TRUMP’S ACTIONS IN QUESTIONING THE 2020 ELECTION WERE MANDATED BY HIS OATH OF OFFICE

|  If Trump truly believed the 2020 election results were legally invalid—which he did—he had a positive obligation to pursue every legal means to correct them—which he did.  |

The political divide in our country has never been greater, and today we’re going to make it worse.  Let’s consider the proposition that not only was everything Trump did on January 6 (and with respect to the 2020 election results overall) legal—it was actually required by his oath of office.  While they tried to remove him from the White House over these issues, a stronger case for impeachment could have been made if he’d not acted. 

Let’s start with the 2020 election itself, but before we begin, can we please stipulate that every election includes some amount of fraud, and many are challenged?  That shouldn’t be controversial. 

But 2020 was especially troubling.  The New York Times itself is on record noting that mail-in ballots include a higher percentage of invalid voting than do in-person ballots.  2020 broke records for mail-in balloting, because of covid. 

Places like Pennsylvania actually violated their own election laws in terms of how they conducted their balloting (allowing ballots to be counted even if received after the election itself), although their Supreme Court decided—curiously–that it didn’t matter if election laws had been broken. 

An entire movie (“2000 Mules”) was produced in an attempt to show that enough election fraud occurred in swing states to have changed the 2020 election—although obviously the other side disagrees.

There were something like sixty court challenges, nation-wide, that came out of the 2020 vote, but most were dismissed for lack of standing (meaning, the evidence of the case was never considered.)    

The point is not to change anyone’s mind about 2020.  The point is to show that that election—like every election—had its share of controversies.   And by the way so did the 2016 election.  The Left went into all-out assault mode to try to get that one overturned.  (Google: Faithless electors).  To this day, Hillary Clinton says the 2016 election results were not valid and that Donald Trump was therefore an “illegitimate” president.

Back to 2020:  Some of Trump’s advisors told him he shouldn’t challenge the outcome.  Some told him he should challenge it. 

Now, here’s the key question.  Does anyone think Hillary Clinton—in her heart—does not believe the 2016 election was rigged and that she actually won?  Equally: Does anyone think that Donald Trump—in his heart—does not believe the 2020 election was rigged and that he actually won?

They both believed that.  Most ego-driven politicians—in their shoes—would as well.  It doesn’t matter if you think one or both of them was crazy for such belief.  It’s what they believe, that matters.  But this is a critical point.  When Hillary lost, she wasn’t at the time president, and there wasn’t much she could do, legally.  (Although she did what she could.  Google, again: Faithless electors.)

But when Trump lost, there actually were things he could do.  And if he truly believed—in his heart—that the results were not valid (see above) he not only had the right to pursue every legal means to overturn them, he had an obligation to do so.  In fact, his oath of office required he do so. 

Why?

Let’s turn first to the oath itself: “”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” 

What is the primary duty of the President, with respect to the Constitution?  Article II, Section 3 makes it very clear:  “…[the president] shall take Care that the Laws be faithfully executed.”

That’s pretty much the only responsibility of the Chief Executive under our constitution.

Or put another way, if a U.S. president believes that laws are not being faithfully executed, he’s required to act, within the limits of his power, to address the problem.

None of this is controversial.  Consider a piece published in the Wall Street Journal (8/3/23) by David Rivkin and Lee Casey, both practitioners of appellate and constitutional law in Washington, and former attorneys at the Justice Department: “This Trump Indictment Imperils The Presidency.”

“…the Take Care Clause [of the Constitution], which is a key component of presidential duties, is broadly framed to include ensuring compliance with all federal laws….

“Pursuant to that broad authority, a president may communicate with, cajole and even browbeat officials over whom he has no supervisory authority [including state officials], urging them to pursue policies that he believes are in the national interest. Many presidents take such actions; both Mr. Trump and President Biden, for instance, pressed states to follow federal Covid-19 recommendations. Wise or not, those were undoubtedly official actions.

And earlier in the piece:

“It was Mr. Trump’s constitutional duty to “take care that the laws be faithfully executed.” He had no power to direct state officials’ actions, but urging them to ensure the integrity of federal elections could fall within the …bounds of his responsibility. He has no authority to direct the vice president’s discharge of his constitutional duties as Senate president, but his exhorting or pleading with the vice president to take certain actions is arguably within the bounds of his authority. Presidents do it routinely when the vice president is called on to cast a deciding Senate vote.”

And also, critically, this:

“The selection of presidential electors is in part a matter of federal law. The Constitution vests this task in the state legislatures under the Electors Clause, which governs presidential elections. Because the states had no such authority before the Constitution, this critical power is substantially federal in character.    …In Moore v. Harper (2023), the Supreme Court recognized that a parallel constitutional provision, the Elections Clause—which divides authority for setting the rules of congressional elections between the state legislatures and Congress—was sufficiently federal in nature to justify the high court’s review of state court decisions.”

[Translation: what happens at State level doesn’t stay at State level.  The Federal Government has an interest in ensuring no laws were broken with respect to federal elections.]

Here’s the syllogism that brings it all together.

1. The president is required by his Oath of Office to take care [do everything legally possible to ensure] that laws be followed.
2. The Constitution and court rulings require that this duty of care be applied to federal elections including even how states select electors.
3. If a US president truly believes that laws were not properly followed in an election, he has a positive obligation—as per his Oath of Office—to do everything possible within his legal power to correct the matter.
4. Doing everything possible would include “exhorting or pleading” with the Vice President to take actions within the vice-president’s legal power, to correct the matter.
5. Such “exhorting or pleading” would include (among many other things) encouraging the Vice President to not certify certain state election results, in which there are questions.  (Note: That’s why the Vice President has this power to not certify: in case there are such questions.)
6. President Trump, following the 2020 election, did truly believe that laws were not properly followed in that election.  (Does anyone dispute this?)
7. THEREFORE: Everything Trump did following the 2020 election, to cast doubt on that election and seek further review under lawful processes and procedures…he was required to do as per his oath of office.  In fact, failing to do so—given the above circumstances—would have constituted an impeachable offense as per latest interpretations of that “high crimes and misdemeanors” clause.    

In short, not only was the decision of the House of Representatives to vote articles of impeachment for Trump’s actions following the 2020 election a grievous error of constitutional law, equally so were the indictment filings for those same actions by DOJ prosecutor Jack Smith’s and most recently Georgia DA Fani Willis. 

Smith, Willis, and the House of Representatives got it precisely backwards.  Not only were Trump’s actions not illegal, they were explicitly required by the U.S. Constitution. 

Not only was Trump not seeking to overturn democracy, he was explicitly trying to preserve it. 

Not only did Trump not seek a coup, everything he did was a legal attempt to thwart one. 

History will probably never know if enough votes were improperly counted or not counted to have changed the 2020 election.  But Trump’s actions in questioning those results, and seeking to shine further light on them before they were certified, is precisely what our Founding Father’s would have wanted. 

Ultimately the system played itself out, and the results were certified.  That’s how the rule of law works.  That’s how a constitutional republic works.  And that’s how America works.