If Trump Loses And Won’t Leave, The Constitution Will Make Him

The 20th Amendment is clear: If Trump loses and refuses to concede, on January 20, 2021, at noon, he will no longer be President.
President Donald Trump delivers a statement in the Diplomatic Reception Room of the White House, Wednesday, Dec. 6, 2017, in Washington. (AP Photo/Evan Vucci)

President Donald Trump delivers a statement in the Diplomatic Reception Room of the White House, Wednesday, Dec. 6, 2017, in Washington. (AP Photo/Evan Vucci)

Isa-Lee Wolf is a writer and a non-practicing lawyer with a B.A in sociology.

On August 21, 2020, Donald Trump again floated the idea that the 2020 election may take an unusually long time to decide:

“I don’t think you’ll know 2 weeks later. I don’t think you’ll know 4 weeks later. I don’t know what’s going to happen. You know there’s a theory that if you don’t have it by the end of the year crazy Nancy Pelosi would become president.”

That “theory” is called the 20th Amendment to the Constitution, coupled with the Presidential Succession Act of 1947. Should Trump try to delay the election results, his term expires automatically on January 20th, 2021 at noon, as does Mike Pence’s. Then the Speaker assumes the duties of the office, meaning Trump would then be talking about “crazy” Madam President Pelosi.

This newest attempt to cast doubt on the law is far from the first time Trump has mused about ways he can stay in power that have absolutely no connection to reality or the Constitution. Most recently, on August 18, 2020, Donald Trump suggested he should serve at least three terms as President of the United States:

And on August 19, when asked if Trump would accept the results if he loses, White House Press Secretary Kayleigh McEnany confirmed Trump was not willing to accept adverse results:

Trump cannot legally serve three terms under the 22nd Amendment. Trump remaining in office any longer than two terms would require a complete overthrow of the Constitution. The same goes for Trump refusing to leave or accept the outcome of the 2020 election; under the 20th Amendment, if he loses or no winner is declared, his term expires, with or without him.

None of these points of law are subtle, fuzzy, unclear, or debatable. Every time Trump makes these claims, he advocates for an actual overthrow of the Constitution, yet far too few seem to notice.

He also cannot change the date of the presidential election. Congress alone has that power.

Trump laughably alleges that President Obama and Vice President Biden were “caught spying” on his campaign, according to Trump, requiring a presidential third-term mulligan. No such mechanism or exception exists. He calls the investigation into his campaign “treason.”

Not only is that allegation ludicrous, it’s dangerous. Treason is a crime against the United States, yet at the time of his campaign, Trump was a private citizen. Claiming that the legitimate investigation into his demonstrated ties to Russia is “treason” means Trump is claiming he, himself, is the United States, and that he always was, even before holding any elected office. Like a king.

To paraphrase the entire point of the Constitution, “uh, no.”

Under the 22nd Amendment, presidents can serve only two terms. There are no magic “outs,” and sadly President Obama isn’t heading back to the Oval Office either, no matter how much we wish it could be true. But that hasn’t stopped Trump from asserting he’d stay longer than two terms again and again and again.

And it hasn’t stopped right-wing media from flapping their hands as though it could happen. It cannot happen, not without an official dismantling of the Constitution.

Trump also refuses to state plainly that he would accept the results of the election. To that, the Constitution blithely shrugs and acknowledges we all have issues.

To stay in the White House after losing, he would need a lot of friends willing to stage a very literal coup. As of January 20, 2021, he would no longer hold the power of the office, meaning he would no longer be Commander in Chief of the military nor in charge of the Executive Branch. Anyone obeying his “orders” would be following an ordinary citizen telling them to commit a crime against the United States. That is called a seditious conspiracy, and it’s a crime punishable by 20 years in prison:

“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”

After the reports of Vladimir Putin placing a bounty on the heads of US troops--American soldiers were likely killed— and Trump’s refusal to raise the issue with Putin, demanding the military risk charges of treason or seditious conspiracy to help Trump overthrow the Constitution seems like a big ask.

Can Trump cause a lot of trouble? Undoubtedly he can, and he already has. Will our armed forces follow him off the precipice in an actual, literal military coup?

