The Constitutional Crisis is Real. Here’s How It Will Play Out

Jay Michaelson
·16 min read
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America is facing its greatest constitutional crisis since the Civil War. I know, journalists exaggerate sometimes. But as rock critic Greil Marcus said of punk rock half a century ago, this is actually happening. And if sanity doesn’t prevail, this crisis will affect all of our lives, whether we are paying attention to it or not.

Is this really “unprecedented,” as journalists like to say? Here’s the evidence. There has never been a major presidential candidate on trial, let alone charged with 91 criminal counts in four cases, as well as a massive civil fraud case against his business. Our Constitution doesn’t provide for this situation. There has never been a presidential candidate who attempted a coup, or whatever it is that former President Donald Trump tried to do on Jan. 6, 2021; and while the 14th Amendment bans someone who has “engaged in insurrection or rebellion,” state courts are divided on whether that applies to Trump. And there has never been a presidential candidate who has proposed specifically unconstitutional and undemocratic actions, as Trump has now promised to undertake.

Finally, and perhaps most importantly, there has never been a time at which at least a third of the country believes lies as big as the ones Trump continues to tell: that the 2020 election was stolen from him by massive fraud, that there is a vast governmental and media conspiracy against him, that all the charges are fake. The Constitution never contemplated such a vast campaign of mass deception; in its day, landed white men wrote pamphlets for one another.

All of this is new, and frankly, our country isn’t made for this — not for the Trump candidacy, and even less for a second Trump presidency. The Constitution can’t stop him, the criminal justice system can’t stop him, and sane Republican voters can’t stop him. His second campaign, and potential second term, will test bedrock American principles like at no other time in our history. And when these multiple raging fronts crash together, nobody can say for sure if our system will hold together. Here are the four challenges America will face this year and what might (or might not) stop an avowed authoritarian from leading the country.

1. The Constitution Won’t Stop Trump

Let’s start with Trump’s latest legal challenge (but, due to the way it’s being considered, potentially the first that will be resolved), which is the Colorado Supreme Court’s ruling (echoed by the Secretary of State of Maine) that Trump “engaged in insurrection or rebellion” and is barred from office by Section 3 of the 14th Amendment.

In a 133-page opinion, the court laid out a persuasive case for why Trump’s conduct before, during, and after the Jan. 6 attack on the U.S. Capitol qualifies as an “insurrection.” But as persuasive as that case may be, it’s hard to believe that this particular Supreme Court will endorse it.

First, millions of voters would see this as the greatest judicial power grab in American history, even if the “grab” is really the court exercising its constitutionally-granted authority. It is arguably even more dramatic than the Bush v. Gore decision of 2000, because the court would be throwing a major-party frontrunner off the ballot in all 50 states before a vote is even tallied. This would be bigger than the Watergate cases, Dred Scott, Roe, or Brown. It would be historic, and would likely lead to violence.

For this reason, any justice would proceed cautiously, giving as much benefit of the doubt to Trump as possible. Even if the court weren’t dominated by conservatives, a case of this magnitude isn’t played out on a level playing field. And there is a lot of room for interpretation. Must a disqualified official be convicted of insurrection? No one has ever decided that; Trump’s defenders say yes, his opponents say no. Is the president a “public official” covered by the text of the 14th Amendment? Probably, but again, no one has ever decided that. It’s hard to see the Supreme Court making so much new law in such a high-profile case.

Second, this Court is dominated by “originalists,” who espouse an interpretive theory that tries to define ambiguous terms according to how they would have been understood at the time they were written — 1865, in this case. At that time, the meaning of “insurrection” was clear: The 14th Amendment was passed in the wake of the Civil War, and was directed at former Confederates. As bad as they were, is Jan. 6, and Trump’s months-long campaign to overturn the 2020 election, really like the Civil War? On the other hand, even some conservative law professors have noted that, during the Civil War era, the term “insurrection” was understood broadly.

And then there are the partisans, like Justice Clarence Thomas, whose own wife was in frequent communication with the insurrectionists on Jan. 6. If there were any binding ethics rules at the Supreme Court, Justice Thomas would have to recuse himself from this case. But there aren’t and he won’t.

You, I, or some esteemed state court justices may well answer those questions in a way that would block Trump from office. But it doesn’t matter what we think. It matters what at least five Supreme Court justices think, because they’re the ones who will decide if the 14th Amendment requires states to throw Trump off the ballot.

And what are the chances of that? Zero. Trump will be on the ballot.

2. The MAGA Base Will Still Vote for a Felon

Now let’s look at those four criminal cases. On the face of it, this situation is at once absurd and, yes, unprecedented. No former president has ever been criminally charged before. And while Trump’s legal strategy in all the cases has been to delay everything as long as possible, it’s quite possible that at least some of these cases will be resolved before the election.

