Will Trump Be Disqualified?
Since the Colorado Supreme Court ruled, late last year, that Donald Trump can be disqualified from the 2024 presidential ballot, nearly everyone on the left and right has already decided that the ruling is obviously right or obviously wrong, respectively. In fact, both the law and the facts are unclear.
The Case for Banning Anti-Democratic Candidates
No democracy should be casual about defending itself through prima facie undemocratic means. But if a candidate has exhibited a clear pattern of anti-democratic conduct over time, and if that person doubles down on such conduct after clear warnings, a ban is not only justified but sometimes necessary.
PRINCETON – What should democracies do about parties that use elections and other democratic means to destroy democracy itself? One well-established, but not universally accepted, answer is to ban the party before it comes to power.
But what about individual politicians? Americans are heatedly debating that question now that various legal challenges have sought to disqualify former President Donald Trump from running for a second term, owing to his role in the January 6, 2021, insurrection at the Capitol. The same question is also preoccupying Germans who want to stop the rise of the far right. One proposal would strip individual leaders of political rights while stopping short of banning the far-right Alternative für Deutschland (AfD) party outright.
Such measures are serious restrictions on the political process that should only ever be used as a last resort. But when an individual has a consistent record of agitating against democracy – even after plenty of warnings – disqualification from the democratic process is indeed justified. Otherwise, democracies place themselves in mortal jeopardy. As Nazi propaganda minister Joseph Goebbels infamously gloated: “This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed.”
Recognizing this fatal weakness, the political scientist Karl Loewenstein, who left Germany when the Nazis came to power, formulated the concept of “militant democracy,” by which he meant a democracy that is willing and able to defend itself through prima facie undemocratic measures. His focus was on party bans, and his ideas proved influential in the drafting of West Germany’s democratic postwar constitution. In the 1950s, both the Communist Party and a neo-Nazi party were prohibited.
Loewenstein cautioned that his approach amounted to fighting fire with fire. Those who avail themselves of the militant-democracy toolkit must appreciate the risks. A democracy that defends itself by undemocratic means might well end up destroying itself. Just look at Turkey, which has always been far too quick to ban parties on the basis of ill-defined criteria.
Critics of militant democracy insist that if a majority wants to dispense with democracy, there is no saving it; and that if anti-democrats are in the minority, the system’s fate should be left to the political process. Either way, they oppose high-handed, quasi-technocratic official measures that might further alienate those who are already dissatisfied with democracy.
These arguments, central to political debates immediately after World War II, have now returned with a vengeance. In the United States, Trump has been removed (provisionally) from the ballot in Colorado and Maine, on the basis of the Fourteenth Amendment. And in Germany, the Basic Law not only provides for party bans but also envisages individuals forfeiting their political rights if they try to subvert democracy.
While four cases have been brought against individuals under Article 18 of Germany’s Basic Law, all have failed. But now there is serious talk of applying the same provision against Björn Höcke, the AfD leader in Thuringia, where the party is officially classified as “right-wing extremist” and yet far ahead in polls for elections this fall.
In Germany and the US, a full party ban seems a non-starter. In America’s de facto two-party system, banning the Republican Party would be tantamount to abolishing democracy (even if most of the GOP has embraced Trump’s anti-democratic behavior). In Germany, the AfD has gathered so much support – it now polls at around 20% nationally – that a ban would look like a weapon of mass disenfranchisement. This problem highlights a paradox: when anti-democratic parties are small, a ban doesn’t seem worth it; but when they have grown large, a ban doesn’t seem possible.
Other critics have framed the dilemma even more starkly. Where there is a consensus in support of democracy, militant democracy is possible but unnecessary (West German democracy probably would have been fine even without banning neo-Nazis and Communists). But once pernicious polarization has taken hold, there will be no broad support for militant democracy, because politicians will worry that its tools will be used against them.
These points are well taken. But those who oppose militant democracy tend to idealize the alternative. They assume that there will be a clean political contest with a decisive result, and that another defeat for Trump would remove him from the national stage. Trump has made it abundantly clear that he will contaminate the campaign with racism and possibly calls to violence. He is likely to claim victory regardless of the election’s outcome. If the result is close, he will cry fraud; if it’s a landslide against him, he will claim that the whole thing was rigged. It is dangerously naive to believe otherwise.
