Legally, Trump Can’t Be President

Itturns out you cannot carry out violent insurrections, and then hope to legally serve in the American government, according to the U.S. Constitution. Indeed, a rational and honest reading of our much-vaunted Constitution tells us that officeholders who become rebels are thereafter barred from holding public office, absent a two-thirds vote in congress.

This issue was recently raised by two prominent conservative constitutional scholars, William Baude and Michael Stokes Paulsen, in a crucial new articlepublished in the University of Pennsylvania Law Review. The paper is making some waves in Washington, but the underlying logic seems unlikely to change the current trajectory of the GOP, where politics has calcified into absolute loyalty to Trump and his poisonous fairy tales.

Still, the utterly unambiguous language from Section Three of the Fourteenth Amendment makes it quite clear:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Sadly, the political party that purports to revere the American constitution as a divinely inspired document, and insists on legal originalism, a reading that interprets the constitution’s original intent, is highly unlikely to heed this prohibition. The GOP remains trapped in its political death spiral, unable and unwilling to remove itself from Trump’s grip, nor refute his lies.

Which is why the Republican frontrunner, and presumptive nominee, will literally be out on bail during this election for trying to steal the last election, leaving American democracy hanging in the balance, in what is an ugly product of the GOP’s political dysfunction.

But the authoritarian disease roiling the Republican Party doesn’t change a thing about the clarity of this constitutional rule, regardless of whether or not Republicans choose to flout it. If you’ve “taken an oath” as an “officer of the United States,” and “engaged in insurrection or rebellion against the same,” you are prohibited from being an “elector of President,” absent a vote of two-thirds in Congress.

It’s that simple.

It’s also obvious and intuitive that the founders of our system of self-government would want to bar those who had engaged in rebellion against that system, to serve in that system. It’s easy enough to understand why: the preservation of self-governance against those who have proved they would deprive us of it. The violent rebellion on January 6 is proof positive that Donald Trump is precisely such a leader, to say nothing of his behind-the-scenes conspiracy to substitute false electors, pressure officials, and somehow steal the election he lost.

Thus, there exists a compelling constitutional rationale for other Republican candidates to prevent another Trump nomination, should they choose to use it. Unfortunately, the leading Republican candidates seem incapable of doing such a thing, absent a very few exceptions like Chris Christie and Mike Pence, to a far lesser degree.

Rather, they’re mostly meek and silent like Ron DeSantis or complicit like Vivek Ramaswamy. They lack the courage and conviction of a Liz Cheney.

As the historian Timothy Snyder recently put it, America can have Trump or its constitution, but it can’t have both. He’s correct about that, though Republicans have already chosen Trump over America’s norms, institutions, and laws, and now appear ready to take the plunge of nominating a man who led a failed coup d’etat against his own government, in what would amount to a final abandonment of even the pretense to democracy.

Fact or fiction

Of course, Republicans would likely attempt to argue that their twice-impeached and thrice-indicted former president did not actually execute a violent rebellion. They’ve been arguing that January 6 was not what it was since they first cleared out the feces and wreckage from the battered U.S. Capitol, and they’re likely to continue making bad-faith arguments that have nothing at all to do with reality.

At this point, it’s to be expected that Republicans will lie and prevaricate, in the same way that Donald Trump is expected to lie and prevaricate. He’s transformed the Republican Party into a mirror image of himself, remarkably quickly and thoroughly. His pathologies and his lies are its political platform.

But when conservative constitutional scholars warn us that our constitution “disqualifies former President Donald Trump, and potentially many others, because of their participation in the attempted overthrow of the 2020 presidential election,” we should pay close attention.

Ultimately, like so much else in America’s fractured political life, this comes back to the tension between fact and evidence-based reality, and the political fantasia and lies concocted by Donald Trump and his authoritarian allies. It’s a battle between truth and lies, fact and fiction.

Trump claims he won the 2020 election; he claims his was a good-faith effort to pursue irregularities in voting; he claims that widespread voter fraud tainted the results of the election. These are lies. The fact that many Republicans, though certainly not all, continue to parrot these egregious falsehoods, doesn’t change that. It just means the Republican Party as a whole is indoctrinated, radicalized, and institutionally broken, from the top down.

MAGA Republicans are pursuing a post-truth America, where nothing is what it seems, and everything is fungible. It’s a place where democracy is naturally impossible. It’s a place where Trumpism is the only reality; where voters don’t decide elections; where the false narrative is always more important than actual reality. It’s Putinism, not Reaganism or Neoconservatism. The modern GOP has nothing at all to do with actual conservatism. It’s radical authoritarianism.

We’re not there yet, by a miracle, but we’re terrifyingly close. One more Republican presidency, at least from this latest batch of MAGA Republicans, and we’ll be there.

It’s a dream we may never wake up from.