A Review of the Precedents for "Impeachment" Ex Post Facto

 The sycophant media have rushed to report that Speaker Nancy Pelosi has at last sent her single, desultory  "Article of Impeachment" to the Senate for a trial.

Sic transit gloria mundi -- or, more specifically, "how low can the sun sink after already having sunk on the American republic?"

The deluded and foolhardy majority in the House of Representatives, in other words, wants to exercise its Constitutional power of impeachment (to call for the removal of a federal official from office) after the fact --- against a private citizen who no longer holds any federal office. 

Is there any precedent at all for this sort of thing? Let us travel back in time to see . . .

Set the time machine dial back 1,124 years, shall we, to January 897? Look what happened then to the hapless former Pope Formosus, in the notorious "Cadaver Synod":

. . . Nine months after Formosus died, his body was exhumed and made to sit on a throne so that he could face the charges levied against him by the then Pope Stephen VI. Dressed in all the fineries of papal vestments, Formosus faced accusations of perjury, coveting the papacy as a layman, and violating church canons while he was pope. Defended by a mere deacon and obviously incapable of defending himself, the dead Pope was found guilty on all counts.

             . . . 

Formosus was found guilty. He was literally stripped of his robes and deprived his title as pope. Then they cut off the three fingers he used to bless people and reburied the naked corpse in a commoner’s grave. 

And just how did the public take to his treatment at the hands of Pope Stephen VI? Read on:

This was all too much for the people, already sick of the intrigues of the Church. They demanded Stephen VI be removed and a proper pope be instated. Stephen VI was thrown in jail and later strangled in August 897.

That was then -- and so we move forward in time, to the infamous "Lollard" precedent, of John Wycliffe:

John Wycliffe was the most famous priest of his day. His learning was immense. He had been a leading scholar at Oxford and a chaplain to the King of England. More to the point, he spoke out boldly against the errors of the popes, the organizational hierarchy of the Roman Church, and the corruption of the clergy in his day. . . .

If the people in England were to know the truth, Wycliffe reasoned that they must have the Word of God in their own language. Under his direction, the Bible was translated into English for the first time, although the job was not completed by his associates until 1395, eleven years after his death. . . .

John Wycliffe died of his stroke on the last day of the year [1384]. The religious authorities had never excommunicated him because they feared public opinion--the people loved John and his fame was international. So he was buried in consecrated soil. But about thirty years later, the Council of Constance revenged itself on his criticism by condemning his teachings and ordering his bones to be dug up and burned. 

But the burning of such a man's bones could not end his influence. As John Foxe said in his book of martyrs, "though they dug up his body, burnt his bones, and drowned his ashes, yet the Word of God and the truth of his doctrine, with the fruit and success thereof, they could not burn; which yet to this day...doth remain."

So, once again, we do not have a favorable precedent. Fast forward to the case of Oliver Cromwell, in 1661:

Following [King Charles I]'s execution in 1649, the Commonwealth of England was introduced to replace the monarchy, and [Oliver] Cromwell became Lord Protector, a role in which he remained until his death five years later. Cromwell was succeeded by his son as Lord Protector, but he did not last long, and was overthrown by the army a year later. 

The monarchy was restored [in 1660] and Charles II became the new king. Immediately after gaining power, King Charles II ordered the arrest and trial of all who played part in the overthrowing of the monarchy. Of the 59 who signed the death warrant, several were hanged while others were imprisoned for life. Even those who had died were not spared. Several had their body exhumed and reburied in communal burial pits, but Oliver Cromwell and three others—John Bradshaw, the judge who was president of the court, Henry Ireton, a general in the Parliamentary army and Cromwell's son-in-law, and Robert Blake, a military commander—were awarded death sentences.

Cromwell's body was to have a special fate, illustrated in part below: 

On the [twelfth] anniversary of King Charles I’s death, Cromwell's body was exhumed from Westminster Abbey, and his disinterred body was hanged in chains at Tyburn. In the afternoon, the body was taken down and beheaded. Cromwell’s head was then placed on a 20-foot-tall wooden spike and raised above Westminster Hall where it remained for nearly twenty five years. For the next two centuries, the dismembered head rolled through the possession of many until it was given a dignified burial in a secret place at Sidney Sussex College, Cambridge, in 1960.

The posthumous punishment of Oliver Cromwell thus extended for almost three hundred years.  

Surely the House Democrats, and the members of the Senate, ought to have these (and other -- see the case of Gilles van Ledenberg at the previous link) precedents well in mind as they deliberate the solitary ex post facto bill brought against former President Trump. For there was, and is, no single example that your exacting Curmudgeon could exhume (pardon the expression) from the dustheap of history that resulted in a positive public regard for any judges (or executioners) who presumed to proceed in their cases after the fact.

Now, granted -- Donald John Trump is still very much among the living, and nothing the current Congress may do can alter that, despite the extraordinary powers to which it may try to lay claim. But its very attempt to assert such powers ex post facto brings discredit upon those who are so basely motivated. 

Ours is a government of laws, not men, despite how glum the present may appear to some. There is not one on the scene thus far, thank God, who proposes to rewrite, or replace, the Constitution. Its prohibition against ex post facto laws and bills of attainder, both as to Congress and the several States, remains intact.

That said, nothing ever stopped politicians from making fools of themselves in public: just witness the examples I have adduced above. 

May history record their folly in full. And may the rest of us resist to the fullest their contempt for the very words of our Constitution. 

Sense and Nonsense about Impeachment [UPDATED]

The Internet is all a-burbling with talk of impeachment. Much of what I have read is ill-informed, or indeed uninformed, nonsense. Your Curmudgeon approaches the subject as one trained in constitutional law, who learned the subject from the likes of Paul A. Freund and Archibald Cox. That was more than fifty years ago, and since then my passion for the subject has but grown, with each successive year. In this post, I will try my best to sort out sense from nonsense.

