King Trump Is Not Inevitable

The campaign is over; the election is done. The cases against Donald Trump—for the theft and improper storage of sensitive and classified government materials; for the effort to obstruct election administration in Georgia; for the attempt to overthrow the government of the United States on January 6, 2021—are wrapping up, unfinished in some cases and never really started in others. His sentencing for the 34 felony counts where he was found guilty of falsifying business records to hide election interference has been postponed indefinitely. In the executive branch, the transition is underway, complete with smiling photo ops and assurances from President Biden that he won’t stifle or undermine the incoming administration the way he was hampered—by the very man Biden is welcoming back to power. Everything is on track for January 20, 2025: the day that Joe Biden will cease to be president, and Donald Trump will be crowned as king.

There is no question that Donald Trump will not be limited by the Constitutional strictures on the presidency. Not only has the Supreme Court granted his absurd and expansive view of executive power as per Trump v. U.S., but Trump has spent the last four years out of office actively campaigning for the right to do whatever he wants, whenever he wants, however he wants, without consequences. The incoming Republican Congress won its power on much smaller margins than Trump took the presidency, and he is barely two million votes ahead of Harris in the popular vote. Neither the slim and chaotic majority in the House nor the thoroughly Trumpified Senate will reject his whims, either because they’ll agree with his interests or they’ll be too cowardly to object if they don’t. Trump’s early appointments—sex pests and conspiracy theorists, incompetents, lackeys, bootlickers, and sycophants—reveal the nature of what this administration will be. These aren’t people put into place to work for the American people; they will be installed to preserve, protect, and defend the interests of one Donald J. Trump, damn the country.

Yet King Trump, first of his name, is not an inevitability. 

It’s his blatant disregard for the Constitution, the disinterest and disrespect for its limitations, checks and balances, that provides us with one last chance to derail the coming coronation. On January 20, 2017, Donald Trump stood at the Capitol of the United States and swore an oath to the country, the one every president has taken, as prescribed in Article 2, Section 8 of the Constitution. And on January 6, 2021, Donald Trump broke that oath in an attempt to overturn the election, overthrow the duly-appointed government of the United States, and install himself as dictator. It was, in word and deed, an insurrection. And, despite our republic’s long history of peaceful transfers of power, we have an answer for that, if we will only ask the question.

Does the 14th Amendment apply to Donald Trump?

Drafted in the wake of the Civil War, as loyal Union lawmakers attempted to piece together a fractured nation and reintegrate their rebellious former colleagues, the 14th Amendment tried to do several things at once. First, it granted citizenship to all of the formerly enslaved people in the country and all of their progeny going forward, with that citizenship providing equal rights under the law. Second, it created the opportunity to penalize former slave states for deliberately suppressing voters. Third, it barred anyone who had taken an oath to the Constitution from taking another in any form of public service if they had rebelled against the Constitution or attempted to overthrow the government outlined in the document. The only way to return to power in government—elected, appointed, or otherwise—would be to receive amnesty from two-thirds of each chamber of the United States Congress.

Like all aspects of an amendment to the Constitution, Section 3 was hotly debated. Senators sympathetic to the Confederacy and the destitution wrought by the terrible choice to rebel against the Union insisted on all sorts of carve outs. They asked for convictions in a court of law. They wanted time limits on the penalty. They argued vociferously for exceptions and exemptions. They received nothing.

The text of Section 3 of the 14th Amendment is direct and plain: 

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, to support the Constitution of the United States, 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.

Earlier this year, in February, the Supreme Court ruled on this aspect of the Constitution. Colorado’s Secretary of State had reacted to a lawsuit made by Republican voters that asked for Trump to be removed from the primary ballot because of Section 3 disqualification. Trump’s team made several arguments in their defense, all of them absurd. They said that the presidency is not an office under the United States … which is contradicted by the entirety of Article 2. They said that January 6 wasn’t an insurrection, which is belied by what would have happened if the mob had succeeded in any of its goals. They even argued that Trump’s incitement of the mob at his morning speech at the Ellipse was protected speech under the First Amendment. While a lower court entertained this nonsense, the Colorado Supreme Court rejected it completely, and in their decision, even the morally malleable conservative majority of the Supreme Court didn’t buy any of those attempts. Instead, the Supreme Court ruled that not states, but only Congress can implement Section 3 disability to hold office; they never questioned or overturned the decision from the Colorado Supreme Court that Section 3 applied to Donald Trump. 

So we, the people of the United States, should act like it does.

