Please read the article. Any comments by someone who just posts all the usual false claims without reading my fact checks will be deleted, thanks.
Here are some points to consider:
1. Congress can't edit the US Constitution.
2. The Supreme Court can't edit the US constitution
3. The only way to edit the Supreme Court is if 2/3 in both chambers vote for an amendment first, or 2/3 of the states and then 3/4 of the states ratify the amendment by a simple majority in both chambers (one chamber for Nebraska)
4. The Supreme Court Justices often ruled against Trump - they NEVER tooko up any of his cases of electoral fraud and he has the worst record of any president at least from 1937 onwards, the only president since then to lose more than half his cases in the Supreme Court.
5. The president has NO POWER over justices he appoints to the Supreme Court. They are appointed for life precisely so that the president can't put pressure on them by threatening ot fire them. They can only be removed by impeachment in Congress for wrong doing.
6. The Supreme Court did NOT give Trump what he wanted in his immunity decision - he wanted absolute immunity. Instead the case went ahead with addition of a pre-trial stage and Jack Smith asked the Judge to dismiss it without prejudice which means the pre-trail stage can be concluded in 2029 if the next administration wants to do so. The Statute of Limitations of 5 years would probably be ruled to be paused during the admin.
7. Trump was elected in a free and fair election and there was no involvement of the Supreme Court in the voting process.
8. The majority in the Supreme Court DOES make decisions through a legal interpretative philosophy - structuralist / formalist / originalist. Mainly structuralist for the immunity decision.
9. All the justices agreed that the president has SOME immunity because of his pardon power so they had to decide where to draw the line.
10. The immunity decision has NOTHING to do with the interpretation of the 22nd Amendment or the 20th Amendment.
11. There is no way that Trump would be permitted on the ballots in 2028. It would be rejected in the lower courts and the Supreme Court wouldn't even accept any appeal of the case.
The reason for deleting comments is that people I help get scared by comments like those even if written by someone who never read my article.
There is a LOAD OF NONSENSE about this topic in social media, blog posts etc. I don't want my blog post to be overwhelmed by people repeating that nonsense here.
But intelligent discussion based on reading the article is welcome :).
Trump doesn't care about the Constitution but the military, police, national guard, the generals, the judges, and most ordinary US citizens too, they all care deeply about the US Constitution. The military are prepared to give their lives to protect it.
It doesn't matter they will just be court-martialed if they committed war crimes. And also go through civilian trials for their crimes if conducted on US soil.
I have a separate debunk about that.
I go into that here in detail:
Trump can’t start a world war
- is not a hawk
- and can’t order a general to go against the US Constitution
Military officers are drilled on swearing their oaths to the constitution and to disobey an illegal order. Even if he goes through with that board or something I think he'll still find it hard to find officers to just obey him on a whim even those who votes for him. They swear their oaths to the constitution not to a man. And he can only promote officers who are 1 star generals.
Also, if a general issues an illegal order, everyone he orders is required by their oath to refuse it. So if one general might be found who breaks his oath - he would find nobody obeys his orders and he is court martialed or if he's done a crime against civilians also prosecuted through the civilian courts.
There is simply no mechanism for a president to dissolve the US Constitution. Of course he can say "I dissolve the US Constitution" but since a president doesn't have that power it is like saying "I dissolve the Moon". Nothing will happen.
The problem I see, and please tell me I'm wrong, it's that he basically tested and will continue to test the limits other elected officials have for legal recourse when he does impugn laws. For example, he ignored Senate subpoenas and he told his lackeys to ignore subpoenas. They did and Congress couldn't DO anything to make him not ignore them.
I'm reminded of a scene from Game of Thrones when Littlefinger was smugly telling Cersei Lannister that money was power, believing himself safe from her and her family. She told her royal guard to kill him, when he was about to, she told him not to. She replied to Littlefinger, "Power is power." Mic drop.
So what recourse is there if the Constitution SAYS that he can't be president any longer and he disregards that, stays in the Whitehouse, and his maga-controlled Senate and House continue to defer to him? He says he'd "dissolve" the Constitution but he doesn't need to, he just needs to keep not heeding it inconsequentially.
First he likely loses the House, Senate or both in the mid-terms.
Even if he still has a Republican majority in both chambers, it is not MAGA controlled, there is nowhere near a MAGA majority. MAGA Republicans form just one of about five groups in the House. I talk about the divisions here:
But anyway - it's not the Senate or the House that is in charge of security for the White House, it's the United States Secret Service Uniformed Division
At 12 noon on Jan 20th 2029 the loyalty of the USSS UD switches from Trump to the next president. If he stays in the White House he is no longer the president, he is an intruder to be ushered out.
They would say to the next president "Donald Trump is squatting in the White House and refuses to leave, what should we do"
And he'd just say "Remind him he isn't the president any more and escort him to a helicopter or plane and take him wherever he wants to go" or some such.
I'm sure Robert will get back to you, but you're assuming that he'll make it all four years and that's far from a guarantee and if the democrats take back the house or senate he may not have enough support in the house to do what he wants. And this is not Game Of Thrones. That's fiction and reality is totally different from that. And we've got to stop thinking of Trump like he's some type of evil genius like Cersei or Littlefinger. He's not.
Your reply to me was needlessly condescending. I know what fiction is and what reality is. I was using Game of Thrones as an example of the exercise of power, because Game of Thrones is about power and how to wield it. It's not actually about dragons and swords.
Instead of Game of Thrones, why don't I use Russia and Vladimir Putin as "real" examples of how power can be used and abused. Vladimir Putin is "president" of Russia. He was prime minister for a while as he sorted out his country's little legislative snafu regarding the "illegality" of him being "president" for longer. After he fixed it, he became president again. He will legally be president for twelve more years. Does anyone think he will just resign and give up his power after twelve years? No, he will change other laws or change his titular position again. He is both rich and has the power to do exactly what Cersei Lannister did not do. He could kill or order someone to be killed and there is what I'd guess to be a low probability that he would suffer any consequences from that. With his KGB past, we actually know he has killed people or ordered people to be killed, because that is what KGB people do. And no consequences, because he has power.
