Fact Check: Not grasping Constitution, Trump tries to bend it

The former president has often praised it but more often misinterprets it to fit the outcomes he seeks.

By Glenn Kessler and Adriana Usero / The Washington Post

“A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution. Our great ‘founders’ did not want, and would not condone, False and Fraudulent elections!”

— Former president Donald Trump, in a post on Truth Social, Dec. 3

Trump stirred outrage from Democrats — and muted criticism from Republicans — over the weekend for suggesting that the U.S. Constitution should be suspended and that the 2020 election he lost should be thrown out.

The trigger for Trump’s statement was the release of internal Twitter documents by Twitter’s new owner, Elon Musk, concerning its decision to restrict the sharing of the contents from Hunter Biden’s laptop, including pictures of genitalia, in the weeks before the election. The Trump campaign had hoped to use information on the laptop to sway voters against Joe Biden.

On Monday, Trump backpedaled a bit, claiming the “fake news” was spreading “disinformation & lies” that he wanted to “terminate” the Constitution. But then he reiterated his proposed remedy, which is not in the Constitution: “Simply put, if an election is irrefutably fraudulent, it should go to the rightful winner or, at a minimum, be redone … there should be no limit for a change!”

A review of Trump’s statements about the Constitution, both before and during his presidency, show that his opinion of the Constitution is as malleable as his moods permit.

Trump has celebrated the Constitution like any traditional politician. He tried to win Republican votes in 2016 by pledging to appoint Supreme Court justices who would “follow the Constitution.” (He has become less enamored of his selections since the court ruled Congress could examine his tax returns, accusing the court of “becoming nothing more than a political body.”)

But he has also weaponized the Constitution against his foes, using it as a foil to dismiss their policies. He frequently claimed that Barack Obama and Hillary Clinton — and other Democrats — had taken unconstitutional steps.

Moreover, as president, he pushed the boundaries of the document. For instance, he circumvented Congress’ power under the Constitution to approve or reject spending by declaring a national emergency to fund his promised border barrier. Both the House and Senate in 2019 passed bipartisan resolutions to block Trump’s action; but not with enough votes to override his vetoes.

In the final days of his presidency, Trump pressed Vice President Mike Pence to overturn the election results, even though Pence protested that he did not have that power under the Constitution.

“Let’s say you don’t do it,” Trump told a crowd on Jan. 6, 2021, before a mob of his supporters attacked the U.S. Capitol, recounting a conversation with Pence. “Somebody says, ‘Well, we have to obey the Constitution.’ And you are because you’re protecting our country and you’re protecting the Constitution. So you are. But think of what happens. Let’s say they’re stiffs and they’re stupid people, and they say, ‘Well, we really have no choice.’”

Trump’s comments over the years do not indicate he has much depth of knowledge about one of the nation’s founding documents, which might indicate why he is fickle about it. In fact, in one of his earliest tweets, on Dec. 5, 2011, he placed it on par with his latest book: “First there was the Declaration of Independence, then there was the Constitution. Now there is #TimeToGetTough. Available today.”

We drew these examples from Factba.se, a database of Trump’s statements, and The Washington Post’s database of Trump’s false or misleading claims.

Praising the document

Before he was in the White House, Trump tweeted quotes from America’s first two presidents that are ironic in light of his latest stance. When campaigning, he acknowledged that some critics thought he might ignore the Constitution, but he said he was with the Constitution “100 percent.”

• “‘Our Constitution was made only for a moral & religious people. It is wholly inadequate to the government of any other.’ — John Adams”; Tweet, Sept. 20, 2013. Adams further noted a government would not be able to contend with “human passions unbridled by morality and religion. Avarice, Ambition [and] Revenge.”

• “‘The Constitution is the guide which I never will abandon’ — George Washington”; Tweet, June 1, 2015, the month Trump declared he was running for president. Washington made this comment in response to public outcry against the Jay’s Treaty of 1795, which settled issues between America and Britain that had been unresolved since the War of Independence.

• “You know, during the primaries where I beat everybody very easily, that was sometimes said, ‘Will he follow the Constitution?’ Folks, one of the great, great instruments ever written, ever conceived. We are with the Constitution 100%.”; Remarks at a campaign event, June 30, 2016, after being asked if he would use the document as “his compass for governance.”

• “My highest duty as President is to protect our citizens and to uphold the Constitution of the United States. I will honor that duty to the fullest extent every single day, and I will never waver in that sacred obligation.”; Rally, Sept. 20, 2016.

