John C. Breckinridge was Vice President of the United States in 1860, when he ran for the presidency as the nominee of Southern Democrats, who had split from the northern wing of the party (which nominated Stephen Douglas). Lincoln of course won the election, but Breckinridge won the second highest number of electoral votes: 72 (to Lincoln’s 180; Douglas got only 12 electoral votes, although he received more popular votes nationally than Breckinridge). Indeed, Breckinridge won the electoral votes of almost all the southern states that after Lincoln’s election seceded and formed the Confederacy.
Breckinridge himself joined the Confederacy, serving as a general in its army and then its Secretary of War. He was one of the highest-ranking and most significant U.S. government officials, along with Jefferson Davis, to commit treason against the United States as a leader of the Confederacy. Like Davis, Breckinridge was indicted for treason, but was ultimately pardoned by Andrew Johnson.
Breckinridge’s disability to serve again in the U.S. government under section 3 of the Fourteenth Amendment, however, was never removed. Some of his supporters sought its removal and urged him to seek it. He was still young—only 47 years old in 1868 (and only 53 in 1872), having been the youngest Vice President in U.S. history—and many considered him suitable to return to high office after the end of the Civil War. Although he continued to support Democrats, including their presidential campaign against Ulysses Grant in 1872, he declined himself to be a candidate for an elective position.
With this factual background in mind, I’d like to consider a counterfactual possibility: what if Lincoln had not been assassinated and, unlike Johnson, would have refused to pardon Breckinridge? That would have been a circumstance in which Lincoln’s government would have been pursuing a criminal prosecution against his main opponent in the 1860 presidential election—and, at least potentially, a candidate for the presidency again were it not for his treason against the United States and subsequent disability under section 3 of the Fourteenth Amendment.
Moreover, had he lived, Lincoln might himself have sought reelection again in 1868. At the time there was no constitutional prohibition against more than two terms, as FDR would later demonstrate. Thus, one can conceive of the circumstance—at least theoretically—in which “Lost Cause” adherents might have sought a Lincoln-Breckinridge rematch for the presidency in 1868. In that situation, the Lincoln administration’s prosecution of Breckinridge (and/or using section three of the Fourteenth Amendment to prevent Breckinridge’s eligibility) would be an incumbent president and party’s exercise of power to disqualify the opposition party’s former and leading future candidate.
Even if Lincoln would not have run again in 1868, Grant likely would have been the Republican nominee (as he was after Republicans repudiated Johnson for his abandonment of Lincoln’s legacy). Preventing Breckinridge from running against Grant in 1868, or in 1872 when Grant himself sought reelection, would have been just as much one party (the Republicans) depriving the main opposition party (the Democrats) of a candidate whom, based on this counterfactual hypothesis, this “Lost Cause” opposition most would want to nominate.
Given the recent discussion of it being dangerous to a democracy to have one political party use the powers of incumbency, including the powers of criminal prosecution, to disqualify the leading candidate of the opposing political party, what should we make of this history-based, albeit counterfactual, example?
In considering this, I think we should stipulate that ordinarily it would be extremely troublesome for an incumbent party to use its power in this way. Ordinarily, the opposition party should have the right to choose its own preferred nominee for president. Disqualifying the candidate whom the opposition most wants is inherently antithetical to the way democracy normally should work.
But there is an exception to this basic principle, and it is when the individual in question—having served in high office—commits treason or insurrection against the very government to which he has sworn an oath to uphold. That Breckinridge might have been a presidential candidate again in 1868 or 1872, against either Lincoln or Grant, is not sufficient reason in my judgment to think that he should not have been prosecuted for treason nor disqualified from office under section 3 of the Fourteenth Amendment. His betrayal of the government he had a duty to serve made him unfit for service again in that same government, even if his own political party might have wished to renominate him for office.
There is an important distinction, in my mind, between disqualifying an individual who has committed acts of treachery against the government he has sworn to uphold and disqualifying (or criminalizing) an entire political party. The latter is much more dangerous to the ongoing operation of democratic government in a society. Even when a party in its platform is committed to overthrowing the government itself, as the Communist Party was, First Amendment values require permitting the party to exist and to advocate its ideology, as long as neither it nor its members engage in conduct to implement the destruction of the government.
After the Civil War, the Democratic party remained free to oppose Republicans, including to run candidates against Grant who differed from him in their policies for Reconstruction (and policies for government generally). But Democrats weren’t constitutionally entitled to run traitors against Grant—even if a traitor, like Breckinridge, might have been their most preferred candidate.
The same point, I think, applies today to Trump. Republicans should remain free to run a candidate ideologically aligned with Trump’s MAGA movement. But if Trump’s misconduct qualifies as insurrection, then I don’t think it follows that Republicans should be entitled to renominate Trump even if he is their most preferred candidate. It is not a denial of democracy to take him individually out of contention if he, like Breckinridge, betrayed his country, the Constitution, and the oath he took.
There is of course the question whether Trump actually engaged in misconduct qualifying as insurrection. In an appearance on Face the Nation yesterday, former Attorney General Bill Barr expressed skepticism whether Trump could be prosecuted in connection with the January 6 attack on the Capitol. Barr’s reason was that the First Amendment might protect Trump’s speech that arguably incited the attack.
Barr’s First Amendment point deserves to be taken seriously. No politician should be disqualified from seeking any office because of any speech that genuinely is protected by the First Amendment. But I wonder whether Trump’s role in the January 6 Capitol attack is fully clothed with First Amendment protection. It’s not just his specific speech on January 6 itself, or his infamous “will be wild” tweet, for which Trump would be prosecuted (assuming special prosecution is planning to move forward, as Barr himself believes). Rather, as brought out by the House January 6 Committee, it is the entirety of Trump’s conduct with respect to the attack on the Capitol—including his failure to exercise the authority of his office—which would qualify as “giv[ing] aid or comfort” to the January 6 insurrectionists for purposes of both the criminal statute and section 3 of the Fourteenth Amendment. Normally, an individual is not punished for failure to act. But Trump had a constitutional duty as president to exercise the authority of his office to suppress the insurrection at the Capitol. His purposeful failure to do so, especially after engaging in conduct that (whether intended or not) precipitated the insurrection, makes him responsible as a participant—and in a way that has no First Amendment defense.
This analysis puts Trump in the same category as Breckinridge. The fact he ran against Biden and wants to do so again is irrelevant to his culpability for the January 6 insurrection. Breckinridge’s role in the Confederacy disqualified him from serving again in the U.S. government, despite the many supporters who wanted him to. The same point applies to Trump. Breckinridge ran against Lincoln in 1860 and might have sought the presidency again had he been permitted. But because of his own treachery, he still deserved to be ineligible as the Democratic party’s nominee in 1868 and 1872, and it was not an affront to small-d democracy to deprive his supporters of his return to office given the nature of the crime he had committed.
Insofar as Trump is comparably culpable, he is comparably deserving of disqualification—even at the hands of an incumbent president against whom he was the rival candidate, just as Breckinridge was against Lincoln.