Florida Representative Matt Gaetz revived an outlandish-sounding idea earlier this week: If House Republicans retake the majority in 2022, he and his colleagues will push to elect former President Donald Trump as the new speaker of the House. This notion has hitherto been either dismissed out of hand or derided as unlikely by political observers. In a post–January 6 world, however, the Speaker Trump proposal should be taken more seriously and ominously than it currently is.
For one thing, the Speaker Trump idea is growing increasingly popular within Trumpworld. Mark Meadows, a hard-right former House lawmaker and Trump’s final White House chief of staff, embraced the idea earlier this month. Trump adviser and pardon recipient Steve Bannon expressed support for it in February, suggesting that Speaker Trump’s first act should be to impeach Biden. (It’s unclear on what grounds Biden would be impeached, and there are not enough votes in the Senate to convict him anyway, but this won’t matter to a GOP that’s now largely committed to “own the libs” political theater.) Gaetz and other hard-right lawmakers have said that they’ve already discussed the idea with Trump himself.
Would Trump actually want to be speaker of the House? Recent Republicans to hold the role often seemed to wear the crown wearily in a caucus that tended to fall into factionalism; what looked like a tough job during John Boehner’s era became a terrible job during Paul Ryan’s reign. In theory, moreover, the job would seem to be slated to go to House Minority Leader Kevin McCarthy if the Republicans win in November—his reward for years of toiling in the background. McCarthy told Fox News earlier this year that Trump “tells me he wants to be speaker, and I think he should be president.”
It’s possible that Trump is just toying with McCarthy, with whom he has a rocky relationship. A Trump spokesperson claimed in February that the former president has “zero desire” to become speaker. Either way, enough people within Trump’s orbit are still talking about the idea that it’s impossible to dismiss it out of hand.
Could Trump lawfully become speaker, then? Sure, why not?
At the start of each Congress, members elect the speaker by majority vote. Representatives have invariably chosen one from among their own ranks for the last 231 years. But there is nothing in the Constitution or the House rules that says they must choose one of their own to serve as speaker, much as there isn’t a rule that says a dog can’t play basketball. This wasn’t really an issue for most of the republic’s history because nonmembers generally didn’t have the influence or power to win over a majority of House members’ votes. Also, it’s just … pretty weird to have someone serving in Congress who wasn’t elected to it. Still, basic democratic norms have never been a Trumpian priority.
Earlier this summer, one House Democrat introduced the “Mandating That Being an Elected Member Be an Essential Requirement for Speakership Act of 2021,” the rare piece of legislation that would actually do what its name says. Whatever the bill’s merits, its existence essentially concedes that a Trump speakership would be lawful under the status quo. An open question, at least for me, is whether Speaker Trump could vote on legislation on the House floor like a duly elected representative, or whether he would function more like the nonvoting delegates sent by D.C. and the territories. It’s hard to predict how the courts would decide that question or whether they would (or could) decide it at all.
Some variations of the Speaker Trump proposal involve him running for a House seat in his now-native Florida, which would allow him to become speaker through more traditional means. As Politifact noted when discussing a right-wing Speaker Trump meme, he currently meets the constitutional requirements to run for a House race in that state. If he doesn’t want to run right now, he has plenty of time to change his mind: The filing deadline isn’t until June 2022. Given the loyalty of Trump’s base and the supine approach that most GOP elected officials have toward him, it’s not an impossibility.
Either way, you might be asking yourself, why would it matter if Trump becomes speaker? It’s one thing if he’s president and controls an entire branch of the federal government; it’s quite another if he’s just one among 435 House members. Some Democrats might even find it tactically beneficial. “The idea of a Trump speakership also, of course, hands Democrats an argument for 2022,” The Washington Post’s Aaron Blake hypothesized on Wednesday. “Trump was an unpopular president, and to the extent this remains in the conversation, Democrats can use it to raise money and warn about what a GOP House might look like.”
One reason for concern is that Trump would wield tremendous power over the legislative process. His presidency suggests that he might not be inclined to use that power in the public interest. For the last 50 years, lawmakers from both parties have centralized legislative power within the speaker’s office. As a result, Trump would effectively decide whether bills that keep the government open or raise the debt ceiling reach the House floor. He forced a government shutdown during his own term and called on GOP lawmakers not to lift the debt ceiling earlier this year. It’s not hard to imagine Trump instigating a prolonged shutdown or even a national default if he thinks it will help him and hurt Biden.
Another reason, and perhaps a more urgent one, is that the speaker can effectively decide the outcome of the 2024 presidential race. When the members of the Electoral College vote for a president and vice president, they cast their ballots in their respective state legislatures some time in December. The electoral votes are then brought before a joint session of Congress in January, where the sitting vice president opens and counts them before the assembled lawmakers. If no candidate receives a majority of electoral votes, it falls to the House and Senate to elect the president and vice president, respectively.
Usually this is all an anachronistic formality. But it took on new significance after the last election when Trump, drawing upon memos drafted by conservative lawyer John Eastman, pressured former Vice President Mike Pence to throw out enough of Biden’s electoral votes to deny him a majority. If Pence had gone along with it, the thinking went, the House would then decide the presidential election as prescribed by the Twelfth Amendment. That amendment includes a twist: The House votes for a president by state delegation instead of as individual lawmakers, which would have given Trump the majority in a contingency vote—and a second term.
As I noted in September, the Eastman memo has its share of legal and constitutional issues. But it also had one big practical problem at the time: the House Democratic majority. Ned Foley, an Ohio State University law professor who specializes in election law, noted that if Pence had tried to disrupt the count in Trump’s favor, House Democrats could have simply ended the joint session to prevent the plot from reaching fruition. “After all, it takes both chambers to conduct the joint session, and thus if the House shuts it down (even potentially kicking the Senate out of its own chamber), the joint session can’t proceed to completion to identify whether any candidate has won an electoral college majority,” he wrote.
Now consider how this process might play out after the 2024 election if Biden defeats Trump to win reelection. What if Speaker Trump, claiming once again that the election was stolen from him, simply refuses to convene that session? There is no other mechanism to count the Electoral College votes, and without a count, the rest of the process breaks down. The current terms of Joe Biden and Kamala Harris would expire at noon on January 20, 2025. Under the Twentieth Amendment, control of the executive branch would then pass to the acting president for as long as the House refuses to count the electoral votes or until the next election is held in 2028. And under the Presidential Succession Act of 1947, the acting president in this scenario would be Speaker Donald Trump.