I am saying that dump is not as powerful as Vladimir Putin, but he has also successfully tested the limits of what America's legal system can do to him and it wasn't very fucking much, was it? He was literally found guilty of a crime and he will not have any legal consequences imposed on him for it. He incited an insurrection and instead of getting charged with sedition by the US Attorney General as he should have, he faced no charges because the AG was both an institutionalist and a coward. Instead of getting charged for treason, people voted him back into office. Instead of being impeached and indicted on the impeachment charges for attempted blackmail, he got to just...stay in office. I think it's fair to say that he has tested the legal system and found it nicely inept.
I see how the framers made it very difficult to change the Constitution or to "dissolve" it. I see that they also tried to make the whole structure of a three-branched government very hard to destabilize but lo, it took less than 300 years for gifted and talented Americans to hack their own democratic government apart. If there is no functional democracy in this reality of ours, how is the Constitution going to do fuck all for democracy?
The reason that Trump can't become like Putin is precisely because of the US Constitution + that the US has an independent judiciary.
With Jack Smith, he had to drop the charges. If it was something more serious such as murder he might not. But the people had voted Trump as president and it was because of that that he suspended the charges, essentially the people were voting amongst other things for the charges to be suspended because Trump would be able to stop the prosecution on the day he became president anyway.
So he just had the choice to exit gracefully in a controlled way or to be sacked abruptly on day 1 of Trump's presidency. He chose to end the cases in a controlled way.
But this was not before judge Chutkan ordered the release of redacted versions of all the material he gathered to prove that Trump could be prosecuted for Jan 06.
Also Jack Smith recommended the charge be dropped "without prejudice". Judge Chutkan agreed to this and Trump's team raised no objections.
He won't go to prison for this. But if he does anything similar in his 2nd term then he near certainly does go to prison after it. He needs to be on his best behaviour for this next term which may be difficult for him.
Trump's Jan 06 trial is suspended now but without prejudice. This means in principle it can be started up again once he leaves office.
Although it is not in practice likely that he is prosecuted for this same case again - that is important because it shows Chutkan's understanding that Trump's immunity as president is temporary and expires when he leaves office.
Essentially it's a warning to Trump not to step over the line again, if he does then he may be in a lot of trouble after 2029.
The reason it is in practice highly unlikely to be taken up again is because of the statute of limitation of 4 years (unless he does something else similar this time around).
QUOTE STARTS
U.S. District Judge Tanya Chutkan on Monday granted Special Counsel Jack Smith's motion to dismiss without prejudice the criminal case against President-elect Donald Trump over his conduct after the 2020 election, citing a sitting president's broad immunity from prosecution.
"When a prosecutor moves to dismiss an indictment without prejudice, there is a strong presumption in favor of that course," wrote Chutkan, who sits in Washington, D.C. "Dismissal without prejudice is also consistent with the Government's understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office."
...
The election, Smith wrote, “sets at odds two fundamental and compelling national interests: on the one hand, the Constitution’s requirement that the President must not be unduly encumbered in fulfilling his weighty responsibilities … and on the other hand, the Nation’s commitment to the rule of law and the longstanding principle that ‘[n]o man in this country is so high that he is above the law.'”
QUOTE However, it's extremely unlikely that any prosecutor would attempt to bring the same charges in the future, in part because the statute of limitations for the alleged crimes will have expired by the time Trump leaves office in four years.
In context:
QUOTE STARTS
In a two-page opinion, Judge Chutkan wrote that dismissing the case without prejudice is "appropriate" and would not harm the "public interest," agreeing with Smith's argument that Trump's immunity would not cover him when he leaves office.
"Dismissal without prejudice is also consistent with the Government's understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office," Chutkan wrote.
However, it's extremely unlikely that any prosecutor would attempt to bring the same charges in the future, in part because the statute of limitations for the alleged crimes will have expired by the time Trump leaves office in four years.
President elect Donald Trump and Special Counsel Jack Smith.
AFP via Getty Images
Trump's lawyers did not oppose the government's motion to dismiss the case without prejudice.
"That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution, which the Government stands fully behind," Smith stated in his motion to dismiss.
"The country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President," the motion said. "After careful consideration, the Department has determined that OLC's prior opinions concerning the Constitution's prohibition on federal indictment and prosecution of a sitting President apply to this situation and that as a result this prosecution must be dismissed before the defendant is inaugurated."
Please also do NOT attack others who are commenting here. The context here is that we are fact checkers helping scared people. We are not here to try to argue for political positions. If you are scared we are here to help you.
If however this is just about scoring political points you are in the wrong place.
I am ONLY doing this to help people scared of Trump. No interest in trying to re-run the election in a comment thread. I don't even live in the USA and couldn't have voted for either candidate.
Do you think he needs one? It hasn’t dawned on you what he said he was going to do to those who’ve opposed him? Who is he trying to put in power around him? Hmm…. He’s built his mechanism. Wake the hell up!
I have looked carefully at all those things. He is trying to surround himself with people who don't understand how government works. It will be a serious case of amateur hour. They will try to do impossible things and be stopped by the checks and balances at every turn.
Also he can't appoint anyone without confirmation in Senate. Matt Gaetz has already withdrawn his bid. The others likely will too. A president can't appoint people to the most key positions in government in the USA without he support of the Senate and there are more than 10 Senators who are more than willing to stand against him. 22 voted against his explicit demands on the Ukraine bill the first time it passed in the Senate in the Spring - later on Trump changed his position in response and supported it.
BLOG: List of more than 10 senators likely to vote against recess appointments and individual unsuitable Trump appointees
- only 4 is enough to change a 53 : 47 pass to a 49 : 51 fail
He can't dissolve the constitution. The only way he can even change the constitution is to get 291 congrssspeople and 67 senators to agree and 38 states to ratify. That's not gonna happen. He can't suspend or dissolve the constitution there's no way for him to do it. Not even the Supreme Court can do that.