The same logic applies in Germany. Höcke has been charged with using Nazi rhetoric, he regularly warns of a mixing of cultures, and he promotes conspiracy theories such as the “replacement” of Germans by foreigners, leading to Volkstod (dying out of a people). Having him in a campaign will not leave the political process unchanged; it also sends a message that, ultimately, a democracy is willing to tolerate figures who systematically incite fear and hatred.
Some counter that banned individuals become martyrs. But right-wing populists portray themselves as victims no matter what, including when they lose elections. Of course, no democracy should be casual about fighting fire with fire. But if a candidate has exhibited a clear pattern of anti-democratic conduct over time and doubles down after clear warnings, disqualification is justified, as it is for both Trump and Höcke.
In the US, as in Germany, an individual ban would preserve voters’ ability to choose a nationalistic party that wants to permit fewer immigrants, defends traditional conceptions of family, and advocates tax cuts for the wealthy. If that is what voters want, they can still get it.
Should Germany's AfD Be Banned?
After the recent revelation that politicians from Germany’s far-right Alternative für Deutschland met with right-wing extremists to discuss a “re-migration” plot, support for banning the party has increased significantly. But an attempt to dissolve the AfD could backfire spectacularly.
NEW YORK – The recent revelation that politicians from Germany’s far-right Alternative für Deutschland (AfD) met with right-wing activists last November to discuss an extremist “re-migration” plot has brought the debate over banning the party to a fever pitch.
The clandestine meeting, held at a lakeside hotel near Potsdam, reportedly centered on the possibility of mass deportations of non-ethnic Germans if the far-right were to come to power. Alarmed by this horrifying vision, leaders from across the political spectrum, public intellectuals, and influential media commentators now argue that shutting down the AfD is necessary to safeguard German democracy.
The AfD’s surging popular support has only heightened the sense of urgency, especially with regional elections scheduled in three of Germany’s eastern states – the party’s strongholds – later this year. More recently, the AfD has offered full-throated support for farmer protests against proposed subsidy cuts, raising concerns that the party could exploit the explosive situation for political gain.
Now, nearly half of the German public favors banning the AfD. And hundreds of thousands of Germans have participated in protests against the party in recent days. Moreover, an online petition calling for the government to strip Björn Höcke, the notorious AfD leader in the state of Thuringia, of his civil and political rights – a truly unprecedented proposal in Germany’s post-war history – has collected more than one and a half million signatures.
But attempting to outlaw the country’s second-most popular party would be democratically questionable and have unexpected – and potentially far-reaching – negative consequences.
To be sure, the procedure to ban political groups that seek to undermine or abolish the democratic system is straightforward enough. The Constitutional Court decides whether to shut down a party after receiving a formal request from the federal government, the federal parliament, or Germany’s second chamber, the Bundesrat, which represents the federal states.
But the Court has set a high threshold for political exclusion, as demonstrated by earlier attempts to dissolve parties. In 2017, it rejected an application to outlaw the neo-Nazi National Democratic Party (NPD), despite the group’s overtly racist and anti-democratic agenda. In fact, the Court last employed this mechanism in 1956, at the height of the Cold War, when it banned the Communist Party of Germany (KPD).
This precedent suggests that bringing a court case against the AfD would be anything but a formality and, more importantly, could easily turn into a political fiasco. Given the AfD’s popularity, even asking the Court to ban the party would be widely perceived as a tactical ploy by established parties to eliminate an increasingly strong competitor, reinforcing the far right’s argument that the system is rigged. If this attempt ultimately failed, the AfD’s cause would be strengthened, not weakened.
Moreover, Constitutional Court proceedings would inevitably be slow-moving – the case against the NPD took more than three years – and conclude long after the coming wave of elections has passed. But while any suggested benefits of an attempted AfD ban lie in the future, its negative repercussions would be felt immediately. In many ways, even debating legal action against the AfD only gives more ammunition to a party that thrives on a sense of victimhood.
