My column at Real Clear Politics this week looking at the possibility of Donald Trump becoming speaker of the House after the 2022 election is particularly timely. Rep. Kevin McCarthy said a couple days ago that Trump wanted to become speaker, but then RINO McCarthy “clarified” that he meant to say that Trump wanted McCarthy to be speaker. Ha! We shall see! Read my column to see how Trump could become president again by being named speaker by a new GOP House majority.
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Donald Trump: The Once and Future President?
By Frank Miele
You probably heard it reported a few weeks ago that Donald Trump has been telling confidants that he expects to be reinstated as president in August. I have no way of knowing if that story is accurate, nor does New York Times correspondent Maggie Haberman, who reported it, but we do know that Mike Lindell, the CEO of MyPillow, has boasted that he has evidence of election fraud that will force the Supreme Court to unanimously overturn the Nov. 3 election and put Trump back in power within six weeks.
No doubt that is far-fetched, but it raises the fascinating theoretical question of what would happen if a presidential election were indeed proven to be stolen. What would be the recourse? Or would the nation just have to accept its illegitimate ruler the way they do in corrupt Third World countries?
Mind you, this is hypothetical only, so Facebook and Twitter and any other Big Tech tyrants have no reason to censor or suppress this line of inquiry. It is what educators used to encourage in their students — critical thinking, looking at an issue from all sides and without preconditions in order to form a judgment.
But critical thinking is in short supply in 21st century America. Instead, we have either orthodoxy or heresy. Of course, the New York Times can write whatever it wants in the way of fantastic stories about the Nov. 3 election, because it writes stories that ridicule Trump and his claims of election fraud. But for those of us who respond to the Times or other left-leaning news outlets, the same rules don’t apply.
Last week, for instance, I reprinted a storyby RealClearInvestigations reporter Paul Sperry on my own website about the evidence for election fraud in Georgia. When I posted it to Facebook with a comment praising Sperry’s work as clear evidence why a forensic election audit is vital, the post was shut down. I was told it “goes against [Facebook’s] community standards,” with no further explanation.
Apparently asking questions about elections goes against Facebook’s standards, which suggests that Facebook’s standards have more in common with the Chinese Communist Party than with the U.S. Constitution. Asking questions — about anything and everything — is what journalists are paid to do, and what informed citizens must do. You don’t accept anything the government tells you at face value. You test it, you probe it, you prove it.
So first off, let me say that my expectation is that no matter what happens, no matter what is proven about election fraud, Donald Trump is unlikely to be restored as president in August. Yes, there are a few cases in state courts where election results have been put aside and the losing candidate was elevated to office after fraud was proven. Most notably, in 1998, the incumbent mayor of Miami, Joe Carollo, lost in a runoff election, resulting in his opponent unseating him. It turned out, however, that hundreds of absentee ballots were fraudulent, and a court of appeals reversed the election and reinstated Carollo as mayor.
That’s what Lindell — and maybe Trump — is hoping will happen in August, but the main factor weighing against such an outcome is the U.S. Constitution, which is silent on voter fraud but lays out pretty strict guidelines for how and when a president may be removed from office. None of those guidelines, however, seem to apply to the present hypothetical case. Assuming that voter fraud was ever proven in court, and to a sufficient degree that it would reverse the Electoral College results, there is simply no provision in the Constitution that would unambiguously resolve the situation.
So, with your critical-thinking hat on, imagine how you would address the problem — hypothetical only — of what to do if it became obvious that the sitting president were not duly elected. Let’s say that evidence surfaced showing that China tampered with the election in order to oust Trump. What does the Supreme Court do?
Could the court rely on a process argument to avoid making a ruling? Would the court fall back on “lack of standing” or “moot” or “too late”? Remember, the hypothesis is that a foreign power interfered in a U.S. presidential election. Does anyone really think that our high court justices would turn their heads and ignore evidence that Joe Biden was elected not by the American people but by the Chinese Communist Party? I don’t. So in that extreme case, the court would have to do something that courts don’t like to do — make it up as it goes along.
You see, the Constitution only allows a president to be removed by Congress through impeachment or by the vice president and Cabinet invoking the 25th Amendment to declare the president “unable to discharge the powers and duties of his office.” But if the court were convinced that the president had won his office as a result of fraud, and especially a foreign conspiracy, could it merely wait for the political process of impeachment to take care of the problem? That seems unlikely to me, especially in the hyper-partisan environment we live in today. Democrats in Congress would be likely rally around their tainted president rather than sacrifice their progressive agenda. The vice president would herself be subject to the same questions of illegitimacy as the president, so would not be considered fit to serve either.
