The Worst Thing Trump Can Do in the Midterms w/ Jeffrey Toobin | The 1600

0:00From Newsweek headquarters at the top of the World Trade Center in sunny New York City, I am Carlo Versano and this is your weekly 1600. This country was stone cold dead. So welcome back, everybody. If you talk to any Democrats these days, and I talk to a lot of them, both in my personal life as a dad in Park Slope, Brooklyn, where it's all nothing but Democrats, and also in my role as the editor of the 1600, I just talk to a lot of Democrats who write in. And the conversation almost always turns to the midterms and particularly the fear that in races that are going to be close, the president Trump will somehow or some way interject to tip the vote to his preferred candidate.

0:39So, you know, in another time, I think suggesting that the president of the United States might try to steal an election or try to influence an election in ways that are perhaps untoward or even illegal, that would be considered ridiculous. It would be considered conspiratorial. I wouldn't even really allow it in anything that I edited. It would be beneath us in the media to really ever bring up. Unfortunately, this particular president has a documented history of doing just that. So it is sadly a fair question to explore. What is the worst thing that Trump could do in November? To help answer that question today, I have with me a man who really needs no introduction.

1:16Jeffrey Toobin is a lawyer, an author, a legal analyst for CNN, one of the great legal thinkers of our time, at least in my opinion. And he joins me now. Jeff, thanks so much for joining us. Thanks, Carlo. Hi. Good to see you. So I mean, I could ask you a million things going back to the O.J. Simpson trial when I first started reading you. But we'll table O.J. for now. And I really want to talk about this op-ed that you recently wrote for The New York Times on this exact topic. The op-ed basically lays out what I would consider to be something close to a nightmare scenario, one that I hadn't even thought of.

1:50So thank you for keeping me up at night with new worries, Jeff. But the scenario is essentially one in which the Speaker of the House, Mike Johnson, working in concert with President Trump in the White House, would refuse to, quote, produce the role of new representatives who would be seated and sworn in on January 3rd of next year in the House. So this all has to deal with, you know, it's a little bit in the weeds. It deals with the sort of the nitty gritty of what happens in the House after the votes are counted on November 3rd. All of that being said, can you just sort of walk us through that scenario, if you will?

2:22My only disagreement with what you said is that it's sort of in the weeds. It's deep, deep, deep in the weeds. It is. You know, and I am pleased to say that before I started reporting this piece, I knew nothing about this. And it's funny, the member of Congress who was the principal source for the piece, Joe Morelli, Democrat from Rochester, New York, He said most members of Congress don't know how this process works because historically it's been a kind of ministerial automatic process that there was really no need to monitor. But given, as you said, the history of President Trump and the fraught nature of the rules surrounding the midterms, it's now an issue that Morelli and others are concerned about.

3:21So with that introduction, let me just tell you what it is. Please. The way technically the elections for the House of Representatives work is as follows. There are 435 races and they all take place in the states. At some point, it varies by state, usually late November, early December after Election Day. The states certify those results and report them to the House of Representatives. The House of Representatives then compiles what's called the role. That's R-O-L-L, not R-O-L-E, of the next House of Representatives. And the official who is responsible for compiling the role is someone called the clerk of the House of Representatives, who is a civilian employee, not a member of Congress, but who is appointed by the Speaker of the House.

4:39and then his appointment is ratified by a majority vote of the House. This is an apolitical job, right? This is not an opportunity. Historically, it has been an apolitical job. The current clerk of the House of Representatives is Kevin McComber, who was appointed to the job by—why am I blanking on his name? McCarthy. Sorry? Kevin McCarthy. Kevin McCarthy. Exactly. In 2023, during his tenure as as clerk, as as speaker. But McCumber had worked in the clerk's office in a lower capacity for Speaker Nancy Pelosi. He is known. He was known then. He is known now as a nonpartisan figure and and, you know, is a respected figure.