Even in the unlikely event that the AfD is banned, only the party would disappear; its supporters – and their grievances – would not. Nothing would prevent AfD members from establishing a new right-wing party – an alternative to the Alternative.
It is high time to understand that fighting populism with legal activism will not work, and may even make the problem worse. The challenge from the far right must be confronted politically, with solutions that address the root causes of discontent: high energy prices, stagnant economic growth, persistently high levels of inward migration, and failed integration of the newcomers.
Certainly, liberal democracies must be vigilant – and they have both an obligation and a right to fight back, whether in the courts or on the floor of the Bundestag. But attempting to ban a political competitor is a short-cut around the unsettling fact that disgruntled voters have a legitimate right to express their grievances. Democratic values cannot be protected by curbing democratic freedoms.
The far-right challenge must be met in the voting booth, not at the judge’s bench. A victory over the AfD by way of a legal ban would be a moral and political defeat.
Germany’s Dangerous Alternatives
Since the end of the Cold War, Germans were spared from having to decide between competing visions of their country’s role in Europe, NATO, and the wider world. But with the rapid rise of radical parties advocating reckless domestic and foreign policies, the choice confronting voters this year could not be more consequential.
BERLIN – For years, German foreign policy was rarely a domain of fierce debate over fundamentally different alternatives. Since reunification (1989-91), Europe’s largest country and strongest economy has defined its foreign policy in terms of European and transatlantic relations, implying ever-deeper anchoring within the European Union and NATO. In practice, this meant outsourcing German security to the transatlantic alliance, disinvesting militarily, and concentrating on boosting the country’s economic power.
Postwar Germany’s highest priority has been to forge compromises with fellow Europeans, both deepening and enlarging the EU, which German leaders have seen as the single most important contribution the country can make to peace and prosperity on the continent. Not only is the goal of a stronger EU formally enshrined in Germany’s Basic Law, but the country’s economic model relies heavily on European integration and global market access. That reliance has only increased now that cheap energy from Russia no longer underpins the economy’s competitiveness.
But Germany’s party system is changing ahead of this spring’s European Parliament elections. Newer, radical parties are openly challenging the postwar consensus. Indeed, the far-right Alternative für Deutschland (AfD) is promoting an exit from the EU, an end to support for Ukraine and sanctions against Russia, and a reversal of the country’s decarbonization policies.
Two years into the current government’s tenure, the AfD has risen to 20% in national polls, and it polls nearly 30% in the three eastern German states that will hold elections this fall. Domestic intelligence authorities are on the watch and have already designated three regional AfD chapters as extremist groups.
Back in 2014 (a year after its founding), the AfD made a point of openly supporting NATO and the United States. But those commitments have faded. In recent years, according to the German investigative outlet Correctiv, AfD politicians have echoed Russian narratives and talking points, describing the US as a “foreign power.” Following Russia’s full-scale invasion of Ukraine in February 2022, AfD politicians continued to travel to Russia and to Russian-occupied territory in Ukraine.
AfD members also continue to promote ties with the Russian-led Eurasian Economic Community and the China- and Russia-dominated Shanghai Cooperation Organization. And recently, the AfD incorporated the idea of a “multipolar world” – the battle cry of Russian and Chinese nationalists – into its party program.
These changes should do away with the founding myth that the AfD is a copy of the Christian Democrats of the 1980s, firmly anchored in Western values. Never has a party in the Federal Republic adopted a policy of embracing the Kremlin so strongly. The AfD’s strategic re-orientation toward Russia sets it apart even from many other right-wing parties in Europe, including those in Finland and Sweden. In Italy, the right-wing nationalist prime minister, Giorgia Meloni, has openly sided with Ukraine and criticized the AfD for its Russia ties.
Another radical party that has jumped to double-digit support in the polls is the Bündnis Sahra Wagenknecht (BSW), founded just last month by Wagenknecht, a longtime senior figure in Germany’s far-left party, Die Linke. Wagenknecht wants immediate “peace” negotiations with Vladimir Putin and a resumption of cheap Russian hydrocarbon imports. When it comes to Russia’s war of aggression and internationally recognized war crimes against the Ukrainian people, she is largely silent. With Russian disinformation campaigns gearing up ahead of this year’s elections, her party has a good chance of entering German state governments and the European Parliament.