Claims that Democrats do not follow the Constitution

Trump frequently said that Democrats failed to follow the Constitution; and that they would appoint judges who did not follow it. This was a major part of his attack on Hillary Clinton in the 2016 race.

• “Obama now wants to deny due process to the police. He’ll give all constitutional rights to the terrorists but not our cops.”; Tweet, Dec. 19, 2014.

• “We don’t want to continue to watch people signing executive orders because that was not what the Constitution and the brilliant designers of this incredible document had in mind.”; Remarks during a GOP primary debate, March 10, 2016.

• “Hillary Clinton has even announced that she plans to go around Congress and implement amnesty by executive order — Violating our Constitution and putting the entire nation in grave peril.”; Rally, Sept. 17, 2016.

• “The individual mandate is out the window [in the new tax bill]. That was the most unpopular part of Obamacare. So unconstitutional.”; Rally, May 29, 2017.

Trump was wrong. In a 5-to-4 decision written by Chief Justice John G. Roberts Jr., the Supreme Court had ruled in 2012 that the individual mandate was constitutional under Congress’s taxation powers.

• “Kamala Harris embraced an unconstitutional religious test to prevent Catholics from serving as federal judges.”; Tele-rally, Aug. 12, 2020. This was false. Harris had voted for numerous judicial nominees who were Catholic.

• “Open up your state. It’s unconstitutional to close it.”; News conference, Sept. 16, 2020. Trump invoked the Constitution to criticize coronavirus restrictions in Democratic-run states.

• “They’re [Democrats] bent on destroying our Constitution and overthrowing America’s founding.”; Rally, Jan. 4, 2021

Misinterpreting the Constitution

Trump repeatedly got basic facts about the Constitution incorrect.

• “I have an Article II, where I have the right to do whatever I want as President. But I don’t even talk about that.”; Speech, July 23, 2019. Article II of the Constitution, which outlines executive power, does not give any president the right to do whatever he or she wants. The list of powers is relatively short, compared with the powers granted to Congress in Article I. Trump made a version of this comment at least five times, usually in context of the investigations into his campaign’s contacts with Russia and his first impeachment. “I had absolutely Article II powers,” Trump told Sean Hannity of Fox News in a 2019 telephone interview. “I could’ve done anything I wanted.”

• “Today’s illegal, unconstitutional and partisan impeachment … Democrat lawmakers do not believe you have the right to select your own president.”; Rally, Dec. 18, 2019. Impeachment is neither illegal nor unconstitutional. It’s literally in the Constitution. Democrats alleged Trump committed “high crimes and misdemeanors” in attempting to extort Ukraine for help in the 2020 U.S. election.

• “I have a constitutional obligation to put in nine judges — justices.”; Remarks, Sept. 22, 2020. The Constitution specifies no size for the Supreme Court, and Congress has the power to change its size. The size of the court has ranged between five and 10 members in the country’s history.

Invoking the Constitution after the 2020 election

• “700,000 ballots were not allowed to be viewed in Philadelphia and Pittsburgh which means, based on our great Constitution, we win the State of Pennsylvania!”; Tweet, Nov. 13, 2020. Trump’s repeated claims that GOP poll watchers were barred in key states were false.

• “Did you see where, where Stacey [Abrams] is allowed to harvest, but other people can’t harvest. How is that constitutional? How is that constitutional?”; Rally, Dec. 5, 2020. Abrams was the Democratic candidate for Georgia governor. In reality, ballot harvesting is prohibited in Georgia.

• “I hope Mike is going to do the right thing, I hope so, I hope so. Because if Mike Pence does the right thing, we win the election. All he has to do — all this is — this is from the number one or certainly one of the top constitutional lawyers in our country. He has the absolute right to do it … Mike Pence is going to have to come through for us, and if he doesn’t, that will be a … a sad day for our country because you’re sworn to uphold our Constitution. … Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you.”; Rally, Jan. 6, 2021. Trump made these comments to a crowd on the National Mall in Washington before the assault on the Capitol. Trump attempted to add a constitutional imprimatur to his demand that Pence reject the electoral votes from key battleground states that cost Trump the election. But the vice president has no power to reject the electoral votes of any state, as Pence repeatedly tried to make clear to Trump.

Adriana Usero was born and raised in San Juan, Puerto Rico and is a video editor contributing to The Fact Checker since 2020. She has previously worked with the General Assignment desk and the Opinions section. She joined The Post in 2016. Follow her on Twitter @AdriUsero.

Glenn Kessler has reported on domestic and foreign policy for more than three decades. Send him statements to fact check by sending a DM on Twitter at @GlennKesslerWP.

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