No, Rule 26 Will Not Prevent Speaker Trump

Debunking the myths and exploring the background of Trump as Speaker of the House

The idea that Trump could be Speaker of the House is surprising to many, because we tend to assume that the Speaker of the House must be, you know, of the House. A member of the House of Representatives. But there’s no such law or rule in place, it’s simply a tradition. A tradition that has never been broken.

The idea of Trump as Speaker was first floated less than four weeks after Biden was inaugurated, when Steve Bannon proposed the idea [or see archived] in a speech to Boston Republicans. Two notable things about this speech were that Bannon missed the idea that Trump didn’t need to be elected, and that Bannon was proposing this as a path for Trump to become President again, from the line of succession (by way of impeachment).

The idea next popped up again in June on a radio show in which Wayne Allyn Root interviewed the whiny loser ex-President, and floated the idea to Trump. Again, he thought Trump would have to run for Congress in 2022, And again Root saw this as a path for Trump to become President:

“You’ll wipe him out for his last two years, and then you’ll be president.

He did initially say “via impeachment” prior to the “wipe him out” comment. At any rate Trump responded that this was a very interesting idea.

This all made a little bit of news. Salon covered it. And then, interestingly, Roger Stone mocked this plan, calling it a “harebrained idea”. [sadly this was from a YouTube video that has since been removed, the Salon article still has the old link] One of Stone’s complaints was that if Trump ran and won, but Republicans didn’t win the House, Trump would be stuck in the House at the mercy of Democrats.

In November 2021, Mark Meadows, while on Matt Gaetz’ podcast suggested that Trump should be Speaker, because McCarthy wasn’t fit for the job. CNN covered this, that day, and the next Chris Cillizza at CNN wrote more about the history of the idea. Meadows seemed to recognize that Trump could simply be nominated and voted in without running for Congress.

In December in a press conference Matt Gaetz (with Marjorie Taylor Green at his side) states that he’d support Trump as Speaker, and that he’s talked to him about it. With a shit-eating grin, Gaetz refused to disclose any more details. Chris Cillizza, covering this the next day for CNN, more or less writes that the entire thing is a feint, leverage move McCarthy. Just internal GOP politics and nothing more.

In February of 2022, there was some interesting interplay between Trump and Vernon Jones, in which over the span of a week, Trump convinced Jones to run for the House, instead of for Governor, and at the end of that week, having switch campaigns, Jones tweets about the idea of Trump as Speaker. Again, Cillizza covers it.

In March, Roger Stone gives a speech (while his hands do bizarre bird imitations, as usual) has an epiphany, and outlines a plan for installing Trump as Speaker, removing Biden (this time by way of declaring him incompetent), and restoring Trump as President. He proclaims this idea “the Stone Plan”.

Later in March, Gaetz, who has been in this story more than anyone else, introduces Trump at a rally, again planting the idea of Speaker, and gets a bro hug from Trump for his introduction. Another Cillizza story also notes that Gaetz won’t let this idea die.

Yet, the idea did die. Sort of. There’s not much more talk about it. The election happened. Republicans took control of the House, and they installed McCarthy as Speaker.

But there was quite a battle there. One of the most contentious in U.S. history, requiring 15 rounds of voting before he was approved. One of the final concessions that got him elected was that group blocking his nomination insisted on modifying House rules, loosening the requirements for a call to remove the Speaker, so that anyone in the House could bring such a motion. The group that pulled this off consisted of some of the most far-right radicals, most of whom wereTrump loyalists and election deniers.

This McCarthy nomination drama played out in January of of this year. McCarthy lasted until October, when Gaetz brought the motion to vacate the Speaker. After having been silent for months, we almost immediately began hearing rumblings about Speaker Trump.

Those rumblings turned into a non-stop drumbeat. And a lot of the noise has hinged on the “fact” that Trump can’t be eligible, because of Rule 26 of the House Rules. Except it’s actually Rule

It turns out Gaetz had a partner in this effort to remove McCarthy: Steve Bannon, who had been working with Gaetz on this for weeks. [NYTimes gift link] Meanwhile, MTG says that Trump is the only candidate for Speaker she’s supporting. And Trump himself is considering a trip to Congress, and is open to the idea of pitching himself as a candidate.

But Rule 26!!!

