Trump has another way to steal the presidency back — but Congress can stop him?
The House select committee will likely recommend changes to the Electoral Count Act in response to the Jan. 6 insurrection, but a constitutional change may be needed to prevent Donald Trump from stealing back the presidency.
The former president and his allies -- including Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas -- pressured vice president Mike Pence to exploit ambiguities in the 1887 law regulating the congressional process for certifying elections to overturn Trump's 2020 loss, but there's another way he might corruptly return to power, argued political strategist Scott Anderson for Politico Magazine.
"Under current law, a simple majority in the House of Representatives could not only derail the process for counting electoral votes but would also appoint the person who becomes president if and when that process fails," Anderson wrote. "If Congress wants to prevent this from happening, it needs to look past the Electoral Count Act to another area of law that reformers have yet to address: that governing presidential succession."
MAGA hardliners Rep. Matt Gaetz (R-FL) and Rep. Marjorie Taylor Greene (R-GA) have publicly suggested that a Republican House majority -- a distinct possibility after this year's elections -- might select Trump as their speaker, and he could potentially exploit weaknesses in the Presidential Succession Act if he's leading the House in 2024.
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"A Republican House majority could at that point not only elect Trump as speaker but refuse to participate in the joint session to count electoral votes, thereby preventing the selection of a president-elect or vice president-elect," Anderson wrote. "This would leave the presidency vacant come Jan. 20 — a vacancy that Speaker Trump would then fill by operation of the Presidential Succession Act. And while this appointment would be temporary, Trump would remain there so long as the same House majority refused to finalize the electoral vote count and determine the actual winner."
Trump said this week that he wasn't interested in becoming speaker, but he might be more intrigued in two years -- unless Congress takes action now.
"Amending the 12th Amendment is almost certainly a bridge too far, but revising the Presidential Succession Act is well within Congress’ reach and warrants the attention of reformers," Anderson wrote.
One easy fix would be to disqualify any individual who had previously been president or been a candidate for the presidency, or even bar anyone who has been impeached, from the line of succession.
"Alternatively, Congress might remove the House speaker and Senate president pro tempore from the line of succession altogether," Anderson wrote. "Some experts have already endorsed this option as a means of avoiding separate constitutional questions as to whether Article II of the Constitution allows legislative officers to be in the line of presidential succession for cases of death, disability or resignation. But handing the presidency to incumbent cabinet officials might pose its own perverse incentives, particularly if they are of the same political party as the House majority."
Congress could also assign the acting presidency at random from a pool of qualified candidates or limit the line of succession to non-partisans, such as career civil servants, to insulate the process from partisan preferences, but Anderson argued that changes must be made sooner rather than later.
"If the experience of the 2020 election has shown us anything, it’s that the rules and traditions that have long governed our country are more fragile than they may seem," he wrote. "Congress needs to take the threat to our democratic system seriously. Doing so requires that they not just fix yesterday’s problems but look ahead and address other vulnerabilities before they can be capitalized upon."