Vail Daily column: What if Trump cannot (or does not) become the president?
December 20, 2016
By the time this column runs, the Electoral College will almost certainly have met.
But still; what if?
What if, in light of the recent White House hacking probe, clear evidence emerges that Russian hacking did indeed affect the outcome of the election? What if, taking this even further, doubt is cast on the legitimacy of Mr. Trump's election? Taking this to the extreme, what if the concerns—and proof—are so overwhelming that a bi-partisan determination is made that—at least until the whole mess is sorted out—The Donald should not become the president? What if another election was the remedy but the new president could not take office on January 20th as the 20th Amendment provides he or she should?
Who would then sit in the big chair, even if on an interim basis?
What if the winner of the November election were to die, withdraw
— or for some reason (like illicit ballot manipulation?) be barred from taking office
— before the Electors voted? Hmmm. Well things would get a whole lot murkier. Would the Electors be obligated to vote for the dead/withdrawn/barred winner?
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I'm not sure I have the answers but I do take some comfort in believing that likely no one else does either. But let's none-theless explore the possibilities.
Let's first take the easy although tragic stuff. What if a president-elect dies before taking office? Well, in that case the 20th Amendment would come to the rescue. Section 3 provides that "If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President." Not wishing anyone ill, but if Mr. Trump expired before inauguration day, Mike Pence would become the 45th President of the United States.
Now, let's muck things up a little.
Although he is called the "president-elect," is the Electoral College winner really the president-elect before the Congress officially receives and counts the Electoral vote? It isn't legally clear if the person we call the president-elect really is so before Congress officially receives the Electoral vote. And if that is the case, and the presumptive president-elect were to die, then there is no clear legal answer provided by the Constitution or any statute as to who should become the President.
What would happen?
But wait! There's more.
What if the winner of the November election were to die, withdraw—or for some reason (like illicit ballot manipulation?) be barred from taking office—before the Electors voted? Hmmm. Well things would get a whole lot murkier. Would the Electors be obligated to vote for the dead/withdrawn/barred winner? Would he or she, instead, vote for the V.P. winner? What could or should Congress do about this? Do the various state laws have any say?
Besides all of this, there are some pretty serious questions being kicked around for the first time in a long time about whether it is even constitutional for state laws to bind their state electors to vote in a certain way. No doubt a situation such as this would stir up quite the nasty tempest.
Once the oath of office is taken, if the now-President voluntarily withdraws (shades of Richard Nixon!) or involuntarily withdraws (can you say, "impeachment"), his successor would be the Veep. It is a little less clear what happens if he is received by Congress as the de facto president-elect and then, before inauguration, something such as patent vote manipulation rears its ugly head. Presumably, he would still become the president and something like impeachment would immediately follow. But not necessarily, especially if it was someone other than the new president or someone at his bidding caused the brouhaha. Impeachment is reserved under Article I Section 4 of the Constitution for "…conviction of, treason, bribery, or other high crimes and misdemeanors."
Which is why I said something "such as" impeachment might follow. If the ill conduct were not the new President's, he could not be convicted—would not possess the requisite culpable mental state—to be convicted of an impeachable offense. But would it be right and in keeping with our principals to leave a wrongly-elected president as the sitting head of state?
At the least, this would cause some considerable head-scratching and, at most, would present a constitutional crisis.
But what if he is not seated in the first place? He neither dies nor withdraws but third-party voter fraud comes to light before Congress ratifies the electoral vote? Again, this is not constitutionally provided for and does not appear to have an answer elsewhere in the federal statutes.
What would happen? Would the sitting president—in this case Barack Obama remain the president until the mess is sorted out? Not likely, as the 22nd Amendment holds that a president is limited to two four-year terms and Mr. Obama would have played out his eight years? Would Hillary take a seat at the big table? Almost certainly not. Not only would that raise a ruckus but if the election had been manipulated it would have to be crystal clear that she was actually the winner. What about Mike Pence? Well, no again. If Mr. Trump was barred, as Pence and Trump were as connected as conjoined twins, his election would be every bit as much in question.
Although I'm not certain it's the right answer, I'd place my bet with Paul Ryan until the whole unseemly mess was sorted out.
Under the provisions of presidential succession provided for in Article II, Section 1, in Section 3 of the 20th Amendment, and the 25th Amendment as well as the Presidential Succession Act of 1947, if the president can't serve, the Veep takes over. If the Vice President is out, then the Speaker of the House is next man up. So the betting money would be with Speaker Ryan.
It is, to say the least, unlikely that any of this will come to pass. But if it somehow did, difficult questions of first impression would undoubtedly abound and the legal scholars would be as busy as Santa's elves at Christmas.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.
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