It would therefore be up to the Supreme Court justices to solve the problem, rather than ignore it, as much as they would wish to. My guess is that they would hew as closely to the declared intent of the Constitution as possible, and to existing case law. In my mind, that means they would honor the mandated order of succession for the presidency: If both Biden and Harris were removed from office, the presidency would fall not to Donald Trump, but to Nancy Pelosi, who as speaker of the House is second in line to the presidency. Trump may have been cheated out of the office, but the Constitution provides no remedy for that, short of the Electoral College or Congress rejecting fraudulent results prior to the inauguration, a remedy that is indeed “moot” and “too late” in the present instance.
But that does not mean Trump can never return to the White House. Nor must he necessarily wait until the 2024 election. If Pelosi were named president, it is presumed that she would remain in an acting role until such time as a new president was elected or she was replaced as speaker. That’s because the Presidential Succession Act refers to officers beyond the vice president “acting as president” rather than “becoming” president.
That would in essence turn the 2022 election into a parliamentary election to determine the next president. If the Democrats won the House in 2022, Pelosi could finish her term as president, but if Republicans won, the new GOP speaker would presumably be sworn in as the new acting president.
That raises the fascinating possibility of Republicans running for House in the 2022 election on the pledge that if the GOP retakes the chamber, the party will name Donald Trump as speaker. That could happen even if Trump doesn’t run for a House seat himself since there is no constitutional requirement that the speaker be a member of the House.
So maybe Trump won’t be president in August of 2021, but he well could be in January of 2023. This, of course, is all hypothetical at this point, merely an exercise in critical thinking. No need for Mark Zuckerberg, Jack Dorsey and the Big Tech Gestapo to get worried — yet. But that won’t stop them from imposing their “community standards” on me and millions of others. Turns out that asking questions is dangerous, because sometimes you get answers. We can’t have that now, can we?
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You misunderstand the process of Presidential succession. You also fail to understand the very clear constitutional prohibition of holding multiple federal offices simultaneously. Finally, you fail to comprehend the process by which a President is elected. If we are to humor the delusional with hypotheticals, it is necessary to at least acknowledge reality. But let us stipulate a scenario in which every single Biden ballot is found to be fraudulent. What would be the repercussions of the discovery that not a single person voted for Joe Biden on November 3rd, last? We don’t have to imagine, since we already know that Joe Biden received 0 votes on November 3rd. Donald Trump also received 0 votes that day. We cast our ballots for electors who then elect the President. The actual Presidential election occurred on December 15th, 2020. As the constitution does not require the electors to vote in accordance with the voters who elected them, the fraudulent election of electors would not make the Electoral College election fraudulent. Unless evidence of fraud during the Electoral College vote is produced, the election was constitutionally legitimate.
But your more glaring and consequential error is the suggestion that the Speaker of the House can both act as President and Speaker. That violates both the plain language of the constitution as well as the underlying fundamental governing philosophy. If vacancies elevate the Speaker of the House to the office of President, they immediately cease to be Speaker of the House. You may have heard the term separation of powers. The executive branch and the legislative branch must be separate. A President cannot hold a seat in Congress nor serve as Speaker. If Nancy Pelosi becomes the 47th President, she will be obligated to immediately tender her resignation from the House of Representatives and a new Speaker will be elected.
While I appreciate your earnest beliefs, I find them to be no more than beliefs. Especially, regarding your theory about what happens when someone becomes acting President, I am skeptical at best. If the acting President were expected to resign his or her current job, then it would not reasonably be an acting role.
We already have a precedent in this regard. Gerald Ford was appointed to the Office of Vice President following the resignation of Spiro Agnew. At the time of his appointment, Ford was a member of the House of Representatives and Minority Leader. Upon assuming the office of Vice President, Ford resigned his seat in Congress. Upon Nixon’s resignation Ford became the 38th President of the United States. Subsequently, Nelson Rockefeller became the 41st Vice President of the United States. Under the theory of this article, Nelson Rockefeller should have become the 39th President as Gerald Ford was merely “acting” as President while the office was vacant.
I believe Vice Presidents are elevated to the office of President when the presidency is vacated, which is different than being acting President. The main point being that there is no exact precedent for the scenario I laid out, so we don’t know exactly how it would be resolved.
You still fail to understand your error. The notion that the presidency devolves conditionally upon permanent vacancy is clearly erroneous. You assert that in the event the office of President and Vice President become vacant, the Speaker of the House would then assume the office of the President for the duration of their term as Speaker or until the next scheduled election. This is demonstrably false. For your theory to be correct, Gerald Ford would have remained the Vice President while acting as the President. Quite clearly, the Office of Vice President became vacant upon Nixon’s resignation. This is not a belief. Nor an opinion. It is a fact, attested by the appointment of Rockefeller.
