By: Alan Duke
Could Joe Biden be legally ousted from the White House and Donald Trump returned to the presidency before the next election if fraud were found to have put Biden there? No, that's not true: A sitting U.S. president can only be removed through impeachment under Section 4 of Article Two of the U.S. Constitution, death or a declaration of disability as provided by the 25th Amendment to the Constitution. There is no legal scenario where Trump would become president again if Biden is removed, according to a constitutional law scholar. The "quo warranto" process that some Trump supporters claim could be used to replace Biden with Trump is not applicable, the scholar told Lead Stories.
The claim that Trump would be returning to power just a few months into the Biden presidency has been made by several Trump loyalists, including by MyPillow founder Michael Lindell in a video interview with David J. Harris Jr. on May 27, 2021. At 28 minutes, Lindell says the U.S. Supreme Court will vote unanimously to return Trump to office:
It's called a quo warranto, and let me tell you, there has been precedence before, in any down ticket when a crime has been committed, or ... even if not a crime where the wrong person was put in office, it's pulled down and you put the right person in. It's called a quo warranto.
This is what the post looked like on Facebook at the time of writing:
Lindell added that the Supreme Court could also put the military in charge of the U.S. government if they determine that Biden was fraudulently elected because of interference by China. Lindell did not cite the legal reasoning for a high court order that would replace the civilian government with a military one. We could not find any legal process for that, and the Constitution strictly regulates separation of powers, making a court take-over fanciful. Lead Stories previously debunked Lindell's claim of having "absolute proof" of China's interference.
As for the quo warranto process cited by Lindell, it is a real process but it was ruled nearly 150 years ago to not be applicable after the Electoral College voted. The congressional counting of electoral votes in favor of Biden became final on January 6, 2021, leaving impeachment the only legal way to remove Biden, according to Professor Edward B. Foley, director of Election Law at Ohio State University. In email to Lead Stories on June 1, 2021, he wrote:
The idea of quo warranto in presidential elections arose in the context of the Hayes-Tilden election of 1876. Although a few attempted to argue that quo warranto could be used to challenge title to the presidency, the widely prevailing consensus (from my research) was that quo warranto is unavailable in this context. The reason, as Justice Joseph Bradley explained in his role as the decisive commissioner on the Electoral Commission that Congress established for that dispute, was that quo warranto would apply to the office of 'elector' who gain their office by the popular vote, but once the electors cast their electoral votes in the 'electoral college' their office is over, and there is nothing more for quo warranto to do with respect to their office. The president is elected by the electors, and so the presidential election stands after the time for possibly challenging the status of the elector has passed. The requirement that the electors discharge their constitutional duty of voting for president on the same day in all states (in Article II) relates to this point: it's impossible to undo and change the appointment of an elector after the day on which the elector has voted for president.
Foley also explained what would happen if Biden vacated the presidency. It would not be Trump replacing him, he said:
If, for whatever reason, Biden is no longer president, the Constitution requires Vice President Harris immediately to become President. If for whatever reason Vice President Harris cannot immediately become president on a vacancy caused by Biden no longer being president, then under the relevant statute enacted pursuant to the Twentieth Amendment, Speaker Pelosi has the option of becoming Acting President upon her resignation as speaker and representative: 3 USC 19: https://www.law.cornell.edu/uscode/text/3/19 If it were believed to be unconstitutional for the Speaker to become President (a controversial view I won't discuss here), then next in the line of succession is the Secretary of State, followed by other cabinet secretaries in the order specified. Under no circumstances would it be ex-President Trump, whose term constitutionally ended at noon on January 20. There is no way under the Constitution to view him as qualified to become president during the remainder of the current term. If he is elected president again in 2024, that's different; then he would become president on January 20, 2025.
Others, including former Trump lawyer Sidney Powell, have suggested Trump would be returned to office as soon as August 2021. New York Times reporter Maggie Haberman tweeted on June 1, 2021, that Trump himself is holding out hope of an early comeback:
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