First, Trump faces 40 federal charges related to stealing classified documents, which would be a slam-dunk case were it not for the judge in charge of it, Judge Aileen Cannon, who is not merely a Trump appointee but who has issued several questionable decisions indicating a strong bias in Trump and the MAGA movement’s favor. The trial is scheduled for May, but expect it to be delayed.

Second is the federal election interference case, brought by special counsel Jack Smith, in which Trump is accused of fraudulently trying to create slates of fake electors and pressuring Vice President Mike Pence to recognize them (or at least delay the certification of President Joe Biden’s victory). This trial is set for March, if Trump is not found to be immune from prosecution. He has argued that his statements and actions constitute protected free speech.

Third is the Georgia election interference case, in which Trump and numerous co-conspirators are charged with racketeering, forgery, soliciting public officers to violate their oaths of office, and other crimes, all in connection with the 2020 election. This case is least likely to be heard before the election, but it has a twist: Since it’s a state case, it can be tried and heard even if Trump is president.

Finally, Trump faces 34 charges in a New York criminal case about falsifying business records to conceal hush money paid to Stormy Daniels (probably the weakest case of the four), and is a party to a civil case about widespread fraud at the Trump Organization that may shut down his business for good.

So, it is entirely foreseeable, and even likely at this point, that Trump’s unprecedented trial for attempting to overturn the 2020 election will begin on March 4, 2024, and then the next day — Super Tuesday — he will lock up the Republican nomination for president. It is even possible (though less likely) that he will be found guilty of some of the federal or state charges against him in 2024, and will be running for president as a convicted felon. (It’s unlikely that he’ll be literally sitting in jail, as he will surely appeal any conviction.)

And if he wins? This would be new territory, constitutionally speaking. Presumably, Trump will immediately call off all the federal cases against him (itself a constitutional crisis that the Constitution does not contemplate), and it’s not clear whether he’ll comply with Georgia’s state case,or with court orders against him. Not since Marbury v. Madison (1803) has the rule of law been so threatened.

Now, everyone is innocent until proven guilty. But the more you dig into these cases, the more the evidence accumulates that Donald Trump has engaged in massive criminal activity and tried to steal an election. Any other candidate would have withdrawn from the race under such a cloud.

But not Trump. Rather, aided by right-wing media’s greed and Republican politicians’ fear, he has convinced nearly a third of the country that all of this is just a “witch hunt,” to use his favorite phrase, and that the core institutions of civil society — the courts, the so-called “deep state,” responsible news media, scientific and academic institutions — are part of a vast conspiracy theory to undermine America.

For the MAGA base, the charges against Trump are evidence not of Trump’s guilt, but of the judicial system’s corruption. Each successive indictment shows that the deep state, liberal elites, and/or global pedophile ring are out to get Trump, and each successive episode only seems to deepen that resolve. It’s not even politics anymore, so much as sociology and psychology: a classic example of groupthink, a cult of personality, and the way demagogues can weaponize the angriest and most reactive aspects of human nature. MAGA rage reflects a profound spiritual rot, and if you have these people in your family, you know how cancerous it is. It cannot be dislodged. It is a flaw in human psychology. It is appalling.

Whether Trump wins or loses, this cancerous mistrust of how we distinguish true and false, friend from foe, will last for decades. There’s no both-sidesing this conspiratorial mindset: Sure, the Left has its extremes too, but this paranoid conspiracy theorizing has captured the Republican party, aided by increasingly incendiary rhetoric that would be unthinkable even a decade ago. This isn’t going away.

3. Sane Republicans Have No Control of the Situation

Now, the MAGA base is not the same as the Republican Party. Actually, the GOP is composed of three, roughly equal parts: the populist base; Christian conservatives (who often overlap with the base); and the basically normal conservatives, plutocrats, quasi-libertarians, and moderates who controlled the party from World War II until 2016. So will the sane Republicans stop him?

No.

Here’s a funny thing about dictators: They often take power with only a minority of public support. To start with the most infamous, Adolf Hitler lost his last real election, coming in second place to German president Paul von Hindenburg in 1932. Even when the Nazi party gained power in parliament, causing Hindenburg to appoint Hitler chancellor in January, 1933, they had only won 37 percent of the popular vote.

And if you look at history, there has always been some share of American and European populations — usually between 15 and 30 percent — who have supported right-wing populist nationalism. Know-Nothing nativists in the 19th century. The jingoistic nationalism around World War I. The Christian Front and American pro-Nazi sympathizers in the 1930s. McCarthyism. The John Birch Society. For all of American history, there has been a reactionary far-right movement in America, often animated by fundamentalist religion, obsessed with the populist fever dream that the real America is being undermined by shadowy outsiders within. It is the “paranoid style of American politics,” as Richard Hofstadter observed in the McCarthy Era. And it has never gone away.

Roughly the same percentage of people in European countries today support hard-right, know-nothing, anti-intellectual nativist populists: neo-fascists in Italy, Orban’s nationalists in Hungary, anti-immigrant reactionaries in France.