5:30OK, so that sets the background. The clerk of the House gets these results from the states, compiles the role, and then that role is presented on January 3rd to the new House of Representatives. And here I need to take another detour into the weeds because of a difference between the House and the Senate. The Senate is what's called a continuing body. The Senate never completely goes out of session. the main reason of course is that only a third of the senators are up for re-election any any you know every two years so the other 63 66 just you know continue in their jobs the house is different and under the constitution this is actually in the constitution the House of Representatives ceases to exist every January 3rd unless a new House of Representatives is sworn in.

6:42So there's a hard deadline to get a new House sworn in and it's January 3rd. Here's the issue that was the subject of my piece in The Times. What happens if the results certified by the state is contested by the current Republican majority? What if Donald Trump says, and it is hardly out of the question, that after Election Day, the public results show a small but real majority for the House Democrats? And Trump says, well, those results are the result of fraud. Whatever kind of fraud he decides that it is, it's non-citizens voting. China, yeah, whatever. China, it's absentee votes counted too late.

7:40He says those results are not real. But Kevin McCumber, the clerk of the House, is getting ready to report and put in the role the results of the elections that are certified from the states. The issue is the Speaker of the House, who is now Mike Johnson, under the rules of the House, has the authority to fire the clerk of the House of Representatives. And the worry that Democrats like Joe Morelli, the congressman I spoke to at some length, the worry is the Kevin, Kevin, Mike Johnson will fire Kevin McCumber and install someone of his choosing, presumably a MAGA ally. Who will compile a different role, which preserves the Republican majority.

8:42And that would be the House of Representatives that takes office on January on January 3rd. That's the worry. And let me just stop there. And then we can talk about what what might, if anything, that could be done about it from the Democrats. So, I mean, you said something about how like it's, you know, it's not it's feasible that this could happen. It seems like more than feasible to me. I mean, just given the rhetoric coming out of the White House, the president, you know, doing his big election fraud primetime address a couple weeks ago, feels like they're sort of priming the pump for this.

9:21But again, we don't know. We don't know what's going to happen. But so here's here's my question about sort of the timing of this. Right. So under what authority does Mike Johnson have to fire the House clerk? Because, as you said, the House ceases to exist. So Mike Johnson ceases to become speaker when the term expires. January 3rd, 2027. Right. So if there's no speaker until the clerk recognizes new members and then they pick one, would so would Johnson have to fire the clerk before you would have to fire McCumber before the current house term expires, thereby leaving the office vacant and preventing the new house from forming?

10:00Is that my. Yeah, you're exactly right. You're exactly right. This would all have to take place during the tenure of what's known as the old house, the house that was elected two years ago and is still in office. So as I understand it, and again, because none of this has really happened before, some of the rules associated with it are up for debate. But I don't think it is up for debate that the Speaker of the House, now Mike Johnson, would have the authority to fire Kevin McCumber, the clerk, while he is Speaker of the House. And presumably this would happen under the Democrats' disaster scenario following the certification of the House results from the states late November, early December.

10:57So sometime in December, Johnson would fire McCumber and install a person of his choosing. Now, here's where the legalities and the rules of the House get somewhat murky, because the person whom Johnson would appoint would only be an acting clerk pending a vote of the House majority. Now, one of the open questions surrounding this is whether the old House majority, and remember, we're only talking about the current House of Representatives before January 3rd, whether they would actually ratify this. Morelli, the Democratic congressman, thinks that there are enough Republicans who are either on their way out the door, lame ducks or simply conscience stricken, that there would not be a majority to install the new the new clerk.

12:06That raises the question of what is the power, what are the powers of the acting clerk, the temporary clerk that Johnson might appoint? And that's where I think the existing law is is particularly unclear. And that's where, you know, I don't have a resolution, but I certainly flag the issue that if there is only an acting clerk of the House, it's not clear what his powers are in connection to the establishment of the role of the new house. So that is the question. That's the meat of the piece. Would Johnson – I mean putting aside – Johnson strikes me as kind of a stooge frankly. Like I mean he is a Trump guy.

12:59I think that he probably would do what Trump wanted him to. Would he have to? Like what's the legal authority versus the political incentive for somebody like Johnson? Oh, he is not at all obliged to fire the clerk. As far as I'm aware, the clerk has never been fired. There was something that happened in 1839 that was tumultuous, and I don't know all the details, but I don't think it involved the firing of the clerk. This is purely a political act if Johnson decided to do it. But as you point out, I think very much correctly, Johnson has been a complete Trump acolyte and done entirely what Trump wanted to do.

