Democrats in Congress for years have labeled Donald Trump an “insurrectionist,” impeached him for stoking violence on Jan. 6, 2021, and suggested he is constitutionally prohibited from returning to the White House.
But even as those lawmakers continue to doubt Trump’s eligibility for the presidency, they also say that if he wins at the polls, they don’t expect efforts to deny him his presidential electors on Jan. 6, 2025, when Congress meets to finalize the results.
Democratic leaders are saying publicly and privately they want a drama-free transfer of power — even if it means setting aside some members’ views that Trump is ineligible to return to the presidency because of the Constitution’s bar on insurrectionist officeholders.
The 14th Amendment prohibits any federal officeholders who have “engaged in” insurrection from holding office again, and Democrats have long suggested Trump ran afoul of it when he inflamed the violent mob that attacked the Capitol four years ago. At the time, House Democrats overwhelmingly voted to impeach Trump for “incitement of insurrection.” Their leader, Hakeem Jeffries, has routinely called Trump the “insurrectionist-in-chief.” But there appears to be little appetite among Democrats to challenge results during the Jan. 6 joint session.
“The integrity of our democratic process depends on the peaceful transfer of power. Donald Trump has decided that the only valid elections are elections he wins,” Minority Whip Katherine Clark (D-Mass.) said in a statement to POLITICO. “He is the only President who has supported an insurrection rather than accept the will of the American people. Democrats will always ensure every vote counts and that we uphold our democracy.”…
In its March opinion, the Supreme Court implied — though didn’t explicitly state — that Congress must pass legislation to lay out a procedure to determine whether a current or former officeholder has violated the insurrection clause. It’s a gap that leaves some uncertainty about what Congress’ obligations and options are in January.
But most constitutional scholars say it would be improper for lawmakers to make a subjective judgment about Trump’s eligibility without a forum to fully air and debate the facts.
“Congress does not have the capacity in the [Jan. 6] joint session to do so,” said Derek Muller, a University of Notre Dame constitutional law expert. “Because Congress is not in a position to decide the matter, Congress should count the votes.”
Edward Foley, an Ohio State University constitutional scholar who has written about the insurrection clause, said the Supreme Court left a gap on this issue but doesn’t think members of Congress will step into the breach.
“Everything I’ve seen indicates that Democrats in Congress won’t attempt this,” Foley said.
In a hypothetical scenario in which Trump’s opponents controlled the House and Senate, with enough votes to disqualify his electors — “which they won’t have,” Foley noted — he said it’s unclear whether courts would step in to block the decision.