It’s easy to look at this history, and see this as being the plan, or at least a contingency, all along. Bannon’s “Stone Plan” (LOL) has been repeatedly welcomed by Trump. Repeatedly pumped by Gaetz, and the opportunity to actually enact that plan now has been put in motion by… Bannon and Gaetz.

But of course the Internet is happy to yell at you repeatedly if you dare mention Speaker Trump, that Rule 26 means Trump can’t be Speaker. Let’s just sum up all the reasons why everyone has gotten this wrong:

1. Rule 26 doesn’t say this.

2. Rule 26 is not a House rule. It’s a House Republican Conference rule.

3. Rule 26 can be changed whenever Republicans want, with a purely GOP vote, because it’s not a House rule it’s a GOP rule.

4. Rule 26 doesn’t need to be changed, because it doesn’t say Trump can’t be Speaker.

5. The House rules themselves also do not say Trump can’t be Speaker.

6. The GOP Conference rules are not part of the House rules.

7. Yes, the House can conduct business right now with only a Speaker pro tempore.

8. Which doesn’t matter because no rule change is needed in the House.

9. Also the House Republican Conference can definitely change their own rules whenever they want, Speaker or not.

10. Seriously on that last point, even if you think their own rules say they can’t, they still can.

11. Trump would not be a Member of the House, which puts us in uncharted territory that none of the rules (House or party rules) deal with at all.

We’re going to look at the second point first, because it really is the most important. Rule 26 is not part of the House rules. It’s the rules the Republican House Members abides by when they meet together as a group. That’s it. That’s all it’s about. House Republican Conference functions. The House does not abide by party Conference/Caucus rules.

When the House meets, if anyone nominates Trump, nobody will cite Rule 26 as a reason he can’t be nominated, because it doesn’t apply in the House.

But also, to the first point, the rule doesn’t even say what people think it says.

There is nothing here that says someone indicted can not be Speaker. It says only that they should step aside from leadership roles. This means elected party leadership roles. Not (exactly) House roles. In fairness their rules do state that the leader of the Republican Conference is in fact the Speaker. But so what? Insofar as these rules apply, they mean that if the Speaker were indicted, he or she would have to step aside as leader of the Conference. If you think Republicans would enforce anything more on their own party, to the detriment of their party political power, then I’m telling you that you’re smoking your socks.

As a further point it never says they can’t be elected. Only that they’d need to step aside if they’re already serving. Sure it’s a nitpick. But again, party rules, not House rules. If they wouldn’t make a Speaker step aside, they definitely wouldn’t block a popular Speaker from being elected. Who do you think they are, Democrats?

On point 3, again, this is party rules. So the party can change them… whenever. They don’t need Democrat votes. They don’t need any House rules to support their own party rule changes. But if someone insists on pointing out that their own rules on changing rules require a Speaker:

Then I will point out that “Speaker” here really means “Leader of the Republican Conference”. I assume that’s Patrick McHenry (who is Speaker pro tempore right now) can fill this function (this is point 9). But it doesn’t matter, again, because as party rules, these really aren’t real legal government rules. They’re toy rules. They’re like the Worshipers of the Elk Lodge rules (this is point 10).

And again, on point 4, see point 1. They don’t even have to change their own rules. They can, and maybe they’ll make a show of that, but there’s no need.

So on to point 5. After all this, you may be wondering what the actual House rules say? Maybe there’s similar language in the House rules? Why yes there is, but it’s even weaker than the GOP’s rules.

So the House rules are built in two parts. First are the Jeffersonian parliamentary rules that are always in effect. Even when a new House is elected, and there are no rules, these rules are there. The “real” House rules are built on top of the Jefferson rules. So let’s see what the Jefferson rules say about indictments:

Why look at that! They say… absolutely nothing. Do whatever the eff you want! But surely the real voted on House rules of the 118th House of Representatives address this more deeply? Actually, yes they do:

Well that seems to say that he should resign, right? Well, there’s a few problems. it says a Member would need to resign from committee assignments. Trump wouldn’t actually be a Member of Congress, so he wouldn’t hold any of those (as far as I can tell). And he’d have to resign from party leadership positions. These are only formal party leadership positions. This has nothing to do with governance. So Trump would have to resign from things that he wouldn’t be doing. It doesn’t say someone who’s indicted can’t be Speaker.