13:55So if Trump said to him, fire the clerk and install a clerk who is a MAGA ally, I think based on prior precedent, it's very likely Johnson would do that. But he would certainly be under no legal obligation to do that. And then the question becomes, as it did five years ago when we went through a similar version of this, the courts, right? Well, yes and no. I mean, again, here is another complexity. One of the basic doctrines of both the Supreme Court and all the federal courts is something called the political question doctrine. And under the political question doctrine, the internal processes of the other branches of government have been seen to be off limits for judicial intervention.

14:54And there is at least some possibility that if either side went to court to try to resolve this issue of what are the powers of an acting clerk or what are the grounds in which a new clerk can be appointed, that the federal courts would say, look, this is an internal matter for a coordinate branch of government. and we, the judicial branch of government, are not going to interfere. This is your mess, not ours. Precisely. This is your mess, not ours. And that might throw the whole mess back into the House of Representatives. Oh, God, it's going to be a... It gives you a headache just to think about it.

15:42But I feel my pain. I had to try to understand. I was going to say, you had to actually write this piece. Yeah, no, it's true. So, Jeff, in the reporting that you've done for this and just your, you know, the talking to people that you do in your roles as CNN analysts, is there any evidence you've seen that this scenario is actually a live option inside Republican leadership circles rather than something that's being floated by? I mean, Morelli, he may be a great guy. I don't even know him, but he's obviously a partisan actor in this, right? I mean, to answer your question directly, I don't have direct evidence that this is under consideration.

16:18However, the context of the story is so clearly that Republicans are considering every option. I mean, remember, you know, there is a pending executive order telling the Postal Service not to deliver ballots to people that, according to some list they're supposed to get, are not registered voters. I mean, this is clearly an attempt to limit participation in the election. You know, President Trump has fired the Election Assistance Commission. I mean, it is not crazy conspiracy thinking that the president will do everything they can. He's saying as much. He's saying as much, right. So I don't think it's insane conspiracy thinking to consider this possibility.

17:17But I also don't want to overstate how much I know about how this is under active consideration. consideration. It is close enough to a realistic scenario that there are Democrats concerned about it. And interestingly, since my piece came out, I guess it was last week, I have subsequently heard from Democrats is like, wow, I didn't know you knew about that, but we're really, we've really been worried about this for some time. That's not Republicans saying they're considering it, but it is evidence that it's a potential problem out there. It's in the ether. OK, so help me help me steel man the other side.

17:56If you were to bring this to I mean, I'm sure some Republicans read this piece. If you were to bring this to Republican leadership, not even leadership, just like an active, like sitting elected Republican official and you put the scenario to them directly, what do you what would they say? you think? Well, they would say two things. One, we don't need to do this because we're going to win them at midterms anyway. But more importantly, I think they would say, look, we believe in honest elections. We believe in elections free from fraud, whether it's non-citizens voting or or faked internal absentee ballots, or late ballots being counted.

18:40We want honest elections. And if there is evidence that this election was unfairly conducted, that Democrats won by fraud, as we believe they have won by fraud in the past, there is absolutely nothing wrong with doing everything in our power so that a legitimate House of Representatives can be seated, not the corrupt one that was certified by the states. I think that's what you would hear. Yeah. No, that sounds right. Oh, my God. This is going to be just – I'm just thinking about my own life. This is a holiday season. What a mess it's going to be. Well, let me just add one. There is a there is a cure for this problem, which is a landslide.

19:31Right. I mean, this is only remotely plausible scenario if the House is evenly divided. And I don't know what the exact number is, but I would say under 10 seats. You know, if this the Democrats pick up 20, 30, 40 seats, as has often been the case in midterm wave elections, then I think there there there is nothing to worry about. Obviously, we don't know if that's going to happen. Sure. But but but I think, you know, to keep this scenario in the realm of the plausible, it has to be a narrowly divided Congress. Right. And also, I mean, just even though you said this a million times, just this is not have to do with the Senate.

