Trump’s Final Battle to Sabotage the Midterms

Por Marjorie Cohn — Truthout

Speaker Mike Johnson could block the seating of victorious Democrats in the House of Representatives on January 3.

Truthout is an indispensable resource for activists, movement leaders and workers everywhere. Please make this work possible with a quick donation .

After the 2020 presidential election that resulted in a clear victory for Joe Biden, Donald Trump tried mightily to overturn the outcome. He has persistently insisted to this day that he won and Biden lost. On January 6, 2021, Trump ordered then-Vice President Mike Pence to violate his constitutional duty to certify the duly elected electors before the joint session of Congress by counting only some of the electoral votes from certain states and returning the rest to state legislatures.

But Pence refused to obey Trump — and, in response, MAGA fanatics threatened him with execution by hanging. Court after court rejected Trump’s entreaties to reverse the results of the election.

Now it appears that Team Trump may be poised to undertake a similar tactic to prevent Democrats who prevail in the midterm elections from being seated in the House of Representatives.

In an explosive op-ed in The New Republic, former Judge Michael Luttig, a noted conservative, argues that the “catastrophic end [of U.S. democracy] could well come on January 3, 2027, when Trump and his Republican congressional allies wage the final battle in Trump’s determined war to corrupt America’s democracy and deliver a lasting political victory over the Democrats for his MAGA Republican Party.”

Luttig asserts that “House Republicans are now poised to claim that the midterm elections were stolen from them when they meet on January 3.” He told Katie Couric in an interview posted on Substack that he heard reports from insiders that members of the House are considering not certifying Democratic winners of the midterms. Luttig called it a “congressional coup.”

Article I, Section 5, Clause 1 of the Constitution says that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” The House of Representatives is the “judge” of its “elections” and “returns.”

But the Constitution limits how the House can exercise its authority to refuse to seat members-elect. New York Rep. Adam Clayton Powell had won reelection in 1966, but the House voted to refuse to seat him. In the 1969 case of Powell v. McCormack, the Supreme Court upheld the constitutional power of the House to “judge the qualifications” of members-elect but ordered the seating of Powell.

If the midterm election results indicate that Democrats will win a majority in the House, Trump could — and likely will — declare the election fraudulent and claim that the results need not be certified. He could then demand that Speaker of the House Mike Johnson fire House Clerk Kevin McCumber, a Republican who is widely respected for his integrity. McCumber is reportedly unwilling to obey orders he thinks are unconstitutional, according to Luttig.

Rule II, Clause 1 of the Rules of the House of Representatives states that the Speaker of the House has the unilateral authority to remove the incumbent clerk, and under Title 2 U.S.C. § 5501(a), the power to temporarily replace him with anyone he wants until the House elects a successor.

Luttig is worried that on January 3, Johnson could remove McCumber and replace him with a MAGA loyalist. The interim clerk could then refuse to list on the statutory roll of representatives-elect to the 120 th Congress every Democrat-elect who Johnson directs him to omit from the list.

If this comes to pass, the question would then be whether Johnson’s choice for McCumber’s replacement would be approved by the House members. “You’d have a number of members who are retiring, who I think would no longer be beholden to Johnson or the president, who I think would take a very, very dim view of efforts to overturn the election,” said Rep. Joe Morelle (D-New York). He is the ranking member on the House Administration Committee, which supervises federal elections and oversight of House officers.

The House of Representatives comes to an end at noon on January 3 after each election. At that time, none of the 435 House members remain in office unless they are again sworn in.

Before January 3, the election results may well be opposed at the state level. Trump loyalists could interfere with duly elected Democrats during the state certification proceeding.

The process for seating a new House of Representatives begins when the states certify the results in all 435 races. State rules vary, but the majority of them require that election officials conduct the certification by late November or early December.

Although some local officials refused to certify the results of the 2020 election based on spurious claims of widespread voter fraud, all election results were ultimately certified. Pence accepted all states’ legitimate certifications of their results on January 6.

Since 2020, over 30 local officials in Arizona, Colorado, Georgia, Michigan, New Mexico, North Carolina, and Pennsylvania have refused to certify election results in an effort to preclude Democratic victories. In 2024, all results were certified as well.

“Voters should rest assured that if they see an attempt to refuse to certify in their jurisdiction, that does not mean there is a problem with the votes, and there are processes in place to make sure that their votes will be counted and certified on time,” Lauren Miller Karalunas, counsel in the Brennan Center’s democracy program, told Truthout.

