“Those who vote decide nothing. Those who count the vote decide everything.”
— attributed to Joseph Stalin
If the Trump administration fails to stop Democrats from taking back Congress in next month’s midterms, as nearly all major polls suggest, the MAGA cult is unlikely to accede quietly. The White House and its allies will file a flurry of lawsuits claiming election fraud, demand recounts across the country, pump out incessant propaganda about Chinese and Iranian cyber-interference, threaten to prosecute state election officials and perhaps even seize voting machines, among other gambits.
Should these maneuvers fail, they will set the stage for a decisive “High Noon”-style showdown on Jan. 3, 2027, when the 120th Congress is slated to begin. To maintain Republican majorities in the House and Senate, the president can be expected to wage a final battle of obstruction and orchestrated chaos, possibly culminating in a declaration of a national emergency. If the past is any sort of prologue, he will do anything to avoid the hearings and investigations that will be initiated if the Democrats prevail.
Under the 20th Amendment, a new Congress convenes at two-year intervals at noon on Jan. 3. This is supposed to be a ceremonial event similar to the joint session of Congress that counts Electoral College ballots on Jan. 6 every four years. But as we saw in 2021, ceremony can quickly give way to sabotage.
Each chamber has its own rules for the swearing-in of new and reelected members, and each will present Trump with different opportunities to undermine the election. Writing last month in The New Republic, former U.S. Circuit Court Judge Michael Luttig outlined a scenario in which House Speaker Mike Johnson could use the office of the clerk of the House to alter the outcome of the midterms and precipitate a constitutional crisis in a last-ditch bid to secure Republican control.
The speaker has the unilateral power to remove the incumbent clerk.
The clerk is a nonpartisan administrator whose job on Jan. 3 is to prepare the “roll” of members-elect, which lists all individuals who have been elected and certified by their respective states to serve. After compiling the roll, the clerk calls the members-elect to order. The members thereafter elect a new speaker, who proceeds in turn to swear in the members-elect. The first session of the new House then begins, enabling it to conduct the nation’s business.
Although the clerk’s duties are strictly ministerial, Luttig posits that sometime before noon on Jan. 3, Johnson will replace the current House clerk, Kevin McCumber, with a MAGA loyalist who will refuse to list a decisive number of Democrats on the roll, preventing them from being seated. Under the House’s internal rules, the speaker has the unilateral power to remove the incumbent clerk, and under federal law, the power to replace the clerk with whomever he wishes until the whole House elects a successor.
“McCumber,” Luttig explains, “is a Republican appointed by former Speaker Kevin McCarthy. He is widely respected for his integrity and faithful adherence to the Constitution and is reputed to be unwilling to carry out orders he considers to be unconstitutional.” His replacement could be anyone — Alina Habba, Mike Lindell, Laura Loomer or any number of other zealots. There are no age, citizenship or even sanity requirements.
Democrats targeted by a rogue clerk will no doubt seek immediate relief from the courts. Luttig believes they will eventually win, relying on a 1969 Supreme Court precedent decision (Powell v. McCormack) that ordered the seating of New York Rep. Adam Clayton Powell, who had been excluded from the 90th Congress by a majority vote of House members despite being duly reelected.
But any such litigation would take time, especially if appeals are taken all the way to the Supreme Court, which is firmly in the hands of six MAGA-friendly justices. Although Luttig contends that even the Roberts Court would ultimately block the clerk’s action, he has no illusions. Roberts and company could conceivably dodge legal challenges on technical grounds, holding that the issue of the clerk’s authority presents a “political question” beyond its jurisdiction and that any intervention would violate the separation of powers between the legislative and judicial branches of government. In the meantime, the country would be left with a wholly dysfunctional House unable to discharge even its most basic appropriations and budgetary functions.
As might be expected, Luttig has received considerable pushback for his article. Critics on the right have accused him of fearmongering, and some prominent liberal commentators, such as election law expert Rick Hasen, have objected that his scenario is “unlikely” to occur.
What if Vance … refuses to swear in a critical number of Democrats?
But Luttig’s article may not go far enough. It contains no discussion, for example, of what may happen on Jan. 3 in the Senate. Even if Democrats win a majority, Vice President JD Vance will remain the body’s president, and it will be his responsibility to swear in each newly elected or reelected member. What if Vance, following instructions from his boss, refuses to swear in a critical number of Democrats? Legal and political bedlam may be an understatement.
In concert with their House counterparts, the unseated Democratic senators will take to litigation, but that, too, would take weeks if not months to resolve. In the meantime, the seated Republicans will hold the majority.
The other wild card absent from Luttig’s analysis is how Trump might take advantage of the bedlam. Trump’s allies on the extreme right have long urged him to take control of the midterms by invoking his considerable powers under the National Emergencies Act, a post-Watergate reform that was designed to rein in presidential authority but in practice has worked in the opposite direction.
The act accords the president broad discretion to issue an emergency declaration, as long as he specifies at least one existing statutory power that will be used to initiate and combat the emergency. Presidents of both parties have used the act with little congressional oversight. Trump has invoked it at least 21 times to advance such projects as building his southern border wall to stem immigration, promoting fossil fuel production and instituting his tariffs on foreign goods and services. And, while the Supreme Court invalidated much of his tariff regime last February, his other declarations, along with dozens declared by past presidents, are still in force.
There is no legal authority for the president to take control of federal elections or to conspire with House and Senate Republicans to exclude elected Democrats from taking office. But if you think that will stop Trump from trying, you have been asleep for the last 10 years. The best — and perhaps only — way to stop this scenario is to vote in numbers so massive that Trump’s election plots are killed in the crib. We have the power to prevent Jan. 3 from becoming the new Jan. 6. Let’s use it while we still can.