A short Dick Cheney story that is also about Donald Trump

I spent the 2000 presidential election working as an opposition researcher at the Democratic National Committee. Shortly before George W. Bush Dick Cheney chose Dick Cheney to be Bush’s running mate co-president, I was asked to start preparing for the possiblity of a Cheney nomination. Rumors were flying that Bush would pick Cheney (who was running Bush's VP search process) for the job, and we had been focused on other contenders.

I considered a Cheney selection extremely improbable and tried to get out of what I considered pointless work. My most persuasive argument was that since Bush and Cheney both lived in Texas, the 12th Amendment's prohibition on a state's electoral votes going to both a presidential and vice presidential candidate from that state made it all but impossible for him to be Bush's running mate: If Bush chose Cheney, Texas electors wouldn't be able to cast their votes for Cheney, and in what was likely to be a close election^[1] that could prevent Cheney from taking office even if Bush won. In retrospect that was a dumb argument for a variety of reasons, but everyone was tired and I was stubborn, and it got me off the hook for several hours as various people above my pay grade apparently found it persuasive.

Then my phone rang. I picked it up and heard the familiar voice of a friend who worked on the Gore campaign say simply: "He'll Just. Fucking. Move." Then the line went dead and I got to work.

A couple days later, Cheney chose Cheney. A couple months after that, the Republican-controlled Supreme Court chose Bush and Cheney. And then the Republican-controlled Supreme Court declined to hear a case challenging the validity of Cheney's efforts to skirt the 12th Amendment by changing his voting registration to Wyoming, and Cheney and Bush lied us into the Iraq war and left New Orleans to drown. It was not great.

I think about Dick Cheney (maybe) moving to Wyoming in order to get around the 12th Amendment from time to time, mostly because it was a (relatively, I think) rare example of me being extremely naive about what Republicans were willing to do to gain power. But also because it was pretty clear the gambit violated at least the spirit of the constitution, and pretty much nobody in any position of authority particularly cared.

As a matter of law and constitutionality, I'm not going to strenuously argue that Cheney should not have been eligible to receive Texas's electoral votes. Cheney's switch of his voting registration from Texas to Wyoming arguably satisfied Wyoming's fairly vague requirements for residency.^[2] And as a practical matter, I can't say I feel strongly that having a president and vice president from the same state matters all that much.

But the intent of the 12th Amendment is quite clear, and it is quite clear that Texas awarding its electoral votes to both Bush and Cheney was inconsistent with that intent. As an attorney for Texans who sued to stop Cheney from being awarded Texas' electoral votes noted after a panel of three Republican judges ruled in favor of Cheney, the court's decision essentially nullified a constitutional amendment: "If you can change the state of your inhabitance within 3 1/2 months, what’s the use? ... Everybody looked at this with a wink and a nod." Conservative judicial activists talk a lot about fidelity to the intent of the framers and "textualism" and a bunch of other principles they supposedly hold dear, but the Republican-controlled Supreme Court refused to even consider the question of whether a clear violation of the intent of the 12th Amendment should be allowed.

So while I don't feel strongly that Cheney should have been denied Texas' electoral votes, I do feel strongly that a bunch of Republican judges winking-and-nodding away the clear intent of a constitutional amendment about eligibility for election and for holding high office in order to usher into power a fellow Republican is not great, and that doing so in relatively benign situations^[3] can normalize doing so in far worse situations.

That brings me to the present day, to Amendments 14 and 22, and to what I described in January 2024 as America's Trump 2028 problem.

You might have noticed over the last couple of weeks yet another flurry of chatter about Donald Trump's desire to remain in power for the rest of his life despite the 25th Amendment's clear prohibition on him serving as president after his current term ends in January 2029. This problem isn't going away, and it is important to keep in mind that we are in this mess in part because the Supreme Court decided to exempt Trump from the 14th Amendment's clear prohibition on insurrectionists taking office -- a decision that was urged and cheered on by much of the nation's political, media, and academic elite, who offered a series of deeply flawed arguments for setting aside the 14th amendment with a wink and a nod. At the time, I noted that precisely the same absurd arguments and rationalizations will be made if Donald Trump won election and tried to run for an illegal third term.

The United States constitution is very clear that Donald Trump is not eligible to be president after January 2029. There is absolutely no ambiguity about that. But the constitution is not self-executing, and there are ample examples of the Supreme Court and others setting it aside with a wink and a nod. One thing that will make that more likely is other elites signalling that it would be acceptable, by treating the constitutionality of a third Trump term as an open question or speculation about it as an interesting parlor game. Headlines like this do not help:

Donald Trump is not legally or constitutionally eligible to be president after January 2029. Anyone who pretends otherwise, or refuses to say that clearly, is helping to make it more likely that he remains in power anyway.