There’s nothing like a clear election victory to clear away a constitutional crisis. Or to set one in motion.
The result: Jan. 6, 2025, will be a bore. But Jan. 20, 2025, will be a spectacle.
Let’s not get ahead of ourselves. Because — all this is related, as you will come to see — the important thing to know this week is that what is about to happen on Wednesday is going to be utterly unremarkable. It’s when state governors or other state officials certify the states’ presidential electors. Big deal.
Traditionally that process is ceremonial. Usually even political junkies like me don’t pay attention. Ronald Reagan or Barack Obama wins an election, the electors pledged to them are certified, no one notices, and attention remains on NFL games and holiday shopping. “This process is really routine and ministerial,” said David Marchick, the co-author of “The Peaceful Transfer of Power,” a history of presidential transitions, and dean of the Kogod School of Business at American University. “Donald Trump made this controversial in 2020, but there’s no drama this time.”
No drama, because the claims the former president made about rampant voter fraud seem to have disappeared, vanished into thin air the moment it became clear Trump had defeated Vice President Kamala Harris fair and square and quite decisively. No one is going to challenge the certification of the presidential electors. Trump will have 312 of them, Harris will have 226. Game over.
But the whole point is that the game was over by the early hours of Nov. 6. The country isn’t going to be wrenched apart by disputes about the legitimacy of votes or claims that bags of ballots were removed from voting sites or that there was tampering with overseas or absentee ballots. That is so 2020.
“This time, things will be pretty routine,” said Martha Joynt Kumar, an emerita Towson University political scientist regarded as the leading expert on presidential transitions. No one — even the defeated partisans of Harris — is going to challenge the result. This element of our political system has returned to normal. The same can be said for what follows.
On Dec. 17, the electors will meet in their respective states and cast their ballots. No mystery there, either. There’s always the possibility of faithless electors — but in the entire history of the country, only 90, six of them in 2016, have veered from expectation. My advice: Contact FanDuel and place a wager on a 312-226 vote.
The rest of Trump’s legal march to the White House will be just as dull.
Federal law requires that electoral certificates reach the Senate by the fourth Wednesday in December, which this year turns out to be Christmas. The new Congress, with both houses controlled by the Republicans, takes office Jan. 3. On the date now rendered infamous (Jan. 6), the Electoral College votes are counted. The result of the election will be certified by the vice president.
This will be Harris’ lonely, ironic and bitter chore — just as it was for previous vice presidents who had the same role: Richard Nixon in 1961 after he lost the presidency to John F. Kennedy; Hubert H. Humphrey in 1969 following his defeat at the hands of Nixon; and Al Gore, who lost the 2000 overtime election to George W. Bush.
Other elements of the transition from President Joe Biden to Trump are less certain. Far from public attention, but a matter of concern to political insiders, is the fact that members of the Trump team delayed until last week completing essential paperwork required before they receive important agency and budget information that would ease the process of moving from one administration to the other. As a result, none of the people Trump has selected for top positions have yet received background checks, a fact that could complicate and delay their confirmations — if they face Senate confirmation.
That’s a constitutional question the Trump transition has raised. The country’s founding document, written when transportation options were few and slow, provided for “recess appointments” that would allow a president to install personnel in top positions without confirmation during congressional recesses. It was not meant as a means to avoid what the Constitution calls the “advice and consent” function of the Senate.
Trump has floated the idea that the GOP-controlled Congress should go into recess to allow his choices to assume their jobs without facing the questions of Senate committees and then a potentially embarrassing or damaging floor vote. Many lawmakers, including some Republicans, recoil at the notion of the legislative branch unilaterally surrendering power to the executive branch.
“Many constitutional questions like this have gray areas and can be argued from both ends; this quite simply is not one of them,” said Charles Hunt, a Boise State University political scientist. “If you think presidents should be able to appoint whomever they want to any post, that’s fine — but it’s plainly unconstitutional as written.”
That’s just one of the constitutional questions that will be raised once Trump takes office. The president-elect is setting up several confrontations — some with Congress, some with the bureaucracy, some with the mandarins of the capital who see themselves as guardians of the country’s political culture and are worried that Trump, taking his election as a more decisive mandate than it is, might overreach.
One of the areas where presidential overreach is possible is in Trump’s vow to retaliate against his political enemies. He intends, for example, to install Kash Patel, who shares Trump’s desire, as the head of the FBI, an echo of Nixon’s efforts to use the bureau to torment his political enemies in the early 1970s.
“Richard Nixon wanted to be viewed as a great president, and he wanted to be counted among great presidents,” said Timothy Naftali, former director of the Richard Nixon Presidential Library and Museum. “He wanted people to believe that he respected presidential norms. When he sought to hurt his enemies, he did so secretly, so it didn’t tarnish his public reputation. Trump has not associated the protection of presidential norms with his public celebrity. Nixon had the capacity for shame. That is a key difference.”
And that is why the focus of drama in 2025 isn’t Jan. 6. It is Jan. 20, when Trump’s hopes crash into political reality — or bend it.
A Swampscott High School Class of 1972 member, David M. Shribman is the Pulitzer Prize-winning former executive editor of the Pittsburgh Post-Gazette.