But also, Trump might not be a Member of Congress! I’m jumping all the way down to point 11, and granted there’s some nuance here. It might even be the sort of thing that would go to the Supreme Court (honestly I doubt it, the Court doesn’t rule on Congressional Rules and they’d probably throw it back and say “it’s your problem”). But does the nominated and voted role of Speaker make you a Member? You weren’t elected into Congress by state voting.

Anyway, that’s a side issue. I don’t see how to interpret this rule to mean that Trump can’t be Speaker. It’d be a stretch. Surely a stretch that someone would complain about, in which case, I guess the House would vote on what should happen, and… you see the problem right?

Point 6, just in case you thought that there’s anything in the House rules that makes the House abide also by party rules… I haven’t found anything. If you find anything let me know.

Now point 7 is a more interesting one. Those people who thought that “rule 26” was a House rule, thought that House Rules would have to be changed to elect Trump. But it isn’t a House rule, so it’s already moot, but I’ll address it anyway. House Rules on the matter of procedure are super complicated, and it’s possible that without a “real” Speaker, you can’t change the rules. My best reading tells me that this is not true. A Speaker pro tempore should serve just fine as a Speaker. (Seriously, from a pragmatic point of view what would be the point of having a Speaker pro tempore? In fact the current method of selecting the Speaker pro tempore — a secret list created by the elected Speaker — was set up quite recently out of fear of what might happen if the House were left Speakerless).

My belief is that this notion sprang from what happens when there’s no Speaker because the House has just been elected. This is actually part of the US Code, not House rules. It’s in Title 2 of the US Code, Chapter 2, Section 25. In a nutshell, it’s about the order of swearing in. The House elects a Speaker, a new member swears in the Speaker, and the Speaker swears in everyone else. The House can’t function without a Speaker in this case because nobody has been sworn in, and for no other reason.

Because this is the only “Speakerless” situation that the nation has ever experienced, I think people jumped to conclusions about doing business without the Speaker because of that law. But everyone here has been sworn in. And a Speaker pro tempore has been properly selected according to House rules.

Yes, the House can conduct business.

Others will debate this, but I’ve laid out my arguments. Plus, honestly, if there was a disagreement about whether or not they could do business, they’d… vote on it, and would all decide to do business.

And point 8 was what I said above, that point 7 is pointless because there is no need to change any House rules. (But they could!)

I think that about covers my thoughts on Rule 26 and related issues. Did I miss anything?

So Where Does That Leave Us?

Well, I said on Twitter that I was 100% sure that many Republicans are actually trying to do this. That was an exaggeration. I’m not 100% sure that the sky is blue. But let’s say I’m highly confident that they’re working to actually do this. That it is not a mere distraction.

For one thing, fascist, authoritarian leadership loves chaos. So would they stage all of this for the chaos? Sure. But think of how much more chaos they can have by going through with it?

And where is the downside? We already know these people are batshit crazy. We can’t think that about them any harder. If there’s all sorts of legal battles (and there will be), it serves their purpose, and keeps Trump’s name in the news in very big letters about the legal battle. And that means a lot less news about his other legal battles. A big win there.

Of course, if he wins, that’s huge for them. And they can try all their tricks they’ve already talked about. Trying to declare Biden incompetent. Trying to impeach him. They could still actually hope to install Trump as President this way. Actually I think there’s no chance of that and I think they know it. Which leads me to the scariest thing about Speaker Trump.

Without hardly saying a word, just by legal battles and expressed frustration over “the injustice of it all” (aka the rule of law working), Trump could incite his minions to real violence of the kind the nation hasn’t seen since JFK. Trump and his supporters could see that as a path to power. Don’t write it off the table. Because I guarantee dark forces out there are already thinking about it.

But can it actually happen? Actually?

It all comes down to getting the votes. There is really no other impediment right now. There is no rule protecting us. I can’t seem to figure out how many open seats they have, but it seems like Republicans could stand to have a maybe as many as eight Republicans vote against, and still install him.

So this is simply a matter of traditional D.C. backroom politics horse trading. Except with a nightmarish possible outcome. And as far as I can tell , the deciding factor is whether or not there’s enough decency left within the GOP to stop it.