A Constitutional Hail Mary: The Power Play that could Make Trump President

house of representatives
The original chamber of the House of Representatives, which houses the lower chamber from 1819 to 1857.

December 10, 2021

On Wednesday, December 8, Newsmax reported that Rep. Matt Gaetz (R-FL) had spoken to former President Donald Trump about Trump potentially becoming the Speaker of the House of Representatives if the GOP retakes control in 2022. 

While attending Trump’s Save America rally on July 3 in Sarasota, Florida, Gaetz vowed to nominate Trump to be the next Speaker of the House. 

Despite such a scenario never occurring in American history, the Constitution does not technically restrict the role of Speaker to just House members. The House can nominate anyone it wants to be its Speaker, regardless as to whether they have been elected as a member of the House or not. 

Article II, Section II of the Constitution allows the House to “chuse (sic) their Speaker and other Officers; and shall have the sole Power of Impeachment.” It does not elaborate further as to whether the Speaker must be an elected member of the House of Representatives or not. 

Many legal scholars and historians believe that the Founders simply assumed that the Speaker would be chosen among the House delegates. 

If Republicans take back the House majority the way polls are suggesting, that means a GOP majority could theoretically nominate the former president, and he could reciprocate in kind. The House could then, with Trump at the helm of the lower chamber, lead the charge to impeach President Joe Biden, which would then be subjected to a trial carried out by the Senate, with the Chief Justice of the United States presiding. 

Should Republicans garner the super majority (67 votes) required to convict, then Joe Biden would be compelled to leave office, leaving Vice-President Kamala Harris as the de-facto Commander-in-Chief. From there, Trump, as Speaker of the House, would be just a heartbeat away from the presidency, as the House Speaker is the next in the line of presidential succession. And given this theoretical collapse of the Biden administration, it is entirely plausible in this scenario that Harris would falter under political pressure having exhausted her political capital in the face of overwhelming Republican power. 

If Harris resigns, Trump assumes the office of president all over again, potentially garnering him a six-year term in the White House—two years to finish out the remaining term, and another four if he is re-elected.

This scenario is, of course, incredibly unlikely, though it would appear that the Constitution technically allows for it to happen. If such a scenario were to play out, it would be the biggest power play in all of modern political history—a constitutional Hail Mary that could prompt already aggravated political tensions to multiply to never before-seen levels. The outrage from the public would most likely be so great, that it could potentially catalyze a national divorce. It’s possible many states would engage in open rebellion upon first getting the word on what had occurred, before Trump is even sworn in.

It would spell the end of the Republic as we know it. A former commonwealth of states, once revered as the shining beacon of liberal democracy, now irreversibly fractured: condemned to the Dustbin of History’s pile of defunct civilizations. Abraham Lincoln would lay in his grave slightly vindicated, given his famous words on the viability of the Union: “America will never be destroyed from the outside. If we lose our freedom, it will be because we destroyed ourselves.” 

And destroy ourselves we would, if we were to mess with the delicate gears of the system that has remained, rather miraculously, in place for over two centuries.

Such a scenario highlights the dangers of utilizing the “hidden” mechanisms of the Constitution, in that it is comparable to an average car: just because the speedometer says it can drive at 150 mph, doesn’t mean it should. At that speed, the vehicle can be hard to control, and the slightest pebble, road bump, or jerk of the steering wheel could send it tumbling over in a matter of seconds. 

Just because the Constitution supposedly allows for such a scenario, doesn’t mean it is in the best interests of the Republic for such a mechanism to be used, especially for what can only be described as a wholly partisan objective: forcefully installing Donald Trump as the executive’s chief magistrate all the while lacking a consensus from both the citizenry and the electoral college. It would be a (legal) constitutional disaster. 

A national divorce upon these conditions, however legal, would certainly be contingent upon the reaction of the left. Even in the face of potential election fraud in several states, while Republicans protested and demanded audits, they have let the cause go. The many lawsuits were dismissed in the courts, with evidence never reaching the Justices’ ears. While many conservatives believe that the 2020 election remains in limbo, is illegitimate, or, at best, is unresolved, the nation has not balkanized and Joe Biden is, by law, the president. 

Whether or not national divorce would result from this constitutional play, it isn’t hard to imagine the shrieks of “authoritarianism” of the “far-right neo-fascists.” The headlines from mainstream media are already vivid. But for many conservatives, this would be the result of the precedent already set by Democrats: that it is okay to impeach a president based on hoaxes and unveritable speculation. 

To say that the political process has become politicized is both redundant and detrimental. On the one hand, politics is always messy and spiteful; on the other, America has reached a point where political tribalism may have become so obsessive that her capacity to tolerate even the results of a democratic election is in jeopardy. The Republic is laying on thin ice. Both sides must be careful with the precedents they set: Retaliation has become a weapon.

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