lead to significant turmoil in our country, particularly among his staunchest supporters. The most immediate and concerning homeland security consequences would be a marked rise in violent extremism. Over his political career, and particularly after losing his 2020 reelection bid, Trump has successfully branded himself as a victim, but more importantly a martyr, amongst his followers. His insistence that the government is after the “common man” and that they must go through Trump first, has resonated with not just normal voters, but those of the fringes. This type of language adds propellant to an already paranoid and conspiratorial extremist element of his following. These individuals form a cacophony of marginalized and isolated lone actors, anti-government groups, hate groups, conspiracy theorists and armed militia who all fear that one day soon the government will come for them.
The violent extremism that I envision would range from widespread violence against government buildings and symbols, to targeted acts of violence and
stochastic terrorism against any individuals perceived of actively working against the former president’s interests, or those who were complacent in not defending him. On Jan. 6, 2021, the world witnessed firsthand the capabilities of the extreme wing of Trump’s following, in an ad-hoc and hastily planned attack against the U.S. Capitol. Imagine a better prepared and determined force of equal or greater strength, seeking to exact revenge on the Supreme Court for their perceived politically motivated decision. They would brand the high court as traitors to the constitution, much like they did for Mike Pence, and seek to provide a punishment fitting for their crimes. Picture massive George Floyd-like protests around the country with no state or city spared the sting of violence.
Finally, discussions around “red state” secession or the notion of a “national divorce” would gain new momentum in the wake of the Supreme Court’s ruling. We have seen this talk reawakened recently by Texas Gov. Greg Abbott over the border dispute, with 25 Republican governors openly showing support for Abbott’s scoffing at a recent Supreme Court decision.
While it’s simply political theater for these individuals, there are violent domestic groups, called accelerationists, that are organized around the central theme of a second Civil War or a national race war. Such talk resonates with those on the fringes of our society that have both maligned intent and the means to rapidly organize and act upon their beliefs. While the reelection of Donald Trump could bring with it a swell of normalized domestic extremism, the disqualification of the former president could send us into an abyss of violence and division not seen since the Civil War.
‘The potential for creating a troubling precedent’
BY KIMBERLY WEHLE
Kimberly Wehle is a professor at the University of Baltimore School of Law and author of How to Read the Constitution — and Why. Her forthcoming book is Pardon Power: How the System Works — and Why.
If the justices were truly concerned about the legitimacy of the Supreme Court as an institution, they would not have taken this case in the first place. It’s conceivable that enough red-leaning states could join Colorado and Maine to decide, under their own election laws, that Trump is disqualified from their respective states’ presidential ballots and so as to deprive him of 270 Electoral College votes well before Nov. 4. In the name of federalism and judicial conservatism, stepping aside from this one and letting state law — and state legislators’ voters — work it out would have been a more prudent course for the court to take.
Instead, the court finds itself in a position where it risks creating a troubling precedent that could green-light attempts by future presidential candidates or incumbents to use violence and manipulation to steal the Oval Office from the voters.
Consider the three biggest legal issues the Colorado case presents and the fallout that would ensue if the court decides to keep Trump on the ballot. First: Is the president an officer of the United States under Section 3? If the court rules that no, presidents don’t qualify under Section 3, incumbent presidents seeking a second term can employ the massive law enforcement, military and investigative powers of the office to stay in power knowing that insurrection or rebellion by former presidents is constitutionally impossible. Second: Was Jan. 6, 2021 an insurrection? If the court rules no, it was something less serious than that, then future presidential candidates or former presidents can plan and stage a redo of that deadly day knowing that the Constitution, again, cannot make any difference in guiding their behavior. Third: Did Trump engage in insurrection on Jan. 6? If the court holds no, he didn’t do enough to qualify as engagement, then future insurrectionists can remain in the shadows, masterminding a coup rather than joining the rioters with weapons in the street, knowing that it’s okay with the Constitution so long as presidential hand-to-hand combat is not involved.
Which leaves the biggest question of all: If Jan. 6 was not an insurrection, and Trump didn’t engage in it, then what’s left of Section 3 itself?
The obvious answer is: Probably nothing. By keeping Trump on the ballot using one of the arguments above, the Supreme Court would have effectively repealed a live section of the Constitution without bothering with the supermajorities in both houses of Congress and state legislatures that the Constitution requires for amendments to that document.
Only one decision will strengthen the Constitution, our democracy and the rule of law. The mantra “no more Kings” should go for everyone — including Supreme Court justices. And presidents.