What happens to the cases against Trump if he retakes the White House?
What happens to the cases against Trump if he retakes the White House?
Author’s Note: This is part one of a three-part series in which we try playing out what happens to lawfare — the criminal and civil cases against former president Donald Trump brought by the Biden-Harris Justice Department and state Democratic prosecutors, as well as other legal gambits by which Democrats may continue trying to forestall or derail a Trump presidency — in the event that Trump is elected president in November.
T o hear the Wall Street Journal’s pollsters tell it, Donald Trump has moved ahead of Kamala Harris by two points. That seems like a lot, especially given that Trump has a history of under-polling and that, given the Democrats’ overwhelming advantages in California and New York, almost all rational discussions of potential Trump victories in 2016, 2020, and — for a time — 2024 assumed the need to win by Electoral College math without a popular majority.
As I confessed last weekend, as NR’s resident “Trump Can’t Win” skeptic, it’s starting to look to these eyes (which admittedly ain’t what they used to be) that Trump not only could win but may even be the favorite. To be sure, our Jim Geraghty’s sagacity is ignored at your peril: The race is still remarkably tight. Democrats have raised a ton of money for the vice president, and their tried-and-true turn-out machine must be the envy of Trump’s populist Republican Party — less seasoned, less attractive to movement conservatives (formerly the party’s backbone), and betting the turn-out ranch on the candidate’s celebrity rather than on a proven ground-game. But if Trump really is tied or ahead in national polls while maintaining a slight lead in the battleground states, then the nation’s 45th president has a real shot at becoming its 47th president.
If he does, whither lawfare?
This was a topic of discussion for The Editors this week, and Rich Lowry and I batted it around on The McCarthy Report, too. Playing it out convinced me that it deserves more attention. There are twists and turns, and much is as contingent on the outcome of congressional elections as on what happens up-ballot. On that score, bear in mind that there are nearly three months between Election Day and Inauguration Day — I reckon we have overlooked how eventful that “transition” period could be.
Let’s get into it.
A Brief Consideration of the Ramifications of a Harris Victory
One preliminary thing: For purposes of this exercise, we are assuming a Trump victory. This is not to suggest that there wouldn’t be interesting Trump lawfare issues if Harris wins.
As I’ve opined, I think putting the kibosh on the Trump prosecutions would serve a President Harris well. Politically, it would be a popular olive branch to moderates and the center-right, signaling that she wants to end politicized law-enforcement. Legally, continuing the Trump prosecutions would require the Justice Department to advocate significant restrictions on presidential immunity, which (a) would cut against DOJ’s grain as the lawyer for the executive branch and (b) could redound to the detriment of Harris herself while harming the presidency as a constitutional institution.
Nevertheless, there is nothing in Harris’s career suggesting (a) that she would buck the Democrats’ progressive base, which might mutiny if she ended the Trump prosecutions; (b) that she is offended by politicized law-enforcement; or (c) that she grasps her own interests in this regard or much cares about the institution of the presidency (certainly, the Biden-Harris administration seemed unconcerned about these things). I am thus assuming that if Harris wins, Biden-Harris DOJ special counsel Jack Smith will remain in place and the Trump prosecutions will go on.
Implications of Congressional-Election Results
While we will come to the devilish details, let’s stipulate at the outset that a President Trump would undoubtedly want to fire Jack Smith and have DOJ dismiss the cases against him — in a way that would make it unnecessary for him to pardon himself. Let’s also bear in mind two rudimentary things that are easy to miss: Before Trump can wield power, he needs to get into office; and to maintain power, he has to avoid being impeached, convicted, and removed.
For both of those things, he needs Congress. Moreover, since he will inherit a Justice Department being run by Biden-Harris holdovers, he needs to get his own appointees confirmed — with all due haste. The holdovers are more apt to be a thorn in his side than to carry out his directives.
That is to say, Trump really needs a working Republican majority in the Senate. If Republicans lose control of the House in the next Congress, the problems that would create for Trump would be significant but probably surmountable. If Democrats control the Senate, however, Trump’s escape from lawfare becomes much more challenging — as, by the way, does his administration’s capacity to do much else.
