In the aftermath of a weak of sedition and riots, I am seeing a lot of questions about issues related to the seating (or exclusion) of Senators and Representatives.  I am also seeing questions about what can be done to bring a quicker end to the mistake that was the Trump presidency.

Let’s start with the Georgia elections.  As we learned in November, it takes time to finalize the election results.  In Georgia, there are three key deadlines.  The first is the deadline for receipt of overseas ballots and for the curing of “rejected” absentee ballots and for determining the validity of provisional ballots.  That deadline was the close of business today.     So, at the present time, all  of the counties should know if they have any votes left to count.

The second deadline is next Friday — January 15.  By that date, all of the approximately 160 counties are supposed to have completed their county canvass and certified all votes to the Secretary of State.  This deadline can be extended if the Secretary of State orders a pre-certification audit (as happened in the presidential race).  (It is unclear how the audit will apply to the Senate races.  The state law required one for the November election but is ambiguous as to the run-off election.  The Secretary of State also opted for a complete hand recount of all votes in the presidential race — which technically is not an audit — but the statute only requires an audit of random counties and precincts.  If a proper – in other words,  limited — audit is conducted, the counties that have to do the audit may not need an extension.)

The final deadline is January 22.  That is the deadline for the Secretary of State to certify the result.  Upon certification, the Governor and Secretary of State are supposed to sign a certificate of election.  However, there is no specific deadline for action on completing the certificate of election.  The losing candidate has two business days after the certification (i.e., no later than January 26) to request a recount, but may only request a recount if the margin is less than 0.5% (and, as of today, both Senate races have wider margins).  In addition, after the certification of the results of any recount, the losing candidate has five days to file an election challenge.

As we saw in Minnesota, in 2008-09, an election contest might take some time.  And, the Governor and Secretary of State might decline to issue a certificate of election if there is a pending election contest.  On the other hand, at the present time, it does not look like an election contest is likely.  As such, I would expect that a certificate of election will issue no later than February 1.

The second issue is what might happen in the Senate.  In theory, as we saw happen in the House, the Senate could object to seating members if there is a question about the validity of their election.  However, there is an express procedure by which a losing candidate can ask the House or Senate to review an election.  In most cases, as is currently happening with the Iowa seat decided by less than ten votes, the winner certified by the state is seated, but it is certainly possible for a house to refuse to seat anybody.  Given current circumstances, I do not think that the votes are there to block seating Warnock or Ossoff.  Given that the Senate will be 50-50, an attempt to block the seating would potentially create two competing rump Senates — each with the bare minimum for a quorum.  I can’t see either side really risking that.

But related to the issue of seating Ossoff and Warnock is the issue of removing members who may have played a role in this week’s insurrection.  The Constitution permits a house to expel a member upon a two-thirds vote.  The closest case in this power is Powell vs. McCormack from 1969.  Powell was a U.S. Representative from New York.  In one congress, he was investigated for misconduct, but an election intervened before the investigation could be concluded.  At the start of the next Congress, Congress voted — by a two-thirds majority — to exclude Powell.  The Supreme Court concluded that, because the vote was on a motion to exclude (i.e. not seat) Powell on which only a majority was needed, it was unclear if the vote would have been the same on a motion to expel.  The Supreme Court held that Congress did not have the power to exclude a representative who was legally qualified and had been validly elected.  There is some language in that case that would suggest that exclusion is the proper remedy for violation of Senate and House rules (and federal law).  However, there is a fine line between abusing a statutory right (the right to object to electoral votes but only if they are not regularly given) and criminal conduct, particularly in light of the legally immunity of Senators and Representatives from claims based on their speeches in Congress.  Some of the clearly false comments of Senator Ted Cruz, Senator Ron Johnson, and Senator Josh Hawley are worthy of censure by the Senate.  But a vote to expel may be a step too far.  It might be best to leave it to the voters of those three states to retire Senator Johnson in 2022 and Senators Cruz and Hawley in 2024.

I have also heard questions about recalls.  Every state has different laws on recall.  I know, for example, that Missouri only has a limited power of recall (only allowed for city governments).  Even in a state like Wisconsin which generally permits recalls, there is a significant question of whether a state can recall a federal official.  Unlike state officials who have terms of office established by state law (which can thus be modified by a recall statute), federal officials have terms set by the U.S. Constitution (which does not have a recall provision).  I am unaware of any case directly addressing a recall of a Congressional official.  The closest ruling on the limited roles of state in terms of the eligibility of a person to serve in Congress was a decision on term limits back in the 1990s.  Relying in part on Powell and in part on the Federalist Papers and in part on the text of the Constitution, the Supreme Court found that states lacked the authority to alter the qualifications of members of Congress by imposing term limits.  Some of the language in the term limits case would support a holding that recall elections are not permitted.  And a good part of the Federalist Papers consists of arguments for the length of term chosen and against more frequent elections.

Finally, there is the issue of Trump’s impeachment.  In theory, it is possible to complete this by January 20.  On the other hand, it is highly unlikely that impeachment and a Senate trial could be completed before January 20.

But, while it would be nice if Trump were to resign or be removed under the Twenty-fifth Amendment before he could attempt to do further harm, that’s not the only reason to want Trump impeached.  Among the options available to the Senate upon convicting a public official in an impeachment trial is to disqualify the person from holding federal office in the future.  (That sanction has not always been imposed, and some impeached individuals have later served in Congress or been appointed to a new position.)  Blocking Trump from running in 2024 would be a major service to the country.  But getting a conviction would require the support of Senate Republicans, and it’s not clear that the Senate Republicans are ready to return to normality yet.

Part of the problem is that the case for this second round of impeachment is not as strong as the evidence was for the first impeachment trial.  For the most part, Trump’s action since the election have been very close to the line.  It is one thing for him to allege that he thinks there were problems with the count and to use all legal remedies available to him.  As a lawyer, I think most of his cases were legally frivolous and the courts would have been within their discretion to sanction Trump for those filings.  But abusing the judicial process is not necessarily a ground for impeachment.  Nor is it a ground for impeachment to encourage peaceful protests.  The clearest basis for impeachment to date appears to be the phone call to the Secretary of State in Georgia which can be interpreted as asking for the Secretary of State to simply alter the vote totals.  Trump may still face criminal charges in Georgia over that call, but even then Trump, like many corrupt officials and businessmen, manages to be just vague enough that it requires the jury to read between the lines as to what he is wanting done.  Back in February, the Republicans were unwilling to follow the evidence and the law even though the case for impeachment was rock solid.  Here the case is more debatable, but the issue is whether enough Republicans now want to atone for their earlier sins by removing Trump.  If there are not twenty Republicans willing to support disqualifying Trump from running in 2024, a second try at an impeachment trial is not worth the effort.

So to sum up everything.  Unless Trump resigns, it is likely that he will be President until January 20.  On that date, President Biden and Vice-President Harris will take office.  Either before that date or shortly afterward, Senators Padilla, Ossoff, and Warnock will be seated and the Senate will reorganize with Senator Chuck Schumer as the new majority leader and Senator Pat Leahy as the new president pro tempore and several new committee chairs.  There will be a reconciliation bill to cover a new round of COVID-related stimulus and restoring the penalty for failure to comply with the mandate to purchase health insurance.  But a lot of potential legislation for the next year will require compromise to keep the more moderate Democrats on board and to get enough Republican votes to invoke cloture.  But, with the possible exception of the Secretary of Defense, most of the new cabinet will be confirmed, and we will get back to having a functional government.