In the philosophical words of a Magic 8 Ball, “My sources say no.”

Constitution 101

All the power of the government comes from the Constitution. All of it. Every single thing that Trump can do is spelled out there, along with a lot of things that he and the government cannot do in the Amendments.

Congress cannot override or undo constitutional Amendments, only another Amendment can repeal a previous one. Take prohibition, instituted by the 18th Amendment. It took another Amendment, the 21st, nestled neatly between the 20th and the 22nd, to end it. And passing an amendment isn’t easy, just ask the Equal Rights Amendment, still pending after 48 years.

An Amendment, after it’s passed by Congress, must be “ratified,” meaning approved by the state legislatures of 3/4ths, or 38 of 50, of the states. There is no way Trump can repeal the 20th or 22nd Amendments by January, let alone November. They are the law of the land.

While the Supreme Court of the United States (SCOTUS) interprets what the Amendments mean, it does not have the power to repeal them. And this Court has specifically rebuked Trump for attempting to make the presidency a monarchy, essentially telling Trump in Trump v. Vance, District Attorney of the County Of New York, et al. that he is not, in fact, a king. Rather, “[t]he President, by contrast, is ‘of the people’ and subject to the law.”

The Court also rejected Trump’s unilateral rescission of DACA (Deferred Action for Childhood Arrivals), calling it “arbitrary and capricious.” SCOTUS hardly seems poised to throw out two constitutional amendments to appease Trump. And given that both were passed in the 20th century, there’s no guesswork as to their meaning or intention, so very little room for interpretation.

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The 20th Amendment Explained

Surprisingly, perhaps the most delightful introduction to an Amendment ever comes from the center-right National Constitution Center:

“If awards were given to constitutional amendments for quietly doing their job without generating litigation or public controversy, certainly the Twentieth Amendment would be a contender for that prize. Ratified in 1935, it has never been the subject of a Supreme Court decision and has rarely been interpreted by lower courts.”

So what does the 20th Amendment say? Sections 1 and 3 relate directly to Trump’s repeatedly stated intention to ignore election results, to refuse to leave, or to somehow postpone calling the election.

“Section 1.
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.” [emphasis added]

It’s explicitly clear. The language requires no ceremony, no inauguration, no passing of a torch whether figurative or literal. The term expires automatically. The next term begins automatically. It’s not up to Trump to accept or reject the results of the election, the 20th Amendment is unambiguous. No “theories” here.

Note that Congressional terms start earlier, on January 3rd, leaving plenty of time to elect the Speaker for the next two-year session.

The next relevant section is 3:
“If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.” [emphasis added]

So if no winner is yet declared, that means no vice-presidential winner will yet be declared either. What happens? We look to Congress, who passed the Presidential Succession Act in 1947. The Act provides, in part:

(1)If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.
(2)The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.”

In 1947, much like Trump himself, they definitely didn’t see Speaker Nancy Pelosi (D-CA) coming, judging by that “upon his resignation,” but nonetheless, this situation is completely, unquestionably, unambiguously covered by law.

A quick recap in case your eyes have glazed from all the legalese: Under the 20th Amendment, Trump’s term expires on January 20th, 2021 at noon, without any further action from anyone.

If no winner is declared, the Speaker of the House, probably Speaker Pelosi, automatically takes over the duties and powers of the presidency. That scenario is highly, highly unlikely, though, as all presidential election disputes must be resolved by December 8, 2020, the Electors of the Electoral College will meet December 14, all ballots are due by December 23, and the ballots are counted on January 6, 2021.

And a fun fact about the 12th Amendment, which covers the Electoral College: if the tallying of the votes results in no clear winner, the House of Representatives votes to elect the president.

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The 22nd Amendment

After Democratic President Franklin D. Roosevelt served three terms as president, Republicans proposed a constitutional amendment limiting presidential terms. Again, from the conservative National Constitution Center:

“…talk about a presidential term-limits amendment started in 1944 when Republican candidate Thomas Dewey said a potential 16-year term for Roosevelt was a threat to democracy. In a speech in Buffalo on October 31, 1944, Dewey said, ‘four terms or sixteen years is the most dangerous threat to our freedom ever proposed. That is one reason why I believe that two terms must be established as the limit by constitutional amendment.’”

