As strong as the Mar-a-Lago Documents indictment of Donald Trump is, I don’t foresee it eliminating the significant possibility that he will win the Electoral College in 2024 even as he loses the national popular vote. To be sure, Trump may be weakened as a general election candidate by this criminal prosecution, but the election will still be a choice between Biden and Trump (assuming the ex-president is the Republican nominee, as currently seems most likely), and there are lots of reasons why just enough voters in just enough states might tip the Electoral College balance in Trump’s favor. The presence of a significant third-party candidate, who could siphon enough votes from Biden, is one of these many potential factors.
If Trump does win the Electoral College, and especially if he loses the national popular vote and his “technical” victory seems a quirk of a process that permitted a minority choice to prevail against the wishes of the majority, I anticipate that Democrats will attempt to block his inauguration on January 20, 2025, by contending in the joint session of Congress two weeks earlier that Trump is ineligible to serve again as president by reason of section three of the Fourteenth Amendment. That provision bars anyone who took an oath to the Constitution “as an officer of the United States” from holding “any office” of the U.S. government again if that individual “engaged in insurrection” against the U.S.
One can debate whether the presidency is an “office” within the meaning of this provision, or whether what happened at the Capitol on January 6, 2021, was an “insurrection” for purposes of this provision, or whether Trump’s conduct in connection with the attack on the Capitol qualifies as having “engaged” in that insurrectionary attack. But I’m confident that Democrats will answer all these questions in the affirmative in an effort to prevent Trump from occupying the Oval Office again.
The bipartisan Electoral Count Reform Act (ECRA) adopted at the end of last year, as essential at it was, will not stop Democrats from making this move on January 6, 2021, if Trump has won the Electoral College. That is because the Democrats would not be claiming that the appointment of the electors who voted for Trump was improper. Rather, they would be claiming that the properly appointed electors cast their votes for an individual not entitled under the Constitution to serve as president. Therefore, the Democrats would claim, these electoral votes were not “regularly given,” which is a permissible basis for objection under the newly adopted ECRA.
Analytically, their claim would be equivalent to a situation (however unlikely) that a majority of electors had voted for an individual who already had served two terms as president and thus was constitutionally ineligible to serve again by virtue of the Twenty-Second Amendment. If the joint session of Congress could nullify an Electoral College victory (thereby barring the inauguration of the Electoral College winner) because of this constitutional ineligibility, then so too can the joint session of Congress nullify an Electoral College victory of an individual who is constitutionally ineligible under section three of the Fourteenth Amendment—or so the argument would go.
But what are the chances that Democrats would have the votes in the joint session of Congress on January 6, 2025, to block Trump’s inauguration on this basis? Perhaps not great, since by hypothesis Trump will have done well enough in November to win the Electoral College and presumably would have some “coattails” in the simultaneous congressional races. Still, there is a nontrivial chance that the Democrats will take back the House in 2024 even if Trump ekes out a narrow Electoral College win. That’s especially true if Biden prevails by a solid margin in the national popular vote, and even more so if a third-party presidential candidate plays a spoiler role in the Electoral College outcome. Congressional races wouldn’t be affected by a third-party spoiler in the presidential election, and thus Democratic candidates for House seats could win races and outperform Biden (who would suffer comparatively because of the extra presidential candidate). The Supreme Court’s recent decision in Allen v. Milligan, along with other potential redistricting developments, is yet another reason why the Democrats might pick up enough seats to win back the House—even as they simultaneously lose the White House to Trump.
But under ECRA it would take both the Senate and the House to agree on January 6, 2025, to disqualify Trump from serving as president despite having won the Electoral College. What’s the chance of that? Democrats are likely to lose control of the Senate, given the difficulty of the races they face in 2024. Thus, the Senate won’t go along with the House to disqualify Trump.
Or will it, even if Republicans narrowly regain control? Remember: 57 Senators, including seven Republicans, voted to convict Trump in his second impeachment trial. A vote to convict necessarily was a statement that Trump was responsible for inciting the insurrection at the Capitol on January 6, 2021. Thus, all these Senators already made the judgment that Trump essentially engaged in conduct that is disqualifying under section 3 of the Fourteenth Amendment.
It only takes a majority of Senators to sustain an objection under 3 U.S.C. § 15, as revised by ECRA. Moreover, and crucially, these votes—unlike regular Senate business—are not subject to filibusters, or the 60-vote cloture rule. On January 6, 2021, will there be 51 Senators willing to disqualify Trump from holding office again, including (if necessary) a few Republicans: Romney, Murkowski, and Collins? It is not inconceivable.
Thus, we need to prepare for the possibility that Trump will win the Electoral College in November of 2024, but that there will be a serious and sustained effort on the part of Democrats—perhaps also hoping to persuade just a few Senate Republicans—to vote in Congress on January 6, 2021, to deny Trump the presidency despite his Electoral College win.
If this happens, the kind of protests at the Capitol would likely dwarf what occurred on January 6, 2021, with the risk of serious and sustained political violence far greater.
What can be done to forestall this dire situation, other than to pray it doesn’t materialize?