I guess the question is best posed as a problem of constitutional crises. I’m tempted to write a long argument here but I’m not sure it would be more valuable than a simple thought experiment. Imagine a corrupt president, having served two terms, has managed to install relatives and sycophants as the main actors in the political party under whose banner he/she leads the nation. And imagine through a series of deals, lies and threats he/she has brought the significant majority of the similarly branded members of state and federal government (bicameral legislatures or whatever) into craven submission. And imagine further that three of the nine members of the Federal Supreme Court owe their positions to him/her, and (not necessarily the same) three of nine were specifically promoted to their seats at least partly because of their involvement in the installation of a President of the same party through post-electoral litigation. I’m not going to even discuss the silliness of ‘textualism’ or ‘originalism’ because let’s assume the three-ninths or the other three-ninths don’t really believe that nonsense either but find it a convenient beard. Add in the fact that some of these Supreme Court members have adjudicated that a President has absolute immunity for acts taken while in office. (Not worth thinking about whether those acts were ‘presidential’ - won’t matter - they can always be claimed to have been).
Anyway - with that for context - assume that the once and future President seeks nomination for a third time, sues to be on ballots for a third time and wins a general election. Then what happens?
I don't think you've read my article. Please read it. But a short summary.
1. Congress can't edit the US Constitution.
2. The Supreme Court can't edit the US constitution
3. The only way to edit the Supreme Court is if 2/3 in both chambers vote for an amendment first, or 2/3 of the states and then 3/4 of the states ratify the amendment by a simple majority in both chambers (one chamber for Nebraska)
4. The Supreme Court Justices often ruled against Trump - they NEVER tooko up any of his cases of electoral fraud and he has the worst record of any president at least from 1937 onwards, the only president since then to lose more than half his cases in the Supreme Court.
5. The president has NO POWER over justices he appoints to the Supreme Court. They are appointed for life precisely so that the president can't put pressure on them by threatening ot fire them. They can only be removed by impeachment in Congress for wrong doing.
6. The Supreme Court did NOT give Trump what he wanted in his immunity decision - he wanted absolute immunity. Instead the case went ahead with addition of a pre-trial stage and Jack Smith asked the Judge to dismiss it without prejudice which means the pre-trail stage can be concluded in 2029 if the next administration wants to do so. The Statute of Limitations of 5 years would probably be ruled to be paused during the admin.
7. Your claim that 3 of the justices were involved in installing Trump as president does NOT make sense. He was elected in a free and fair election and there was no involvement of the Supreme Court in the voting process.
8. The majority in the Supreme Court DOES make decisions through a legal interpretative philosophy - structuralist / formalist / originalist. Mainly structuralist for the immunity decision.
9. All the justices agreed that the president has SOME immunity because of his pardon power so they had to decide where to draw the line.
10. The immunity decision has NOTHING to do with the interpretation of the 22nd Amendment or the 20th Amendment.
11. There is no way that Trump would be permitted on the ballots in 2028. It would be rejected in the lower courts and the Supreme Court wouldn't even accept any appeal of the case.
I will do this as a summary near the top of the post and as a comment.
I will leave this comment up for a day or two for you to read it and then delete your comment.
The reason is that people I help get scared by comments like this even though it is written by someone who never read my article - can't have as you would know I answered all that.
I will also add a note to the comments to please read the article. Any comments by someone who has clearly not read the article will be deleted.
Your original post and the follow-up are indeed appreciated. I read them both and I read the article before I wrote my first post. Thanks for both - and you’re welcome to delete my comment any time, of course.
I’d just like to say a few things - you can leave them up or not.
1. Having read your article, and a few others like it, I think you underestimate the constitutional crisis that would ensue if Trump continues to bend his party to his will and gets himself nominated in 2018.
2. Logan Act, Hatch Act, etc - the law doesn’t seem to matter enough to be enforced against Trump and the structures of American government, while strong, seem to bend to his will enough to cause real problems.
3. It’s a thought experiment - let’s allow that any party gets far enough down the road to nominating a president for the third time and gets him/her on enough ballots with any number of judges on various relevant benches who’ve been appointed by that party.
4. Throw in the fact that 50% of the electorate voted for him and actually appears to want him in the chair. (And some of them have been willing to do violence even if he loses)
5. What I argue is that this is the frame for one more of the constitutional crises that your country has had in the last few decades.
6. Your point number 7 misreads what I said. 3 justices were appointed by Trump (Gorsuch, Kavanaugh, Coney Barrett) and not the same three (Roberts, Kavanaugh, Coney Barrett) were involved as Republicans in post-electoral litigation in favour of the Republican candidate in 2000.
In short, I appreciate your lengthy and thoughtful article and sincerely hope you’re right, and the standards of American law and governance hold. Your point that Jack Smith has quite rightly left the door open is a good one and I’m glad he has. But I am more of a pessimist - and I think the Lindsey Grahams and Sam Alitos and Aileen Cannons are going to be the more important actors in the next four years. And yes, I think there’s a reasonable chance he’s going to give it a whirl and I think a lot of those types of people are going to legitimize him and his efforts. Otherwise he’d already be in jail for stealing rafts of state secrets (whatever Act that is).
I don't understand. How is he supposed to get on ANY ballots when it is clearly prohibited by the 22nd amendment. It doesn't matter which party appoints the judges NO JUDGE would read the 22nd amendment as permitting a president to run for a third term. It is just an IMPOSSIBLE READING.
QUOTE No person shall be elected to the office of the President more than twice
Also surely he wouldn't be nominated as they would know he can't get on any ballots so there would be no point in nominating him.
Also there is nothing in the US Constitution about the number of people who vote for him. He wasn't an especially popular president by popular vote, one of the smallest margins in recent years. But even if he'd won by a landslide it would make no difference as a popular president is still term limited by the US Constitution even if he got every single vote in the eleciton.
I don't know what you mean by post-electoral litigation in favour of Trump in 2000. The Supreme Court justices don't litigate. Unless they did so in a personal capacity which seems unlikely.
They decide cases but don't litigate. And I don't see how it is relevant to the 22nd amendment.