The Republican-majority Congress made it so, and the amendment was ratified in 1951. Prior to the ratification of the 22nd, not seeking more than two terms was a political norm following the lead of President George Washington, but as we’ve learned over the last few years, sometimes norms are not enough.

The relevant text of the 22nd Amendment:

Section 1.
No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.” [emphasis added.]

Much has been made of the word “elected,” with it being fashioned into a crowbar to pry open a third term for President Obama. Some claim were he the Vice Presidential candidate, and the president resigned, he would not then be “elected.”

When the judiciary interprets the law, it often looks at the legislative intent, or what lawmakers wanted to accomplish when drafting it, bringing to mind Dewey’s warning about the threat to freedom. The intent of the Amendment is plain: presidents cannot serve more than two terms.

One can become president only through election or succession, no other means exist. The Amendment is also clear about limits after succession.

Could Trump somehow turn the word “elected” to his advantage? Not in any way that wouldn’t turn our constitutional government into a farce. Even in his fetid fantasy, he assumes elections:

“We are going to win four more years. And then after that we’ll go for another four years, because they spied on my campaign. We should get a re-do of four years.”

Again, there is no such re-do under the Constitution or the law, and the assertion is patently ridiculous.

Trump would have to get the Supreme Court to carve out an exception to an Amendment that simply does not have one, and SCOTUS has already shown it’s disinclined to present Trump with novel powers. That aside, if somehow within this dystopian nightmare, Trump manages to wrangle a second term, his attempts to evade the clear term limits of the 22nd Amendment would likely be the least of our worries.

However, if a then 82-year-old Trump somehow manages to convince SCOTUS that the 22nd Amendment doesn’t mean what it says, he wouldn’t be the only one who could stage a third-term comeback; ostensibly, Presidents Obama and Clinton could also suit up, even joining in any litigation. No doubt the matter would be settled instantaneously.

Upshot: no, Trump can’t serve more than two terms.

The Rantt Rundown

That a delay in election results that goes into January means a President Pelosi is not a “theory.” It’s a fact; a matter of law. Trump’s term will expire. And no, he cannot serve more than two terms, if it comes to two terms.

Perhaps because the assertions keep the clicks a’clicking, outlets seem reluctant to declare, outright, that he can’t serve his aspirational three terms and has no say in the expiration of his term in January. The Constitution leaves no wiggle room, no space for speculation. Any other claims are fearmongering at their lowest.

Yes, Trump has gotten away with the unimaginable, but all that, to date, required the aid of Senate Majority Leader Mitch McConnell and his dour band of Republicans. Neither the 20th Amendment, which ends Trump’s term on January 20th, 2021, nor the 22nd Amendment, which sets presidential term limits, requires action from the Senate; nor can the Senate block either Amendment. On this front, Trump is on his own.

Assuming he is not reelected, Trump’s presidential powers automatically expire at noon on January 20, 2021, nary a pomp nor a circumstance required. If he does contest the election, as he’s threatened to do, and there is no winner by that date, as per the Presidential Succession Act, the Speaker of the House becomes president after resigning as Speaker and Representative.

Without presidential powers, he is just Donald Trump, the guy who once tried to sell us steaks and bankrupted not one, not two, but three casinos. Anyone following him in his quest to cling to power would be engaged in a seditious conspiracy to overthrow the government and subject to criminal prosecution for it, as would he.

If Trump is somehow reelected, he cannot serve a third term as president. Though some have argued semantics with the 22nd Amendment, the legislative intent was clearly to limit presidents to two terms. But if he insists on trying, Presidents Obama and Clinton could join in the fun, and likely that would be the end of that.

Under Trump, reasons to worry abound, but his not committing to accepting election results or trying to serve a third term are not among them. The only way he could do either is by an actual, literal coup overthrowing the Constitution.

So go forth and spread the good word that Trump, no matter what he claims, is not king, the election results are not his to accept or not accept, and President Pelosi is no “theory.” The Constitution, not Trump, will have the final word.

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Opinion // Constitution / Donald Trump / Executive Power / Law