If it is indisputably discovered that the Trump Campaign colluded or collaborated (or whatever the case may be) with the Russian Government to interfere with our normal democratic practices to procure the presidency for Donald Trump, something that at this point certainly seems more likely than unlikely, then I propose a scenario I have not heard anyone, anywhere even hypothesize. There is certainly no legal precedent for the path forward I’m about to lay out, but let’s remember that there was no precedent for Bush v. Gore either. Everything that has ever happened in the history of this country, from the mundane to the unimaginable, had a “first time.” Here’s what I’m proposing.
Impeaching Donald Trump, and removing him from office, is simply an unacceptable remedy to the situation in which we find ourselves. Even if Trump wound up spending the rest of his life in an orange jumpsuit, the immediate and long-term results for the country would still not be served by this action alone. The correct course of action is not to remove Trump from office, and simply make Mike Pence the new president, or even to remove them both and make Paul Ryan president (ughhhh). If the Trump/Pence ticket colluded with an adversarial foreign power to steal the presidency, then the election itself is invalid, and Trump was never really President, nor was Pence ever really Vice-President!
In that case the election itself should be invalidated and the results reevaluated. While there is a pending Supreme Court case requesting that the 2016 election be nullified and re-run, that’s not what I’m talking about either (although both actions would start in the same manner). The Supreme Court (most properly with a recused Gorsuch) would need to nullify the results of the Electoral College (not the election itself), and order it to meet again. A new election may have been appropriate in late-November of 2016, and would likely have taken place in many foreign democratic countries with electoral systems that are both more modern, and more logical than our own, but alas its May of 2017, and we live in America.
The Court would set a date for the Electoral College to meet again, with the caveat that the Trump/Pence ticket is disqualified due to their election violations. Each state would be instructed to recalculate their vote totals, ignoring any votes for the disqualified Trump/Pence ticket. Each state would re certify the winner of their state’s November 8, 2016 Presidential Election. Obviously, since any votes for the Trump/Pence ticket would be disregarded, the Clinton/Kaine ticket would be declared the winner of all 50 states and the District of Columbia, netting them 538 Electoral Votes. The slate of electors, newly certified by each state, would meet in the state capital on whatever date the Court prescribed for the Electoral College to reconvene. They would follow the normal procedure for voting to determine to whom the presidency and vice-presidency rightly belong.
It’s of course theoretically possible that some states would try to defy the Supreme Court’s ruling, and there would likely be some faithless electors, but regardless of this type of push-back, Hillary should win the Electoral College with a landslide-like total not seen since 1984. Hillary Clinton would then be sworn in as the 45th president of the United States! No, I don’t mean the 46th president! The whole premise here is that the Trump/Pence ticket was improperly and illegally declared the winner, and that the remedy of the Court was to retroactively invalidate the election by disqualifying Trump and Pence, thus determining the actual 45th president.
Furthermore, any actions taken by the Trump Administration, whether by Executive Order, a bill Trump signed, reorganizations of Executive departments, or regulatory changes that were undertaken, and of course any appointments or nominations that were made (whether the appointee or nominee was confirmed or not) would be voided (this includes the removal of Neil Gorsuch from the Supreme Court). Everything related to the federal government would return to the state it was in on January 20, 2017 at 11:59am. And Hillary Clinton would be sworn in at 12:00 noon on whatever date the Court designated in its ruling.
Due to the obvious results of recalculating the vote tally with a disqualified Trump/Pence ticket, and the slate of electors associated with the Clinton/Kaine ticket still a matter of record, the Court could set a very short schedule for the re-certification of the winner of each state’s presidential election, the reconvening of the Electoral College, the transmission of those results to Congress, and the date for the inauguration of the real 45th president. Since speed is more important in this situation than pomp and circumstance, anything that would extend the length of time this process would take would likely be jettisoned (i.e. a big inauguration parade and/or speech to a large crowd, along with anything else that would require a lot of logistical planning by multiple government departments and the Secret Service). There’s no reason that more than two weeks would be needed between the Supreme Court ruling and the swearing in of the rightful president of the United States. Hillary’s transition was already planned in detail. They would simply have to remove those plans from mothballs and start making phone calls. Most of the government positions that are filled by appointment are still vacant today, and the rest are filled with officials chosen by Trump or Pence. How could a few weeks of reshuffling possibly be worse than the status quo?
During the period between the finding of the smoking gun of treason by Trump’s campaign, and the swearing in of Hillary Clinton, Congress and the career bureaucrats would act as a caretaker government. This is what happens in parliamentary governments when there’s a vote of no confidence leading to new elections. This means that nothing can be done other than maintaining the day-to-day operation of normal government functions (checks go out, government funding and taxes remain at the same levels, no new legislation is passed, no Executive Orders are signed, no Executive Department actions are wound up or down, etc.).
Is the above scenario going to happen? Almost certainly not! Should we at least be putting it out there as the correct outcome if it is determined that the presidency was stolen with the assistance of an adversarial foreign power? Absolutely! An important caveat to this course of action is that it is not incumbent upon anyone to prove that without the meddling of Russia, Hillary would have won the electoral college. If Trump’s ticket (him, his campaign, someone acting as a middle-man, etc.) committed treason, then the election is void, and the vote totals are irrelevant.
The above course of action is the only way to both properly punish the guilty, and to prevent this behavior from taking place in the future. The only message that would be sent if Congress removed Trump, allowed Pence to become president, and gave who knows how many Supreme Court Justices life-time appointments, is “don’t get caught.” If that is the result, then a future candidate would simply try to cover their tracks better, but they would not really be dissuaded from colluding with a foreign power to undermine American democracy. The lesson would be that even if you do get caught, it’s still worth it, because your Party gets to retain the presidency, your Party still gets to reshape the Supreme Court, your Executive Orders and legislative achievements (assuming you have any) remain in place, and it’s likely that the new president will just pardon you (and maybe anyone else caught up in the collusion). Just as importantly, if the Supreme Court doesn’t have the power to remedy this kind of situation, or more likely refuses to do so, then the presidential candidate who played by the rules faces irreparable harm. So why play by the rules? That’s certainly not the question I want future presidential candidates asking themselves, and I doubt that I’m alone in that!
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