The Coming Constitutional Crisis of 2024 – And American Foreign Policy

In a recent news review,¹ one of the commentators said that, because Trump has made the world part of our political fracas, the political rhetoric now, during the campaign. may be more dangerous for America, and foreign relations. than what comes after November, when the election is over.

I disagree.  I’m afraid the result won’t be known – or, perhaps more accurately, won’t be accepted by the “losing” side – and the things will heat up even more after November 7.  I worry that the election will result in a constitutional crisis greater than any we have seen since 1860-61 – because, no matter who wins, the other side won’t accept it.² 

If Trump loses, he and his supporters will say the election was stolen.  Former President Trump is already saying the election will be rigged.  We know what some Trump supporters did on January 6, 2021.  Who knows what they may do this time.  I understand that last time Mr. Trump was President and that gave him things he could try to do.  But this time, his people may be more upset.

On the other hand, if former President Trump wins, what might some Biden supporters do?  They have been told for months that Trump is a threat to democracy.  Are they going to just sing “Kumbaya” and wait for 2028?  Or will they have marches and protests, and more, all over the country?  Will state and local prosecutors indict former President Trump for even more crimes?  Will the media, or at least that portion of it that talks to Biden supporters, say that Trump’s election is illegitimate and talk about how dangerous he is to our democracy?

Also, while the Supreme Court said that Colorado couldn’t keep former President Trump off the primary ballot in that state, will Congress say that they are not going to count electoral college votes for former President Trump because he is not eligible to be President under Section 3 of the Fourteenth Amendment and that, as a co-equal branch of government, the Supreme Court can’t tell them how to count the electoral votes?³  What would Kamala Harris do if the Supreme Court says one thing and Democrats in Congress want to do something else? 

If any part of this happens, one could see chaos and disruption affecting the United States – and its foreign policy – long past the election or even January 20.  Would the United States be able to pay attention to foreign affairs or what is happening in the world if it was in such chaos?  More importantly, what would other countries do in such a situation?

This would seem like a perfect time for adversaries to take advantage of a distracted and immobilized United States.  One could easily see Vladimir Putin ramping up his attacks on Ukraine, but what else might he do?  One possibility would be to move against Moldova or Georgia or both.  Neither are members of NATO, and both have been mentioned as next on Putin’s list after Ukraine.

But what if Putin thought this could be the perfect time to challenge NATO?  In that case, I would worry about the Baltics, especially Estonia and Latvia.  Both countries have large populations of Russian-speaking citizens.  Putin has talked about Russia’s obligation to protect Russians living outside of Russia.  A constitutional crisis in the United States could be the time for him to “protect” Russian-speaking citizens of Estonia and Latvia (even if they didn’t want to be protected) with some kind of a hybrid war move that compromised those two countries’ sovereignty but didn’t quite rise to the level of a clear attack.  A chance to weaken NATO and sow doubts about the reliability of members’ commitment to mutual defense under Article 5 of the NATO treaty might be something Putin could not pass up.

On the other side of the world, what might China do to take advantage of a distracted United States?  There might not be time to organize an invasion of Taiwan, but I wonder if Chinese President Xi Jinping really wants to invade Taiwan.  I think he would prefer to take it over peacefully, with companies like Taiwan Semiconductor Manufacturing Company intact and operating.

Robert D. Blackwill and Philip Zelikow talked about several options China had vis-a-vis Taiwan in a report they wrote for the Council on Foreign Relations in February 2021.⁴  They discussed three scenarios: an invasion of Taiwan itself; an attack/invasion of some of Taiwan’s outlaying islands, some of which lie just a few miles off the Chinese coast⁵; or some kind of quarantine of Taiwan.

Consider the last alternative.  If China established a limited quarantine of Taiwan, it could say it was merely exercising its rights under the One China policy.  Ships carrying regular goods would be waved through.  China could claim it was merely trying to stop the shipment of offensive weapons to Taiwan and/or military equipment designed to support a Taiwanese declaration of independence.  There was a recent article about United States military personnel who are in Taiwan to help train Taiwanese forces.  China could turn this presence, or some other thing, into a threat by Taiwan and claim it was imposing a limited quarantine as a mere defensive response to the threat.

