On what should happen if the unthinkable happens

7 min readOct 13, 2017

The 800 or so words that follow this introduction are the source for an example of a relatively common press phenomenon today: outrage mongering. I wrote this piece after receiving questions about what should happen if the Mueller investigation yields specifically damaging evidence about the President. As you’ll see in what follows, I narrow that case to one particularly damning kind of evidence—of a conspiracy with the Russians to affect the election. My aim in writing this was to map out what should happen and what was not possible, given the Constitution that we have.

When I published the piece, I really meant it to be a simple link that I could provide to people when they wrote with this question. I didn’t Tweet about the piece when I published it; my aim was not so much to “put it out there” as to let it be there to begin, as I suggested at the end, to clarify thinking if this “unthinkable” event happened. And critically, as you’ll read—if you’re that rare sort that likes more than 140 characters at a bite—I begin the piece by making it clear that I’m not asserting that there is any clear evidence of such a conspiracy, and indeed, that I don’t believe that there is a conspiracy. And more importantly, whether you believe there is or not, as I said upfront, I don’t believe it is appropriate to speculate about whether there is or isn’t. Let Mueller do his job and we’ll see where we are when he’s finished. My point was if he reaches this particular conclusion, then the following should follow.

The piece was picked up by Newsweek, and astonishingly (for Newsweek), all my qualifications were stripped away. Mine wasn’t an essay mapping the consequences under our Constitution of a hypothetical that people are actually asking about; it was a fantasy piece by a liberal law professor dreaming about how Clinton could become President. That caught the attention of Rush Limbaugh (yea, you’ll have to find that link yourself), who, knickers twisted, lambasted me on his radio show. I only knew this because scores of outraged Rushies rushed in to discipline me, offering free advice about whether I was a “moron” or worse, and disgusted at the idea that someone like me was teaching law. Tucker Carlson then asked me to come on his show. And amazingly (and to his credit) he allowed me plenty of time to set the context and explain the piece. He even affirmed that if the hypothetical were true, he’d be “leading the charge” to have Trump removed. But by the end, he too got all pc about whether I should write such pieces. It was a kind of “pornography,” he suggested, and wrong for me to write.

I’d be the first to acknowledge that it would be wrong — or worse—to launch a campaign to rally people to the idea that there was a way to get Clinton into the White House predicated upon an unproven conspiracy. Indeed, such a campaign would require “speculating” about what Mueller will find; and as I wrote at the start, “I don’t think it’s appropriate to speculate about whether there is clear evidence of it or not.” The ordinary reader of this piece can’t miss that I am mapping a hypothetical that I don’t now believe. But yes, of course, it would be wrong to push the idea: Trump committed treason, so therefore Clinton should be President. There’s no factual basis for such a charge, and without that, speculation is not, as I said, “appropriate.” To push the suggestion without any factual basis would be, well, kind of like pressing the suggestion that President Obama was not born in America. Just scandalous.

Yet that is not what this piece does. It is a map, not a trip-tic. It clarifies what is not possible, and what is, and if shown, what ought to be. As a writer and academic, I reject the correctness that tries to tell me what I’m allowed to write and what I’m not allowed to write — especially by prominent souls on a network that has spent years trying to convince America that Clinton’s emails were a “scandal,” or that Benghazi was treason, or that Obama was not a natural born American.

But I will note: The anger and outrage is revealing. If I had written the same piece about Obama—what if the President had stolen the election—no one would have misread the purpose of that piece. The hypotheticality would be so obvious that the aim of the piece—to map constitutional alternatives—could not have been missed. If you read this—at least with the qualification up front; readers of the Newsweek article can be forgiven, because the author of that piece didn’t bother to add the qualification—and you’re outraged, it’s only because this is not as unthinkable as it would have been for Obama. Your reaction tells us something—about you, as much as about the piece. It tells us you don’t think this is unthinkable.

