January 3 - Trump’s Final Battle Against American Democracy Could Begin in Congress

November 3 will decide the makeup of the next U.S. Congress. The more dangerous day could come 2 months later. On January 3, 2027, the newly elected House of Representatives convenes, and that is exactly where Donald Trump could try to bring down a Democratic majority after the fact. Winning at the ballot box does not guarantee you a seat in the chamber if the existing majority decides to guard the door before the new Congress is even seated. America could end up facing a constitutional crisis whose mechanics begin in an almost disturbingly ordinary way: with a list of names.

The road there leads back to January 6, 2021. Trump tried that day to stop the transfer of the presidency to Joe Biden. Vice President Mike Pence refused to go along with the attempt to overturn the certified election result. Trump has stuck ever since to his claim that the 2020 election was taken from him. Republican allies have carried that story with him for nearly 6 years. An attack on an election result no longer needs a mob outside the Capitol. Paper might be enough.

Trump to Bongino: “Republicans should nationalize the elections.”

Trump made his ideas unusually clear to Dan Bongino on February 2. Republicans should take control of the voting, he said. “The Republicans ought to nationalize the voting.” Since returning to the White House, he has pushed for greater federal control over elections. The efforts described so far have been struck down by federal courts as unconstitutional. There are still weeks left before the election.

The Republican Party knows a different past. It once invoked Abraham Lincoln and later Ronald Reagan. Its history began in Ripon, Wisconsin, in 1854. In 1974, Barry Goldwater was among the leading Republicans who told Richard Nixon that his presidency could no longer survive Watergate. Back then, the party put the country above a president from its own ranks. Very little of that political culture remains in today’s House of Representatives.

Trump has repeatedly pushed Speaker Mike Johnson and Republican lawmakers throughout the year to cast a possible Democratic victory on November 3 as fraudulent before the election even takes place. That would put the justification in place if Democrats actually win a majority. A clear election result could then be treated as a stolen election. The voter would have cast a ballot, and Washington would then debate how much that vote was worth. Eight weeks before publication of the underlying article, Trump appeared in a nationally televised address on “election integrity.” Without evidence, he claimed that noncitizen voting could threaten the midterm elections. He also raised foreign interference. Then he talked about alleged weaknesses in voter registration systems and electronic voting systems. The logic behind it is simple: doubts can be planted before an election. After a loss, they only have to be harvested.

At the Republican convention in Dallas just days earlier, Trump once again declared that he had won the presidency 3 times - even though he lost the 2020 election. He then had the audience raise their right hands and repeat an election pledge after him: They would go vote with their family and friends. Seconds later, Trump added: “I don’t care if I’m registered or not. I’m going to try to cheat like hell, like they do.” Finally, he tied a Republican election victory to a financial promise: If Republicans win the House and Senate, every adult U.S. citizen would receive a $5,000 dividend. The congressional campaign is becoming more and more a personal referendum on Trump himself - complete with accusations of cheating against his political opponents and a cash promise tied to the desired election outcome.

Read also our article: Trump in Full-On Self-Intoxication: $5,000 for the Right Vote and Fetterman’s Betrayal

Republican lawmakers could block this path at any time. They would have to say before the election that duly certified winners will receive their seats on January 3. Democrats could make the same public commitment. A few years ago, such a statement would have been about as exciting as pointing out that votes get counted. Today, it would draw a line.

The most dangerous point is buried deep in congressional procedure. Kevin McCumber is currently the Clerk of the House of Representatives, the senior administrative official involved in organizing the chamber. The Republican was appointed by former Speaker Kevin McCarthy and is regarded as someone who would refuse orders he considered unconstitutional. Mike Johnson, however, could remove him unilaterally under Rule II, Clause 1 of the House rules. Under 2 U.S.C. § 5501(a), Johnson could temporarily appoint a replacement.

This is where the possible January 3 scenario begins. Before the 120th Congress even officially convenes, a temporary clerk loyal to Johnson could leave certain Democratic members-elect off the roll of representatives. That roll determines who may take part in organizing the new Congress and vote for the new speaker. In a narrow majority, leaving off just a few names could change political reality before the first regular vote is even taken.