So I don't seem to have anything to answer here, it's just impossible, please elaborate. Thanks.
And it would help to give your sources if you have any, for this idea of judges permitting a two times former president to be put on the ballot for a third time and what reasoning they could give for such a decision.
Have you seen any legal expert make such a claim or is it just a hypothetical from someone's imagination?
Remember judges decide according to legal reasoning. Legislators are not required to give any reasoning for their vote. But judges do and it has to be well grounded in the US Constitution and the law.
Second - absolutely the law is as written. And I’m not really saying there aren’t legal reasons why he can’t become the President for a third time. Black letter law, as you state and quote. And of course the number of people who would vote for him isn’t terribly relevant - you’re right, but that’s not why I mentioned it. (And as a side issue, of course an electoral victory is a mandate - that’s the definition of the word: “an authorization to act given to a representative” per Merrimack-Webster. Trump’s mandate is not wholly compelling but it appears to be legal). I mentioned it because numbers drive behaviour - in politics and elsewhere.
Third - I’m an optimist at heart but the last three elections have caused me real concern that the rule of law will continue to be under attack. To be clear - you’re right on all counts as far as the law is concerned. But I’m not sure you’re right that the Republican Party won’t put him forward as a nominee. The thing that concerns me is the continued series of constitutional crises that begin with Nixon and have worsened with Bush and then Trump. Given that Trump’s mantra is, following Roy Cohn, to “attack, counterattack and never apologise” (https://www.bbc.com/culture/article/20240517-roy-cohn-the-mysterious-us-lawyer-who-helped-donald-trump-rise-to-power) I believe you are headed into four years of continued tests on the rule of law, including the potential of a three term President. He’s put it out there already as you know - maybe a bit flip, but that’s how it starts.
Anyway - feel free to delete, as you say. I’m not claiming he’s ‘going’ to be doing this - I’m saying that you’re going to be subject to exceptional further strain on the rule of law - and this looks like one more potential avenue along which that may progress.
Oh the Republicans could nominate him. I don't think there is a law against nominating a candidate who can't be on any ballot. They could nominate Elon Musk who can't be president because he wasn't born in the USA.
But they would never get their candidate on the ballots so there is no point in it.
Actually I'm not sure they could nominate, not for legal reasons but because they would have a vetting process to check to see if a candidate can be president before nominating them. Elon Musk would fail that vetting process and so would Trump. They had to vet Vance before Trump could nominate him as Vice president.
So try working through how that future scenario develops.
In 2028 he Republican party nominate Trump for a third term. The courts unanimously in all the US states rule that he can't be on the ballot because of the 22nd amendment.
What happens next?
Also as far as I can tell these are just scenarios in your imagination. Or perhaps you haw seen it shared in social media?
If this was a real possibility - is it notable enough for e.g. Associated Press to run a story about it? Yes of course it would be very notable.
There is no such story. It can't be possible.
There are often stories that are mistaken. But if something isn't even running and it should be one of the biggest stories out here you can be sure that it is mistaken.
On litigation no I didn't know that, so they were on Bush's team helping him to litigate.
Okay - but that does NOT mean that they would be litigating as justices.
We see that from the many times that they decided against Trump in decisions. If they were litigating for him they couldn't make such decisions or even argue against him, only decide for him and argue for him for as long as there is any argument to be made for him. So it is very different.
Once a lawyer becomes a judge or justice they have to be unbiased and not be prosecuting for one or other side.
It's about looking at both sides of a case instead of just one side.
Similarly it says there that Stephen Breyer was on the opposite side of the litigation. He is a liberal justice. But again he can't prosecute, for the liberal side of a case that would be very improper. He has to look at both sides of any case.
Hope that helps.
Glad this discussion is useful. I will see if anyone gets scared by what you said - so far nobody has been so probably it's okay to keep this up here.
Also I would add that there's a lot of paranoia and defeatist going on on social media right now. There are people who are working to fight Trump these next four years, legally and politically so if you did hear these from social media take it with a grain of salt.
Point given. 49.97% with 99.7% reporting. I’ll even give you 49.95%. You can win an electoral college victory with 25% of the popular vote, so it’s pretty cold comfort.
Yes winning just means he gets to be president doesn't mean he can run for a third term as president. ALL presidents that have served for 2 terms won the election both times and usually they win with a majority of the popular vote too, in 2016 Trump was a rare exception there.
But there is nothing in the 22nd amendment about this making any difference to how many terms that a president can serve. So it's irrelevant.
And the 22nd amendment is crystal clear no one can be elected more than twice. There's no way for him to be allowed to run for a third term even if he tried which personally I don't think he will. I'm not even sure he'll make it all four years, states will have to keep him off the ballot.
Note. Please keep conversations here repectful. Any comments that are personal attacks will be removed, thanks!
If he didn’t loose the election in 2020 and in his immigration he is still president that makes two terms and he is not eligible for a third.
Please read the article. Any comments by someone who just posts all the usual false claims without reading my fact checks will be deleted, thanks.
Here are some points to consider:
1. Congress can't edit the US Constitution.
2. The Supreme Court can't edit the US constitution
3. The only way to edit the Supreme Court is if 2/3 in both chambers vote for an amendment first, or 2/3 of the states and then 3/4 of the states ratify the amendment by a simple majority in both chambers (one chamber for Nebraska)
4. The Supreme Court Justices often ruled against Trump - they NEVER tooko up any of his cases of electoral fraud and he has the worst record of any president at least from 1937 onwards, the only president since then to lose more than half his cases in the Supreme Court.
5. The president has NO POWER over justices he appoints to the Supreme Court. They are appointed for life precisely so that the president can't put pressure on them by threatening ot fire them. They can only be removed by impeachment in Congress for wrong doing.
6. The Supreme Court did NOT give Trump what he wanted in his immunity decision - he wanted absolute immunity. Instead the case went ahead with addition of a pre-trial stage and Jack Smith asked the Judge to dismiss it without prejudice which means the pre-trail stage can be concluded in 2029 if the next administration wants to do so. The Statute of Limitations of 5 years would probably be ruled to be paused during the admin.
