Can the House Clerk Lead a Midterm Coup?

“The country has never faced anything like this in its 250-year history,” former Judge J. Michael Lutting told CNN Monday morning. He was referring to a new article he wrote for The New Republic, outlining a nightmare scenario: What if Trump and the Republicans lose the House but refuse to concede?

When Congress assembles for its required first meeting on January 3, what if Speaker of the House Mike Johnson, in preparation for this first meeting, dismisses the current Clerk of the House and appoints a MAGA stooge instead—and then that stooge calls the names of elected Republicans but (perhaps on the ground that President Donald Trump says the elections were rigged) refuses to call the names of newly elected Democratic Representatives? Only Republicans—or at least a Republican majority—would be seated, would re-elect Johnson as Speaker, and proceed to serve the White House. This, he says, would be the “final battle in Trump’s determined war to corrupt America’s democracy.”

Luttig, a man of impeccable conservative credentials—he clerked for then-Judge Scalia, served in the Reagan White House Counsel’s office, and played a significant role in the brutal fight over confirmation of Clarence Thomas to the Court. He was frequently mentioned as a possible Justice under a future Republican president. He is also an acute student of the Constitution, congressional procedure, and the multiple authoritarian threads of Trumpism. He deserves credit for quickly recognizing the danger of Trump’s rise to power. The scenario he outlines could happen.

Indeed, Luttig, to the contrary notwithstanding, it already has happened, not once but twice, in 1863 and 1865—and both times it brought American democracy to the brink of collapse, and indeed on one occasion brought federal troops into the Capitol itself on a mission to block a conservative coup.

I came across the story some years ago, while researching my book, Democracy Reborn, a narrative of the framing of the Fourteenth Amendment. That framing took place in the late winter of 1865 and the spring of 1866, and it was the endpoint of a series of hair’s-breadth escapes for democracy from the forces of the Slave Power and its northern allies, who actively sought to subvert the Union war effort and deliver a post-Appomattox victory to pro-slavery forces.

The first episode occurred in December 1863, after the Union was defeated at the polls nearly as badly as at First and Second Bull Run. On election day in 1862, the Civil War effort was going badly, and the fall midterms produced disaster for the healthy Republican majority elected to the House in 1860. Capitalizing on public disgust, the Democrats gained a whopping 27 seats, bringing them within 15 seats of the Republicans who had won the House two years earlier. This produced a rarity in American history: a genuine plot for a coup d’etat, engineered by none other than the Clerk of the House, a Democrat named Emerson Etheridge, a holdover from the days when pro-slavery forces ruled the House, who made it known that he had a plan. On the first day of the House, he would skip a few names—just enough to produce a “membership” with a Democratic majority. A Democratic speaker, S.S. “Sunset” Cox, would take control and the Republicans would be shut out of power in the House.

The plan leaked. It turned out that not every Northern Democrat had the stomach, or the devotion to slavery, needed to overturn an American election. Emerson called his truncated roll, omitting 16 Republicans who he claimed had not presented valid credentials. Representative Thaddeus Stevens, a leading Radical Republican, immediately moved that the omitted names be called. Because some opposition members stayed loyal to the Constitution, the House narrowly voted to seat the omitted members, and the crisis passed.

But what was not generally known at the time was that the plot would have been foiled—even, if necessary, by bayonets. Lincoln had dispatched troops, who were concealed inside the Capitol, ready to occupy the House chamber. As president, he had sent young soldiers into battle, where many were slaughtered for the Union cause; he seemed to be sanguine at the prospect of battle reaching the Capitol itself. He told one of his allies, “If Mr. Etheridge undertakes revolutionary proceedings, let him be carried out on a chip, and let our men organize the House.”

So passed the first crisis; but by the time the second one arrived, Lincoln was dead, and the House clerkship was firmly in loyal hands. Nonetheless, the roll call of the 39th Congress was almost as dramatic—and constituted an even narrower escape for the Union. This came in December 1865, in a vastly different political landscape. Democrats still plotted to secure victory for the forces of Southern slavery. This time they had an ally in the White House, and Republicans had one in the House Clerk’s office.

Andrew Johnson, who succeeded to the presidency after Lincoln’s assassination in April 1865, was a Southerner who remained loyal to the Union—but who in every other aspect would have made a better president for the Confederacy. A former slaveowner, he was flamboyantly racist and aggressively authoritarian. He had taken upon himself to reconstruct the Union according to his own preferences. Soon after entering the White House, Johnson ordered the former Confederate states to hold new elections for Congress—using the old all-white voting rolls assembled before Appomattox. Not surprisingly, this lily-white electorate chose a number of former Confederates—at least four had served in the Confederate “House,” and as many as 58 Representatives-elect had worn grey uniforms. If these new members took their seats, “Reconstruction,” as we have learned about it, would never have happened. Slavery would have been preserved in all but name, and the Slave Power would march into the capital over the graves of 360,000 Union soldiers slain in the war. Once control of Congress was secured, “the political power of the country will pass into the hands of the South,” chortled the pro-slavery Richmond Examiner, “aided as it will be by northern alliances. The South claims that this will be the fact, and the North does not dispute it.”

Congressional Republicans, however, had taken steps after the near disaster of 1863: The new Clerk of the House, Edward McPherson, was not only a former Republican member of the House but also a former law pupil of Radical mastermind Stevens. When it came time to call the roll, McPherson ignored the neo-Confederates from the South: “The clerk rules, as a matter of order, that he cannot recognize any gentleman whose name is not upon his roll.” When Democrats objected, the answer was stubbornly based on the rules of order rather than vote totals. The plot to re-Southernize Congress collapsed. Since then, clerks have called the roll of the House without sweeping exclusions.

It’s hard to know what conclusion to draw from this history, except to note that a democratic government, even one with a 250-year history behind it, may be rickety. Presidents, senators, House speakers may proclaim democratic principles—but a system where obscure figures like House clerks renounce their constitutional loyalty may not survive, nonetheless.

Will the Constitution face such a near-death experience on January 3? How many House Republicans would be willing to follow Donald Trump and Mike Johnson and violate their constitutional oaths? How many Republicans might seize the opportunity to rid themselves of both figures, who are, behind closed doors, not terribly popular? If the House Republicans try to steal the majority, will Democrats turn to the Supreme Court? The Court’s majority has been inconstant—having granted Trump criminal immunity, it has also blocked some of his most outrageous power grabs. If the Luttig scenario plays out, the Court’s majority will be forced to choose once and for all.

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