The trouble is that sometimes these people actually win elections, especially when the opposition is divided. This happened in 2016, when Donald Trump won the Republican primary with 44 percent of the votes, and would happen again this year even if Trump’s various opponents together won a majority of votes (which they are currently not projected to do anyway).Thanks to efforts by MAGA Republicans, most GOP primaries are “winner take all,” so if Trump wins only 40 percent of the vote in Florida, say, he gets 100 percent of Florida’s delegates. Even if his opponents wanted to unite against him at the convention, they wouldn’t be able to do so. Trump has the GOP nomination in the bag.

And then comes the general election, which Trump could win even with a minority of the popular votes if enough left-wing and independent voters disenchanted with Biden either vote for a third-party candidate or just stay home.  And then there’s electoral college, an anti-democratic constitutional compromise made to secure slaveholding states’ entry into the union. The electoral college favored those states (electors are allocated based on population, not the number of voters), and today favors smaller states that tend to be more conservative. It’s no coincidence that the two times a popular vote loser won the electoral college in the last hundred years, that candidate was a Republican.

And part of the problem is that Trump speaks to the deep resentment, fear, and loss of status that many white Americans have experienced over the last few decades. Ironically, he couples this populist demagoguery with plutocratic fiscal policies — his tax cuts enriched the 1 percent more than any single tax measure in American history. But no one pays attention to that. His supporters feel he speaks for them, speaks like them, captures their patriotism, outrage and resentment in a way no pencil-pushing moderate ever will. Like the authoritarians named above, Trump whips up fury and rides it to electoral success.

Meanwhile, Trump is aided and abetted by a right-wing media ecosystem that, as the Dominion Voting Systems case showed, is apparently motivated primarily by ratings and money. The greed of the Murdoch family alone will go down in history as one of the great betrayals of civil responsibility. They know this guy’s a grifter, a criminal, and a cheat, and sometimes they say so out loud. Yet they continue to spread the lies that benefit him.

Even if only a minority of Americans buy into it.

4. If Trump Wins, America Will Never Be the Same 

So, in 2024, things will get weird: We’re looking at multiple potential criminal trials of a presidential candidate, a cascade of incendiary rhetoric, and an incumbent president who many Americans either dislike or simply believe is too old to serve another term.

Now, there is one ray of hope. Trump’s indictments (and perhaps convictions) may rile up the base, but they alienate moderates and independents. And there is now strong polling data to suggest that if Trump is convicted of serious crimes, enough swing voters will turn against him that he will lose the election.

But if he wins, Trump’s radical plans for 2025 will reshape the country in ways that represent perhaps the most profound constitutional crisis of all.

Don’t take my word for it. Read about Project 2025, the MAGA right’s plan to purge thousands of civil servants and replace them with party loyalists, to take a “wrecking ball to the administrative state,” to end the Department of Justice’s independence and indict Trump’s political enemies, and to roll back all climate crisis mitigation measures that have been put into place. Read about the MAGA Right’s planned assault on science at the CDC, EPA, and other agencies, and its attacks on higher education. Pay attention to what these people are planning to do. Ponder the effects of these plans on immigrants, the courts, racial justice, trans kids, abortion rights, economic inequality and insecurity (particularly for young people), the role of science, higher education, and foreign policy, in which American isolationism and idiocy mean that Putin and Xi gain power on the global stage. Or just ponder the climate crisis: 2023 was the hottest year on record, but Trump and MAGA media outlets are still denying that climate change is even real, and Trump has promised to double-down on coal and other fossil fuels. It’s staggering.

I admit that, despite my own significant amounts of privilege, I may be in denial about the possibility of Trump winning. As a queer person, I worry about my family, whether my same-sex marriage will be protected, whether my parental rights will continue or not, whether my trans friends will be able to access health care. As a rabbi, I worry about the increase in antisemitism (which is still much worse on the Far Right than on the Far Left) and Trump’s proximity to white supremacists like Nick Fuentes. As a journalist, I worry about Trump’s promise to “come after the people in the media, who lied about American citizens, who helped Joe Biden rig the elections, we’re going to come after you.” But maybe all that fear is good… once it spreads.

Remember, the Biden campaign is playing a waiting game. They aren’t making their case yet; they’re not going on the attack until the election season gets going in earnest. And I think once they do, people will pay attention. After all, precisely the populations who would be most harmed by Trump — people of color, younger people, people living with financial precarity, immigrants — are often the most alienated from the political process right now. Often this is for very good reasons: they may be turned off by the gerontocracy on both sides of the aisle, or angry about Biden’s policies on Israel/Palestine, or well aware that even liberal economic policies won’t stop the crushing loss of opportunity that young people face every day. Or they may simply be too exhausted, distracted, or focused on getting through the day.

But when the stakes of this election are more clear, they will put aside their entirely justified qualms and vote accordingly. This isn’t some policy disagreement, or some facile claim that there’s no difference between the two major parties. This is a profound national and constitutional crisis, and I really believe that folks will rise to the occasion when the occasion demands it.

At least, I hope we will.

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