Does Disqualification Work?
Banning Trump from high office was tempting. But banning leaders is rarely good for democracy.
By Tom Ginsburg and Aziz Huq
Don’t merely impeach Donald Trump, the Democratic House managers said, but disqualify him from office forever. They—and many members of the public, appalled by the ex-president’s actions—demanded a permanent solution to what they considered a threat to American democracy. Yet Trump’s defense at the February impeachment trial was equally stark: Disqualification would itself be undemocratic.
So which was it? Can disqualifying a president save the system? Or undermine it? And what do the experiences of other nations tell us?
In 2007, as part of a set of clemency proceedings following his removal from office for corruption, the former president of the Philippines, Joseph Estrada, vowed not to run for office again. In 2014, the Ukrainian president, Viktor Yanukovych—who had aligned his country with the Kremlin, leading to mass protests that he suppressed with extreme violence—was ousted, then he and his allies were barred from national office and public employment for up to 10 years. And in 2018, the leftist former president of Brazil, Luiz Inácio Lula da Silva, was ruled ineligible to run for re-election because of a corruption-related criminal conviction the previous year.
Disqualification then is not just an American idea. It is found in constitutions and bodies of law around the world. Sometimes, it is used to expel particular people; sometimes, to push whole groups out of political life. In Eastern Europe after the fall of Communism, lustrations—a term derived from ancient purification rituals—led to the ban from public employment of tens of thousands of people who had been complicit in the regimes.
But disqualification raises profound questions: When should an elected majority be able to act in an undemocratic way, invoking the need to protect democracy? Is it ever fair to single out specific people for exclusion from political life? Should it matter if, like Trump, they have significant support among the voting public? And does it make matters worse or better if groups rather than individuals are targeted?
A weighing of benefits and risks of disqualification points to the need for caution. Disqualification can be useful in the immediate transition to democracy, as at the end of World War II or after the fall of communism. Following that, it is best taken out of the hands of elected actors, if it is retained at all.
The core problem is a common tension within democracies. Some elements of political participation—the forms of elections, rules for candidate qualification and for voter qualification, terms of ballot access—may need to be adapted to changing conditions, such as when a pandemic disrupts voting. But power to set the rules comes with power to manipulate them: to handicap political opponents and entrench incumbents, creating an image of democratic competition without its substance.
Disqualification struggles with this tension. It is not alone: Debates over redistricting, the choice of electoral systems, and citizenship eligibility, all raise similar issues. Each is within the heartland of democracy, but each presents a temptation to abuse.
Other countries’ experience hardly supports the case for disqualification as an effective means of preserving democracy. Indeed, it might even hurt democracy: If, for example, future incumbents believe they will be permanently excluded if they lose, they may be less willing to play fair in the election itself or to acknowledge defeat.
Estrada, who was convicted in the Philippines of massive corruption, perhaps deserved to be disqualified. But his promise not to run for office turned out to be worthless. A few years later, he successfully ran for mayor of Manila, a post he held for two terms, before being defeated in 2019. This is but one example of how attempts to exclude are often ineffective, as popular figures can make political comebacks in some other form.
The ban on Yanukovych, who remains in exile in Russia, is as much a result of sanctions from the United States and the European Union as it is of domestic law. Since his ouster, Ukrainian democracy has remained a bare-knuckled affair, with frequent impeachments and demonization of opponents.
In Brazil, Lula’s disqualification and the impeachment of his successor, Dilma Rousseff, opened the presidential contest to the equally controversial figure of the far-right current leader, Jair Bolsonaro. Lula has remained popular. Recently, a Brazilian court annulled his corruption conviction and hence his exclusion from political office, and the judge who convicted Lula was ruled guilty of bias. Again, this case supplies little evidence in support of disqualification, and Lula’s exclusion may have helped politicize prosecutorial institutions in a way that will pose a longer-term risk to democracy.
Matters don’t improve when whole groups are disqualified. After the 2003 invasion of Iraq, the United States pursued a policy of “de-Baathification” disqualifying all members of the former ruling party. As a result, Iraq lost much of its state capacity, including in the security services. This produced deep chaos, fueling the destabilizing insurgency for years to come.
Lustrations after World War II and the fall of Communism were complex and partial affairs; their effects are hard to untangle from larger geopolitical dynamics. In post-Communist nations, disqualification was not the cause but rather the downstream effect of a political revolution. De-Nazification focused on the top level of government and, coupled with a later ban on a reconstituted Nazi party, did have some success. Meantime, in Japan, members of the wartime government became pillars of the postwar order. After his release from prison, a suspected Class A war criminal, Nobusuke Kishi, became a founder of the Liberal Democratic Party, a pro-American prime minister, and the start of a political dynasty: His son-in-law was a party leader and foreign minister, and his grandson is Shinzo Abe, the longest-serving prime minister in Japanese history.
Where elected majorities single out specific leaders for exclusion, that power has been abused at least as often as it has been used wisely. In a number of African countries, for example, Tanzania and Ivory Coast, leaders have barred their most plausible opponents from running.
Perhaps the most successful disqualification rule is the rigid and predictable term limit. But even here, our research shows that one in four heads of state around the world will try to evade term limits. Disqualification rules do not always do the work they purport to, even as they invite abuse.
When an individual commits anti-democratic acts, the public can and often does reject them. In contrast, disqualification can be used to politicized and distorting ends—and in elected hands, disqualification is a dangerously anti-democratic tool.
So what would have happened if Trump had been disqualified? It would have increased the emotional polarization of American politics, making cross-partisan coalitions and legislative deals even less likely than they already are. It would have empowered Trump as a figure within the Republican Party and supercharged efforts by his children to run for office—first for Senate, perhaps, and then for the Oval Office—with their father at their shoulder. Disqualification would have been ineffective in the short term and could have created conditions for even faster democratic decline in the long term.
However tempting it may be in the heat of a political crisis, disqualification can be as much a danger as a defense. Whatever its merits in respect to former President Trump, it should be delicately handled if we care about democracy.
Tom Ginsburg and Aziz Huq are professors of law at the University of Chicago and the authors of How to Save a Constitutional Democracy.
The constitution of our republic allows for disqualification. It is rare, but that option must be available for egregious behavior. In a less partisan time, Trump would have been convicted and permanently disqualified. His behavior following the election through January 6th warranted both.
"They...demanded a permanent solution to what they considered a threat to American democracy." What they considered!? Is fomenting an attack on the legislature and denying the legitimate results of an election not enough for disqualification? What is, then? As cheerio notes, it's straight-up treason.