Could Democrats Disqualify Trump Even Though He Won The Election?

My job is to size up risks. This one is hard to predict.

»CLUB/EDGE client post Friday, December 26th.

Better Safe Than Sorry

Let me begin by assuring you that THIS IS tin-foil hat conspiracy speculation.
Unless it isn't.

In a nutshell: I do not know how serious the odds are of this happening, but I also do not want to completely dismiss given Democrats like Rep. Jamie Raskin have threatened to use the powers of Congress to keep Donald Trump out of the White House for well over a year, while several talks and articles have appeared since the election, and even today with a lawfare opinion piece featured in The Hill:

Congress has the power to block Trump from taking office, but lawmakers must act now

Let's just call this a "better safe than sorry" client post for which I do not want to project but forewarn that... there is a non-zero chance of political gamesmanship that is fast approaching, for which there is some evidence to support this speculation of political instability that is clearly not priced into markets.

With that, here is a post sent to me in my DM by its author, a lawyer, who has been a bit obsessed in tracking the Vegas odds of a Trump January 6th disqualification.

The Left is starting to ramp up calls to disqualify Trump during the electoral vote count proceeding on January 6, 2025 – now only 11 days away.

In this opinion piece today in The Hill, the authors argue that Congress should disqualify Trump under the Insurrection Clause of the Fourteenth Amendment:
https://thehill.com/opinion/congress-blog/5055171-constitution-insurrection-trump-disqualification/…

I identified just this sort of media piece in a December 16th post as a potential “tell” that a disqualification effort actually may be pursued.
The opinion piece in The Hill seeks to “set the table” for an effort to disqualify Trump from taking office.
The authors explain why they believe that Trump can and should be disqualified by the incoming Congress under the Fourteenth Amendment.

The authors then lay out the basics of their legal argument why the Supreme Court’s decision in Trump v. Anderson, No. 23-719 (U.S., March 4, 2024), does not prevent Congress from disqualifying Trump on January 6th.
Moreover, the authors acknowledge that disqualifying Trump on January 6th would then lead to Harris (not Vance) becoming President.

Finally, the authors explain the specific statutory mechanics of how they believe a disqualification effort would proceed on January 6th.
(My earlier analysis, linked below, refers to different language in the key statute. But, down at that level of detail, that’s a lawyer’s quibble, although I believe that my analysis is “cleaner” in terms of the technical procedural mechanics that day. The critical point, however, is the political risk presented.)

Since mid-November, I have been posting on X that there is a nonzero risk that the Left, joined by certain Republicans in the incoming Congress, will attempt to disqualify Trump on January 6th.
The updated post below lays out the specifics of why Trump potentially has a safety margin of at best one to two (if Pelosi still is in Europe then) votes in the House:
https://x.com/Auyeur/status/1865482600829034724…

That’s a - razor - thin margin where only one or two additional Republican defections, abstentions and/or even just ostensibly random absences that day could result in Trump’s disqualification by Congress.

That post also lays out why - after any disqualification of Trump on January 6th - Harris necessarily would become the next President via the contingent election procedure under the Twelfth Amendment.

And now - with January 6th only days away - we see the Left starting to set the table for a disqualification effort - just the sort of rhetoric that I identified as a potential “tell” only days ago.
https://x.com/Auyeur/status/1868751969051124172…

I will leave you with the rules in this playbook that would be needed to 'un-elect' President-elect Trump as summarized in The Hill article:

To make an objection under the Count Act requires a petition signed by 20 percent of the members of each House. If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president.

Ironically, we still have to make it to Jan 3rd where the House has to elect a speaker to be able to certify the electoral votes.

In 2023, Republicans took five days — and 15 rounds of voting — to hand the speaker’s gavel to then-Rep. Kevin McCarthy, R-Calif., on Jan. 7.

via Jonathan Allen via NBC

Eventually, the post will be filled, but that doesn't mean market will ignore if there is no one with the position/power to start the count so the lawmakers cannot be sworn in so they can't cast an official vote to certify the electoral votes.

And last I looked, Matt Geatz is throwing his hat in the ring for that position so it should prove to be a real spectacle if nothing else.

But the bigger issue is clearly Trump votes not getting counted in some constitutional crisis that the market is not expecting!
Again, presenting so we keep it on our radar.
Hopefully, it's just a blip.