Former President Trump is finally outspoken about his hostility to the US Constitution and his willingness to overthrow the government. On Saturday, he took to Truth Social, his social media platform, to repeat the Big Lie about the 2020 election, but with a revealing and reprehensible new twist: a call to “end” the Constitution.
Trump was spurred to do so by Friday’s revelation that Twitter had taken “extraordinary steps to suppress the Hunter Biden laptop narrative” ahead of the 2020 election.
According to journalist Matt Taibbi, Twitter even went so far as to “remove links” to the New York Post revelation that had been shared by users “and posted warnings that it could be ‘unsafe’.” Taibbi said that Twitter is using “direct message transmission, a tool that has hitherto been reserved for extreme cases, such as child pornography.”
Trump’s predictable initial reaction was to declare — in all caps — “MASSIVE AND WIDESPREAD FRAUD AND DECEPTION” and claim there were only two options: throw out the results of the 2020 presidential election and declare him the winner, or call new elections.
He then went a big step further by writing: “A massive fraud of this type and magnitude allows for the termination of all rules, regulations and articles, even those in the Constitution. Our great ‘Founders’ did not and would not condone false and fraudulent elections!”
He went on to post “UNKNOWNED FRAUD REQUIRES UNKNOWN CURE!”
What Trump said on Saturday is surprisingly different from his previous proclamations of “love” for the Constitution.
It has long been clear that Trump has never really had a clue about what the Constitution actually says, much less what the Founders thought or wanted.
And it’s hardly news that Trump doesn’t really care about facts and doesn’t let reality stop him from saying what he wants — or engaging in what the philosopher Harry Frankfurt calls “nonsense.”
If Trump really knew or cared about our Constitution, he would realize that what is truly unprecedented in modern American history is his expressed willingness to override it.
Not since the Civil War has a major political figure, or one who took an oath to protect and defend the Constitution against all enemies, foreign and domestic, so openly renounced their loyalty to it and disavowed their promise.
As a Washington Post article rightly points out, that oath dates back to 1868 when all former Confederate soldiers who wanted to take advantage of an amnesty offered by President Andrew Johnson had to swear to it.
Congress later amended the oath requirement to apply to all federal officials. As The Post explains, “The language has stuck, currently codified at 5 USC 3331.”
Unlike Trump, at least those Civil War leaders who renounced allegiance to the Constitution did so out of loyalty to a cause greater than their own political ambition.
During real emergencies, presidents have assumed vast powers and sometimes seemed to circumvent the Constitution – but none of them have ever argued that anything justifies ignoring or “ending” all or part of it.
Consider here the suspension of the writ of habeas corpus by President Abraham Lincoln in 1861. When his authority to do so was challenged in court, Lincoln did not nullify the Constitution; instead, he offered a constitutional justification for his action. He claimed he was authorized by Article I, Section 9 of the Constitution, which allows a stay of the summons “when in case of rebellion or invasion public safety so requires”.
Nearly a century later, in 1952, during the Korean War, President Harry Truman faced the prospect of a work stoppage in the nation’s steel mills. Believing that steel production was essential to the war effort, Truman issued Executive Order 10340 directing his Secretary of Commerce to take possession of the private steel mills and keep them running.
As an authority, Truman cited Article II of the Constitution, which designates the president as commander in chief of the armed forces, as well as his oath of office. As Truman put it, “Our national security and our chances of peace depend on our defense production.”
Truman appealed to his loyalty to the Constitution, adding, “I would be in breach of my oath of office if I did not do what is necessary to provide (U.S. troops) with the guns and ammunition they need to survive.”
Immediately after the Supreme Court ruled against him in a lawsuit brought by the owner of the steel mills, Truman ordered control of the steel industry returned to them.
These and other examples show just how extraordinary Trump’s statement on the Constitution really is. Never in our history has a president, former president or presidential candidate treated the Constitution in such a haughty manner.
And never before have any of them attacked it in such a transparent, selfish way.
But the significance of what Trump said is not just a matter of his status in our history.
Trump’s statement about “terminating” electoral provisions of the Constitution amounts to what lawyers call an “confession against interest.” Such a confession, which may be made before, during or after a crime, is defined as an out-of-court statement by a subject of a criminal investigation that is against their own “pecuniary, property or criminal interest”.
The statement provides important evidence about Trump’s guilt in the January 6 uprising, as well as his state of mind and intent. It can — and should — be used by Special Counsel Jack Smith to bring the former president to justice for what happened that day.
And, just as importantly, the statement provides further evidence of Trump’s unfitness to ever again take the oath of office and serve as president of the United States.
Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College.