An astute reader of yesterday’s essay has asked me to clarify one detail: what should Democrats in Congress do if the kind of statute I propose is not enacted and, further, there is no indictment of Trump under 18 U.S. Code § 2383 that adjudicates whether or not he is eligible to serve again as president?

In other words, what if Trump is not judicially rendered ineligible to hold office again and then goes on to win the Electoral College—would it be appropriate in that situation for Democrats in Congress to attempt to disqualify him in the Twelfth Amendment joint session on January 6, 2025, based on their belief of his ineligibility under section three of the Fourteenth Amendment?

My answer to that question is emphatically “no”—which I set forth in my previous writing on this topic, but which I did not repeat in yesterday’s essay. 

I started and ended my 2021 ELB blog post with this key point, which was indeed the purpose of writing that post. 

First, the start: “In fairness to America’s voters, [the issue of Trump’s eligibility or ineligibility] ought to be resolved conclusively in court long before voters cast their ballots in 2024—and not on January 6, 2025, when Congress next meets to count electoral votes.”

Now, its ending: “Consider the basic point here the electoral equivalent of the familiar wedding refrain: ‘Speak now or forever hold your peace.’ Simply put, the time for disqualifying Trump from being on the ballot in 2024 is before those ballots are cast, not after he’s won the election.”

I wholeheartedly remain committed to this view, which is why I wrote yesterday’s piece and invoked (but did not duplicate verbatim) my earlier writing on the same topic.   

I have continued to lament that Democrats did not manage to enact the kind of statute I proposed when they were the majority in the House. They wasted far too much time pursuing their one-sided HR1/S1, rather than exercising the responsibility of how to work with reasonable Senate Republicans about how best to protect the Republic from the threat of Trump’s potential reelection. But there’s no point crying over spilled milk, as the cliché goes, and so the question is what if anything can be doing about it now. 

It seems that there are only two possible options—although I’d love to hear more if I’m missing something.

One is to rely on the possibility that Jack Smith will indict Trump specifically under 18 U.S. Code § 2383, and that indictment at least will judicially adjudicate the eligibility question one way or the other. 

The other avenue is to try to figure out a way to enact the kind of statute I’ve proposed, including by sweetening the deal for congressional Republicans by preempting criminal prosecution of Trump in exchange for obligatory civil litigation that would definitively settle Trump’s status one way or the other under section 3 of the Fourteenth Amendment. 

If Democrats in Congress don’t want to put all their eggs in Jack Smith’s basket, then they better get busy figuring out a way to convince enough Republicans to enact the necessary civil litigation statute.

But bottom line: if no such statute is adopted and there’s no indictment of Trump under 18 U.S. Code § 2383, then (to put it as clearly as I can), in my view it would be inappropriate for Democrats to attempt to use the joint session of Congress on January 6, 2025, to disqualify Trump from the presidency after he has won the Electoral College. Yes, technically, they could claim authority for an objection to Trump’s electoral votes on this ground using the “not regularly given” clause of the Electoral Count Reform Act: 3 U.S.C. § 15(d)(2)(B)(ii)(II). But, in my judgment, it would be entirely irresponsible for Democrats to pursue that course of action under the circumstances. As I indicated in my piece yesterday, I think it would provoke the risk of political violence far greater and more dangerous to the nation’s stability than what occurred on January 6, 2021. 

Moreover, it would provoke a genuine constitutional—as well as political—crisis. There are significant constitutional questions about the relationship of the Twelfth and Twentieth Amendments if a joint session of Congress ever were to declare the winner of an Electoral College majority constitutionally disqualified to take the presidential oath of office on January 20. I think the better construction of the two amendments in coordination would be for the joint session of Congress to count the electoral votes for the ineligible candidate and declare that candidate “elected” under the Twelfth Amendment but then also declare that elected candidate as having “failed to qualify,” causing “the Vice President elect” to “act as President” pursuant to Twentieth Amendment. This construction would avoid the presidential election devolving to the House of Representatives under the contingent election procedure of the Twelfth Amendment, last used for the 1824 election, when no candidate receives a majority of electoral votes. If hypothetically Trump were disqualified by the joint session of Congress having won a majority of electoral votes, and the view was that those voided electoral votes caused no candidate to have an Electoral College majority, then the only candidate(s) entitled to be considered by the House of Representatives under the contingent election procedure would be other candidates who received at least some electoral votes, and that most likely would be only Trump’s Democratic opponent (presumably Biden). The joint session should not be able to change the partisan outcome of the presidential election by disqualifying the winner of the Electoral College majority, and thus the better construction is to have the disqualified winner’s running mate, the Vice President elect, assuming the powers of the presidency under the Twentieth Amendment. But the fact that this construction is not immediately straightforward from reading the bare text of the Twelfth and Twentieth Amendment makes the issue even more fraught with danger and potential partisan abuse. 

The upshot is that the country should never come close to being in that treacherous peril. Thus, if Democrats in Congress want any opportunity to block Trump using section 3 of the Fourteenth Amendment, they need to figure out a way to make that happen before Trump is on the ballot as the Republican nominee in the November 2024 election. Otherwise, I will continue to invoke the wedding analogy: “Speak now or forever hold your peace.”