While the 2020 election is over, the results of the election are still being investigated. Currently, several states, including Arizona, are conducting audits relative to the election. The goal of these audits is to ensure, to the extent possible, the integrity of future elections by looking for any impropriety, improper conduct, and fraud that possibly occurred in the 2020 election. While the goal of these audits is primarily to protect future elections, one question has consistently popped up in recent months. If the audits, for example, reveal overwhelming proof of fraud, and it can be proven that the fraud was of such a large scale whereby it impacted the results of the election, can former President Trump be reinstated? While this appears to be a question of first impression in the presidential context, the theory of reinstatement faces several hurdles and is highly unlikely.
In accordance with the Constitution, a sitting president can be removed by way of resignation, impeachment and conviction, or in accordance with the 25th Amendment (disability). Of particular relevance here is Article 2, Section 4 of the Constitution, which states, “The president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Since certification has already taken place, and Joe Biden was sworn in as president, one school of thought is that impeachment is the only way to remove him.
However, even if Biden was impeached and convicted (which is highly unlikely with a Democrat-controlled Congress), Kamala Harris would become president. If she was unable to do so, the law sets forth the appropriate line of succession, which does not include or mention a former president.
Therefore, some, including Jenna Ellis, one of President Trump’s former attorneys, opine that, since certification occurred, the only way to remove a sitting president is by way of impeachment. Even if impeachment occurs, the Constitution and the succession law(s) do not provide a mechanism to reinstate a former president, regardless of the existence of provable fraud on a massive scale.
Others, however, see things a bit differently, and question whether the law or the Constitution provide a remedy if provable fraud, which is outcome determinative, is discovered after certification and inauguration. Assume, for example, that the various audits establish that the 2020 election was marred by fraud on a massive scale, that the fraud involved several states, and that it was outcome determinative. Would the nation be stuck with a “president” who was illegitimately put into power simply because the fraud wasn’t detected until after he was inaugurated?
Dr. Jonathan Eastman raises several interesting points with respect to this issue. First, he notes that if provable and outcome determinative fraud occurred on a large scale, yet Biden wasn’t aware or involved with it, impeachment wouldn’t be an option because Biden would not be guilty of treason, bribery, or any high crime or misdemeanor. Despite a lack of knowledge, Eastman notes that Biden would be holding office unlawfully through no fault of his own. If impeachment was the only option, yet no impeachable offense occurred, what remedy would exist under such circumstances?
Eastman questions whether the Supreme Court would find a remedy under such circumstances. After all, if a person is unlawfully elected due to fraud, foreign interference, or otherwise, why should that person have the benefit (protections) of the constitutional process of impeachment? Stated differently, impeachment is the method that is utilized to remove a duly elected president. If someone is elected by way of fraud, for example, he/she would not be deemed “lawfully elected” and should, therefore, not be covered/protected by the impeachment provisions.
This is really a matter of first impression in the presidential context. However, to even reach the question of possible “remedies,” evidence of wide-spread fraud would need to be thoroughly and undeniably established and proven, which is very difficult.
By way of example, Eastman referenced the 1994 case of Marks v. Stinson, where a federal judge invalidated a vote, removed William G. Stinson, a Democrat, from his State Senate office, and declared Marks the winner. As reported by The New York Times:
Judge Newcomer ruled that the Democratic campaign of William G. Stinson had stolen the election from Bruce S. Marks in North Philadelphia’s Second Senatorial District through an elaborate fraud in which hundreds of residents were encouraged to vote by absentee ballot even though they had no legal reason — like a physical disability or a scheduled trip outside the city — to do so.
In many instances, according to Republicans who testified during a four-day civil trial last week, Democratic campaign workers forged absentee ballots. On many of the ballots, they used the names of people who were living in Puerto Rico or serving time in prison, and in one case, the voter had been dead for some time.
“Substantial evidence was presented establishing massive absentee ballot fraud, deception, intimidation, harassment and forgery,” Judge Newcomer wrote in a decision made public today.
At the time, Judge Newcomer wrote. “This is extraordinary relief. However, it is appropriate because extraordinary conduct by the Stinson campaign and the board tainted the entirety of the absentee ballots.”
Whether or not this line of reasoning would apply in the presidential context is unknown. It is also unlikely to even be considered in the absence of irrefutable proof of large-scale fraud that is outcome determinative (turn the results of the election). Moreover, even if such evidence was presented, it is unclear whether there would be an adequate remedy at this point in time (after certification and the inauguration) or whether impeachment would truly be the only constitutionally permissible option at this juncture. Clearly, the analysis would be different if large-scale fraud was discovered prior to certification, which is why Trump’s legal team pushed so hard to have the state legislators in the various swing states thoroughly investigate all allegations of potential fraud. Sadly, they failed in that regard. Due to their inexplicable failures, the results were certified, triggering the constitutional provisions relating to sitting presidents.
Aside from the obvious legal challenges, there are also the political and public-perception challenges. For example, if such a case ever came in front of the Supreme Court, would (and could) the high court actually impose such a drastic remedy like removing Biden from office and declaring Trump the winner? The Supreme Court has already refused to get involved in numerous legal challenges relating to the 2020 election. Therefore, it is unclear whether it would do so even if such evidence was presented. Moreover, while public perception/opinion should not guide/sway the court’s decisions, the public backlash would be immense.
For now, these are all hypothetical questions and considerations. If there is irrefutable proof of fraud on a large scale, they will undoubtedly become more relevant. Oftentimes, fraud is discovered long after a transaction is completed. Does that mean that, once the fraud is discovered, the victim of such fraud is without an adequate remedy and that the wrong should simply remain in place? Under certain circumstances, the answer is no.
However, in the presidential context, and as reflected by the varuios interpretations by different legal scholars, this is unchartered territory. That being said, Trump has the deck stacked against him for several reasons with regard to so-called reinstatement. First, the Constitution does not appear to contain any specific provision allowing for reinstatement. Second, the Constitution/law is clear with respect to succession. Third, there would need to be irrefutable and incontrovertible proof of fraud of a very large scale and that was enough to change the results of the election to even begin a discussion about removing the current president. Finally, since Biden has already been sworn in, even if such proof was discovered, it is unclear whether a court would even get involved or whether the only constitutionally permissible way to remove him is by way of impeachment.
Given the foregoing, and while very unfortunate, Trump-supporters should not hang their hats on the reinstatement theory that is currently circulating and should focus on the upcoming midterm elections, and getting Trump re-elected should he decide to run in 2024.
Mr. Hakim is a political writer and commentator and an attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker and other online publications.
Twitter: @ThoughtfulGOP
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