20:20Obviously, this is a ball of X. Yeah. Yeah. So Morelli, the congressman from Rochester and the PC, who is we should say he serves as the ranking member on the House administration committee, which. Right. And the administration, the nerd caucus, as you put it. Yeah. It actually I changed it late in the process. I called it a nerd caucus, not the nerd caucus, because I think the House Rules Committee would also have a claim on being a nerd caucus. They're the real nerds. Right. Because they have to deal with the rules of the House, which are incredibly arcane. But the administration committee specifically has authority over the clerk and matters relating to the election.

21:10importantly for the house of representatives the the administration committee also is in charge of assigning office space which if you know anything about the house of representatives is often an intensely contested that's like a knife fight right getting right getting bad because the the the i think a lot of people don't even know this is that there's not a standard office for members of congress members of the house but there are three different office buildings cannon longworth and rayburn And there are good offices in some and bad offices in some. And it's it's it's. And there's some seniority play there, too.

21:47Right. That's the main thing that's in play. Yeah. So you can be sure Nancy Pelosi, who's been in the House a very long time, doesn't doesn't have a bad office because she's she's worked her way out. Right. But so Morelli had this great line that I just transcribed that he gave to you, quoting the congressman here. Instead of accepting the fact that he lost an election, God forbid, which almost everybody does if you're in this business long enough, he just attacks the system. End quote. Obviously, he's talking about President Trump. This is this is the thing that's never made any sense to me about how Trump in denying the 2020 loss.

22:23It's like people people lose elections. Even the best politicians in America. Right. The most talented politicos, the most talented people you've ever seen. Right. They lose elections. And I just I mean, I don't even have this isn't even a question. I'm just sort of like it's just striking to me. It's like, why can't you just admit that you lost that one, man? Well, I think this is deep, deep in President Trump's personal makeup. I mean, I'm a journalist. I'm not a psychiatrist. Sure. And also it relates to how he came of age as a businessman and as a frequent litigant in the courts. You know, his great mentor was Roy Cohn, a deeply corrupt lawyer in New York.

23:13And one of Roy Cohn's rules, which he very intentionally passed on to Trump, was you never admit that you lost. Right. Never surrender. Never surrender. Never keep fighting. You know, but this leads to a broader corruption of the system. Something else I've written about at some length is many of the people who testify now, Trump nominees, including and especially judicial nominees to the court. It's a litmus test. And Jay Clayton, who was just testifying to become director of national intelligence, the Democrats ask them during their confirmation hearings under oath, who won the 2020 election?

24:00And they all refuse to answer. They say things like, well, President Trump was President Biden was certified as the winner. And they say, no, no, no. Who won? No, no. Biden was certified. And this dance goes on for a while. But because Trump has exerted so much power over the Republican Party, he has imposed a discipline that no one else is even allowed to acknowledge the truth of who won the 2020 election, which in many respects I think is worse than his own failure to acknowledge the truth of what happened. No, it's a great point. And I got to say, John Ossoff, somebody who I personally think is underrated for 2028, has been excellent in these Senate committee hearings doing just this, making these guys say, like, look, is the sky blue?

24:55Who won the election? And they can't. It's like this humiliation ritual. But he's one of the ones who's particularly, I think, adept at it. I think you use a very apt term there, which is humiliation ritual. It's not just that Trump wants the Jay Claytons of the world to fail to acknowledge the truth. He wants them to humiliate themselves by, if not lying, refusing to answer a question like, is the sky blue? It is a dominance move of Trump over the people he nominated. And it's particularly chilling when people who are director of national intelligence or putative judges have to answer this way, when their whole job is, when they're confirmed, to tell the truth and speak truth to power and not be influenced by the president.

26:03them. So it's especially bad that these people refuse to answer the question. No, I couldn't agree more, Jeff. I want to ask you, so we're talking about the House rules. I want to ask you a little bit about the states. There's precedent, obviously, for states refusing to certify election results in the hopes of forestalling Democratic victories. Obviously, Trump tried to get Pence to do this in the House on January 6th, five years, six years ago now, and failed. Do you think it's a foregone conclusion that we'll see some efforts to actually delay the certification at the state level? And if so, what's the best sort of strategy for the Democrats to counter those delays if they happen?

