Former President Trump has finally come clean about his hostility to the American Constitution and his willingness to overthrow the government. On Saturday he took to Truth Social, his social media platform, to rehash the Big Lie about the 2020 election, but with a revealing and reprehensible new twist: a call to “terminate” the Constitution.
Trump was spurred to do so by the revelation on Friday that Twitter had taken “extraordinary steps to suppress” the Hunter Biden laptop story in the run-up to the 2020 election.
According to journalist Matt Taibbi, Twitter went so far as “removing links” to the New York Post’s expose that had been shared by users “and posting warnings that it may be ‘unsafe.’” Taibbi said Twitter blocked the story’s “transmission via direct message, a tool hitherto reserved for extreme cases, e.g. child pornography.”
Trump’s predictable first response was declaring — in all caps — “MASSIVE & WIDESPREAD FRAUD AND DECEPTION” and claiming there were only two options: either throw out the 2020 presidential election results and declare him the winner or have a new election.
He then went a big step further, writing: “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution. Our great ‘Founders’ did not want, and would not condone, False & Fraudulent Elections!”
He followed up by posting “UNPRECEDENTED FRAUD REQUIRES UNPRECEDENTED CURE!”
What Trump said Saturday is startlingly different from his previous proclamations of “love” for the Constitution.
It has been apparent for a long time that Trump has never really had much of a grasp of what the Constitution actually says, let alone what the Founders thought or wanted.
And it is hardly news that Trump doesn’t really care about facts and doesn’t allow reality to prevent him from saying whatever he pleases — or engaging in what the philosopher Harry Frankfurt labels “bullshitting.”
If Trump really knew or cared about our Constitution, he would realize that what really is unprecedented in modern American history is his expressed willingness to toss it aside.
Not since the Civil War has a major political figure, or someone 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 pledge.
As an article in the Washington Post correctly notes, that oath dates back to 1868 when all former Confederate soldiers wishing to take advantage of an amnesty offered by President Andrew Johnson had to swear to it.
Congress later amended the oath requirement so that it applied to all federal officers. As The Post explains, “The language has stuck around, presently codified at 5 U.S.C. 3331.”
Unlike Trump, at least the Civil War leaders who renounced their allegiance to the Constitution did so out of loyalty to a cause larger than their own political ambition.
During real emergencies, presidents have assumed vast powers and sometimes seemed to skirt the Constitution — but none of them ever claimed that anything justified ignoring or “terminating” it or any part of it.
Think here of President Abraham Lincoln’s 1861 suspension of the writ of habeas corpus. When his authority to do so was challenged in court, Lincoln did not trash the Constitution; instead, he offered a constitutional justification for his action. He claimed that he was authorized by the Constitution’s Article I, Section 9, which allows a suspension of the writ “when in cases of rebellion or invasion the public safety may require it.”
Almost a century later, in 1952, during the Korean War, President Harry Truman was faced with the prospect of a work stoppage at 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 privately owned steel mills and keep them running.
As authority, Truman cited the Constitution’s Article II, 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 for peace depend on our defense production.”
Invoking his fidelity to the constitution, Truman added, “I would not be living up to my oath of office if I failed to do whatever is required to provide (American troops) with the weapons and ammunitions they need for their survival.”
Immediately after the Supreme Court ruled against him in a suit brought by the owner of the steel mills, Truman ordered control of the steel industries returned to them.
These examples and others show how extraordinary Trump’s statement about the Constitution really is. Never before in our history has a president, former president, or presidential candidate treated the Constitution in such a cavalier manner.
And never before has any of them attacked it in such a transparently self-serving way.
But the significance of what Trump said is not simply a matter of its status in our history.
Trump’s statement about “terminating” electoral provisions of the Constitution amounts to what lawyers call an “admission against interest.” Such an admission, which can be made before, during or after a crime, is defined as an out-of-court statement made by a subject of a criminal investigation that is against their own “pecuniary, proprietary, or penal interest.”
The statement offers important evidence about Trump’s culpability in the Jan. 6 insurrection and about his state of mind and intention. 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 important, the statement offers further evidence of Trump’s unfitness ever again to 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.