The Illegal President

Eight years ago an antidemocratic flaw in the Constitution made Donald Trump president, even though he lost the popular vote.

In 2020, he tried to use his undemocratically won power to subvert the Constitution and seize another term. He failed.

In 2024 he tried again. This time he succeeded.

Under the Constitution, Trump Is Disqualified From Serving Again. Trump’s Court Declared Him Qualified.

On January 6, 2021, Mike Pence refused Trump’s demand that he overturn the election and install them both for a second term. The violent mob Trump summoned and incited were able to breach the Capitol but not, ultimately, to prevent Congress from meeting to certify the results. Although most Republican members of Congress violated the Constitution and voted against certification, the true results were certified.

What Pence refused to do and the mob could not, Trump’s Supreme Court did willingly and triumphantly in 2024.

Under Section 3 of the Fourteenth Amendment, any government official who swears an oath to support the Constitution and then engages in insurrection against the United States is permanently barred from holding federal office.

There’s only one exception: Section 3 says Congress can permit an oath-breaking insurrectionist to serve again—but only if both houses of Congress approve it by a two-thirds majority vote. It’s a heavy burden, requiring strong bipartisan agreement.

There’s never been a vote of Congress to allow Trump to be president despite his insurrection, much less by two-thirds of Congress, which is far more than Republicans control.

Although the language in the Constitution is clear, the Supreme Court ruled last March in Trump v. Anderson that the prohibition against insurrectionists doesn’t take effect unless Congress enacts legislation activating it and determining whom it applies to.

As Justices Sotomayor, Kagan and Jackson say, “nothing in Section 3’s text supports the majority’s view.”

The Constitution says:

• Oath-breaking insurrectionists can not hold office
• Unless two-thirds of Congress votes to allow it

Five Supreme Court justices say:

• Oath-breaking insurrectionists can hold office
• Unless Congress votes by simple majority to prohibit it
• (As for the text's expressly requiring a two-thirds vote to allow an insurrectionist to hold office … well, they don’t explain how that still makes sense.)

No honest judge following any recognized method of constitutional interpretation could sincerely reach this conclusion.

But this Supreme Court majority—created by two justices Trump was able to appoint (even Amy Coney Barrett didn’t go along with it) only because the antidemocratic Electoral College put him in office—is not honest.

Under the Constitution, Presidents Are Not Empowered to Commit Crimes With Impunity. Trump’s Court Declared Him Unaccountable for Past and Future Crimes.

Four months after clearing the way for insurrectionists in office, the Supreme Court majority Trump created freed him from criminal prosecution as well, and in so doing transformed the office of the presidency itself.

In Trump v. United States, the Supreme Court ruled that former presidents are immune from prosecution for criminal acts they committed as president—absolutely immune for crimes committed in the exercise of their “core constitutional powers,” and presumptively immune as to all official acts. As Justice Sotomayor aptly put it in dissent, it’s a legal innovation that “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”

The immunity decision makes the man taking his second presidential oath this afternoon into something unlike any prior president, and even unlike the president he was in his first term. Trump was corrupt, dishonest, and vindictive last time, and ultimately attempted to subvert an election through violence. But he generally showed the kinds of restraint that the threat of criminal prosecution can engender even in a proud and committed outlaw. Most of his crimes he took steps to conceal. Others looked a lot like crimes but were open to plausible non-criminal interpretation. This time around, in core areas of presidential responsibility, the Supreme Court has invited him to commit crimes openly. How he’ll employ that newfound flexibility is anyone’s guess.

While this get-out-of-jail-free card is theoretically available to all presidents, it is valuable only to criminal presidents—an unconstitutional invitation to commit illegal acts, made specially for an insurrectionist who will serve illegally as president.

Under the Constitution, Trump Could not Escape Trial in 2024 for his Crimes Against the Nation and the Constitution. Trump’s Court Declared Him Untriable.

In combination, these two decisions also advanced Trump’s campaign in ways that surely won him votes—easily enough votes to have altered the outcome of this unusually close election—even aside from the question of his eligibility as an insurrectionist.

The decision in the immunity case, and its timing, prevented what should have been an extended and very public examination of the details of his criminal effort to overturn the election, and the deadly consequences. The decision in the insurrectionist case prevented potential additional proceedings examining whether his actions amounted to insurrection—which Trump’s lawyers disputed, even if the rest of us watched him do it on TV. The press would also have had reason to keep the question of his eligibility alive throughout the campaign.

Post-election analysis has criticized the Harris campaign for its supposed over-focus on “democracy,” an abstraction, we’re told, too vague to motivate voters. And yet it was the Supreme Court that relegated democracy to the status of vague abstraction, by blocking the trials that would have dressed the abstraction in visceral, concrete detail, through extended video of the violent attacks and testimony from its victims and perpetrators.

While undermining the Harris campaign’s democracy theme, these Supreme Court decisions simultaneously fueled the Trump campaign‘s narrative of grievance and dominance. They validated his refrain that the court cases against him—all of them, he claimed—were politically motivated and legally unsupportable.

To voters feeling aggrieved themselves and looking to Trump as their champion, the Supreme Court decisions verified his credentials as savior suffering on their behalf. Whether the accusations against Trump were true or false was, at most, secondary. What mattered was that he had defeated his opponents. If he did it by means of subservient judges whom he himself appointed, that only augmented his prestige.

Trump’s Supreme Court allowed him to serve, gave him license to commit crimes in a new term if elected, and gave an enormous boost to his campaign. None of this was constitutionally permissible.

The crisis of our democracy is not that most Americans are so ignorant or hateful as to have voted for this guy. We’re no more ignorant or hateful than we ever were. It’s not true that we got what we deserve. Even the ignorant and hateful deserve better.

The crisis of our democracy is that the rules aren’t fair, and the other side doesn’t follow them. We need to make the rules fair, apply them, remove the criminals, and give ourselves a chance.

Best,

David

P.S. Happy MLK Day. Hopefully next year we’ll be moving in a direction that better honors his memory.