26:42I think it's a certainty that we will see MAGA counties or MAGA states refuse to certify elections because of purported irregularities. I just don't think there's any doubt. I mean, this has come up already frequently. But here, I think there really is a resolution, and that's the courts. Yes, sure. The courts have been vigilant in forcing states to certify elections. This is not a political question issue. This is an issue of compliance with state law. All the states, all 50 states set a deadline for certification of the election. And as I said, it's usually late December, late November, early December.

27:36And there have been courts that have actually thrown election officials out of office for refusing to certify and install people who would certify. So this problem, while it's a real problem and it could delay things somewhat, I think this one has a fairly clear solution, which is the courts, sometimes state courts, but at least the federal courts will simply say to the counties involved or the states involved, you have to certify. And if you don't and if you, Mr. Secretary of State, you, Miss Election County supervisor won't do it, I will install someone who will. Right. OK, that makes me feel a little bit better.

28:27I wouldn't say don't worry about it, but worry less about that. Take what I can get here, Jeff. Back to us, just out of curiosity, what is it about the rules of the House versus the Senate that make it that chamber particularly like at risk from bad actors? I mean, part of it is what you said about just the fact that the House ceases to exist every two years, right? Well, this goes back to the framing of the Constitution and the Connecticut compromise that gave each state to senators and not by population. This is why, frankly, absurdly, Wyoming and Rhode Island have the same numbers of senators as Texas and California.

29:13Yeah, you know, if you believe in representative democracy, it really makes no sense. But that's the rule. But the idea was that the Senate in the famous the famous metaphor, I believe it was George Washington who used it, which was it's the cooling saucer, is that if you pour a little tea into into a saucer, it will cool and and things will move more slowly. And the Senate is more the rules are set up to force consensus. That's that's the filibuster is, of course, not in the Constitution. But the idea of the filibuster is that the Senate is designed to come together in a spirit of compromise.

30:01I mean, this is all theoretical and it is sometimes honored in the breach, but that's the idea. The House of Representatives is supposed to be more responsive to the immediate passions of the people. They're up for election every two years. And so the spirit of conflict is more present in the House of Representatives, and the rules reflect that. The majority in the House of Representatives, if it's a majority of one that stays together, they can bulldoze anything they want through the House. Right. The Senate very different. Even if you don't include the filibuster, there are rules that slow things down in the Senate.

30:45And that's why, you know, you have the sort of fundamental differences between the two. Right. Okay. I want to zoom out a little bit before I let you go. But before I do that, one final question on the scenario that you're laying out here with the firing of the clerk. Do you think Democrats are right to be planning around this specific scenario or do you think the energy is better spent elsewhere? When I say Democrats, I mean people like Morelli, elected Democrats in the House. 100 % right thing to do. 100%. I think people are capable of doing more than one thing at the same time. And obviously, as I mentioned earlier, the best thing Democrats could do is concentrate on winning elections and win enough so that this all becomes irrelevant.

31:35But that's a whole separate podcast. But I don't know if they're doing that. Well, that's that. And that's not that's not my specialty. But the. I think planning for disaster scenarios of a legal or procedural nature is absolutely indispensable to preparations. And, you know, so we'll see if they do it. Some of them are clearly trying. I mean, that's, you know, that there's no doubt about that. Yeah, no, I mean, Morelli, more power to him for even being on top of this. So you noted in the piece that Trump's efforts and you noted just to me earlier that his efforts on sort of tipping the scales insofar as, you know, election meddling, you could say, have had mixed successes this term.

32:24Right. The Senate didn't pass the Save America Act. It seems highly unlikely that it will before November, at least. That's, again, a whole nother question with with John Thune and him. Thune saying that he can't get his members all on board with this thing, no matter what Trump says. So that save act seems to be dead for now. You mentioned the federal judge blocking the Postal Service executive order that limited mail in ballots in states that refuse to share photo data with the federal government. Do those failures suggest – failures on Trump's part suggest the guardrails and the institutions like we've been talking about, right, the courts and the Senate are holding?