7. Trump was elected in a free and fair election and there was no involvement of the Supreme Court in the voting process.
8. The majority in the Supreme Court DOES make decisions through a legal interpretative philosophy - structuralist / formalist / originalist. Mainly structuralist for the immunity decision.
9. All the justices agreed that the president has SOME immunity because of his pardon power so they had to decide where to draw the line.
10. The immunity decision has NOTHING to do with the interpretation of the 22nd Amendment or the 20th Amendment.
11. There is no way that Trump would be permitted on the ballots in 2028. It would be rejected in the lower courts and the Supreme Court wouldn't even accept any appeal of the case.
The reason for deleting comments is that people I help get scared by comments like those even if written by someone who never read my article.
There is a LOAD OF NONSENSE about this topic in social media, blog posts etc. I don't want my blog post to be overwhelmed by people repeating that nonsense here.
But intelligent discussion based on reading the article is welcome :).
Thanks!
He doesn’t care about the Constitution! JFC!
That still doesn't change the fact that he can't change it nor can the Supreme court.
Trump doesn't care about the Constitution but the military, police, national guard, the generals, the judges, and most ordinary US citizens too, they all care deeply about the US Constitution. The military are prepared to give their lives to protect it.
I think you’d be surprised how many fascists are in the military
It doesn't matter they will just be court-martialed if they committed war crimes. And also go through civilian trials for their crimes if conducted on US soil.
I have a separate debunk about that.
I go into that here in detail:
Trump can’t start a world war
- is not a hawk
- and can’t order a general to go against the US Constitution
SEE BLOG: https://robertinventor.substack.com/p/trump-cant-start-a-world-war-is-not
Is he not currently arranging to purge generals deemed unwilling to obey?
Military officers are drilled on swearing their oaths to the constitution and to disobey an illegal order. Even if he goes through with that board or something I think he'll still find it hard to find officers to just obey him on a whim even those who votes for him. They swear their oaths to the constitution not to a man. And he can only promote officers who are 1 star generals.
Also, if a general issues an illegal order, everyone he orders is required by their oath to refuse it. So if one general might be found who breaks his oath - he would find nobody obeys his orders and he is court martialed or if he's done a crime against civilians also prosecuted through the civilian courts.
What part of his saying he’ll dissolve the US Constitution do you fail to understand!
There is simply no mechanism for a president to dissolve the US Constitution. Of course he can say "I dissolve the US Constitution" but since a president doesn't have that power it is like saying "I dissolve the Moon". Nothing will happen.
The problem I see, and please tell me I'm wrong, it's that he basically tested and will continue to test the limits other elected officials have for legal recourse when he does impugn laws. For example, he ignored Senate subpoenas and he told his lackeys to ignore subpoenas. They did and Congress couldn't DO anything to make him not ignore them.
I'm reminded of a scene from Game of Thrones when Littlefinger was smugly telling Cersei Lannister that money was power, believing himself safe from her and her family. She told her royal guard to kill him, when he was about to, she told him not to. She replied to Littlefinger, "Power is power." Mic drop.
So what recourse is there if the Constitution SAYS that he can't be president any longer and he disregards that, stays in the Whitehouse, and his maga-controlled Senate and House continue to defer to him? He says he'd "dissolve" the Constitution but he doesn't need to, he just needs to keep not heeding it inconsequentially.
First he likely loses the House, Senate or both in the mid-terms.
Even if he still has a Republican majority in both chambers, it is not MAGA controlled, there is nowhere near a MAGA majority. MAGA Republicans form just one of about five groups in the House. I talk about the divisions here:
https://robertinventor.substack.com/p/trump-wont-be-able-to-pass-anything#%C2%A7why-it-is-so-hard-for-republicans-to-agree-on-anything-factions-of-the-current-congress-from-moderate-establishment-to-pro-trump-insurgents-who-fight-everyone-else-and-will-have-to-lead-in-the-next-congress
But anyway - it's not the Senate or the House that is in charge of security for the White House, it's the United States Secret Service Uniformed Division
https://en.wikipedia.org/wiki/United_States_Secret_Service_Uniformed_Division
At 12 noon on Jan 20th 2029 the loyalty of the USSS UD switches from Trump to the next president. If he stays in the White House he is no longer the president, he is an intruder to be ushered out.
They would say to the next president "Donald Trump is squatting in the White House and refuses to leave, what should we do"
And he'd just say "Remind him he isn't the president any more and escort him to a helicopter or plane and take him wherever he wants to go" or some such.
I'm sure Robert will get back to you, but you're assuming that he'll make it all four years and that's far from a guarantee and if the democrats take back the house or senate he may not have enough support in the house to do what he wants. And this is not Game Of Thrones. That's fiction and reality is totally different from that. And we've got to stop thinking of Trump like he's some type of evil genius like Cersei or Littlefinger. He's not.
Your reply to me was needlessly condescending. I know what fiction is and what reality is. I was using Game of Thrones as an example of the exercise of power, because Game of Thrones is about power and how to wield it. It's not actually about dragons and swords.
Instead of Game of Thrones, why don't I use Russia and Vladimir Putin as "real" examples of how power can be used and abused. Vladimir Putin is "president" of Russia. He was prime minister for a while as he sorted out his country's little legislative snafu regarding the "illegality" of him being "president" for longer. After he fixed it, he became president again. He will legally be president for twelve more years. Does anyone think he will just resign and give up his power after twelve years? No, he will change other laws or change his titular position again. He is both rich and has the power to do exactly what Cersei Lannister did not do. He could kill or order someone to be killed and there is what I'd guess to be a low probability that he would suffer any consequences from that. With his KGB past, we actually know he has killed people or ordered people to be killed, because that is what KGB people do. And no consequences, because he has power.