The January 6 Joint Session
The legacy of 2020 is our newfound appreciation that an election victory is not conclusive until it has been ratified by Congress at the joint session held on January 6 — two weeks before Inauguration Day. Intriguingly, a Trump victory means this session would be presided over by Vice President Harris, the losing candidate. (This has happened a couple of times in recent history. After the 1960 election, Vice President Richard M. Nixon presided over the ratification of President John F. Kennedy’s razor-thin victory, magnanimously calling for unanimous consent that Hawaii’s disputed three electoral votes be counted for JFK. And Vice President Al Gore presided over the ratification of the historically close 2000 election victory of President George W. Bush, who’d beaten Gore.)
Under the 20th Amendment, sessions of Congress begin biannually on January 3; the joint session on January 6, 2025, will thus feature the newly elected House members and senators (along with the two-thirds of incumbent senators who did not face election in 2024). There will be two historic elements of the coming January 6 joint session — one potentially perilous for Trump, and one that favors him, ironically so given that it is a legislative change spawned by his soft-coup attempt that culminated in the Capitol riot at the last post-election joint session.
The potential peril is a Democratic effort to invoke §3 of the 14th Amendment with the objective of formally branding Trump an insurrectionist who is ineligible to serve as president. Recall that when Democrats in Colorado and Maine tried to remove Trump from the ballot under §3, the Supreme Court held in its Trump v. Anderson decision last March that the states lack such authority. Congress, however, may enact legislation under §5 of the amendment to enforce the §3 disqualification.
Let’s not get bogged down in the range of constitutional questions that may remain despite the Court’s ruling. Bottom line: If Republicans control either chamber and have no defections, it will not be possible for Democrats to use §3 to upend Trump’s victory; but if the Democrats win both houses, there will be mischief.
If Senate Democrats were to do away with the filibuster, they might be able to join a Democrat-controlled House in enacting a §3 procedure — signed into law by President Biden — that would enable them to brand Trump a disqualified insurrectionist. Of course, there wouldn’t be much time for that between January 3 and January 6. Assuming they can’t enact a §3 statute before January 6, they could try to invoke §3 at the joint session without having enacted a procedural statute; if they have the necessary majority — which would be no sure thing — they could vote to find Trump an insurrectionist and decline to ratify the state-certified electoral votes on that basis.
I think this would be politically fraught enough that Democrats, even if they control both chambers by thin majorities, would not have enough votes to block Trump from taking office. But Trump better hope Republicans win at least one chamber.
Putting insurrection questions aside, Trump will get the benefit of the post-2020 amendments to the Electoral Count Act (ECA). Democrats would not be able to use Trump’s 2020 legerdemain as a precedent to argue that Harris, as presiding officer, could unilaterally refuse to count electoral votes. It’s not a precedent since Vice President Mike Pence correctly declined to do it, but the ECA now makes what was already obvious explicit: The veep’s role on January 6 is merely ministerial. Harris will witness the counting of the state-certified electoral votes, not make unilateral substantive judgments about their validity.
The ECA also makes it more difficult for Congress to raise objections. It now takes many more lawmakers to lodge an objection (20 senators and around 88 House members, assuming full attendance), and the grounds for objection are extremely narrow (basically, there must be reason to believe the electors of a state were not properly certified).
In what’s likely to be a very close election with hotly contested battleground states, I wouldn’t want to predict ahead of time what post-election issues could arise. Even if we don’t get another Capitol riot, a Trump victory, especially one eked out by the thinnest of margins, could well lead to massive demonstrations led by the radical Left and its Islamist allies — and we all know how “mostly peaceful” such “protests” can be. With that kind of pressure from the most obstreperous elements of their base, Democrats could be the ones ranting about a stolen election this time around (yes kids, contrary to what you’ve heard, Trump did not invent election denial). How the joint session plays out could hinge on such matters as whether Democrats win the House, and whether a Republican Senate victory is so thin that it fails to produce a working majority — such that Vice President Harris’s tie-breaking vote matters.
I believe it is unlikely the Democrats, even if they control both houses by narrow margins, would succeed in blocking Trump under the ECA. But that doesn’t mean they won’t try.
Tomorrow, in the next installment of this series, we’ll look at the state cases against Trump, and begin exploring the looming federal lawfare issues.