The Clerk’s Coup
As we look ahead to the next election milestone, the actions of an obscure Congressional official could threaten American democracy.
Most Americans interested in the outcome of the midterm elections in less than three weeks focus on Election Day, November 3, 2026 the day the polls close. But voters should mark another date on their calendar for this election: January 3, 2027. That deadline will determine whether U.S. voters see a Congressional coup involving an otherwise obscure office.
The Clerk’s Coup is an intriguing theory about how Republicans could try to hold on to their congressional majority regardless of who gets the most votes. The theory didn’t emanate from some left-wing Democrat trying to deny President Donald Trump the power he covets. The most sophisticated and detailed version came instead from a conservative former judge and lifetime Republican who says the outcome of the upcoming midterms could lead to “The Final Battle for America’s Democracy.”
No one could describe J. Michael Luttig as anything but a stalwart conservative jurist. Republican President George H. W. Bush nominated Luttig to the U.S. Court of Appeals for the Fourth Circuit in April 1991, and he was twice on the White House shortlist as a candidate for a Supreme Court Justice during the second Bush presidency. He stepped down from the bench in 2006 to become senior vice president and general counsel for the Boeing Company, a major aerospace and defense contractor.
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So, we are not talking about some TikTok influencer. Luttig understands and knows his way around Washington’s conservative corridors of power. He advised Mike Pence’s legal team on the former vice president’s public statement about why he lacked the constitutional authority to alter or overturn the electoral vote on January 6, 2021.
Over the past several weeks, Luttig has publicly speculated that Trump’s acolytes in the Republican controlled House of Representatives might refuse to seat Democrats certified as elected in the upcoming midterms, alleging that the victories should be discarded because they were due to widespread and unsubstantiated voter fraud, including counting the votes of non-citizens
Under Luttig’s scenario, House Speaker Mike Johnson would quarterback the coup, acting in concert with a pliable House Clerk, before the newly elected 120th Congress officially opens on January 3, 2027.
Under federal law, the House Clerk, a nonpartisan position, compiles a list of duly elected members whose credentials show they were regularly elected under state law. Because no official speaker of the new Congress exists before it convenes at noon on January 3, the House Clerk, by tradition, rule, and law, gavels the new Congress into session until it elects a new speaker.
Luttig and others suggest the current House Clerk, Kevin McCumber, appointed in an acting capacity by former House Speaker Kevin McCarthy in 2023, is a loyal congressional staffer that Speaker Johnson swore in as a true clerk on January 3, 2025.
However, if McCumber refuses a directive by Speaker Johnson not to list the “fraudulently elected” Democrats on a roll that determines who participates in organizing the new Congress, the clerk could be legally fired before January 3, 2027, without a floor vote and without cause under House Rule II, clause 1. Under a Title 2 statute, Johnson could then temporarily replace him with any loyalist who would agree with Johnson’s scheme. Such a maneuver would effectively lock newly elected Democrats out of the initial vote to organize the next 120th Congress. Republicans would thus maintain control of the House majority Trump is desperately campaigning. The scheme would also engineer a vote in the newly organized House to deny seats to the certified Democratic winners.
Luttig suggests that any appeals made on behalf of Democrats denied seats would trigger weeks or even months of legal fights as they worked their way up to the Supreme Court, where three Trump appointees help cement the current 6-to-3 conservative majority. The resulting legal fights, Luttig says, could trigger a paralyzing constitutional crisis that would leave the federal government “helplessly vulnerable to the world’s evil” as badly as it would have been in January 2021 had Mike Pence not thwarted Trump’s plan to overturn the 2020 presidential election.
Ultimately, the Supreme Court would confront a fundamental question: Is the United States truly a democracy in which the people elect their representatives?
Luttig thinks Democrats would ultimately win on the legal merits, and there’s precedent for his views. In 1969, the High Court ruled that the House unlawfully excluded Rep. Adam Clayton Powell, an elected New York Democrat. The House Clerk was a defendant in that case, too. But Luttig harbors no illusions about speed or resolve of the current Supreme Court. Appeals would take weeks or months, leaving the government in disarray. And the Powell case addressed a member’s qualifications, not claims of election fraud, an opening a cautious Court could use to declare the dispute a political question and walk away. Luttig says he doesn’t trust the court to act in time.
