Can A Trumpocalyptic Meltdown Lead To An Election Do-Over?

The short answer is 'no.' But our system isn't sacrosanct.
02/16/2017 04:04 pm ET Updated Feb 20, 2017
Joe Raedle via Getty Images

The simplest answer to my title question ought to be “No.”

Of course not. There is no provision in the Constitution for re-doing a presidential election. When it’s done, it’s done. And there is no doubt whatsoever that the 2016 election is done. Thank whichever Powers That Be that you believe in. No matter what your views may be about the Electoral College versus the Popular Vote, we all know which one counted more in the minds of the Founding Fathers, and that one made Donald Trump the 45th president. Done. Over. Fini. Stick a fork in it.

But...

We are living in weird, “unpresidented” times. They began with the simple fact that the mechanism by which Alexander Hamilton meant to prevent a populist autocratic despot from entering the White House has somehow put one there. Strange. But November 8 proved to be the beginning of the strangeness, not the end. Since then, of course, we have all had ringside seats to the nearly daily news blasts that have revealed, among other things, that:

 

  • The Russians hacked the U.S. election with the intent to swing it to Trump;
  • James Comey, who simply couldn’t sit on an important and allegedly relevant piece of information like the Weiner emails, knew about the hacking and decided not to reveal it before the election;
  • Trump’s campaign was “constantly” in touch with the Russians;
  • Vladimir Putin himself was allegedly involved in the hacking;
  • Trump’s chosen National Security Advisor, Retired General Michael Flynn, held phone conversations with the Russian ambassador before Christmas in which he told him to tell Putin not to retaliate for President Obama’s sanctions because Trump would lift them: a clear violation of the law;
  • Flynn then apparently lied about this to Vice President Pence;
  • Trump may well have known about these calls all along.

And that is merely the tip of just one iceberg in what seems to be a sea of them, a huge glacial mountainside that has collapsed into the Washington ocean and broken up into great floating fragments of scandal. Trump’s White House is, less than a month after his inauguration, awash in them. One of the most notable, of course, is the constant and obvious use of his position for personal profit. He is charging the government a fortune to cover rent for his wife’s security in Trump Tower, and now he wants to add a floor or two for the Defense Department. A member of his campaign signed off on a deal in December with the Russian oil company Rosneft for many millions that go to... someone. Just who is hard to tell because the actual money goes to some shell companies. But it doesn’t take a lot of deep thought to guess who might own those shell companies, especially when there is evidence that suggests collusion...

Just this weekend he added another scandal when he brought Japanese Prime Minister Shinzo Abe to his “Winter White House” at his Mar-a-Lago resort in Florida. At a lavish dinner in one of the resort’s public dining areas—Trump loves a spectacle—the president received a secure message that North Korea had launched a ballistic missile. Instead of leaving and dealing with this national security matter in private, as he should have, though, Trump proceeded to have his staff bring him charts and computers and other information so he could handle it right at the table, while guests provided extra light with their cell phones. (Remember this was in public view. Also remember the bitching and moaning that Trump did for months about Hillary Clinton and her “insecure” email server. BTW Trump is also using a private email server.)

Donald Trump is a national disaster waiting to happen. Or maybe, with one of the many scandals already simmering, it’s already happened and we’re just not aware of the full extent. Whatever, it doesn’t take a seasoned prognosticator to imagine this President not serving out his full term. Bets were being taken before he was ever sworn in. According to the Constitution, that would leave his Vice President, Mike Pence, in charge. Easy peasy.

But that is exactly what I’m wondering about: is it so easy?

As I said at the outset, we are living in unprecedented times. The framers of the Constitution could not have foreseen—clearly did not foresee—this moment in American history. (That much, as noted, can be ascertained by Trump’s ascendency using the very device that was designed to keep him out.) So bear with me a moment as I go on a little thought journey:

Imagine with me that Trump’s Russia scandal continues to grow. (With the New York Times and Washington Post both determined to get to the bottom of it, plus the U.S. intelligence communities all more eager to help due to their treatment by Trump, that seems not only possible but likely.) Imagine that, as it grows, we discover so much about it that even the GOP no longer can ignore it. In fact, it becomes such a conspiracy, clearly implicating some of them, that normal congressional exploration or even impeachment proceedings are not enough. The Democrats call for, and are granted, a Special Prosecutor.

We have not had one of these appointed in a long time, so let me remind you: they have awesome powers, and I use the literal meaning of the word there. They can subpoena anyone and charge anyone with anything.

Now imagine further that the Prosecutor’s investigation shows that, during the 2016 election campaign, Trump knowingly colluded with the Russians to steal the election. This is more than simply an impeachable or even a treasonous offense. This goes to the heart and integrity of the American electoral process itself. What possible remediation could be made?

Making Pence President continues to reward the theft. There is no Constitutional remedy for this. Hence we would need to find or create an extra-Constitutional one. And there are only two reasonable possible solutions:

  1. Declare Hillary Clinton the winner of the 2016 election, or ―
  2. Stage the entire Presidential election again.

Staging it again might not be as impossible as it sounds. For one thing, we don’t need a two-year run-up to a presidential election ― most countries manage to get by with a whole lot less. For another, our current system of primaries is not sacrosanct: we have invented it and honed it over time; it didn’t even really exist at all until about fifty years ago. A single national primary day could easily handle it all, with a run-off day scheduled if needed. And finally, the work of a Special Prosecutor is a thorough thing. It requires time. Assuming one might be appointed, say, this spring, his/her work wouldn’t likely be completed for at least a year. Tacking a Presidential election onto already scheduled Congressional/Senatorial elections in 2018 would not be particularly hard.

Even if, as the result of an impeachment, Pence becomes President, a Special Prosecutor should still be appointed. Once that happens, floodgates will open. Where they lead us we cannot know. But one thing is certain: it will be unprecedented. Or maybe “unpresidented.”

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