That’s the sad state of where we are today. At the end of his otherwise really fair interview, Tucker asked me whether I could understand the frustration of Trump supporters, who 10 months into his administration, still face questions about his legitimacy. But the real thing to understand is just how freaking exhausting it is to live through a time where an idea such as this is not just an obvious law school hypothetical.

There’s a bunch of chatter about imminent action by the special prosecutor. Some of that chatter suggests evidence of a real tie with Russia during the election. By “real tie” I mean more than that the Russians tried to help. A “real tie” would be real evidence of a conspiracy between the Trump campaign and Russia.

I don’t know if I believe it. I certainly haven’t seen clear evidence of it. And I don’t think it’s appropriate to speculate about whether there is clear evidence of it or not. But I get tons of emails from people asking, “what if there was a conspiracy?”

It’s a fair question. We ought to have a clear answer.

What if there were a conspiracy?

This “if” has got to be specified very precisely. The question is not whether Trump obstructed justice, or is guilty of tax evasion, or has violated the Emoluments Clause or done any other act justifying impeachment. The “if” here is quite specific: It relates explicitly to the validity of the election. The question I’m asking here is what should happen if Trump conspired with a foreign government to get elected? If he did that, then what should happen.

If that is shown, then the first step is obvious. Trump should resign or, if he doesn’t, he should be impeached.

The second step should be obvious as well: Pence should resign or, if he doesn’t, he should be impeached. He benefited from the criminal (and treasonous) conspiracy just as much as Trump. He shouldn’t benefit even more by becoming the residual President.

Under the law as it is, this leaves Paul Ryan as President. And the hard moral question that Ryan would then face is whether he should remain as President. By hypothesis, we’re assuming the office was effectively stolen from the legitimate winner by a criminal and treasonous act of the (previous) leader of Ryan’s own party. Ryan’s being President is just the fruit of that poisonous tree. So should he just ignore that? Or should he acknowledge the wrong, and act to make it right?

There’s no mechanism in American law for a new election. Nor is there a mechanism for correcting the criminal results of the previous election. The Electoral College was meant to be the check, but most in the chatterati resisted the idea of the Electoral College exercising a substantive check, and insisted that its vote must be automatic. So, constitutionally, we’ve passed the moment when this crime could have been constitutionally corrected. And no court is going to step in and do anything about it now, regardless of what the evidence now proves.

Fixing it, politically

But that doesn’t mean this crime couldn’t be fixed politically. And recognizing just how it could is something we should be talking about right now.

President Ryan would have the right to nominate a Vice-President. That right is specified in the 25th Amendment. That nominee then becomes Vice-President once confirmed by a majority of both houses. That’s how Gerald Ford became Vice President. And that’s how he eventually became President without ever running for that office.

If Ryan became President because the Trump/Pence campaign committed treason, who should he nominate as his Vice President? The answer seems unavoidable: He should nominate the person defeated by the treason of his own party, and then step aside, and let her become the President.

Of course, this is the sort of thing that’s unimaginable in Washington today. But that’s why we need to start imagining it, now. The nation won’t have months to deliberate the matter in the urgency of a treason-driven impeachment. It’s the sort of truth we should have resolved to long before it is needed.

And it is the sort of truth we all should embrace: If you steal an election, neither you or your party should benefit from that theft. Even more so if you steal it in conspiracy with a foreign government. Everyone should be able to agree with this fundamental principle. The only question then is whether that principle would guide in this particular case.

Without doubt, if Ryan did the right thing, that would be the most extraordinary event in the history of America since the Confederate Army fired on Fort Sumter. But unlike that, this event would build the union, not divide it. And if he did it, then Clinton should embrace the spirit of cross partisan decency and nominate Ryan, or a Republican, as her Vice President. At least for the balance of her first term, the frame of adults-behaving-like-adults could live.

I realize this all sounds crazy right now. No doubt, it is hard to imagine the world if the treason question is resolved — against Trump. We’ve been living in speculation land for so long, and the issues are many and diverse. Unpacking intuitions is hard.

But we should try. We should try at least to work through what should happen if the unthinkable happens. Because when it happens, we won’t have much time to think.