Former CNN chief legal analyst Jeffrey Toobin describes ‘the worst thing’ Trump can do in the midterms: Fire the House clerk and install ‘a MAGA ally’

Jeffrey Toobin, CNN’s former chief legal analyst, outlined a scenario in which President Donald Trump could attempt to alter control of the House of Representatives after the midterms in November by seeking the removal of the House clerk and installing a replacement willing to certify a different list of newly elected members.

Toobin, who has covered elections and the courts for three decades, discussed the possibility with Newsweek‘s director of politics and culture, Carlo Versano, on “The 1600” podcast, drawing on reporting from his The New York Times op-ed “What’s the Worst Thing Trump Can Do in the Midterms?”

Toobin said he began reporting the piece with little knowledge of how the House’s roll of members is compiled — and discovered that many lawmakers knew just as little. He told Versano the process has historically been “ministerial” and “automatic,” handled by an official almost nobody outside Washington could name — but it could become politically significant as the midterms approach.

The clerk scenario

The scenario, which Toobin traced to New York Democratic Rep. Joe Morelle, the ranking member of the House Administration Committee, centers on a narrow procedural function.

Under federal law, the House clerk compiles the roll of newly elected members after states certify their results, typically in late November or early December. The roll provides the basis for seating the new Congress.

The current clerk, Kevin McCumber, became acting clerk in July 2023 after Cheryl Johnson resigned and was formally sworn in as clerk by House Speaker Mike Johnson on January 3, 2025. McCumber began his House career as a page in 1996 and later held several positions in the clerk’s office before becoming deputy clerk in 2021. He is widely viewed as a nonpartisan institutional figure.

Toobin said Democrats fear that if they win a narrow House majority in November and Trump declares the results fraudulent, he could pressure Johnson to remove McCumber and install a replacement who would certify a different roll.

“The worry that Democrats like Joe Morelle — the congressman I spoke to at some length — [is that] Mike Johnson will fire Kevin McCumber and install someone of his choosing, presumably a MAGA ally who will compile a different roll,” Toobin said.

Legal authority and an unresolved question

Toobin said Johnson has the authority to remove the clerk unilaterally, but a permanent replacement would require confirmation by a majority of the outgoing House.

Morelle believes such a vote could fail because some Republicans are retiring or might be unwilling to support the maneuver. That creates an unresolved question over what authority an acting clerk would have.

“That’s where I think the existing law is particularly unclear,” Toobin told Versano. “I don’t have a resolution, but I certainly flag the issue.”

Why courts might not intervene

Toobin said the House, unlike the Senate, ceases to exist under the Constitution unless a new House has been sworn in. That deadline could make a dispute over the clerk particularly volatile because any delay could leave the chamber in limbo.

He also warned that federal courts might decline to intervene under the political question doctrine, which generally limits judicial involvement in certain internal congressional matters.

“There is at least some possibility that if either side went to court to try to resolve this issue of what are the powers of an acting clerk or what are grounds in which a new clerk can be appointed, that the federal courts would say, ‘Look, this is an internal matter for a coordinate branch of government,’” Toobin said.

He distinguished that from disputes over state certification, which courts have addressed more directly, including cases involving officials who refused to certify election results.

“This is not a political question issue,” Toobin said. “This is an issue of compliance with state law.”

Troops near polling places and the mail-ballot fight

Toobin also addressed the possibility of U.S. Immigration and Customs Enforcement agents or National Guard troops being stationed near polling places. He characterized the issue less as a legal question than a psychological tactic that could suppress turnout rather than prevent fraud.

“If you are an American citizen who is married to someone who is not an American citizen, do you want to call attention to yourself by having your ID checked by an ICE official?” Toobin asked. “Voting is protected by the Constitution. So the idea that we should have to run a gauntlet of military or paramilitary to vote is anathema.”

Versano noted that opposition to a heavy law-enforcement or military presence in civic life once crossed party lines.

“This used to be like a Republican thing, not wanting the law enforcement and the military all up in your business,” Versano said.

Toobin agreed, questioning the Trump administration’s rationale in light of the president’s separate push to restrict mail-in voting. That effort includes a directive to the U.S. Postal Service to limit delivery in states that withhold voter data from the federal government, though a federal judge has already blocked it.

“To this day, it’s unclear which party is helped by mail-in voting,” Toobin said. “Going back a decade or two, it was Republicans who all wanted mail-in voting and some people still think Republicans benefit more by mail-in voting. So some of this stuff is not only pernicious, it is just mysterious.”

The scenario only matters in a close election

Toobin stressed that the clerk scenario would matter only if the post-election House majority were extremely narrow — roughly fewer than 10 seats. A decisive wave election in either direction would make the dispute largely irrelevant.

“If the Democrats pick up 20, 30, 40 seats, as has often been the case in midterm wave elections, then I think there is nothing to worry about,” Toobin said.

He also pointed to another potential erosion of political norms: mid-decade congressional redistricting following Texas’ Republican-led remap and California’s Democratic response.

Toobin warned that the practice could normalize redrawing congressional maps every two years.

“Is that a system that anyone, including the Republicans, want?” he asked.

Donald Trump, Roy Cohn and the Senate map

Asked why Trump has never accepted his 2020 election loss, Toobin partly attributed it to the president’s decades-long relationship with the late attorney Roy Cohn, whose defining rule was, “You never admit that you lost.”

Toobin identified Iowa and Texas as the Senate races he is watching most closely heading into November. He also pointed to Ohio and Florida as states where Trump could attempt to intervene.

In Ohio, Toobin cited polling showing Democratic candidate Sherrod Brown ahead of Republican incumbent Jon Husted. Brown represented Ohio in the Senate for 18 years before losing his 2024 reelection bid and is now seeking a comeback against Husted, who was appointed to the seat vacated when J.D. Vance became vice president.

Jeffrey Toobin’s assessment of Mike Johnson

Toobin questioned Johnson’s independence from Trump.

“I think he is a political creature of Donald Trump whose views begin and end with what Trump wants to do,” Toobin said. “I don’t think he’s an institutionalist at all.”

He also acknowledged his own poor forecasting record, citing his prediction that former Vice President Kamala Harris would defeat Trump in the 2024 presidential election as his biggest recent miss.

“I have really tried to get out of the business of predicting sure outcomes — not just because I’m wrong but because it’s just not helpful,” he said.