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Democrats in Congress for years have labeled Donald Trump an “insurrectionist,” impeached him for stoking violence on Jan. 6, 2021, and suggested he is constitutionally prohibited from returning to the White House.
But even as those lawmakers continue to doubt Trump’s eligibility for the presidency, they also say that if he wins at the polls, they don’t expect efforts to deny him his presidential electors on Jan. 6, 2025, when Congress meets to finalize the results.
Democratic leaders are saying publicly and privately they want a drama-free transfer of power — even if it means setting aside some members’ views that Trump is ineligible to return to the presidency because of the Constitution’s bar on insurrectionist officeholders.
The 14th Amendment prohibits any federal officeholders who have “engaged in” insurrection from holding office again, and Democrats have long suggested Trump ran afoul of it when he inflamed the violent mob that attacked the Capitol four years ago. At the time, House Democrats overwhelmingly voted to impeach Trump for “incitement of insurrection.” Their leader, Hakeem Jeffries, has routinely called Trump the “insurrectionist-in-chief.” But there appears to be little appetite among Democrats to challenge results during the Jan. 6 joint session.
“The integrity of our democratic process depends on the peaceful transfer of power. Donald Trump has decided that the only valid elections are elections he wins,” Minority Whip Katherine Clark (D-Mass.) said in a statement to POLITICO. “He is the only President who has supported an insurrection rather than accept the will of the American people. Democrats will always ensure every vote counts and that we uphold our democracy.”
The Supreme Court waded into the issue in March, ruling that only Congress, not states, can decide how the Constitution’s insurrectionist ban should be enforced. But the court did not take a position on whether Trump’s conduct crossed the line — and that omission has left some constitutional experts to wonder whether Trump’s adversaries in Congress could try to settle the question of his eligibility at the Jan. 6 session.
It has created an awkward dynamic for House Democrats: Can lawmakers who have declared Trump ineligible to hold office nevertheless support voting to certify his presidential electors, even if it puts him back in the White House? For now, they’ve sidestepped that tension and projected confidence that they will, in fact, certify a Trump victory.
Clark’s message echoes similar comments other top Democrats have made in the run-up to the election. The bottom line, they say, is that unlike Republicans in 2020 — and those still equivocating today about whether they would certify a Harris victory — Democrats have no interest in causing uncertainty and chaos in the transfer of power.
“House Democrats are going to do everything necessary to protect our democracy, defend the transfer of power and ensure that the winner of the presidential election is certified on Jan. 6 without drama or consequences,” Jeffries said in September.
Rep. Joe Morelle, the top Democrat on the committee that oversees election procedures, was similarly unequivocal during a recent debate: “If Donald Trump wins the election on November 5th, I will vote to certify him as the next president of the United States.”
Aides say Democratic leaders hope to squelch potential calls by their rank-and-file to invoke the Constitution’s insurrection clause as a basis for trying to prevent a popularly-elected Trump from returning to office.
When Congress meets on Jan. 6 to count electoral votes, lawmakers are largely bound to accept the states’ certified results. But federal law gives Congress the power to challenge the validity of electors they deem not “regularly given.” A federal appeals court judge recently opined that a candidate ineligible to hold office under the insurrection clause would be a valid basis for Congress to reject presidential electors in January.
Jason Murray, the attorney who argued the 14th Amendment case on behalf of those seeking Trump’s disqualification, warned the justices that this could create a crisis on Jan. 6, 2025.
“What happens when members of Congress on January 6th, when they count the electoral votes, say we're not going to count electoral votes cast for President Trump because he's disqualified?” Murray wondered during oral arguments in the case.
Just weeks before the Supreme Court ruled, Rep. Jamie Raskin (D-Md.) — a constitutional lawyer and prominent ally of House leaders — warned that this scenario could come to pass without clarity from the justices.
“They want to kick it to Congress so it’s going to be up to us on January 6, 2025 to tell the rampaging Trump mobs that he’s disqualified,” Raskin said on Feb. 8, describing hypothetically what could happen if the Supreme Court failed to apply the 14th Amendment to Trump, “and then we need bodyguards for everybody and civil war conditions all because the nine justices … simply do not want to do their job and interpret what the great 14th Amendment means.”
But in the ensuing eight months, neither Raskin nor any of his colleagues have endorsed using the Jan. 6 joint session to attempt to deny Trump his electors.
“No one is talking about that,” Raskin said in a recent interview.
Other Democrats have explicitly disclaimed such an attempt.
“Rep. [Diana] DeGette would not vote to reject Trump’s electoral votes based on the 14th Amendment’s insurrection clause,” said a spokesperson for the Colorado Democrat, who helped lead the impeachment trial against Trump in 2021.
Democrats, loath to publicly discuss a scenario in which Trump wins the election, have privately said they have not heard any discussions about invoking the insurrection clause to deny Trump his electors, whether he wins or loses. Publicly, dozens of Democrats in the House and Senate have vowed to affirm the results of the election even if Trump wins.
Their intentions belie what constitutional scholars say is a genuine conundrum created by the Supreme Court.
“It’s a serious problem,” said Gerard Magliocca, an Indiana University constitutional scholar who testified in Colorado proceedings that Trump had in fact violated the insurrection clause.
“It’s quite possible that Trump could take office without any legal determination that he is eligible to hold office.”
In its March opinion, the Supreme Court implied — though didn’t explicitly state — that Congress must pass legislation to lay out a procedure to determine whether a current or former officeholder has violated the insurrection clause. It’s a gap that leaves some uncertainty about what Congress’ obligations and options are in January.
But most constitutional scholars say it would be improper for lawmakers to make a subjective judgment about Trump’s eligibility without a forum to fully air and debate the facts.
“Congress does not have the capacity in the [Jan. 6] joint session to do so,” said Derek Muller, a University of Notre Dame constitutional law expert. “Because Congress is not in a position to decide the matter, Congress should count the votes.”
Edward Foley, an Ohio State University constitutional scholar who has written about the insurrection clause, said the Supreme Court left a gap on this issue but doesn’t think members of Congress will step into the breach.
“Everything I’ve seen indicates that Democrats in Congress won’t attempt this,” Foley said.
In a hypothetical scenario in which Trump’s opponents controlled the House and Senate, with enough votes to disqualify his electors — “which they won’t have,” Foley noted — he said it’s unclear whether courts would step in to block the decision.