I am saying that dump is not as powerful as Vladimir Putin, but he has also successfully tested the limits of what America's legal system can do to him and it wasn't very fucking much, was it? He was literally found guilty of a crime and he will not have any legal consequences imposed on him for it. He incited an insurrection and instead of getting charged with sedition by the US Attorney General as he should have, he faced no charges because the AG was both an institutionalist and a coward. Instead of getting charged for treason, people voted him back into office. Instead of being impeached and indicted on the impeachment charges for attempted blackmail, he got to just...stay in office. I think it's fair to say that he has tested the legal system and found it nicely inept.
I see how the framers made it very difficult to change the Constitution or to "dissolve" it. I see that they also tried to make the whole structure of a three-branched government very hard to destabilize but lo, it took less than 300 years for gifted and talented Americans to hack their own democratic government apart. If there is no functional democracy in this reality of ours, how is the Constitution going to do fuck all for democracy?
The reason that Trump can't become like Putin is precisely because of the US Constitution + that the US has an independent judiciary.
With Jack Smith, he had to drop the charges. If it was something more serious such as murder he might not. But the people had voted Trump as president and it was because of that that he suspended the charges, essentially the people were voting amongst other things for the charges to be suspended because Trump would be able to stop the prosecution on the day he became president anyway.
So he just had the choice to exit gracefully in a controlled way or to be sacked abruptly on day 1 of Trump's presidency. He chose to end the cases in a controlled way.
But this was not before judge Chutkan ordered the release of redacted versions of all the material he gathered to prove that Trump could be prosecuted for Jan 06.
Also Jack Smith recommended the charge be dropped "without prejudice". Judge Chutkan agreed to this and Trump's team raised no objections.
He won't go to prison for this. But if he does anything similar in his 2nd term then he near certainly does go to prison after it. He needs to be on his best behaviour for this next term which may be difficult for him.
Trump's Jan 06 trial is suspended now but without prejudice. This means in principle it can be started up again once he leaves office.
Although it is not in practice likely that he is prosecuted for this same case again - that is important because it shows Chutkan's understanding that Trump's immunity as president is temporary and expires when he leaves office.
Essentially it's a warning to Trump not to step over the line again, if he does then he may be in a lot of trouble after 2029.
The reason it is in practice highly unlikely to be taken up again is because of the statute of limitation of 4 years (unless he does something else similar this time around).
QUOTE STARTS
U.S. District Judge Tanya Chutkan on Monday granted Special Counsel Jack Smith's motion to dismiss without prejudice the criminal case against President-elect Donald Trump over his conduct after the 2020 election, citing a sitting president's broad immunity from prosecution.
"When a prosecutor moves to dismiss an indictment without prejudice, there is a strong presumption in favor of that course," wrote Chutkan, who sits in Washington, D.C. "Dismissal without prejudice is also consistent with the Government's understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office."
...
The election, Smith wrote, “sets at odds two fundamental and compelling national interests: on the one hand, the Constitution’s requirement that the President must not be unduly encumbered in fulfilling his weighty responsibilities … and on the other hand, the Nation’s commitment to the rule of law and the longstanding principle that ‘[n]o man in this country is so high that he is above the law.'”
https://www.law.com/nationallawjournal/2024/11/25/judge-grants-special-counsels-motion-dismisses-criminal-case-against-trump-without-prejudice/?slreturn=20241126-30000
QUOTE However, it's extremely unlikely that any prosecutor would attempt to bring the same charges in the future, in part because the statute of limitations for the alleged crimes will have expired by the time Trump leaves office in four years.
In context:
QUOTE STARTS
In a two-page opinion, Judge Chutkan wrote that dismissing the case without prejudice is "appropriate" and would not harm the "public interest," agreeing with Smith's argument that Trump's immunity would not cover him when he leaves office.
"Dismissal without prejudice is also consistent with the Government's understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office," Chutkan wrote.
However, it's extremely unlikely that any prosecutor would attempt to bring the same charges in the future, in part because the statute of limitations for the alleged crimes will have expired by the time Trump leaves office in four years.
President elect Donald Trump and Special Counsel Jack Smith.
AFP via Getty Images
Trump's lawyers did not oppose the government's motion to dismiss the case without prejudice.
"That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution, which the Government stands fully behind," Smith stated in his motion to dismiss.
"The country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President," the motion said. "After careful consideration, the Department has determined that OLC's prior opinions concerning the Constitution's prohibition on federal indictment and prosecution of a sitting President apply to this situation and that as a result this prosecution must be dismissed before the defendant is inaugurated."
https://www.law.com/nationallawjournal/2024/11/25/judge-grants-special-counsels-motion-dismisses-criminal-case-against-trump-without-prejudice/?slreturn=20241126-30000
Please also do NOT attack others who are commenting here. The context here is that we are fact checkers helping scared people. We are not here to try to argue for political positions. If you are scared we are here to help you.
If however this is just about scoring political points you are in the wrong place.
I am ONLY doing this to help people scared of Trump. No interest in trying to re-run the election in a comment thread. I don't even live in the USA and couldn't have voted for either candidate.
I looked back over my answer and you're right I was condescending I apologize.
Do you think he needs one? It hasn’t dawned on you what he said he was going to do to those who’ve opposed him? Who is he trying to put in power around him? Hmm…. He’s built his mechanism. Wake the hell up!
I have looked carefully at all those things. He is trying to surround himself with people who don't understand how government works. It will be a serious case of amateur hour. They will try to do impossible things and be stopped by the checks and balances at every turn.
Also he can't appoint anyone without confirmation in Senate. Matt Gaetz has already withdrawn his bid. The others likely will too. A president can't appoint people to the most key positions in government in the USA without he support of the Senate and there are more than 10 Senators who are more than willing to stand against him. 22 voted against his explicit demands on the Ukraine bill the first time it passed in the Senate in the Spring - later on Trump changed his position in response and supported it.
BLOG: List of more than 10 senators likely to vote against recess appointments and individual unsuitable Trump appointees
- only 4 is enough to change a 53 : 47 pass to a 49 : 51 fail
READ HERE: https://robertinventor.substack.com/p/list-of-10-senators-likely-to-vote
There are many who like you are convinced that he can do impossible things. It is possible that he also believes he can do these things.
