Jeffrey Toobin, former chief legal analyst for CNN, has covered elections and the courts for three decades, from the O.J. Simpson trial to the Supreme Court. But before he began reporting his latest essay for The New York Times, he says, he knew almost nothing about how the roll of the House of Representatives actually gets compiled.

"I am pleased to say that before I started reporting this piece, I knew nothing about this," Toobin told Politics and Culture Director Carlo Versano in an interview on Newsweek's The 1600 podcast.

Neither, he found, did most members of Congress. The process, Toobin said, has historically been "ministerial" and "automatic," carried out by an official almost nobody outside Washington could name. That is starting to change.

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The Clerk Scenario

Toobin's Times op-ed called What's the Worst Thing Trump Can Do in the Midterms? traces a disaster scenario relayed to him by New York Democratic Representative Joe Morelle, ranking member of the House Administration Committee. Under federal law, the clerk of the House compiles the roll of newly elected members after states certify their results, typically in late November or early December. That roll is what gets used to seat the new Congress on January 3.

The current clerk, Kevin McCumber, was appointed in 2023 by then-Speaker Kevin McCarthy but previously worked under Speaker Nancy Pelosi and is widely seen as nonpartisan. The fear, Toobin said, is that if Democrats win a narrow House majority in November and President Donald Trump declares the results fraudulent, he could press House Speaker Mike Johnson to fire McCumber and install a replacement willing to produce a different roll.

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

Johnson has the legal authority to remove the clerk unilaterally, Toobin said, though a permanent replacement would need to be confirmed by a majority vote of the outgoing House. Morelle believes that vote might fail, given the number of retiring or reluctant Republicans. But that leaves an unresolved question: What powers does an acting clerk have in the meantime?

"That's where I think the existing law is particularly unclear," Toobin said. "I don't have a resolution, but I certainly flag the issue."

Why the Courts Might Stay Out of It

Unlike the Senate, which never fully adjourns, the House ceases to exist under the Constitution at noon January 3 unless a new one is sworn in. That hard deadline is what makes the clerk fight dangerous, Toobin said, because any delay could leave the chamber in limbo.

Toobin cautioned that the courts may not ride to the rescue. Federal judges have long applied what is known as the political question doctrine, treating the internal workings of Congress as off-limits to judicial review.

"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 drew a sharper distinction for state-level certification fights, which he said courts have handled more decisively, sometimes removing officials who refuse to certify results. "This is not a political question issue," Toobin said. "This is an issue of compliance with state law."

Troops at the Polls, and a Mystery Over Mail Ballots

Toobin also weighed in on tactics that are already public, starting with the prospect of U.S. Immigration and Customs Enforcement agents or National Guard troops stationed near polling places. He framed it less as a legal question than a psychological one, aimed at discouraging turnout rather than stopping 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 said. "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."

Toobin connected it to a broader discomfort with government overreach that used to cut across 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, adding that even the administration's stated rationale, rooting out fraud, does not hold up cleanly when applied to Trump's other obsession: mail-in voting.

Trump has fought to limit mail balloting, including a directive to the U.S. Postal Service to restrict delivery in states that withhold voter data from the federal government, a move a federal judge has already blocked. But Toobin pointed out that the partisan benefit of mail voting is not even settled.

"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 Cure Is a Landslide

Toobin said the entire scenario only becomes plausible if the House majority is razor thin, under roughly 10 seats. A wave election in either direction would render the fight moot.

"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 a related, less discussed erosion of political norms: mid-decade redistricting, set off by Texas' Republican-led remap and California's Democratic response. Toobin called it a norm as significant as the certification fights, warning that Congress could be redrawn every two years going forward. "Is that a system that anyone, including the Republicans, want?" he asked.

When asked why Trump refuses to accept his 2020 loss, Toobin traced it partly to Trump's relationship with the late lawyer Roy Cohn, whose rule, he said, was "you never admit that you lost."

Toobin flagged Iowa and Texas as the Senate races he is watching most closely, and named Ohio, where polling shows Democratic Senator Sherrod Brown ahead by as much as 8 points, and Florida as states where Trump could still intervene.

He was also blunt about Johnson. "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."

And he was self-deprecating about his own record, admitting his worst recent call was expecting former Vice President Kamala Harris to win in 2024. "I have really tried to get out of the business of predicting sure outcomes," Toobin said, "not just because I'm wrong, but because it's just not helpful."

Watch the full conversation between Toobin with Versano in the video player above or on YouTube.

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Contact Newsweek editors on this story: Edward T. Cummins.