When Florida Republican Rep Matt Gaetz was trying to prevent Speaker Kevin McCarthy from assuming the gavel in January, he voted for former President Donald Trump in the seventh round of voting before Mr McCarthy finally managed to get the job he coveted for years on the 15th ballot.
While Mr Trump is technically eligible to replace Mr McCarthy, it’s highly unlikely that he’ll be offered, let alone accept, the post.
On 3 October, Mr Gaetz succeeded in having Mr McCarthy ousted as speaker of the House – bringing to an end a tenure of less than nine months.
The House of Representatives can elect anyone to be speaker, regardless if that person is a member of the chamber or not. While the Constitution doesn’t state that the speaker has to be a member of the House, a non-member has never been elected to the role.
The Constitution only states that legislators “shall choose their Speaker and other Officers”.
Before the January vote chaos, Mr Gaetz said that he would nominate Mr Trump. In March last year, while speaking at a Trump rally, he said that to “give us the ability to fire Nancy Pelosi, take back the majority, impeach Joe Biden and I am going to nominate Donald Trump for speaker”.
While the Constitution doesn’t state that the speaker has to be a member of the chamber, some experts think that the framers were unlikely to have expected the House to even consider a non-member for the job.
David Forte, a law professor at Cleveland State University, told NBC News in 2015 that “it would have been unthinkable for the most populous house not to have its leader be part of the representatives who were elected by the people”.
“Nothing fits that would make the speaker anything other than a member of the House,” apart from the Constitution not explicitly stating that.
He added that the Articles of Confederation stated that members of Congress would have the power “to appoint one of their members to preside”.
But Mr Forte also noted that the courts, including the Supreme Court, are unlikely to get involved in the issue, meaning that it’s technically possible to elect a non-member.
“There’s no way the Court’s going to get involved in that. Such internal aspects of each branch of government are appropriately untouchable by another branch. And that certainly would be one,” he said.
Trump has revelled in the calls for him to become speaker— (Copyright 2023 The Associated Press. All rights reserved)
January’s 15 ballots were the first time it took more than one vote to elect a speaker since 1923, when nine votes took place before the position was filled.
On Monday, Mr Gaetz told the press that he had spoken to Mr Trump about his anti-McCarthy campaign, but didn’t say what Mr Trump’s thoughts on the matter are.
After Mr McCarthy lost Tuesday’s vote ousting him as speaker, some far-right Republicans began touting Mr Trump as a replacement.
MAGA Rep Marjorie Taylor Greene wrote on X: “The only candidate for Speaker I am currently supporting is President Donald J. Trump. He will end the war in Ukraine. He will secure the border.
“He will end the politically weaponized government. He will make America energy independent again. He will pass my bill to stop transgender surgeries on kids and keep men out of women’s sports. He will support our military and police. And so much more!
“He has a proven 4 year record as President of the United States of America. He received a record number of Republican votes of any Republican Presidential candidate! We can make him Speaker and then elect him President! He will MAKE AMERICA GREAT AGAIN!!!”
Amid several names being floated, some GOP members loyal to Mr Trump, including Mr Nehls and Marjorie Taylor Greene, have called for the former president to take up the role himself, something Mr Trump has refused in the past but this week hinted he would “consider”.
Fox News host Sean Hannity said during his broadcast on Tuesday night that “sources are telling me that some Republicans have been in contact with and has started an effort to draft former President Donald Trump to be the next speaker and I have been told that President Trump might be open to helping the Republican party at least in the short term if necessary”.
In reaction to Mr Hannity’s suggestion, Democratic Rep Sean Casten wrote on X: “I would direct your attention to rule 26(a) of the House Republican Conference rules for the 118th Congress.”
Mr Casten added a screenshot of “Rule 26 – Temporary Step Aside of a Member of Leadership who is Indicted”.
“A member of the Republican Leadership shall step aside if indicted for a felony for which a sentence of two or more years imprisonment may be imposed,” it stated.
Mr Casten also noted that “this language substantially mirrors language in House rule XXIII (10)”.
That rule states that “a Member ... who has been convicted by a court of record for the commission of a crime for which a sentence of two or more years’ imprisonment may be imposed should refrain from participation in the business of each committee”.
The rule also says that a member who “has been indicted for or otherwise formally charged with criminal conduct in any Federal, State, or local court punishable as a felony for which a sentence of two or more years’ imprisonment may be imposed ... should step aside from any party caucus or conference leadership position”.
Regardless, Mr Trump has revelled in the calls for him to take the gavel, sharing endorsements and illustrations of himself in the chamber on his Truth Social platform.
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He then told Fox News last Thursday that he would become speaker temporarily to act as a “unifier” to the GOP party.
“I have been asked to speak as a unifier because I have so many friends in Congress,” he said.
“If they don’t get the vote, they have asked me if I would consider taking the Speakership until they get somebody longer-term because I am running for president.
“They have asked me if I would take it for a short period of time for the party until they come to a conclusion – I’m not doing it because I want to – I will do it if necessary, should they not be able to make their decision,” the former president told the outlet.
He also suggested that he could travel to the US Capitol to help in the process – a visit that would mark his first time back there since the January 6 riot.
But hours later, he seemed to walk back the idea – saying that he has giving his full endorsement to MAGA Repubican and House Representative Jim Jordan.
