The federal government’s domestic terrorism watchdog – the Department of Homeland Security – is said to be monitoring extremist groups’ web and other electronic traffic to detect any signs of a violent attempt to put former President Donald Trump back in the White House. A constitutional theory now being circulated by Trump himself, and by some of his supporters, claims that he could resume the presidency this summer, perhaps in August.
There is, in fact, nothing to the theory that would elevate it above a myth or wishful thinking among Trump followers. Even so, the spread of the theory continues, and even seems to grow in intensity as the nation continues to ponder how to prevent a repeat of the Trump-inspired insurrection that stormed the U.S. Capitol six months ago today.
The constitutional reality, of course, is that America has only one President at a time. If there were anything to the reinstatement theory, it would have to include some way to oust President Joe Biden. None seems likely at this point.
The core of the theory is that the November 3 election was actually won by Trump, and then was stolen from him by fraud and other forms of manipulation in a handful of key states. (The victory part of this narrative is based on the reality that, in the early hours after the voting ended, Trump appeared to hold a lead in a number of key states. That lead, of course, was lost as the counting continued to its actual conclusion.)
The reinstatement part of the theory simply assumes that, when some substantive event occurs this summer, such as the discovery of clear evidence of fraud (perhaps by auditing of the ballots in several states in the manner now being pursued by a wholly extra-legal method in Arizona), the victory will become clear and Trump would then become President.
However passionately Trump and many Republicans may wish to believe the contrary, Biden attained the office by constitutionally legitimate means. Here’s how: (1) the people voted on November 3 and they chose presidential electors pledged to Biden in sufficient numbers to give him the constitutional minimum – at least 270 electoral votes; (2) electors met in December in all 50 states and they officially cast 306 votes for Biden and 232 for Trump, using the power of choice that the Constitution gives solely to them; (3) all of the states followed existing legal requirements for formally reporting their electoral vote totals to Congress, and (4) a joint session of Congress, although temporarily interrupted by the insurrection, on January 6 counted the electoral votes assuring Biden of election; (5) Biden took the formal oath of office on January 20 shortly after noon and, at that very moment, Trump’s presidential term ended automatically, as a constitutional fact.
After the election was over, federal officials monitoring election integrity proclaimed the 2020 presidential balloting the soundest in history.
Biden, as the sitting president, could vacate the office in keeping with the Constitution in one of these ways: he could voluntarily resign, he could be impeached and removed involuntarily from office, he could become incapacitated at least temporarily and be replaced for a time by Vice President Kamala Harris, or he could die in office. There is no other means within the Constitution.
It appears to be part of the theory, for some Trump followers, that the Supreme Court with its conservative majority (including three Trump nominees) would ultimately declare him the winner of the 2020 balloting.
This is as thin a part of the theory as any other part of it: there simply is no way for Trump and his followers to prepare a lawsuit – to be filed directly in the Supreme Court or to begin in lower federal or state courts and work its way up to the Supreme Court – that would have any chance of succeeding.
We can believe that there is no such way, because more than 60 lawsuits were filed by Trump or sympathizers after the election, and ultimately collapsed without a definitive result. The Supreme Court, dealing with the most ambitious of those lawsuits, simply found no basis for it even to be filed. However clever or creative a legal team might be, a viable lawsuit to end the Biden presidency and make Trump president again probably does not exist.
There is a naïve belief, among some Americans, that anyone with a legal grievance has a right to “take it all the way to the Supreme Court.” That, too, is mostly a myth; the Constitution makes clear that the only authority the federal courts, including the Supreme Court, have is to decide a real live lawsuit, made up of a legitimate and presently existing legal grievance. The Trump rallying cry, “Stop the Steal!”, does not qualify.
If there is no constitutional means to reinstate Trump, then the nation might be faced with the stark reality that it could happen only by a coup d’etat in a fashion typical of some banana republic – or, perhaps, in an imitation of what was attempted by the violent assault on the Capitol on January 6.
A senior official of the Department of Homeland Security told a secret congressional hearing last month (as reported by the Politico news organization) that the Department was not aware at that time of any specific, credible threats of violence linked to the reinstatement theory. But, he reportedly added, officials were definitely concerned about the continued circulation of the stolen-election narrative.
Almost daily, television news broadcasts bring new films showing just how that narrative actually did ignite an insurrection.