But - that is from a position of not knowing how it all works
He claims he learnt from his first term but he ended his first term just as ineffective as when he started it when it comes to his far right agenda.
He can't dissolve the constitution. The only way he can even change the constitution is to get 291 congrssspeople and 67 senators to agree and 38 states to ratify. That's not gonna happen. He can't suspend or dissolve the constitution there's no way for him to do it. Not even the Supreme Court can do that.
Please no personal attacks. Of me or anyone else. Thanks!
Did you mean 2028 or 2026?
2029. For some reason typed 6 for 9.
I love your articles, thank you so much for the work you put into them. It’s appreciated!
Great glad to help :)
And who really thinks he’s got more than six months left before the dementia takes over and he’s gumming his Happy Meals?
Not unless he forces eliminating term limits and his sycophants on the SCOTUS say “ok orange daddy”
I guess the question is best posed as a problem of constitutional crises. I’m tempted to write a long argument here but I’m not sure it would be more valuable than a simple thought experiment. Imagine a corrupt president, having served two terms, has managed to install relatives and sycophants as the main actors in the political party under whose banner he/she leads the nation. And imagine through a series of deals, lies and threats he/she has brought the significant majority of the similarly branded members of state and federal government (bicameral legislatures or whatever) into craven submission. And imagine further that three of the nine members of the Federal Supreme Court owe their positions to him/her, and (not necessarily the same) three of nine were specifically promoted to their seats at least partly because of their involvement in the installation of a President of the same party through post-electoral litigation. I’m not going to even discuss the silliness of ‘textualism’ or ‘originalism’ because let’s assume the three-ninths or the other three-ninths don’t really believe that nonsense either but find it a convenient beard. Add in the fact that some of these Supreme Court members have adjudicated that a President has absolute immunity for acts taken while in office. (Not worth thinking about whether those acts were ‘presidential’ - won’t matter - they can always be claimed to have been).
Anyway - with that for context - assume that the once and future President seeks nomination for a third time, sues to be on ballots for a third time and wins a general election. Then what happens?
I am hoping this is not a prediction.
I don't think you've read my article. Please read it. But a short summary.
1. Congress can't edit the US Constitution.
2. The Supreme Court can't edit the US constitution
3. The only way to edit the Supreme Court is if 2/3 in both chambers vote for an amendment first, or 2/3 of the states and then 3/4 of the states ratify the amendment by a simple majority in both chambers (one chamber for Nebraska)
4. The Supreme Court Justices often ruled against Trump - they NEVER tooko up any of his cases of electoral fraud and he has the worst record of any president at least from 1937 onwards, the only president since then to lose more than half his cases in the Supreme Court.
5. The president has NO POWER over justices he appoints to the Supreme Court. They are appointed for life precisely so that the president can't put pressure on them by threatening ot fire them. They can only be removed by impeachment in Congress for wrong doing.
6. The Supreme Court did NOT give Trump what he wanted in his immunity decision - he wanted absolute immunity. Instead the case went ahead with addition of a pre-trial stage and Jack Smith asked the Judge to dismiss it without prejudice which means the pre-trail stage can be concluded in 2029 if the next administration wants to do so. The Statute of Limitations of 5 years would probably be ruled to be paused during the admin.
7. Your claim that 3 of the justices were involved in installing Trump as president does NOT make sense. He was elected in a free and fair election and there was no involvement of the Supreme Court in the voting process.
8. The majority in the Supreme Court DOES make decisions through a legal interpretative philosophy - structuralist / formalist / originalist. Mainly structuralist for the immunity decision.
9. All the justices agreed that the president has SOME immunity because of his pardon power so they had to decide where to draw the line.
10. The immunity decision has NOTHING to do with the interpretation of the 22nd Amendment or the 20th Amendment.
11. There is no way that Trump would be permitted on the ballots in 2028. It would be rejected in the lower courts and the Supreme Court wouldn't even accept any appeal of the case.
I will do this as a summary near the top of the post and as a comment.
I will leave this comment up for a day or two for you to read it and then delete your comment.
The reason is that people I help get scared by comments like this even though it is written by someone who never read my article - can't have as you would know I answered all that.
I will also add a note to the comments to please read the article. Any comments by someone who has clearly not read the article will be deleted.
Thanks!
2028, of course. Ouch.
Your original post and the follow-up are indeed appreciated. I read them both and I read the article before I wrote my first post. Thanks for both - and you’re welcome to delete my comment any time, of course.
I’d just like to say a few things - you can leave them up or not.
1. Having read your article, and a few others like it, I think you underestimate the constitutional crisis that would ensue if Trump continues to bend his party to his will and gets himself nominated in 2018.
2. Logan Act, Hatch Act, etc - the law doesn’t seem to matter enough to be enforced against Trump and the structures of American government, while strong, seem to bend to his will enough to cause real problems.
3. It’s a thought experiment - let’s allow that any party gets far enough down the road to nominating a president for the third time and gets him/her on enough ballots with any number of judges on various relevant benches who’ve been appointed by that party.
4. Throw in the fact that 50% of the electorate voted for him and actually appears to want him in the chair. (And some of them have been willing to do violence even if he loses)
5. What I argue is that this is the frame for one more of the constitutional crises that your country has had in the last few decades.
6. Your point number 7 misreads what I said. 3 justices were appointed by Trump (Gorsuch, Kavanaugh, Coney Barrett) and not the same three (Roberts, Kavanaugh, Coney Barrett) were involved as Republicans in post-electoral litigation in favour of the Republican candidate in 2000.
In short, I appreciate your lengthy and thoughtful article and sincerely hope you’re right, and the standards of American law and governance hold. Your point that Jack Smith has quite rightly left the door open is a good one and I’m glad he has. But I am more of a pessimist - and I think the Lindsey Grahams and Sam Alitos and Aileen Cannons are going to be the more important actors in the next four years. And yes, I think there’s a reasonable chance he’s going to give it a whirl and I think a lot of those types of people are going to legitimize him and his efforts. Otherwise he’d already be in jail for stealing rafts of state secrets (whatever Act that is).