Last year, and the year before, both in the Washington Post and on the Election Law Blog, I advocated for the congressional enactment of a statute that would require the federal Department of Justice to bring a civil lawsuit to adjudicate whether Trump is constitutionally barred from returning the presidency under section 3 of the Fourteenth Amendment because his role in the January 6, 2021, attack on the Capitol. If that statute had been adopted and Trump were adjudicated ineligible to serve, presumably he never would become the Republican nominee, nor win the Electoral College, and thus the need to disqualify him on January 6, 2025, would never arise—just as no one (like Barack Obama) who already has served two terms would need to be disqualified by the joint session of Congress after winning the Electoral College again. Conversely, if the courts adjudicated Trump eligible to serve again as president because section 3 of the Fourteenth Amendment properly interpreted does not bar him, then it would be inappropriate for the joint session of Congress on January 6, 2025, to contravene the courts’ determination of this constitutional question. Indeed, the statute I contemplated would have explicitly precluded the joint session of Congress from doing so.
Obviously, and unfortunately, that statute was not enacted during the 117th Congress, when the Democrats were in the majority in both the Senate and the House. Now that the House is in Republican hands, I have assumed for most of this year that adopting this statute is no longer possible—even though responsible Republicans should want to avoid the chaos and crisis that would occur on January 6, 2025, if Democrats attempt to block Trump from the presidency after he has won the Electoral College. Republicans in Congress don’t need to agree that Trump is ineligible because of section 3; they just need to believe that there ought to be a mechanism that definitively settles the question ahead of time, so that Democrats can’t raise it afterwards on January 6, 2025. Yet despite the reasonableness of this position, I’ve presumed that it would be too toxic politically for most Republicans in Congress even to raise the question of Trump’s eligibility to return to power.
But now that such a strong criminal indictment against Trump has been handed down, I wonder whether the political calculations for at least some Republicans in Congress might have shifted. I wonder, too, whether these political calculations for enough congressional Republicans might shift sufficiently if the kind of statute I propose were coupled with provisions that prevent Trump from being criminally prosecuted for as long as he is a candidate for president.
After all, the main Republican complaint about the criminal indictment of Trump is that it’s a form of “election interference” by Biden’s Justice Department to weaken Trump’s candidacy against Biden. While it is hypocritical for Trump to make this complaint after he attempted to use the powers of the presidency to hobble Biden’s 2020 candidacy, there nonetheless remains a reasonable basis for concern from an impartial perspective about the administration of a president seeking reelection invoking its prosecutorial authority against the opposing party’s leading candidate.
This problem can be solved by immunizing Trump from criminal prosecution while simultaneously fast-tracking civil adjudication of Trump’s eligibility to serve as president again. Congress by statute could provide that if Trump is expeditiously adjudicated eligible, then the criminal prosecutions must remain suspended for as long as he remains a presidential candidate—and if he wins, then they would be suspended throughout his second term. Conversely, if Trump is expeditiously adjudicated ineligible, then the criminal prosecutions can move forward because Trump no longer would be a candidate and thus the prosecutions would not constitute the kind of “election interference” that is the basis for complaint.
Are there enough Republicans in Congress to accept this kind of package deal? I would like to think so. Surely at least nine Republican Senators would appreciate the clarity of knowing whether or not Trump is eligible to be their nominee again and, at the same time, welcome the opportunity to cast a vote to protect Trump (and his supporters) from criminal prosecutions against him that are perceived as politically motivated.
What about Republicans in the House? That’s trickier to assess. But perhaps there are just enough to join with Democrats on a discharge petition to secure a vote on this kind of bill if it were to clear the Senate first. There are 18 House Republicans in districts that voted for Biden rather than Trump. Can a half-dozen (or so) of these be sold on the idea that this kind of compromise procedure is necessary, so that Trump’s eligibility is settled before the election rather than after? They too could claim that their support of this compromise statute helps to assure that criminal prosecutions do not improperly interfere with the electoral process.
If Congress does not pass this kind of statute, then I think it’s necessary for special prosecutor Jack Smith to bring a separate criminal indictment specifically charging Trump with violating 18 U.S. Code § 2383, which punishes anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.” The reason to charge Trump under this provision particularly is that it renders anyone convicted of this crime “incapable of holding any office under the United States.”
If Trump is convicted under it, then no issue concerning his eligibility under section 3 of the Fourteenth Amendment will arise on January 6, 2026. His candidacy will have been precluded—preferably before the Republican convention in July of 2024, so that the party can nominate an eligible candidate even if Trump has won the primaries. If the party attempted to defy the adjudication of Trump’s guilt under this statute and nominate him anyway, then Democrats would be justified in attempting to block his presidency on January 6, 2025, just as Republicans would be justified in attempting to block Barack Obama from becoming president again if Democrats were so brazen as to defy the Constitution in nominating him.
Conversely, if Trump is acquitted of a charge under 18 U.S. Code § 2383, then that should foreclose any effort by Democrats to bar Trump from office on January 6, 2025. In this scenario, it would be Democrats acting in defiance of judicial adjudication of Trump’s innocence. There would be no constitutionally appropriate basis for Democrats to attempt to block Trump from taking office as the Electoral College winner.
One way or another, Trump’s status under section 3 of the Fourteenth Amendment should be settled in advance of the 2024 election, so that there is no basis for it becoming a contentious—indeed calamitous—issue on January 6, 2025. It would be better if this were settled quickly by a special congressional statute enacted to create an expedited civil procedure to adjudicate the matter. But if Congress continues to fail to act this regard, then the second-best method of settling the issue in advance is through yet another indictment of Trump, this time under the criminal statute that (like section 3 itself) renders insurrectionists ineligible for federal office.