Would a distracted and self-absorbed United States send a carrier group to challenge something China would argue was so minor?  Blackwill and Zelikow say that “[s]uch a quarantine might not be regarded, by many experts, as an act of war.  The international law issue is whether Taiwan is a part of China and, beyond that, the Chinese would not necessarily block vital supplies or commerce going to or from Taiwan.”⁶

But once the principle was established, China could slowly rachet up the restrictions on Taiwan.  It would be hard for other countries to know when to react.  As China took more and more “slices of the salami,” Taiwan might eventually be put in a position where it had no choice but to agree to unification.

In the Middle East, would countries like Saudi Arabia see a need to be more accommodating to Iran because the United States wasn’t around – and can’t be trusted to be around in the future?  In the midst of a constitutional crisis. as long as oil prices were not affected, would the United States care, or even notice, an Iran starting to exercise more influence over its neighbors? 

Obviously, none of these things might happen as I have laid out.  But other things we can’t imagine could happen.  The only thing we can be reasonably sure of is that something would happen.  The question then is, by the time our constitutional crisis was over, what would the world look like?  Would NATO still be as strong?  Would China have been able to take some move toward reunification of Taiwan?  What about the Middle East or Iran?

For that matter, what would the United States look like?  Where would yet another election crisis leave the United States?  Would our allies start to think that they could not rely on us in the future?  Would nations in the middle decide they need to start getting along better with our adversaries?  How would any of this help our security or our economy?

In 1960, there were serious claims about vote fraud in several states, but the morning after the election, Richard Nixon conceded, and when newspaper articles started appearing about alleged vote fraud, Nixon called in the reporter writing the articles.  Here is what the reporter, Earl Mazo, wrote immediately after their conversation:

“Right off, as we shook hands, he said: ‘Earl, those are interesting articles you are writing – but no one steals the presidency of the United States.’

I thought he might be kidding.  But never was a man more deadly serious. … [C]ontinent-by-continent, he enumerated potential international crises that could be dealt with only by the President of a united country, and not a nation torn by the kind of partisan bitterness and chaos that inevitably would result from an official challenge of the election results.

At one point, Nixon said …: ‘Our country can’t afford the agony of a constitutional crisis – and I damn well will not be a party to creating one just to become President – or anything else.’”

If our adversaries started taking advantage of a constitutional crisis after the 2024 election, would either Donald Trump or a left that has been demonizing Trump for years put the need for a unified country on foreign policy ahead of their own interest?  To ask the question is to answer it.  Winning the election would be the most important thing, regardless of the consequences.  Both sides would come up with self-serving justifications for what they were doing, but the world and our adversaries wouldn’t wait or fail to take advantage.  And the world would become a more dangerous place while we were focusing on ourselves and our own partisanship.  The result would almost certainly wind up being very costly – for us and the world.
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¹ Matthew Kaminski, on “World Review with Ivo Daalder,” March 8, 2024, at about 5:30. 
² See these blog posts for more on the coming constitutional crisis: “The Coming Constitutional Crisis of 2024” (December 20, 2023) and “If Trump Is a Threat to Democracy, What If He Wins?” (January 22, 2024).
³ Amicus Curiae Brief of Akhil Reed Amar and Vikram David Amar, in Trump v. Atkinson (2024), see Question 15.
⁴ Robert C. Blackwill and Philip Zelikow, “The United States, China, and Taiwan: A Strategy to Prevent War,” Council on Foreign Relations Special Report No. 90, February 2021.
⁵ As in Quemoy and Matsu in 1958.
⁶ Blackwill and Zelikow, p. 37.
⁷ Edmund F. Kallina, Jr., Courthouse Over White House: Chicago and the Presidential Election of 1960 (1988), p. 104.