Under your theory, the office of the President remains vacant for the duration of the scheduled term while the power of the President is exercised by the holder of an office in the line of succession. Thus, should Biden and Harris vacate, whomever holds the office of Speaker of the House would become acting President while remaining Speaker. If you are correct, Gerald Ford was still Vice President while acting as President and effectively tendered his resignation upon nominating Rockefeller for an office that was not vacant. As Rockefeller plainly did not assume the Presidency upon assuming the Office of Vice President, it is necessary that the office of the President was not vacant. Therefore, it is plainly established that the office of the President devolves along the line of succession.
It is constitutionally possible for Trump to become the 47th President prior to 2025. But for that to occur, he must already be Speaker of the House before the the office of President devolves. Once the office devolves, that person can only be removed prior to the next election through impeachment and conviction.
Actually, the Presidential Succession Act of 1947 is a convoluted mess precisely because it permits conditional appointments. Suppose all of Congress were wiped out along with the President and Vice President in a WMD attack: In accordance with the Presidential Succession Act, the Secretary of State (assuming he/she survived and is eligible) would become Acting President, but when the Senate is refilled by appointments and elects a President Pro-Tem, the Pro-Tem would take over as Acting President until the House is refilled by special election and elects a Speaker, who would then become Acting President. That’s what the law says anyway, but since we’ve never had to devolve the Presidency on anyone other than the Vice President, it’s never been adjudicated whether or not this whole process is constitutional.
It’s an intriguing hypothetical, that’s for sure. I beg to differ on a couple of points:
First, I believe Dougherty is correct in pointing out that the election is by the designated Electors who are not bound to any vote counts per se. Biden, in other words, is the duly elected President and Harris the duly elected V.P.
That said, if it were determined that widespread fraud did indeed take place and that the wrong people are clearly in the WH, it would not be up to any Court to decide what to do. SCOTUS could declare the various State election processes fraudulent – though why it would need to get to SCOTUS am not sure since they already threw out Texas on the grounds that they lack standing if another State’s election process is fraudulent (what a ROTTEN SCOTUS we have, eh?).
No, it would have to be a political process.
First, Biden & Harris should either resign or be removed by the 25th amendment as being unfit. Since most doing the voting on that are their appointees, resignation is most likely. At which point an Acting President is chosen until the next President is selected.
Second: no doubt if widespread fraud is determined, Pelosi would no longer be Speaker since the Republicans would hold both House and Senate. Congressional Seats are NOT subject to the Electoral College nonsense so here SCOTUS or any relevant State Legislature can declare the previous winner out. Indeed, since ‘Fraud vitiates everything’ one could rightly argue that every single Democrat Representative and Senator be turfed out, but that is hardly likely. What is more likely is that both House and Senate will end up in Republican hands so that when Biden & Harris step down, the Acting President will be the Speaker and that Speaker could well have been chosen to be Trump who becomes Acting President, at which point a new Speaker is selected.
Once all that is done, Congress and the Senate can declare Acting President Trump Actual President Trump with the rider that he can go for another election in 2024 giving him 10 years in office in total. If deSantis stays beloved and serves as his VP, that will add a further eight years. Fourteen years should give them enough time and momentum to dismantle the CIA and FBI, move the Capital out of Washington DC, close down all of the foreign bases, eradicate the credit cartel known as the FED and generally restore the US to an independent Republic again.
All this is highly unlikely, of course. The Courts are controlled; the media are controlled Intelligence outlets including obviously social media and nearly everything found on computers and cell phones. The credit cartels are firmly in place. The likelihood of a bona fide mid-term election in 2022 fades with each passing day. The Arizona Senate will probably recess so that nothing will come of the audit in any practical sense and the same will happen all across the country. It is almost too late already for any other State to make any substantive changes in time for 2022 and in any case the Democrats and the media will poo-poo any findings and about half the country will believe them as they always do.
But it’s a fun hypothetical.
Personally, I think Trump has already proved two things: he’s a highly capable President in a generally honest and honorable situation; and he’s out of his depth when the Bad Guys are in charge of the Swamp. The crocs ran rings around his Presidency even though they failed to swallow him whole. Unless and until there is a massive groundswell from the grass roots, one that goes way beyond the current partisan political tribal context, truly substantive reform along the lines sketched above is impossible. And unless and until such reforms take place, the Republic, sad to say, has already fallen and with each passing month possibilities for its revival, or for a better Second Republic, are fading.
And so it goes.
But good piece, and thank you for writing and publishing it!