More musings on the feasibility of a congressional compromise to protect against the risk of a 1/6/2025 disaster

Following today’s earlier story about the glimmers of an “anti-Trump coalition” forming within the GOP Senate caucus, there is now this development about twenty House Republicans breaking with their party and its leadership to vote for tabling the motion to censure Adam Schiff. As part of my efforts to brainstorm about the possibility of a congressional compromise to ward off the January 6, 2025 nightmare scenario I fear, I’d look to these twenty Republicans as the ones to pursue. 

While the idea of this compromise might seem farfetched, I note that it can viewed as sufficiently favorable to Trump that he might not endeavor to oppose it. After all, an essential element of the compromise is the suspension of all criminal prosecutions of Trump for as long as he remains a presidential candidate—including the pending New York indictment, as well as the anticipated Georgia indictment, and both the current and potential additional federal indictments. Thus, from Trump’s perspective, he could block all these indictments just by convincing the courts—meaning ultimately the U.S. Supreme Court—that section 3 of the Fourteenth Amendment can’t be construed to render him ineligible for returning to the presidency. That’s not a bad bargain, and if he wins the Republican nomination, he can continue to keep all these criminal prosecutions at bay throughout the remainder of the election. Then, if he wins in November 2024, these prosecutions all disappear for at least the next four years and perhaps forever.

Moreover, without this bargain, Trump can’t be sure he actually makes it back to the White House even if he wins the November 2024 election. Although I’ve made clear my position that Democrats in Congress should not attempt to disqualify Trump on January 6, 2025 if he hasn’t been disqualified in advance of the election, I’ve also said that I doubt Democrats will embrace my view on this point. If Democrats in Congress have the power to stop Trump from taking office again, I predict they will use it even if they shouldn’t from a small-d democracy perspective (thwarting the election’s outcome after voters have cast their ballots). I also predict that the firestorm of outrage this move would provoke would be devastating, but ultimately if the Democrats have enough votes in both the Senate and House, they are likely to prevail. Trump can’t rely on the Court protecting him from Congress once the matter has reached the joint session under the Twelfth Amendment, not with the political question doctrine hanging out there. And if the Court doesn’t intervene on his behalf, the military most certainly will not in the waning days of the Biden administration. At noon on January 20, 2025, the powers of the presidency would transfer not to Trump, but to his running mate, whoever that might be, and the military would start obeying this new commander-in-chief under the terms of the Twentieth Amendment. Thus, if Trump wants to be sure that he can actually get the benefit of an Electoral College victory he achieves at the polls, he better hope that Congress adopts a compromise statute that (a) takes away the power of disqualifying him under section 3 of the Fourteenth Amendment after his victory, in exchange for (b) having the judiciary rule in advance on whether or not section 3 of the Fourteenth Amendment disqualifies him. 

Once this compromise statute is seen as beneficial to Trump in this way, one has to worry about Democrats balking at the compromise. But it is also advantageous to them. They can hardly be sure that they will be in a position to block Trump from the presidency on January 6, 2025. They may not win back the House or have enough votes in the Senate, and they would need both. And it is really risky to rely on an indictment of Trump under 18 U.S. Code § 2383 as the method of disqualifying Trump from becoming president again. Not only hasn’t that indictment been filed yet, and may never be, but even if it were filed soon, any trial in the case might not occur or be resolved before Trump wins the election, at which point it would be suspended without achieving the Democrats’ goal of having disqualified Trump from taking office. Far better from their perspective for Congress to enact a new statute that creates a special expedited judicial procedure that requires the courts, including any appeal to the U.S. Supreme Court, to resolve (by means of a civil, not criminal, suit) Trump’s status under section 3 of the Fourteenth Amendment before the Republican nominating convention in July of 2024. 

While both pro-Trump and anti-Trump members of Congress should see this compromise statute as advantageous from their respective perspectives, moderate Republicans in both the Senate and House (who wish to side with neither the pro-Trump nor anti-Trump camps) can support this compromise simply as a sensible way to avoid the potential constitutional catastrophe that might otherwise occur on January 6, 2025. 

Thus, it should be possible to get this kind of compromise adopted, even given the hyperpolarized divide between the two parties in Congress right now.

Do I think it likely that this will actually happen? No. But given the extraordinarily high stakes involved—avoiding the risk of an apocalyptic Armageddon on January 6, 2025—I think the possibility is worth exploring. 

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