Why Donald Trump's Presidency Cannot Be Annulled: 'It Is a Fantasy'

Within the world inhabited by President Donald Trump's strongest critics lives an audacious idea—annulment of his presidency.

Popular among the most fervent members of the Trump "resistance," the concept of annulling the Trump presidency was elevated to national debate last August, when Robert Reich, labor secretary under President Bill Clinton, pushed the idea in a column for Newsweek.

Read more: If Trump is guilty, his presidency must be annulled

A search on Twitter shows the idea still has currency among Trump's strongest critics as Robert Mueller's investigation into alleged Russian interference in the 2016 election nears its endgame.

The Mueller investigation forms the core of the idea that Trump's presidency should be annulled. A major focus of special counsel's probe is whether the Trump campaign conspired with Russia to sway the election.

To many of Trump's critics, who in their own minds have already convicted the president, the 2016 election was stolen from the peole. Therefore, the election should be annulled, Trump should be kicked out of office and a new election should be held.

"Suppose, just suppose, Robert Mueller finds overwhelming and indisputable evidence that Trump conspired with Russian President Vladimir Putin to rig the 2016 election, and the rigging determined the election's outcome," Reich wrote.

"In other words, Trump's presidency is not authorized under the United States Constitution... The only response to an unconstitutional presidency is to annul it."

The obvious problem with this line of argument is that the Mueller investigation hasn't yet reached a conclusion.

Another problem is that even if Mueller does conclude there was cooperation between the Trump campaign and Russia, and—as American intelligence agencies say—the Kremlin sought to influence the outcome of the election, its impact on the actual result would be very hard to quantify.

But possibly the biggest problem in all is this is that there's simply no mechanism to anul a presidential election.

"First of all, it's not a thing because there's no provision in the Constitution for it," Adam Winkler, a constitutional law expert and a professor at the University of California, Los Angeles, told Newsweek.

"So it's not clear how that would happen. There are provisions in the Constitution for election of the president and removal of the president, but nothing for annulment of an election."

Winkler also said it was not clear who would have the authority to annul the election.

"Who would annul the election? Congress? Could Congress rescind its electoral college approval? It's hard to imagine that happening," Winkler said, "and obviously, Congress is not about to annul the Trump election because of the chaos that would create."

Moreover, Winkler said: "It's very clear the courts would not annul the election or allow the election to be annulled. It would be much more disruptive for American democracy to start reconsidering elections that have already been settled because one doesn't like the person who is in office."

Laurence Tribe, a constitutional scholar and the Carl M. Loeb professor at Harvard Law School, noted in his book To End a Presidency: The Power of Impeachment, that although there is no provision for annulment of a presidency, the Constitution "does provide a rough approximation: Stripping the treacherous candidate of his ill-gotten gains."

"The idea that a president who acquires that high office corruptly, or through illegal assistance from a foreign power, has committed an impeachable offense that warrants removal from office was agreed upon by the framers of the Constitution," Tribe, a prominent Trump critic, told Newsweek.

"It was among the principal examples they gave of a 'high Crime and Misdemeanor' that was not necessarily a case of 'Treason' or 'Bribery' by a sitting president under Article II, Section 4—the article providing for impeachment by the House and trial and conviction by the Senate."

Tribe said, however, that the Constitution's framers "deliberately stopped short of authorizing any consequence beyond" what is laid out in Article 1, Section 3; namely, "removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States" and exposure to "Indictment, Trial, Judgment and Punishment, according to Law."

"Notably, the Constitution of the United States included, and includes today, no provision for doing what a number of nations, and some states, do upon a formal determination that an election had been stolen or otherwise so corrupted as to render its results illegitimate," Tribe said.

"Making up such a provision out of whole cloth would be well beyond any of the legislative powers assigned in Article I to Congress, in Article II to the President, or in Article III to the Judiciary."

The constitutional scholar said that while some states have instituted a process for re-running stolen congressional elections, there was nothing in the Constitution to authorize the same of a presidential election "decreed null and void."

The architecture does exist to replace a president who leaves office early via death, resignation or removal.

This process was revised by the 12th Amendment in 1804, the 20th Amendment in 1933, the 22nd Amendment in 1951, and the 25th Amendment in 1967.

"The machinery put in place by these successive provisions is complex and precise," Tribe said.

"Although that machinery contains a bug or ambiguity here and there, it contains no gap gaping enough for even the most uninhibited judicial activist to design and insert an annulment or nullification or rerun procedure."

Tribe said contemplating the creation of such a procedure "would make a challenging thought experiment for students of constitutional design."

But it would take a constitutional amendment proposed by two-thirds of Congress or an Article V Constitutional Convention—and three-fourths of the states ratifying it—to make it a reality.

"It is a fantasy to talk as though a process for retrospectively annulling a national presidential election and either installing the loser in office or rerunning the election altogether might be concocted impromptu either in advance of impeaching and removing a president or, worse yet, in conjunction with such an impeachment process," Tribe said.

According to Tribe, to do this would require consensus on which impeachable offenses invalidate an election, the procedure to apply those criteria, an institutional mechanism to operate that procedure and the design of a process to select and install a substitute president.

"Apart from having no imaginable basis in the Constitution as written and practiced, any set of answers to the questions thereby posed would require a difficult national dialogue," Tribe said.

And that dialogue would be "at least as difficult if not more so than the already challenging dialogue about whether President Trump has committed offenses for which he ought to be removed from office."

Tribe continued: "Such talk would in turn distract the nation from the already difficult endeavor of deciding whether to end a particular presidency without awaiting the next quadrennial election.

"Impeaching and removing an out-of-control president is difficult enough under the best of circumstances; it would become impossible if one were to pile on the ungrounded notion that, by doing so, one would be triggering some sort of process to undo the preceding election, and perhaps even to nullify actions taken by the supposedly illegitimate president between that president's inauguration and his or her removal from office."

UCLA's Winkler said that while impeachment was much more viable, and not far-fetched, he didn't think it would happen to Trump because Republicans control the Senate. The GOP is unlikely to back any impeachment effort by Democrats to remove Trump from office.

So if even impeachment—the realistic option—is improbable, why do some of Trump's critics cling to the nonexistent chance of annulment?

"You know, I will say this: Trump brings out a lot of creative thinking in a lot of folk," Winkler said.

"This is an idea that just reflects the frustration that many Americans have with our electoral system, with our current president, and with the inability of Congress to rein him in.

"So while annulment is not a serious reform effort, it does reflect how deep the dissatisfaction is in some parts of the country."

For those who want Trump out of office, they'll probably just have to wait until the next election, in 2020.

"Like those who were unhappy with the Obama presidency had to wait, they'll have to wait it out too," Winkler said.

"One thing that's pretty clear about Donald Trump is he's a fighter. He's not going anywhere. And he's not going to resign, he's not going to leave office very easily."

Donald Trump White House Oval Office
President Donald Trump at his desk in the White House Oval Office, August 27. Within the world inhabited by President Donald Trump's strongest critics lives an audacious idea—annulment of his presidency. MANDEL NGAN/AFP/Getty Images
Why Donald Trump's Presidency Cannot Be Annulled: 'It Is a Fantasy' | U.S.