We Need a 28th Amendment to Stop Presidential Lawfare

For all the dutiful, daily reporting of the left’s courtroom warfare against Donald Trump — now commonly called “Lawfare” — not enough attention is being paid to the issue of ultimate consequences, or what happens if the lawfare continues.

The press, even at its best, is often blinkered by the details of the news cycle: What’s the judge doing, the media wonders; or, what exactly is the issue in this particular case, or on that particular appeal?

Legal scholars are brought on air to ponder precedent and law.

Lesser pundits revel in what, to them, is just the latest tabloid-ready, celebrity trial.

We must remember, however: The left’s lawfare against Trump has no precedent and is about political advantage, not law.

The nation’s 45th president is not just another celebrity on trial, either.

Instead, we are a nation on the brink of a genuine, constitutional crisis.

By charging a former president of the United States, and the Republican Party’s current nominee for president, with dozens of criminal counts in federal and state courts, Democrats show contempt for constitutional norms.

They also imperil our system of government.

This is not an abstract or theoretical matter, nor is arguing against lawfare an abstract or theoretical exercise.

What if Manhattan Dist. Atty. Alvin Bragg’s baseless “hush money” case or Fani Willis’ contrived RICO case in Fulton County, Georgia result in Trump’s conviction, courtesy of Democrat-friendly, Trump-hating juries in Biden-voting districts?

Will New York or Georgia imprison the GOP presidential nominee before or after the election? Will an inmate president-elect address the nation from lockup?

Will federal agents — asserting federal, constitutional prerogatives — work to free the president from the control of a state government, so our national government can function?

Trump’s election, and even his inauguration as president, would not automatically resolve the constitutional crisis.

While a president can stop the proceedings of the U.S. Department of Justice, or issue pardons for federal convictions, state systems are independent entities.

The president does not control them and cannot issue pardons for convictions in state courtrooms. This is almost surely the reason why the left did not leave Trump’s fate to the federal courts alone.

Given all this, one must consider another, previously unthinkable scenario: Democrats may be daring Trump to flee the country, just like defeated or deposed leaders elsewhere in the world.

Do we really want presidents in prison, former presidents in exile, and the people’s will trampled by partisan prosecutors?

If not, what can we do?

One way, and perhaps the only way, to avoid this constitutional crisis is with a constitutional amendment.

A 28th Amendment to the U.S. Constitution should read as follows:Section 1: Any person who holds or has held the office of president of the United States shall not be indicted or tried for criminal offenses, pursuant either to state or federal law, unless allowed by a majority vote of the U.S. House of Representatives and by a subsequent, two-thirds majority vote of the U.S. Senate.Section 2: Any criminal conviction attained before ratification of this Amendment, pursuant either to state or federal law, of a person who holds or has held the office of president of the United States shall be vacated. Indictment or trial of the same or related charges shall only occur pursuant to the provisions of Section 1 of this Amendment.The 28th Amendment would thus apply the principles of impeachment when a president or former president faces criminal charges, empowering Congress to determine the validity of such charges.

Under its terms, a president or former president would not be placed “above the law,” but a constitutional, political check would be placed against the threat of politically motivated, and uniquely damaging, prosecutions.

The radical left, for political advantage, has brought the country to the eve of a constitutional crisis.

In its contempt for law and norms alike, it is also forcing the nation to decide: Will lawfare subsume our politics forever?

Will presidents, whatever their party or affiliations, henceforth govern in fear of politicized prosecution? Or will the people reject the chaos and rancor that lawfare produces and demand a better politics?

A 28th Amendment would not solve every problem but, by ending presidential lawfare, it would work to defend our democracy.

It could help save our system of government, especially its judicial branch.Augustus Howard holds a Ph.D. from the University of Cambridge and a J.D. from Duke University School of Law. He lectures on politics and ethics at Flagler College in St. Augustine, Florida.

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