We’ve learned that the Trump Campaign and possibly the President himself is being investigated by the FBI for possible collusion with Russia to win the 2016 Election. It’s time to consider what to do in the event it’s proven to be the case. There are provisions in the Constitution to deal with an elected official found guilty of a crime. They can be removed through the Impeachment process. They might resign. Never have we seen a situation where the results of a Federal Election may have been tainted, unduly influenced by a foreign rival. If it’s found to be true. What do we do next?
Some things will be true in an environment where Republicans control the Senate, the House of Representatives, and theoretically the Supreme Court if the appointment of Neil Gorsuch has been confirmed and he’s been seated by the time of Trump’s ouster. They would likely oppose any attempt to change the outcome of the election although they might be relieved to replace the man at the top if we followed the Presidential Line of Succession. Replacing Trump might even make implementing their agenda easier. The case I would make that everything that happened as a result of the election. Almost everyone in the line of succession would be, “Fruit of the poisonous tree.”
Except for the Speaker of the House (Paul Ryan), and the President pro tempore of the Senate (Orrin Hatch). Every other person in the line of succession is a direct result of a tainted election. None including Vice-President Pence should be able to benefit from a result influenced and very possibly changed by Russian interference and possible collusion. If there were no collusion the case for a new election is not as strong. If the collusion is proven to be true. No other result is acceptable! Fruit of the poisonous tree.
In a criminal court (which this is not). Evidence derived by means determined to be illegal may not be used. The Fruit of the Poisonous Tree Rule goes further to say that any evidence gathered because of the initial evidence that couldn’t be shown would be gathered by other means must be excluded. Without the tainted election of a Trump there would be no Pence, Tillerson, Mnuchin, Mattis, Sessions, et.al. to take over. They would all be fruit of the poisonous tree no matter what the Party in power might prefer. The question must also be raised, what to do about Neil Gorsuch, Trump’s Supreme Court Nominee. So what to do next?
If this were an election for House of Representatives or for the US Senate. The election could be voided by either of those bodies and a new election could be held. In 1974, John Durkin was seated in the US Senate after a New Hampshire result was voided by the Senate and a new election ordered. Several Elections in the House of Representatives have been voided for various reasons. There is no existing mechanism to overturn the results of the Electoral College for President once certified which they have been. This is a situation not contemplated by the Founders. They did imagine a President swayed by foreign gifts which arguably Trump is also guilty of. They said nothing about an election result changed by an enemy power. Given that the next in line in the line of succession is at best fruit of the poisoned tree and at worst a willing participant. The solution must be something not previously contemplated. We need a new election!
The current political realities are that Donald Trump has a base that has loyalty to him personally and not necessarily the Republican Party. Depending on the level of proof and assuming there will be no confession from Trump who never apologizes lest he appear weak. The Republican’s cannot assume the new President whether it be Pence (if not also implicated) or Ryan will have strong support. There will be those who clamor for the appointment of the “rightful winner Hillary Clinton.” I don’t see who could legally make that decision. Neither branch of Congress has the power outside their own body. The Supreme Court has no law to interpret here and should defer to Congress. I see no mechanism where anyone can be appointed to the Presidency. The results of the last election must be voided and a new one held.
This would be a vote Republicans would likely resist until almost the very end. They will not be willing and it will take immense pressure from the public to make it happen. The people will literally have to rise up and make any other choice unacceptable. What is totally unacceptable is to have our President chosen for us by Russia, especially given any quid pro quo like the weakening of NATO, lessening of sanctions, or turning a blind eye when Russia takes over Ukraine and others. All of which seem to be happening already. Our State Department is being reduced in power and people in a manner that can only be explained because of… Russia. The people must require a new election, or recall and change out those who don’t agree.
It will be an ugly process. The ugliness shouldn’t be a deterrent because every other path will be equally nasty without the benefit of being fair. Republicans will begin with the advantage. They’ll call for following the Line of Succession and swearing in Mike Pence. There must be a strong and forceful effort. Not from just the minority Democratic Party but the American People. Unwilling to have Russia determine our President or even his successor.
Many of the Republicans in Congress are lawyers. Some former judges or prosecutors. They will be familiar with the concept of fruit of the poisonous tree. They must not be allowed to benefit from it. A new election held as quickly as possible is the only way!
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