Support for the BSW and the AfD has come at the expense of the ruling coalition members: the Social Democrats, the Greens, and the pro-business Free Democrats. Their popularity is now at historic lows, with some eastern German chapters polling at levels below the 5% threshold to remain in parliament.
True, support for the coalition parties is higher nationally (the eastern states represent only one-fifth of the electorate), and even if the AfD or the BSW make it into regional governments, foreign policy would remain primarily a federal matter. Nonetheless, the AfD’s growing support has led established parties – especially the center-right Christian Democrats – to harden their positions on issues such as migration.
German business leaders are waking up to these developments as the country enters its second year of recession. One big worry is that if the AfD gains more ground, sorely needed high-skilled migrant labor may dry up and foreign investment may decline. Companies planning to set up shop in Germany – such as the chip producers TSMC and Intel – would have a hard time persuading their staff to move to a country with increasingly nativist politics. Corporate leaders are speaking up, realizing that protecting Germany’s open society is an economic priority as much as it is a moral and political one.
Even more importantly, millions of Germans have taken to the streets following a report by Correctiv that AfD members had met with neo-Nazis to discuss mass deportations of immigrants and “non-assimilated citizens.” Even the French far-right leader Marine Le Pen has now distanced herself from the AfD.
Following these revelations, this year’s Holocaust Remembrance Day (January 27) and the promise of “never again” acquired a newly poignant resonance. More people are recognizing that far-right extremists could become a part of the government in the near future. The fragility of democracy, and the possibility that Germany – or even Europe – will return to the darkness of its past, cannot be discounted.
For now, Germany’s commitment to Ukraine holds. While the governing coalition is often criticized for late arms deliveries, it has just earmarked another €7 billion ($7.6 billion) for Ukraine aid. Germany is now shouldering over half of all EU aid, even though it accounts for only one-quarter of the bloc’s GDP.
But with the prospect of a victory for Donald Trump in this year’s US presidential election, German Chancellor Olaf Scholz has made it clear that others must step up. Germany needs to invest billions into digitalization, the green transition, its ailing military, transportation infrastructure, and education; but it cannot afford to weaken its European commitment. While the three governing parties have each become somewhat more restrictive on migration, they have doubled down on strengthening the EU.
That means the upcoming European elections will finally offer voters a real choice with far-reaching implications. Moderates will need to explain that a symbolic protest vote for radicals holds real dangers. As Scholz recently warned: “Nationalists act against national interest.” At a time when Germany and Europe must adapt to a new geopolitical environment, the danger is acute.
American Greatness and Decline
If Donald Trump wins back the White House in November, this year could mark a turning point for American power. Finally, the fear of decline that has preoccupied Americans since the colonial era would be justified.
CAMBRIDGE – With most Americans believing that the United States is in decline, Donald Trump claims he can “Make America Great Again.” But Trump’s premise is simply wrong, and it is his proposed remedies that pose the biggest threat to America.
Americans have a long history of worrying about decline. Shortly after the founding of the Massachusetts Bay colony in the seventeenth century, some Puritans lamented the loss of an earlier virtue. In the eighteenth century, the founding fathers studied Roman history when considering how to sustain a new American republic. In the nineteenth century, Charles Dickens observed that if Americans are to be believed, their country “always is depressed, and always is stagnated, and always is at an alarming crisis, and never was otherwise.” On a 1979 magazine cover about national decline, the Statue of Liberty has a tear rolling down her cheek.
But while Americans have long been drawn to what I call the “golden glow of the past,” the US has never had the power many imagine it did. Even with preponderant resources, America has often failed to get what it wants. Those who think that today’s world is more complex and tumultuous than in the past should remember a year like 1956, when the US was unable to prevent Soviet repression of a revolt in Hungary; and when our allies Britain, France, and Israel invaded the Suez. To paraphrase the comedian Will Rogers, “hegemony ain’t what it used to be and never was.” Periods of “declinism” tell us more about popular psychology than about geopolitics.
