Donald Trump, in one of his multitude of efforts through obfuscation and delay to avoid accountability for his many crimes against the nation and humanity, has stated what may be his most remarkable lie yet. In the litigation over whether he is disqualified from the Colorado ballot in 2024 due to his inciting the January 6 insurrection, Trump’s lawyers have declared that he never gave an oath to “support” the Constitution. https://tinyurl.com/3kdazbku

Here is text of the presidential swearing-in ceremony for Trump in 2017, and every other president:

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.

Section 3 of the 14th Amendment, states that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Trump’s Colorado filing states:

The framers excluded the office of President from Section Three purposefully. Section Three does not apply, because the presidency is not an office ‘under the United States,’ and President Trump did not take an oath ‘to support the Constitution of the United States.

From many decades of law practice in sometimes fraught circumstances, I am conscious of the pressure on lawyers to produce arguments that can strain credulity. They usually do this because they have nothing else, and the client demands they fight with anything and everything. So, they throw some legal slop at the wall and hope some of it sticks. I learned early, however, that such tactics usually do more harm than good and rarely convince experienced judges and neutral juries that an extreme position, lacking any basis in reason or precedent, should be embraced.

Here we have the former president of the United States, through his attorneys, flatly disavowing his oath of office. His lawyers are arguing, in effect, that “preserve, protect and defend” are not synonyms of “support.” In short, Trump is telling the Supreme Court,

Yes, the world saw me swear on a bible that I would preserve, protect, and defend the Constitution but that didn’t mean I support the Constitution. In fact, I don’t support the Constitution. I am opposed to the Constitution.

Now, imagine, if you can, that at his actual inauguration in 2017, Trump had placed his hand on the bible, Melania looking stricken behind him, and said to the world: “I decline to take the oath as prescribed. I don’t support the Constitution. I am opposed to the Constitution.” Imagine.

Trump’s lawyers are also arguing that the presidency is not an office “under the United States” and thus that the president is not an “officer of the United States,” as stated in the 14^th Amendment, even though the president is the chief executive officer of the United States and is the repository of the “executive power” of the federal government as plainly stated in Clause 1 of Article II. By the way, this is the same Article II that Trump famously said conferred upon him the authority to “do whatever I want.” http://tinyurl.com/4jpuc2y9

The Trump position is right out of Alice in Wonderland:

When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means what I choose it to mean – neither more nor less.

Alice’s retort, you may recall, was:

The question is … whether you can make words mean different things.

Trump would say, yes, of course, I’m Donald Trump and I can say ‘yes’ and mean ‘no.’ I can bow down before foreign dictators while claiming that I courageously stood up to them. I can say something with complete seriousness and later claim I was joking if people don’t like what I said. I’m like the governor in The Best Little Whorehouse in Texas who sings Side Step:

Ooh, I love to dance the little sidestep

Now they see me, now they don’t

I’ve come and gone

And ooh, I love to sweep around a wide step

Cut a little swath

And lead the people on!

Such foolishness may work in movies and childish fantasies but in the real world, Trump must be treated like an adult. He swore an oath before the world. That oath is prescribed by the Constitution. Trump may not be heard now to disavow his oath and its plain meaning. He is estopped, in the language of the law:

Estoppel is an equitable doctrine, a bar that prevents one from asserting a claim or right that contradicts what one has said or done before, or what has been legally established as true.[https://www.law.cornell.edu/wex/estoppel]

It is way past time that the courts brought the hammer down on Trump’s dissembling. Special Prosecutor Jack Smith has taken a major step in that direction by seeking immediate Supreme Court review of Trump’s preposterous claim that he is absolutely immune from prosecution because he was once President of the United States.

Trump’s legal strategy has always been predicated on delay, delay, and more delay. Smith, seeing the delay strategy at work again, is calling the question whether Trump can escape responsibility for his criminal conduct. Trump is asserting something akin to the divine right of kings. But there are no kings in this country. The fate of the nation hangs on the Supreme Court’s decision. The Humpty Dumpty defense must be rejected. If not, violence may result. In 1776 and again in 1787, we said, “no more kings.” It cannot be otherwise.

Closing Note:  It appears that the Judge in the DC case has stayed the proceedings until the Trump’s claim of absolute immunity for crimes committed while president is resolved by higher courts. While expedited briefing schedules have been established, it is entirely possible that the Supreme Court will deny the government’s petition for certiorari and dump the case back to the DC Circuit Court of Appeals. That court may be independently looking at Trump’s appeal anyway. Chaos reigns. More time will pass, and Trump will avoid the consequences of his preposterous legal position yet again. If so, we will move another giant step toward autocracy and the death of American democracy.

I will have more to say about this as soon as I can get through the multitude of decisions and pleadings being filed almost every day. The irony is that by committing so many crimes in so many jurisdictions, Trump has managed to create a scenario that will allow some courts to accede to his delay tactics. I will never understand why the judiciary has not taken central control of this situation rather than letting Trump’s cadre of lawyers making ludicrous arguments play the courts against each other. But that seems to be where we are.