Trump’s claimed reinstatement: 

A Constitutional myth

By David Adler

Former President Donald Trump has been telling people that he expects to be “reinstated” as president, in August. The premise behind this theory, embraced by his MAGA supporters, is that President Joe Biden’s election victory will be overturned following Republican “audits” of election results in Arizona and Georgia. 

This is no joke. Charles W. Cooke, senior writer for the conservative magazine, The National Review, has gone on record to attest to the accuracy of these reports.

 “Maggie Haberman,” the New York Times reporter who broke the story about Trump’s claims, “is right,” Cooke stated. “I can attest from speaking to an array of different sources, that Donald Trump does believe that he is going to be ‘reinstated’ as president, alongside former Senators Perdue and McSally,” he added. “This isn’t ‘fake news’ or the product of a garbled telegram. I can attest to it myself.”

Cooke’s credentials as a leading writer for The National Review, the most influential conservative magazine in the nation and likely widely read in North Dakota, speak for themselves. And, when Cooke declares that Trump’s statements are not “fake news,” but the real thing, it is time to take notice, and ask: Is there a constitutional mechanism to reinstate a president, other than through an election victory?

The answer, emphatically, is no. Indeed, there is no constitutional pretext, text or context to support former President Trump’s claim. In a word, his theory is without foundation in our constitutional architecture. 

Nevertheless, let’s consider the merits of Trump’s contention as a purely constitutional exercise, in accordance with centuries-old principles of legal and constitutional interpretation, deeply embedded in Anglo-American legal history.

The starting point for analysis, of course, is the text of the Constitution. Article II — the “executive article” — provides the means by which the president is elected. Section 1 states the details for the implementation of the Electoral College, the sole constitutional mechanism for electing a president. 

Article II of the Constitution declares the eligibility requirements — age, residency and citizenship — for someone seeking the White House. It is notable that it makes no mention whatever of a “reinstatement” mechanism for a former president.

The 25th Amendment to the Constitution, ratified on February 10, 1967, improved Article II by filling in details for succession to the presidency. It takes account of the removal of the president from office, as in cases of impeachment, or because of his death, resignation or inability to discharge the duties of the office. But, again, there is in this provision no mention of any mechanism for the reinstatement of a former president.

In sum, the text of the Constitution does not contemplate a theory of reinstatement. Lacking a textual basis, we might ask, consistent with rules of constitutional interpretation, whether there was any mention of a reinstatement theory in the debates in the Constitutional Convention. Was there among the framers any flirtation with such a contention, anything in the train of discussion, or even a scintilla of evidence to support Trump’s claim? The answer is no. Trump and his MAGA supporters will search the records of the Convention in vain for supportive evidence.  

We should add, for the sake of accuracy and thoroughness, that there is no mention of a reinstatement theory in the records of the state ratifying conventions, the Federalist and anti-Federalist papers, or other founding documents that might provide a sympathetic predicate for Trump’s theory.

Another facet of Trump’s assertion is the equally important question of who — what official, department or branch of government — possesses the constitutional authority to implement the reinstatement? Who, in other words, is the implementer?

Obviously, a former president cannot reinstate himself, for that would represent a coup d ‘etat. But it would also be a coup if any constitutionally unauthorized governmental official attempted to reinstate a former president. There’s the rub for Trump’s theory. The Constitution provides no such enumerated or implied power, let alone an inferable basis, for the assertion of a congressional or judicial reinstatement power.  

Even a wild hypothesis that purports to place in the judiciary authority to order reinstatement for a former president, on the premise of a fraudulent election, is blocked by a court’s inability to enforce its own decisions, as Alexander Hamilton observed in Federalist No. 78. In short, even the Supreme Court would lack authority to order the removal of President Joe Biden and the installation of Donald Trump.

Similarly, Congress has no authority to restore Trump to the presidency. The Impeachment Clause vests in the Senate authority to remove from office a president who has been impeached by the House, but there is no constitutional contemplation of either a House or Senate reinstatement authority. 

The constitutional clauses and historical records afford Trump no support for his reinstatement argument. Nor is there support for his claim in the annals of Supreme Court rulings, across a vista of nearly 250 years. Trump’s contention lacks paternity.

How did we get here? How have we arrived at a moment in our history, when such a constitutional myth could be conjured by a former president, and enthusiastically embraced by his supporters who, apparently, believe it is credible?

The political motivations and calculations that lie behind Trump’s indefensible proposition remind us of the compelling need for an informed citizenry to protect the republic from corruptive myths that would, in Thomas Jefferson’s timeless phrase, convert the Constitution “into a thing of wax.”

Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality.

Send questions about the Constitution to Dr. Adler at [email protected] and he will attempt to answer them in subsequent columns.

This column is provided by the North Dakota Newspaper Association and Humanities North Dakota.