I don't understand. How is he supposed to get on ANY ballots when it is clearly prohibited by the 22nd amendment. It doesn't matter which party appoints the judges NO JUDGE would read the 22nd amendment as permitting a president to run for a third term. It is just an IMPOSSIBLE READING.
QUOTE No person shall be elected to the office of the President more than twice
Also surely he wouldn't be nominated as they would know he can't get on any ballots so there would be no point in nominating him.
Also there is nothing in the US Constitution about the number of people who vote for him. He wasn't an especially popular president by popular vote, one of the smallest margins in recent years. But even if he'd won by a landslide it would make no difference as a popular president is still term limited by the US Constitution even if he got every single vote in the eleciton.
I don't know what you mean by post-electoral litigation in favour of Trump in 2000. The Supreme Court justices don't litigate. Unless they did so in a personal capacity which seems unlikely.
They decide cases but don't litigate. And I don't see how it is relevant to the 22nd amendment.
So I don't seem to have anything to answer here, it's just impossible, please elaborate. Thanks.
And it would help to give your sources if you have any, for this idea of judges permitting a two times former president to be put on the ballot for a third time and what reasoning they could give for such a decision.
Have you seen any legal expert make such a claim or is it just a hypothetical from someone's imagination?
Remember judges decide according to legal reasoning. Legislators are not required to give any reasoning for their vote. But judges do and it has to be well grounded in the US Constitution and the law.
Thanks for your comments - I appreciate the thoughtfulness you bring to this and fact-checking is a thankless task in any time.
First - Barrett, Kavanaugh and Roberts were all involved in the Bush v Gore litigation - I think this is pretty broadly known:
https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html
Second - absolutely the law is as written. And I’m not really saying there aren’t legal reasons why he can’t become the President for a third time. Black letter law, as you state and quote. And of course the number of people who would vote for him isn’t terribly relevant - you’re right, but that’s not why I mentioned it. (And as a side issue, of course an electoral victory is a mandate - that’s the definition of the word: “an authorization to act given to a representative” per Merrimack-Webster. Trump’s mandate is not wholly compelling but it appears to be legal). I mentioned it because numbers drive behaviour - in politics and elsewhere.
Third - I’m an optimist at heart but the last three elections have caused me real concern that the rule of law will continue to be under attack. To be clear - you’re right on all counts as far as the law is concerned. But I’m not sure you’re right that the Republican Party won’t put him forward as a nominee. The thing that concerns me is the continued series of constitutional crises that begin with Nixon and have worsened with Bush and then Trump. Given that Trump’s mantra is, following Roy Cohn, to “attack, counterattack and never apologise” (https://www.bbc.com/culture/article/20240517-roy-cohn-the-mysterious-us-lawyer-who-helped-donald-trump-rise-to-power) I believe you are headed into four years of continued tests on the rule of law, including the potential of a three term President. He’s put it out there already as you know - maybe a bit flip, but that’s how it starts.
Anyway - feel free to delete, as you say. I’m not claiming he’s ‘going’ to be doing this - I’m saying that you’re going to be subject to exceptional further strain on the rule of law - and this looks like one more potential avenue along which that may progress.
Really appreciate your commentary.
Oh the Republicans could nominate him. I don't think there is a law against nominating a candidate who can't be on any ballot. They could nominate Elon Musk who can't be president because he wasn't born in the USA.
But they would never get their candidate on the ballots so there is no point in it.
Actually I'm not sure they could nominate, not for legal reasons but because they would have a vetting process to check to see if a candidate can be president before nominating them. Elon Musk would fail that vetting process and so would Trump. They had to vet Vance before Trump could nominate him as Vice president.
So try working through how that future scenario develops.
In 2028 he Republican party nominate Trump for a third term. The courts unanimously in all the US states rule that he can't be on the ballot because of the 22nd amendment.
What happens next?
Also as far as I can tell these are just scenarios in your imagination. Or perhaps you haw seen it shared in social media?
If this was a real possibility - is it notable enough for e.g. Associated Press to run a story about it? Yes of course it would be very notable.
There is no such story. It can't be possible.
There are often stories that are mistaken. But if something isn't even running and it should be one of the biggest stories out here you can be sure that it is mistaken.
On litigation no I didn't know that, so they were on Bush's team helping him to litigate.
Okay - but that does NOT mean that they would be litigating as justices.
We see that from the many times that they decided against Trump in decisions. If they were litigating for him they couldn't make such decisions or even argue against him, only decide for him and argue for him for as long as there is any argument to be made for him. So it is very different.
Once a lawyer becomes a judge or justice they have to be unbiased and not be prosecuting for one or other side.
It's about looking at both sides of a case instead of just one side.
Similarly it says there that Stephen Breyer was on the opposite side of the litigation. He is a liberal justice. But again he can't prosecute, for the liberal side of a case that would be very improper. He has to look at both sides of any case.
Hope that helps.
Glad this discussion is useful. I will see if anyone gets scared by what you said - so far nobody has been so probably it's okay to keep this up here.
Also I would add that there's a lot of paranoia and defeatist going on on social media right now. There are people who are working to fight Trump these next four years, legally and politically so if you did hear these from social media take it with a grain of salt.
It wasn't 50% that voted for Trump. When the counting is fully done it'll be 49%.
Point given. 49.97% with 99.7% reporting. I’ll even give you 49.95%. You can win an electoral college victory with 25% of the popular vote, so it’s pretty cold comfort.
Still it's not a mandate.
Yes winning just means he gets to be president doesn't mean he can run for a third term as president. ALL presidents that have served for 2 terms won the election both times and usually they win with a majority of the popular vote too, in 2016 Trump was a rare exception there.
But there is nothing in the 22nd amendment about this making any difference to how many terms that a president can serve. So it's irrelevant.
Hope this helps :)
And the 22nd amendment is crystal clear no one can be elected more than twice. There's no way for him to be allowed to run for a third term even if he tried which personally I don't think he will. I'm not even sure he'll make it all four years, states will have to keep him off the ballot.
Robert you might want to change the title to 2029. It reads 2026.
Will do :)
Thank you.