Still, the idea of decline clearly touches a raw nerve in American politics, making it reliable fodder for partisan politics. Sometimes, anxiety about decline leads to protectionist policies that do more harm than good. And sometimes, periods of hubris lead to overreaching policies such as the Iraq War. There is no virtue in either understatement or overstatement of American power.
When it comes to geopolitics, it is important to distinguish between absolute and relative decline. In a relative sense, America has been in decline ever since the end of World War II. Never again would it account for half the world economy and hold a monopoly on nuclear weapons (which the Soviet Union acquired in 1949). The war had strengthened the US economy and weakened everyone else’s. But as the rest of the world recovered, America’s share of global GDP fell to one-third by 1970 (roughly its share on the eve of WWII).
President Richard Nixon saw that as a sign of decline and took the dollar off the gold standard. But the greenback remains preeminent a half-century later, and America’s share of global GDP is still about one-quarter. Nor did America’s “decline” prevent it from prevailing in the Cold War.
Nowadays, China’s rise is often cited as evidence of American decline. Looking strictly at US-China power relations, there has indeed been a shift in China’s favor, which can be portrayed as American decline, in a relative sense. But in absolute terms, the US is still more powerful and is likely to remain so. China is an impressive peer competitor, but it has significant weaknesses. When it comes to the overall balance of power, the US has at least six long-term advantages.
One is geography. The US is surrounded by two oceans and two friendly neighbors, while China shares a border with 14 countries and is engaged in territorial disputes with several, including India. A second is relative energy independence, whereas China depends on imports.
Third, the US derives power from its large transnational financial institutions and the international role of the dollar. A credible reserve currency must be freely convertible and rooted in deep capital markets and the rule of law – all of which China lacks. Fourth, the US has a relative demographic advantage as the only major developed country that is currently projected to hold its place (third) in the global population ranking. Seven of the world’s 15 largest economies will have a shrinking workforce over the next decade; but the US workforce is expected to increase, while China’s peaked in 2014.
Fifth, America has long been at the forefront in key technologies (bio, nano, information). China is investing heavily in research and development – it now scores well in terms of patents – but by its own metrics, its research universities still rank behind US institutions. Lastly, international polls show the US outranking China in the soft power of attraction.
All told, the US holds a strong hand in the twenty-first-century great-power competition. But if Americans succumb to hysteria about China’s rise, or to complacency about its “peak,” the US could play its cards poorly. Discarding high-value cards – including strong alliances and influence in international institutions – would be a serious mistake. Far from making America great again, it could greatly weaken it.
Americans have more to fear from the rise of populist nationalism at home than they do from the rise of China. Populist policies, such as refusing to support Ukraine or withdrawing from NATO, would do great damage to US soft power. If Trump wins the presidency in November, this year could be a turning point for American power. Finally, the sense of decline might be justified.
Even if its external power remains dominant, a country can lose its internal virtue and attractiveness to others. The Roman empire lasted long after it lost its republican form of government. As Benjamin Franklin remarked about the form of American government created by the founders: “A republic if you can keep it.” To the extent that American democracy is becoming more polarized and fragile, it is that development that could cause American decline.
CHICAGO – This week, the US Supreme Court will hear oral arguments on Donald Trump’s appeal of the Colorado Supreme Court’s decision disqualifying him from the ballot for the 2024 presidential election. The Colorado court based its decision on Section 3 of the US Constitution’s Fourteenth Amendment, which bars from federal and state office anyone who, having sworn to uphold the Constitution, engages in insurrection. Nearly everyone on the left and right has already decided that the ruling is obviously right or obviously wrong, respectively. But the truth is that both the law and the facts are unclear, which means the Supreme Court justices’ political acumen will be tested like never before.
Start with the question of whether Trump engaged in “insurrection,” the resonant but undefined core of Section 3. One view is that he did so by orchestrating a mob attack on the Capitol on January 6, 2021, while Congress was trying to certify the election results. Another is that Trump gave aid and comfort to the insurrection by failing to call in the troops to quell it, and by waiting hours before telling his supporters to go home.
