The Constitution Protects the US from Becoming a Dictatorship

The U.S. Constitution establishes a strict separation of powers at the federal level, as well as between Washington and the states. Anyone who wants to seize power will be deterred.

A U.S. presidential candidate behind bars; an elected President Donald Trump in custody? Even though that is very unlikely, it would not be the end of Trump’s reign. There are no laws prohibiting him from serving in office behind bars. It will not come to that — despite all 34 charges that the jury in New York will deliberate this week, not to mention the six trials in Florida and at the federal level.*

A President behind Bars?

Still, let’s assume the improbable: In the unlikely case that Trump would, in fact, end up under lock and key before the November election, would that get rid of him as a candidate?

History says no. It points to precedents in which two candidates organized their campaigns from behind bars. Over 100 years ago, Socialist Party leader Eugene Debs ran for president while he was sitting in federal prison in Atlanta. He reeled in more than 1 million votes from his cell. On the far right, conspiracy theorist Lyndon LaRouche Jr. led his election campaign from prison.

The Constitution imposes only two conditions on candidates for president: the candidate must be a born in the United States, and must be at least 35 years old. Trump would thus be allowed to continue campaigning even if he is convicted.* There are only two things he would not be able to do. As a convicted felon, he could not vote in his home state of Florida; that is forbidden by state law. For the same reason, he could not pardon himself as president. No matter. The Department of Justice would leave a convicted head of state alone. The Justice Department declared most recently in 2000 that a sitting president enjoys constitutional immunity in order to be able to carry out his executive duties.

Only impeachment, in which the House of Representatives brings charges and the Senate conducts a trial on the charges, could force a president out of office. But that is a political, not a judicial procedure. Senate Democrats could not overcome the high barrier to conviction on impeachment charges. Moreover, Trump has already been impeached twice. The Senate found him not guilty. On the other hand, Bill Clinton was also exonerated by a Democratic-led Senate.

Normally, one would assume that a candidate facing more than 94 charges at the state and federal level would be out of the running. The opposite seems to be the case. The fiercer the legal prosecution, the more mobilized Trump’s fans become.

So, what happens if Trump moves into the White House for a second time — regardless of the trials? Could he pronounce himself a caudillo?** On the one hand, maybe. The president enjoys a wide range of powers, including 135 emergency powers listed by the Brennan Center at New York University. Thus, he could, for example, set the Department of Justice on his enemies and take command of the National Guard. Abraham Lincoln, in fact, imposed censorship during the Civil War. Congress has never unseated a president through impeachment.

Strict Separation of Powers

On the other hand, the Constitution establishes a strict separation of powers at the federal level, as well as between Washington and the states. Those who try to seize power whether from the right or from the left, are deterred. The U.S. Army has never been involved, unlike armies in many other countries. The Constitution has been in effect for 237 years, while around the world, hundreds of other constitutions have been torn up and trampled upon. If it lasts, it holds up.

Franklin Roosevelt once tried to seize power from the Supreme Court; his successor, Harry Truman, wanted to nationalize the steel industry during the Korean War. Both failed. Richard Nixon tried to violate the “checks and balances” provisions in the Constitution during the Watergate affair and was ultimately accused of “executive abuse of power.” He escaped federal prosecution and impeachment by resigning.

History teaches us that those who try to seize power in the U.S. have no chance. Moreover, Trump’s first term in office teaches us that he reacts reflexively and opportunistically as soon as the opposition becomes too much — in the words of the brilliant comedian Groucho Marx, “These are my principles, and if you don’t like them … well, I have others.”

There is a quantum of consolation in the erratic. The dictators of yesterday — Joseph Stalin and Adolf Hitler — were just as predictable as Vladimir Putin, Xi Jinping, Kim Jong Un, and Bashir Assad are today. Their north star was and is absolute power. Unlike in America, these dictatorships lack an ancient constitution whose defenses have stood up for almost a quarter of a millennium. Winston Churchill once said, “You can always count on Americans to do the right thing — after they’ve tried everything else Let’s hope that he was right.

*Editor’s note: A jury found Trump guilty on May 30 of all 34 charges in the New York hush money trial.

**Editor’s note: A caudillo is a military and political leader, although the word is often meant to convey that someone is either a strongman or a warlord.