The 'legal loophole' Republicans have to save Trump: ex-federal prosecutor

U.S. President Donald Trump gestures as he speaks to the media before boarding Air Force One at Joint Base Andrews in Maryland, U.S., en route to Myrtle Beach, South Carolina, August 21, 2026. REUTERS/Evan Vucci

With the polls raising red flags for Republican midterm chances and President Donald Trump making their situation worse on a near-daily basis, a former federal prosecutor warns that MAGA lawmakers have a “plot to keep power in Congress” even if they lose. This is according to the Hill legal analyst James Zirin, who wrote on Tuesday of a “legal loophole” Republicans might use to “subvert the will of the people.”

As Zirin explains, “Democrats are widely expected to win control of the House in November’s election. The Senate remains a tossup. But there is a nagging suspicion that Trump will somehow pervert the will of the people to ensure that Republicans retain their majority in the House and somehow steal the election.”

According to Zirin, the playbook is alarmingly simple. First, Trump and MAGA Republicans will “demonize the Democrats,” and already are, conjuring the McCarthy-esque accusations that their opponents are “hard core, godless Communists.” Then, “Trump will delegitimize eligible voters. He will scare them away from the polls by posting federal agents at their voting places or discouraging them by disparaging mail-in ballots.” But the “crusher,” writes Zirin, is that if the outcome is close, “his minions can refuse to seat elected Democrats by reason of a yawning loophole in how congressional elections are administered.”

As the Constitution provides, “Each house shall be the judge of the elections, returns and qualifications of its own members.” In this context, explains Zirin, “A losing House candidate may contest his or her election. The issue is decided by a simple majority vote. The new House can refuse to seat the winner while the challenge is pending. If things are close, Republicans may even temporarily hold a majority. Thus, even if Democrats only narrowly win a House majority, one or more defeated Republican candidates might try to deny office to their Democratic opponents. The Senate has its own rules for dealing with contested elections and normally seats the certified winner without prejudice.”

While in 2021 Mike Pence refused to go down that path, “following the advice of his courageous lawyer, retired Judge J. Michael Luttig, who persuaded him that our constitutional traditions required an orderly transfer of power and the election result must be respected,” House Speaker Mike Johnson “is no Mike Pence. A card-carrying election-denier, Johnson once filed a brief in the Supreme Court claiming there were ‘unconstitutional irregularities’ in 2020 election outcomes.”

“That is exactly why I fear that Republicans have a legal loophole to subvert the will of the people,” writes Zirin. “The 2026 midterms could thus be a decisive test of U.S. democratic norms, with the potential for a constitutional crisis if elected members are denied seats.” Scarier still, he warns, is that challenges can be based on virtually anything. “Defeated contestants could claim that their state’s refusal to turn over voter rolls to the Trump administration meant the election was corrupt. They could argue that the Senate’s refusal to pass the SAVE Act allowed illegal immigrants to vote for their opponents in large numbers. They could try to cast doubt on mail-in ballots.”

According to Zirin, with Trump’s approval at historical lows and still falling, and candidates running under his endorsement losing with increasing frequency, Republicans who are tied to the president’s sinking ship are becoming panicked as the midterms approach. And as Zirin notes, Trump personally “has a big stake in the outcome aside from just his hatred of losing. He does not want to face congressional investigations, much less potential impeachment for corruption.”

With all that in mind, concludes Zirin, “It is entirely possible that we will run a reprise of 2020, when the outcome of a narrow election beclouded with accusations of fraud, and MAGA determined to retain control. The hope is only fleeting that men like Johnson have enough honesty and integrity to keep the nation from a constitutional crisis. Whatever you learned in school, it is ultimately the House and the Senate deciding who sits in Congress — not the American people.”

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