But it is not clear that he called for violence (“fight like hell” is an all-too-trite expression in the American vernacular), and it is unlikely that he expected the Capitol police to be overrun. Moreover, the president’s executive power is normally understood to be discretionary. It would be very unusual for a court to find that presidential inaction, as opposed to action, violated the constitution.
The trial court in the Colorado case noted that Section 3 does not explicitly apply to the president. It applies, rather, to electors of the president, suggesting that the drafters trusted the electors to choose the president even if they did not always trust the people to choose the electors – a view shared by America’s founders. Some critics have ridiculed this argument, noting that Section 3 also applies to “officers of the United States,” which surely describes the president. And yet, other clauses of the Constitution distinguish the president from officers of the US, as have judicial opinions over the years.
Faced with these and similar conflicting arguments that turn on the vagaries of language and understandings lost to history, the Supreme Court cannot plausibly resolve the case by the sort of narrow legalistic analysis that courts often use. As they have in nearly every major case, the justices will have to account for larger problems of constitutionalism, politics, and the public good, giving careful thought to the possibility of a popular backlash at a time when the Court’s public support has waned.
As he has done in past controversial cases, Chief Justice John Roberts will strive for a unanimous opinion to shield the Court from charges of partisanship. Since the usual way to achieve a unanimous opinion is to rule on the narrowest grounds possible, one option is to hold that the president is not an “officer of the United States” for the purposes of Section 3. That would preserve Section 3 for most other government officials, and it would enable the Court to avoid taking a position on the explosive political question of whether Trump engaged in insurrection.
Alternatively, the Court could follow the 1869 Griffin’s Case and hold that Section 3 authorizes Congress to disqualify government officials, but does not mandate it on its own. In 1870, Congress implicitly accepted that theory by imposing disqualification only on officials who interfered with Reconstruction. But it seems unlikely that the three liberal justices would go along with this. So, Roberts might conceivably try to knit together a unanimous ruling against Trump.
A narrow ruling against Trump could hold that the federal courts should not disrupt states’ handling of ballot access where state courts provide good-faith interpretations of the US Constitution. That could well kill off Trump’s campaign by embroiling it in litigation in 50 states, which could result in his removal from the ballot in key jurisdictions.
But would Republican-appointed justices rule against Trump? It’s possible. After all, they are establishment figures, not populist rebels, and they have not shown much loyalty to Trump in cases where he tried to advance his personal and political interests, as opposed to broadly shared Republican policies. Trump characteristically denounced the Court as “nothing more than a political body” after one of the rulings against him. The justices surely would be delighted to get him out of their hair.
The conservative justices also might accept the conventional wisdom that a Republican other than Trump stands the best chance of defeating Joe Biden. Ruling against Trump thus would secure a more respectable candidate and put the Court on the side of a majority of Americans who think Trump should be disqualified. Moreover, the Court’s conservatives could still bank on goodwill among some Republicans for their elimination in 2022 of the federal right to abortion.
But abortion notwithstanding, right-wing rabble-rousers would have a field day attacking the Court, which may find itself without allies on the right or the left. So uncertain would be the consequences, which could deepen polarization and even spark political violence, that it is hard to imagine the justices coming together for a unanimous opinion.
One possible way forward, then, would be for the Court to resolve some of the legal issues – like the correct definition of “insurrection” – and appoint a special master or commission to engage in expedited fact finding, with a quick appeal back to the Court after the facts have been unearthed. While the Colorado trial court did hold a brief hearing to determine the facts, its account of its fact-finding suggests that only a skimpy record was developed. A hearing before a commission consisting of senior or retired federal judges would allow the public to learn what happened on January 6 in a less partisan setting than the congressional January 6 Commission.
This process would echo the Electoral Commission of 1877, which resolved the contested election between Rutherford B. Hayes and Samuel Tilden. That commission was appointed by Congress, not the Supreme Court, but the Court has appointed commissions and special masters before (albeit in different circumstances). There is no doubt that it could find the authority to do so again.
Americans don’t trust government much anymore, but they do harbor a residual trust in the judiciary, with its intimidating forms and procedures. A regular trial (ideally televised, though that, too, would require a change in policy) could finally offer a clear path forward.