The affected lawmakers would have to go straight to federal court. They could seek a court order forcing the clerk to carry out his legal duty. 2 U.S.C. § 26 requires duly certified representatives-elect to be placed on the roll when state certifications show that they were regularly elected under applicable law. The clerk therefore has no independent political discretion over certified election winners.

A court might still hesitate at first. Article I, Section 5, Clause 1 of the U.S. Constitution says that each chamber shall judge the elections and returns of its own members. The House of Representatives has historically taken that to mean that decisions over whether to seat elected members are largely beyond judicial review. But the Constitution does not give the House unlimited power. The 1969 case Powell v. McCormack made that clear. Adam Clayton Powell of New York had been reelected in 1966. The House still tried to deny him his seat. The Supreme Court stepped in and made clear that the chamber could not simply expand its constitutional authority however it pleased. Powell had to be seated. More than half a century later, that same principle could decide control of the 120th Congress.

If a federal court ordered Democratic lawmakers seated on January 3, the case would likely go immediately to a federal appeals court. The Supreme Court could follow. The crisis would deepen further if an appointed clerk ignored a court order. America would then have a Congress whose very composition had become the subject of an open conflict between the legislative and judicial branches. The clock would keep running. Even after the new Congress formally convened, the fight would not be over. A Republican majority could deny elected Democrats their seats by claiming their elections had been tainted by fraud. Under the constitutional argument laid out here, such a decision would also be subject to judicial review. The House’s authority to judge its elections does not allow it to arbitrarily wipe out certified results based on unsupported allegations. Otherwise, every sitting majority could choose its own successor.

The fight would probably last weeks, possibly months. Congress could be largely paralyzed in the meantime. An American constitutional crisis would hardly remain an American problem. China could view the situation as an opportunity to increase pressure on Taiwan, potentially through a blockade or military attack. Vladimir Putin could try to exploit Washington’s weakness for further moves in Ukraine. Estonia is also mentioned in this context as a possible target of Russian pressure. Then there is the economic risk. Allies whom Trump has spent years mocking and belittling might have little appetite for showing political restraint toward a paralyzed U.S. government. A Congress unable to function would weaken Washington at exactly the moment an international crisis demanded quick decisions. The world usually does not wait outside the door while America finishes arguing over seating charts.

The final decision could land, of all places, with the Supreme Court. Trust is hardly abundant there. In Trump v. United States, the Court granted presidents broad protection from criminal prosecution for official acts. In the fight over Trump’s possible disqualification under the 14th Amendment, the Court ruled against efforts to remove him from the ballot without finally resolving the central question of his alleged participation in an insurrection.

Then there are the Supreme Court’s emergency proceedings, through which far-reaching decisions benefiting Trump’s administration have been issued over the past 2 years, in some cases without the usual full process. That same Court could now be asked to decide whether a Republican majority may keep duly elected Democrats out of Congress. Constitutional history has a sharp sense of irony.

The argument that such a dispute would be exclusively a political question for the House is hardly convincing. If a simple majority were enough to exclude certified election winners based on an unsupported claim of fraud, voting rights would depend on the goodwill of whoever happened to hold the seats at that moment. The citizen would vote on Election Day only provisionally. Final approval would come from the Capitol. That is exactly why January 3 may be more dangerous than November 3. A Democratic election victory alone would not end the fight. Republican lawmakers would have to be willing to place their loyalty to the Constitution above their political loyalty to Trump. The question sounds enormous. In practice, it asks for something remarkably small: accepting certified election results.

250 years into the American experiment in self-government, an old idea is once again up for debate. Abraham Lincoln called on the country in 1863 to free itself from the intellectual captivity of destructive political beliefs. “We must disenthrall ourselves, and then we shall save our country,” was his message. 163 years later, it lands with almost uncomfortable precision on Lincoln’s own party.

Republicans can declare before November 3 that they will not participate in manipulating who gets seated. They can stay silent. Or they can follow Trump and Mike Johnson on January 3 if an election loss suddenly gets turned into an alleged fraud case. The first path requires political courage. The other 2 could cost America far more.

January 6, 2021 showed how a president can react to losing an election. January 3, 2027 could show what happens when an entire congressional majority is willing to help him do it. Back then, Mike Pence stood between Trump and the attempt to overturn the transfer of power. Next time, that job could fall to federal judges and ultimately the Supreme Court. November 3 counts the votes. 2 months later, Washington could decide whether those votes will be allowed to stand.