The new essay in The Atlantic by Judge Luttig and Larry Tribe significantly raises the risk, in my judgment, that Democrats in Congress will attempt to prevent Trump from being inaugurated on January 20, 2025 if he wins the election in November 2024. This of course is not the authors’ specific intention. Like me, they want this issue resolved before voters cast their ballots next year.

But the prominence of these two authors, building upon the Baude-Paulsen article, will give Democrats ground to argue that Congress is compelled to block Trump’s inauguration despite his Electoral College victory–assuming that the effort to prevent Trump from being on the ballot has failed.

There are two ways in which this effort might have failed by the time Congress meets on January 6, 2025, two weeks before Inauguration Day. One is that the U.S. Supreme Court did reach the merits of Trump’s status under section 3 of the Fourteenth Amendment, after a full and fair evidentiary hearing on the relevant factual issues, but concluded (contrary to the views of Luttig, Tribe, Baude, and Paulsen) that Trump did not “engage” in an “insurrection” (or give “aid and comfort” to an enemy of the United States) within the meaning of section 3. If this is the Court’s conclusion, I would like to think that Democrats in Congress would accept it as the workings of the rule of law in our society even if they disagree with the decision.

The other way that the effort to disqualify Trump before the election might fail is that the issue does not get properly or squarely presented to the Supreme Court, and thus the Court never directly rules on the merits. This is the context in which it is much more likely that Democrats in Congress would attempt to invoke the Luttig-Tribe position after the election to block Trump’s inauguration.

I have written what I think is the way most likely, without a new congressional statute, to cause the Court to directly address (rather than procedurally deflect) the merits of this momentous constitutional question. If a state legislature adopts the kind of statute I described in my Washington Post column, I believe that statute maximizes the likelihood that the Court will not rely on the reasoning of Chief Justice Salmon Chase’s reasoning in In re Griffin. After all, for the Court to rule that a state legislature is not permitted under Article II to create a procedure to make sure that its presidential electors are not pledged to a candidate whom there is at least very credible reasons to believe is disqualified from the presidency because of conduct within the ambit of section three of the Fourteenth Amendment, that ruling would be a serious intrusion on the prerogatives of state legislatures to determine the “manner” of appointing their state’s presidential electors under the Constitution’s system for presidential electors. Even more, if the state legislature’s procedure for adjudicating this disqualification issue is designed to give the last word to the U.S. Supreme Court itself (because it is a question of federal constitutional law), for the Court to duck the issue and prevent the state legislature from enforcing a disqualification determination reached according to its own procedures pursuant to its Article II power for appointing presidential electors would seem a severe breach of the way federalism is supposed to work.

But there is no guarantee of success on this front. For one thing, it’s possible that no state legislature will enact the kind of statute that should cause the U.S. Supreme Court to consider itself obligated to address the merits of the disqualification issue. For another, it’s possible that the Court would reach what I would consider to be a misguided reliance on In re Griffin even in light of a state statute that ambiguously mandates the adjudication of the disqualification issue.

If the effort to get the Court to address the merits of the disqualification issue gets procedurally derailed for either of these reasons (or any other reason), then the nation risks the constitutional Armageddon that I most fear: an attempt by Congress to deny Trump the presidency after he has won the popular vote in enough states for 270 or more electoral votes.

Therefore, it seems necessary to ask: is there no way that Senate leaders can manage to craft on a bipartisan basis some new piece of legislation that would remove the risk of this constitutional Armageddon and, once enacted in the Senate, would put enough pressure on the House to cause it to be enacted there as well? (Recall that there are 18 GOP House members in so-called “Biden districts” and who therefore might be amenable to this kind of compromise.)

It might seem quixotic given the tribalism of current politics, but the stakes are so high that it’s still worth considering. The bipartisan deal that I envision, as I’ve suggested before, would be for Congress to enact as statute pursuant to the Twelfth and Twentieth Amendments to provide (1) a mechanism for the expedited civil DOJ adjudication of Trump’s status under section 3 of the Fourteenth Amendment, with mandatory appeal to the US Supreme Court, combined with (2) a commitment by Congress to accept the results of that adjudication for the purposes of the Twelfth and Twentieth Amendments. If the adjudication concludes on the merits that Trump is eligible (contrary to Luttig, Tribe, Baude, Paulsen, etc.), that’s the end of the matter. Conversely, if the Court concludes that Trump is constitutionally disqualified from the presidency–and reaches this conclusion by June of next year–then the Republican convention can go forward with the knowledge that Congress cannot constitutionally permit Trump’s inauguration even if he were to win the Electoral College and therefore the GOP might as well nominate someone else.

Why would either party in Congress sign on to this bipartisan deal? For Democrats, there’s no guarantee that they will control the House on January 6, 2025, and thus be in a position to disqualify Trump. It’s in their interest to take the deal that guarantees that the Court must at least reach the merits of whether the Luttig-Tribe-Baude-Paulsen view is correct. For Republicans, there is also no guarantee that they will control the House or have enough votes in the Senate to block the Democrats from achieving Trump’s disqualification on January 6, 2025. Moreover, Republicans can hope that the current Court might be more likely to accept the Michael McConnell interpretation that renders Trump still eligible.

Can Senate leaders put this deal together? I’m not optimistic. But they sure should try for the sake of the nation. I hope I’m wrong in thinking that the January 6, 2025 scenario that I envision would be a constitutional Armageddon. But, sadly, that’s my assessment of the truly catastrophic circumstances we potentially face if we don’t figure out a way to avoid it in advance.