“If an official refuses to certify an election, state officials, or a candidate in the race, and in some states, voters themselves, can ask a court to step in and order an official to fulfill their legal duty to certify an election. This is what’s legally known as a mandamus proceeding,” Miller Karalunas said.

Democratic members of the House have undoubtedly enlisted lawyers to prepare petitions for writs of mandamus in the event that Johnson tries to prevent the lawful seating of Democratic House members on January 3. A lower court could issue a writ, and if it’s sustained by appellate courts, and ultimately the Supreme Court, then the next question would be whether Johnson’s handpicked clerk will obey the court order.

Concerns about tampering with election results on January 3 are particularly justified in light of recent statements by Trump and Johnson. Trump has clearly said he wants his supporters to cheat during the midterms.

On September 10, Trump addressed the first-ever GOP midterm convention in Dallas and urged his supporters to pledge to “cheat like hell” so Republicans will win the midterms. In a baldfaced bribe, Trump promised to send all U.S. citizen adults a $5,000 check, but only if Republicans retain control of both houses of Congress. Johnson told the convention, “We cannot and will not allow [the Democrats] to take the majority in Congress, we’re not gonna do it.”

The Constitution makes clear that the authority to set rules for elections rests with the states, subject to congressional oversight. Article 1, section 4 says that “the times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.” There is no role for the executive in this process.

On February 2, Trump told podcast host Dan Bongino, “The Republicans should say, ‘We want to take over. We should take over the voting.’… The Republicans ought to nationalize the voting.’” But on September 14, the Supreme Court blocked Trump’s executive order purporting to restrict mail voting before the midterm elections.

In a national primetime address on “election integrity” in October, Trump accused China and the Democrats of threatening free and fair midterm elections. He claimed, based on no evidence, that the midterms were imperiled by noncitizen voting, and by vulnerabilities in voter registration and electronic voting systems.

Trump continues to threaten to withhold federal funding from states that refuse to follow his orders about voting, and to incapacitate the bipartisan agency that administers fair elections.

In his recent op-ed, Luttig expressed his worry that there could be a congressional coup in the House of Representatives on January 3. “So unalterably subjugated to Trump is today’s Republican House that even a decisive victory for Democrats and a resounding repudiation of Trump and the MAGA Republicans at the polls in November will not guarantee that a Democratic majority-elect will be seated in the 120th Congress on January 3,” Luttig wrote.

The scenario Luttig fears has been attempted twice in U.S. history — in 1863 and 1865. “Both times it brought American democracy to the brink of collapse, and indeed on one occasion brought federal troops into the Capitol itself on a mission to block a conservative coup,” Garrett Epps wrote for Washington Monthly. Both attempts failed. But Trump’s changes to military leadership may result in more compliant officers, willing to carry out his illegal orders.

If Johnson does try to engineer a coup on January 3, it remains to be seen how many House Republicans will violate their constitutional oaths on his and Trump’s say-so and refuse to hold firm. And if the interim clerk’s decision is sustained by a majority of the House, what will the courts do?

The ultimate decision will reside with “We the People.” People in the United States cannot passively stand by while Team Trump eviscerates the right to vote and what’s left of U.S. democracy. If this occurs, we must be ready to organize, take to the streets, and refuse to allow a coup to succeed.

This September, Truthout is celebrating 25 years of publication. For over two decades, we have been a trusted source for fiercely independent journalism thanks to readers like you.

As we look to the next 25 years, we have launched a special fundraising campaign. At this moment, we have a goal to raise $31,000 in the next 24 hours.

We are asking for your support at this juncture because we face greater threats than ever before in our organizational history. Trump and his MAGA allies are determined to control the information ecosystem, and movement-based organizations are subject to dangerous censorship and scrutiny.

If you can support Truthout with a one-time or monthly donation, you will make a significant impact on our work and our legacy. Anything you can do makes a difference!

This article is licensed under Creative Commons (CC BY-NC-ND 4.0), and you are free to share and republish under the following terms:

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, dean of the People’s Academy of International Law and past president of the National Lawyers Guild. She sits on the national advisory boards of Veterans For Peace and Assange Defense, and is a member of the bureau of the International Association of Democratic Lawyers and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.

Get the news you want, delivered to your inbox every day.

Please make a donation to Truthout during our special 25th anniversary fundraiser. We have 24 hours to raise $31,000!

Fonte: Truthout