Even Republicans determined to ignore reality — including the mountain of evidence against him in the Jan. 6, 2021, case and the relative ease with which Manhattan District Attorney Alvin Bragg racks up convictions for falsifying business records — might want to think through the consequences of possible convictions. It is long past time for Republicans to face an uncomfortable truth: Trump could very well wind up convicted of one or more felonies after receiving the nomination. What then?
The Constitution does not bar a convicted criminal — even one already sentenced — from holding office. (It is hard enough to bar him when the language of Section 3 of the 14th Amendment expressly prohibits insurrectionists and their helpmates from holding federal office.)
However, polls consistently show that Trump’s standing even among Republicans would plummet if he were convicted. A recent Gallup poll shows that “less than half of Republicans (46%) are willing to vote for someone charged with a felony, and even fewer (35%) are willing to vote for someone convicted of one.” (One wonders if Republicans understand he already has been charged.) Only 21 percent of independents are willing to vote for a convicted candidate.
Even if MAGA cultists stick with him after a conviction, some Republicans and the lion’s share of independents would not. Surely, someone in the Republican Party should consider the ramifications of a possible conviction and what, if anything, the party can do instead of running a felon for president.
Trump, in all likelihood, would insist any conviction was rigged; he would vow to win on appeal. Alternatively, he might argue it would be more important than ever to elect him so he could pardon himself. (Whether there would be any viable appeal and/or a “self-pardon” would withstand constitutional scrutiny would not faze him or MAGA loyalists.) Down-ticket Republicans, sober insiders and donors could freak out, fearing an election debacle. But without a Plan B, Republicans would be stuck with Trump. (It’s not as if they weren’t warned of the possibility that they would be dragged under by a convicted nominee.)
What could be an escape hatch for the party in case of conviction? Republicans might consider clarifying party rules to provide latitude to shove Trump aside if he is convicted. Elaine Kamarck wrote last year for the Brookings Institution that if a candidate dies or is “incapacitated” after the primaries but before the convention, the convention would choose the candidate, turning into “what conventions used to be before primaries became dominant.”
But would conviction amount to incapacity? The party, heavily dominated by Trump loyalists, would have to decide. That is good reason for Republicans with any sense to start thinking now about clarifying what amounts to “incapacity.”
If a candidate dies or is incapacitated after the convention, as Kamarck explained, the Republican National Committee would pick the nominee. To save the party, would the RNC have the nerve to knock out a convicted Trump on the grounds that he was “incapacitated”? That would be a political brawl to end all brawls. Again, a rule clarification now might prevent much angst down the road. In short, unless Republicans come up with a definition of “incapacity” that would jettison Trump in case of conviction, they face the real prospect of political disaster.
Republican voters have been living in denial for years now. They ignored evidence of Trump’s alleged criminality arising from Jan. 6. They dismissed the New York state charges as much ado about nothing. Now that Trump has been indicted, and they have seen the judges and prosecutors Trump will face and have learned juries cannot be spun, it might be time to start planning for the very realistic eventuality that he will be convicted. Even if they are convinced he is innocent, surely they understand there is some risk that jurors will not agree.
In the month before the South Carolina primary, Nikki Haley, now Trump’s sole challenger for the party nomination, should make sure Republicans do not ignore that risk. If she cannot dissuade them from nominating an indicted man with a losing streak in court, perhaps she can at least persuade the RNC to take prophylactic measures to avoid an election debacle. If not, the GOP might face an election wipeout.
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