Luttig unveiled his theory in the New Republic magazine but repeated it in other media interviews and on the website of the Kettering Foundation, a non-partisan organization that focuses on strengthening democratic practices and analyzing threats to democratic institutions. Luttig is a senior fellow there.
Could this actually happen? Luttig has urged congressional Republicans to reject any unconstitutional maneuvers by Trump or Speaker Johnson, who maintains strong ties to the White House. Still, several legal and constitutional experts say Luttig’s scenario, although speculative and based on unsubstantiated theories, is worth the nation’s attention.
Lawfare, a non-partisan online publication known for expert, smart legal analysis, concluded that panic about a rogue clerk is likely unwarranted but worth watching. Derek Muller, a Notre Dame law professor, was more skeptical. He argued on the Election Law Blog that nothing the outgoing House does can bind the incoming chamber. But Michael Dorf, a constitutional law scholar at Cornell University, partially agrees with Luttig but worries more about Red States refusing to certify Democratic winners.
Luttig acknowledges that no Republican has said they would violate their oath of office and vote to deny Democrats their seats. But none of them have said they would not agree to the coup scheme, either. Luttig has said that President Trump has been planning for such a coup since he returned to office. And Speaker Johnson told a MAGA audience recently that the Democrats would never be allowed to resume the majority.
President Trump lends credence to the idea with his obsession over voter fraud and voting by non-citizens despite overwhelming evidence to the contrary. He and his party have moved swiftly to gerrymander state voting maps to favor Republican candidates, although Democrats have done the same. He had used the power of his office to advance conspiracies about cheating in elections, and Republicans have consolidated the party’s control over many state and local election operations.
In March 2025 and 2026, Trump issued two executive orders that could feed the scenario Luttig fears, both of which sowed doubt in America’s voting processes. The March 2025 order directed the Election Assistance Commission to require proof of citizenship on federal registration forms and ordered the Postmaster General to begin mail-in ballot rulemaking within 60 days. It also set deadlines for receiving mail-in ballots, a favorite Trump target; and demanded recertification of voting machines.
In the March 2026 order, the president directed federal agencies, including the Department of Homeland Security, to work with Social Security officials to compile a list of confirmed citizens for each state. Trump also directed his Attorney General to prioritize prosecuting election officials who issue ballots to ineligible people. The order adds that appearing on the lists doesn’t mean a person is properly registered.
All these moves are widely viewed by Trump critics as attempts to suppress voters unlikely to support the president or his party. Federal judges have blocked key parts of both orders for this election. But adverse court rulings and historical evidence that he is wrong about the prevalence of voting fraud haven’t stopped him yet.
As recently as last week, his administration filed a federal lawsuit against California election officials asking a judge to block the state, led by Gavin Newsom, a potential future Democratic presidential candidate, from counting mail-in ballots for about 20,000 registered voters identified as “likely” non-citizens. Trump’s Department of Justice filed suit after it said California officials missed a 48-hour deadline the administration had set to review a thumb drive containing the 20,000 names.
On his Truth Social website, the president said California officials who counted suspected non-citizen ballots would go to jail for a long time, and his DOJ lawyers asked the courts to block counting until the voters’ citizenship can be confirmed. The California officials dismissed the claims as baseless and politically motivated.
As America gears up for Election Day, Trump is desperately campaigning for Republicans, asking his staunch Make America Great Again allies to pretend he’s running. He warned that the stakes were high. If Republicans lose, he said, the Democrats will impeach him. But Luttig says the stakes are even higher for the nation’s democracy. He urged Americans to vote and watch closely to what happens between Election Day and January 3, 2027, when the new Congress is scheduled to convene, and we will see whether Luttig’s speculation becomes the Clerk’s Coup.
James O’Shea