Two Democrat Lawyers Call for Congress to Block Trump’s Election

Two Democrat lawyers called for Congress to block President-elect Donald Trump from taking office in an op-ed published by the Hill on Thursday, prompting disbelief and ridicule from Republicans.

In the piece titled “Congress has the power to block Trump from taking office, but lawmakers must act now,” lawyers Evan A. Davis and David M. Schulte argued that the Constitution says an insurrectionist is ineligible to be president and “the evidence of Donald Trump’s engaging in such insurrection is overwhelming.”

They argued that the “matter has been decided in three separate forums” — one of which they said was the Rep. Nancy Pelosi-appointed January 6th Committee — which a recent House Republican review into the committee concluded was “designed to promote a political narrative” and a “tool to attack President Trump.”

Eric Trump, Trump’s second-eldest son, posted on X: “You people are sick.”

Davis and Schulte also argued that counting the Electoral College votes “is a matter uniquely assigned to Congress by the Constitution” — which some Republicans pointed out was the same argument Trump was attacked for when he urged Congress to hold off on certifying the 2020 election results until irregularities were fully mitigated.

Sen. Eric Schmitt (R-MO) posted on X sarcastically: “Sounds like inciting an Insurrection.”

Davis and Schulte argued that the 1887 Electoral Count Act provided two grounds for objection to an electoral vote: “if the electors from a state were not lawfully certified or if the vote of one or more electors was not ‘regularly given.'” They argued: “A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words ‘not regularly given.'”

They said 20 percent of the House and Senate were required to make an objection under the Count Act, and if the objection is sustained by a majority vote in the House and Senate, the electoral votes for Trump would not be counted and Kamala Harris would be elected president.

They argued that while Republicans would not likely go along with this, “Democrats need to take a stand.”

Steven Cheung, a spokesman for the Trump transition team, posted, “Oh, look. Democrats want to steal the election and invalidate the will of the American people.”

Trump campaign adviser Alex Bruesewitz noted that former U.S. Assistant Attorney General Jeffrey Clark was politically persecuted for drafting a memo proposing a legal avenue to challenge the 2020 election results — as Davis and Schulte are doing.

Davis and Schulte argued that the second forum was Trump’s second impeachment trial over the January 6 Capitol riot — despite the Senate acquitting Trump for “incitement of insurrection.”

Breitbart News senior legal contributor Ken Klukowski called their argument “ridiculous.”

“Only the Democrat-controlled House brought that accusation, and then the Senate acquitted President Trump of that impeachment count, and for anyone who is confused about what that means, the legal reality is that when you are acquitted of something, then you are by definition not guilty of it,” he said.

“President Trump was never even charged with engaging in an insurrection, to say nothing of being convicted of that crime,” Klukowski added.

Davis and Schulte argued the third forum was the Colorado Supreme Court affirming a lower court’s finding that Trump engaged in insurrection in an effort to keep Trump off the ballot.

Despite the U.S. Supreme Court in Trump v. Anderson then finding that states lack power to disqualify candidates for federal office, Davis and Schulte argued that the ruling amount to “dicta,” or “musings of an opinion that are not required to decide the case.”

Klukowski, who authored a brief in Trump v. Anderson representing former U.S. attorneys general from three different presidential administrations, called that argument “utterly absurd.”

“It is utterly absurd to say that the Supreme Court did not definitely hold that Congress must pass a law for disqualification, and in fact Congress has chosen not to do so,” he said, adding:

The Supreme Court decision in Anderson holds, “The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass ‘appropriate legislation’ to ‘enforce’ the Fourteenth Amendment.” The Court went on to reason that Congress created a broad disqualification system in 1870 that it later repealed, and that the only such disqualification law currently on the books is the insurrection statute, 18 U.S.C. 2383.

“That is a holding of the court, not dicta, and Congress is obligated to follow it,” Klukowski said.

While the op-ed did not specify the authors’ political leanings, Davis is a lawyer at Cleary Gottlieb who represented the late Democrat New York Gov. Mario Cuomo and also was a Democrat candidate for New York attorney general in 1998.

Meanwhile, David Schulte is a lawyer at Chilmark Partners, a Chicago investment banker, and a “friend and financial supporter” of former President Barack Obama, as well as a friend of former President Bill Clinton and Hillary Clinton, according to the Chicago Magazine.

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