While the Senate remains in Democratic hands through the end of the year, we should harangue them to draft and present an amnesty bill that takes Donald Trump’s disqualification under Section 3 as a self-evident fact. In doing so, they will have invoked and applied Section 3 disability to Trump simply by attempting to clear him of it.

This is how it worked for former Confederates, and this is how it could work for us. There was no question after the war as to who had betrayed their oaths of office, but where there was, people would bring suit and courts would rule. If they were elected, Congress would go on a fact-finding mission to see if they needed amnesty. And then Congress would draft, debate, and vote on amnesty bills to allow affected persons to take power. We can do the same thing. 

Courts have ruled on this, and the Supreme Court passed on any argument to contradict. Further, the conservative majority invoked amnesty acts as part of their ruling in Trump v. Anderson. Congressional majorities already agreed that Trump incited an insurrection—when they impeached and tried him for that exact crime. While the Senate didn’t reach a two-thirds majority for impeachment, the lesser standard of Section 3 would see majorities in the House (232-197) and the Senate (57-43) as enough to disqualify Trump from ever returning to the Oval Office.

We had a select committee in the House determine that Trump planned for weeks to overturn the election, and that January 6 was his final attempt to overthrow the elected government by either intimidating VP Mike Pence into doing his unconstitutional bidding, taking Congress hostage to scare them into doing the same, or creating so much chaos, violence, and instability that the certification would never complete, allowing him to claim authority.

Donald Trump is disqualified under Section 3, and only a two-thirds majority can change that.

This is the plain and undeniable text of the Constitution of the United States. If it means anything, if it has ever meant anything, we must obey it now. This isn’t about political run-arounds (though I don’t like Trump’s politics), and it’s not about nullifying an election result I don’t like (though none of these people, Trump included, should have been on a ballot), and it’s not about lawlessness or power. This is the opposite; this is an affirmation of the republic in the truest sense of the word.

Invoking Section 3 by drafting and attempting to pass an amnesty bill will be messy and difficult and open up more questions than answers. When the bill fails—as it surely must, given Democratic margins in both chambers—we will be in uncharted territory. If it happens before the Electoral College meets, it is possible that Trump will be disqualified from receiving their votes. If it happens before certification on January 6, it is possible that it throws the entire process into confusion. If it happens before January 20, we may see difficulty or even denial in having him take the oath. After that, we may have hundreds or thousands of federal workers reject Trump’s authority as illegitimate. And the Supreme Court will have no answers, as it has no power to interfere in the processes of Congress, let alone ones the court itself explicitly confirmed to be within the power of the institution. The Constitution is just as plain on insurrection as it is on each chamber setting its own rules.

But the potential chaos this would unleash is far, far superior to the alternative of accepting the dissolution of the constitutional order. We have written these rules and tried to live by them for more than two centuries. We have updated them for new moments and eras; we have cherished and fought for them against the evils abroad and the ones within ourselves. It cost more than 300,000 Union souls to end the Slaveholder Rebellion, and it would be an eternal stain on us to hand over the country they died to protect for little more than a pittance. All of this because we didn’t want the inconvenience of managing ourselves in a republic, and hoped we could offload our problems onto a king.

Accepting the text of Section 3 and the text and rules of the Constitution itself is not an answer that solves everything. It is a process. It is a question. It is asking ourselves if we want to rule ourselves or be ruled. Donald Trump did not care about his promise to the Constitution, and the early weeks of his transition show that he won’t be bound by it again. If Trump is allowed to stand up on January 20, uncontested by the system, then the system will cease to exist. Rules only matter when we demand they matter; laws only work when we insist that they work. We are choosing right now whether we are a land of laws or a land of whims.

In our modern moment, we are unused to tackling these hard choices. We like to believe that our predecessors throughout history have answered them already, that we are inheritors and not creators of legacy. But they didn’t know how their efforts would end. They didn’t know that they would be praised as revolutionaries rather than hanged as traitors. They didn’t know that they would start fighting for the Union and end with the destruction of slavery. They didn’t know that the deaths for fair working conditions and to end child labor and to support unions would be vindicated by unbound prosperity for millions, and they didn’t think that the fight against fascism was also a call to ensure the evils of the Nazi regime would never happen again. When our immediate predecessors marched for civil rights and queer rights and women’s rights, they had no idea that their victories would be complete enough that subsequent generations would assume that’s just how the world works.

On January 6, 2021, Donald Trump made a decision that puts Section 3 of the 14th Amendment directly in our hands. This is our time for crafting the world that our descendants will live in. We have been handed an imperfect republic, a broken system that is always in need of fixing. Ben Franklin warned us across time, across possibility, that this would be our task. We were promised self-government. Now it is up to us if we keep it.