Jailing Trump won’t keep him from power — exclusion will

Members of the Jan. 6 committee have said that Donald Trump should never again hold public office in light of his role in inciting an insurrection, and the committee has referred the former president to the Department of Justice for criminal prosecution. 

But putting Trump in jail, even if this happens before the next election, will not keep him from seizing power. He can still run for president, even if he is in jail. In 1920, socialist Eugene Debs ran for president after being imprisoned for espionage and sedition, winning over 900,000 votes. 

Also, nothing prevents Trump from acting as president from behind bars should he capture the presidency. The Supreme Court that he helped shape might even find a legal basis to release him so he can better perform his presidential duties.

While indictment and even conviction cannot keep Trump off the ballot, Congress can bar him from running by voting to exclude him from office under the 14th Amendment. The Jan. 6 committee’s report accuses Trump of inciting an insurrection. The language of the statute the committee cites as a basis for indictment for insurrection comes from a provision of the 14th Amendment that bars a former officeholder from seeking office again. That statute not only criminalizes inciting an insurrection but also criminalizes giving “aid or comfort” to insurrectionists, which many believe Trump did and continues to do. 

The 14th Amendment bars from public office those who “engage in insurrection” or give “aid or comfort” to “enemies” of the United States (including those who carry out insurrection). So, the language of the Jan. 6 committee’s report has tacitly concluded that Trump is not eligible to become president under the 14th Amendment.

Congress can enforce the 14th Amendment bar on insurrectionists taking office because the Constitution authorizes congressional enforcement through “appropriate legislation.” That means that Congress can prohibit Trump from running by voting to enforce the 14th Amendment.

The Senate committee cannot count on a timely criminal conviction, given the slowness of the justice system and the extremism of some courts. So, its members should together also pursue enforcement of the 14th Amendment ban through legislation in Congress.

Letting Trump run for office poses enormous risks, which preclude leaving a politically difficult strategy untried. If Trump loses, as recent polls show is likely, he could claim the election was stolen and incite violence against the government. If he somehow wins, I believe American democracy is finished and he will see to it that he remains in office until he dies by suspending or rigging elections.

Because of this possibility, allowing Trump to run is against the interests of Republicans in Congress. Another insurrection, potentially more violent than the last one, with more targets, would disgrace the Republican Party. Or at least it would if Democrats in Congress vigorously pursue enforcement of the 14th Amendment bar and explain that they will hold all Republicans who oppose exclusion responsible for inciting the next insurrection if Trump refuses to accept defeat.

Nor is a Trump victory, whether by a successful coup or actually winning the election, in most Republicans’ interest. Republicans may imagine that they will retain power if Trump is elected, but they are dreaming. Trump will likely throw under the bus any Republican politician who crosses him, just ask Mike Pence. If he becomes president again, he could incite an angry mob to threaten or physically attack Republicans who cross him and over time turn the DOJ into an instrument of repression of political opponents from any party.

Some Republicans may be willing to sacrifice democracy to secure a government devoted to Republican values. But Trump is devoted only to his own wealth and power. He destroyed free trade with targeted trade wars — a defiance of Republican values. If Republicans think government regulation is bad for business, just try the uncertainty for business offered by an autocracy — heavy-handed regulation but without any rules to plan around. And if Trump decides that raising taxes to fund giveaways will help him stay in power, he may likely support that, following the lead of one of his models ­— Hungary’s autocrat, Viktor Orban.

The Jan. 6 committee performed a great service by showing that Trump attacked American democracy. If nothing else, its work probably contributed to the rejection of election deniers in the midterms. But its members and Trump’s critics should not rest. They should conduct a public campaign to bar Trump from running based on the committee’s findings, while quietly working to persuade Republican colleagues that keeping Trump off the ballot is not just in the nation’s interest, but in their interest.

David M. Driesen is a professor at Syracuse University College of Law.