Threat To Trump In November If Democrats Flip House?

Over the past couple of days, I've seen two references to a potential problem for Trump, even if he continues to do well in the polls, if enough Republicans resign from the House to give the majority to the Democrats.

Rep. Mike Gallagher (R-WI) will retire from the House months before his term ends next year, setting up a scenario where House Speaker Mike Johnson (R-LA) could have a one-seat majority.

. . . Gallagher's departure will bring a math problem for Johnson as the chamber seeks to fill a slew of other vacancies announced over the last few months. As of next week, there are four empty seats vacated by Reps. Kevin McCarthy (R-CA), Bill Johnson (R-OH), Brian Higgins (D-NY), and Ken Buck (R-CO), whose last day in office was Friday.

With Gallagher's absence, that brings the Republicans' majority to 217-213 as of April 19. That will be further narrowed for Republicans after the special election for Higgins, which is expected to favor Democrats, bringing their majority to just 217-214, meaning Republicans can only afford to lose one vote on any given measure to pass the lower chamber.

The biggest worry from a worst-case scenario, as articulated by YouTuber Robert Gouveia above and Emerald Robinson below, is that a Democrat majority in both houses could block Trump, either from the ballot or, as Robinson suggests below, via the electoral count.

The early retirements of Ken Buck and Mike Gallagher are part of a scheme by the uniparty cabal to stop Trump from winning the 2024 election.

How? They want to flip the House blue in time to nullify the electoral vote via the 14th Amendment.

— Emerald Robinson ✝️ (@EmeraldRobinson) March 23, 2024

Robinson doesn't go into detail, and she's a reporter, not a constitutional lawyer. Gouveia, while he's a criminal defense attorney who has specialized in DUI cases, is also not a constitutional lawyer, and so far, I haven't seen any takes from the usual constitutional law commentators like Glenn Reynolds or William Jacobson (I, of course, am no attorney at all). But here is Gouveia's take in the YouTube link above:

[I]f the Democrats retake the House, . . . they may have what it takes to get Trump off the 2024 ballot, and they're going to be able to hang their hat on the SCOTUS decision in Anderson, which of course was the Colorado ballot removal case, which came back out 9 to 0. . . . Why are [Republican Congressmen Ken Buck and Mike Gallagher] leaving right now? . . . If the House flips to the Democrats, . . . we're gong to talk about how this might implicate a ballot removal strategy in five steps.

The steps he outlines are:

1. Dems retake House
2. House Dems pass legislation declaring Trump insurrectionist
3. Senate passes
4. Biden signs
5. Trump removed supported by 9-0 Supreme Court

He explains further, relating to Anderson,

Here is what this opinion says. For its part, the Colorado Supreme Court, which was wrong, they overturned it, they concluded there must be a determination before you remove someone and disqualify them under the 14th Amendment. That's the Insurrection Clause. "What is the deermination?" you're asking. "Who gets to decide?" This was the whole point of the ballot removal case. Jenna Griswold and the Colorado courts, they thought they could make the determination. The Supreme Court said no, you don't get to make that determination. You know who does? Congress.

He doesn't go into any detail on exactly how Congress could make this determination, and at least in Anderson, neither does the court. However, I think he leaves out several key steps. One is that the Democrats have just as slim a majority in the Senate as the Republicans do in the House, and it's questionable whether certain Democrats like Manchin and Sinema, who have announced their retirements, would support this putative "determination" that Trump is an insurrectionist.

Second, the Republicans could invoke the filibuster, requring a 60-vote majority, which would be another obstacle, even if some Republicans like Mitt Romney supported it. In the 2021 Trump impeachment, even though some Republicans voted for removal, only 57% of the Senate voted for it. Although removal requires a two-thirds majority, the "yes" votes didn't even reach the 60% that would be needed to invoke cloture.

Third, any "determination" that Trump is an "insurrectionist" short of a trial and conviction for violation of a specific insurrection law would almost certainly be a bill of attainder, which is prohibited under Article 1 Sections 9 and 10 of the US Constitution. This legal dictionary defines a bill of attainder as

A law that sentences a person, or group of people, to suffer punishment for a crime without being able to exercise their judicial rights in defending themselves.

One of Trump's arguments already before the Supreme Court is that he was already tried for "insurrection" by the Senate in the 2021 impeachment and acquitted, and there has been no other conviction for such a charge; the Washington January 6 case is currently on hold and unlikely to reach a verdict before the election, much less survive inevitable appeals. Thus any congressional action declaring Trump an "insurrectionist" for the purpose of keeping him off the ballot without a trial and guilty verdict would be a bill of attainder. Trump would likely appeal such a "determination" directly to the Supreme Court.

So far, I think linking the resignations of RINO Republicans frustrated with the Freedom Caucus and others is multiplying entities without necessity. The congressmen like McCarthy, Buck, and Gallagher have simpler motives; the're unhappy that the Republican balance is shifting away from Bush-era moderates. I'm sure they have no good wishes for either Trump or Speaker (for now) Johnson, but I don't think there's a deep state plot behind them.

On the other hand, I think Robert Gouveia is normally a better commentator. In this case, he's not thinking things through.