As any good legal scholar knows, questions about the Constitution always start with its text. Let me quote the last clause of Article I, Section 4 of that foundational document:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Notice the conjunction of the two operative phrases: "removal from Office, and disqualification . . .". The word "or" is absent, meaning the two phrases go together. This is basic English, and basic logic.

That logic does not stop the ill-informed, including many professors of law, from claiming that Congress may still, even after the term of the impeached officeholder has expired, enter a judgment of impeachment that encompasses disqualification without removal from office (because -- duh -- the officeholder is no longer capable of being removed). See, for example, this post, this article, and this article. And this professor even claims that the whole deed could be accomplished in a single day. 

Never mind that it never has been done that way, and never mind that there is another provision that forbids the government from depriving anyone of property, including the right to hold an elected office, without due process of law -- which means by a regular trial that includes all of the customary protections such as the right to call witnesses in defense, and to confront the witnesses testifying against you, among other rights. If "due process" is duly observed, there is no way that citation for impeachment, trial and conviction could all take place in just one day. But that realization does not deter the biased pundits from pontificating, or discourage the even more biased media from publicizing the pundits' ill-informed views.

The same pundits manage to pat themselves on the back by celebrating (even if somewhat modestly) how the recently released House report on impeachment quotes and cites them in support of its admittedly partisan conclusion.

And, as a sort of pièce de resistance, one professor cites this law review article as "probably the closest thing we have to an authoritative academic analysis of the issue." Let me save you the effort: I have downloaded the entire 68-page article at that link, and have read it all the way through. Its entire treatment of disqualification as a consequence of "impeachment after the expiration of office" appears just before the end, at pages 63-64. 

It is only as an introduction to that section that the article candidly confesses:

The foregoing has all been directed at the question of whether late impeachment is allowed. It is time to confront a more difficult question for proponents of late impeachment: What is the point?

And only then does the article go on to discuss the subject of disqualification, apart from the removal from office. Yet it still can cite no precedent whatsoever for a judgment of disqualification that came after an officeholder's term had expired of its own accord, i.e., in the absence of a preceding vote to remove that official from office. (And even then, it can cite just two cases -- both sitting federal judges -- in which the Senate voted both for impeachment and disqualification -- see fn. 524, on p. 63.) In other words, the very thing that the elites and their media cohorts are trumpeting should now happen has never before happened in our nation's history -- and certainly not in the case of a former President.

Of course, most of my readers will know that not a single sitting President has ever before been charged in articles passed by the House and convicted (impeached) by the Senate, let alone disqualified from future office. Does the reader begin to grasp why the clamoring mob (including the bandwagon in Congress and their ready-to-testify legal experts) are so out of bounds on this most consequential subject? Has their visceral reaction to Donald Trump indeed driven almost all the published pundits to abandon all logic, and the actual language of our Constitution?

I draw no conclusion, but I certainly have my doubts about the degree to which the rest of us should take such people at face value. And so, I should add, does this lay commenter.

What is more, I consider myself on even firmer ground when I bring up a consideration that, as far as I have been able to discover among all the posts on this touchy subject, has not yet been taken into account. For (lest we forget, due to the dimness of our ancient Anglican history) the Constitution also contains this succinct restriction upon the powers of Congress, in Art. I, Section 9, clause 3:

No Bill of Attainder or ex post facto Law shall be passed.

The same restriction was applied to the individual States in Art. I, Section 10, clause 1, so the Founders must have considered this restriction as essential to our republican form of government. So what exactly is a "Bill of Attainder"?

We have to go back to English law (and Blackstone's Commentaries) to understand the history of this term, and the abominable practice it embodied. Parliament claimed the power to pass a bill that simply sentenced a subject of the Crown to death, with or without any kind of trial or evidentiary proceedings having taken place -- that was the traditional "Bill of Attainder", taken from the fact that the person so condemned was regarded as "attainted" by an extraordinary crime committed against the Crown.

Over time, the abuses of this power became abhorrent to those brought up in the tradition of the Magna Carta, and our Founders were no exception: hence the restrictions upon such Bills in our Constitution.

And over the years since the adoption of our Constitution, the courts have had occasion to apply and interpret its language forbidding such acts by the national or State legislatures. The best and simplest online explication of what our courts have held in this regard may well be this one, which quotes the language of actual cases (I have omitted the footnote references, but you may see them at the link):

“Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.” The phrase “bill of attainder,” as used in this clause and in clause 1 of § 10, applies to bills of pains and penalties as well as to the traditional bills of attainder. 

So while not exactly condemning President Trump to execution (though there have been voices clamoring to that effect), any judgment of disqualification entered by Congress after his term had expired according to law would, I submit, be just such a forbidden Bill of Attainder (or, more technically, a "Bill of Pains and Penalties"). Its object admittedly would not be to remove him from the office he had already left when his term expired by law, but simply to punish him after the fact by depriving him permanently of the right of any qualified American citizen to be elected to an office under the United States. 

It would be directed, as all such Bills are, against a single individual, and would be passed in the absence of proceedings conducted according to the laws applicable to trials in the courts of the United States. The Constitution gives the Senate the sole power to try cases of impeachment, and prescribes no rules for doing so --- other than that the Senators must be "on oath", and that the Chief Justice of the United States must "preside" when a sitting President is being tried. Please note the specific language once more: the Constitution says when "the President of the United States is tried" -- not "the former President," or "ex-President".

I do not present this as a definitive argument, but only as a check on the rush to judgment which appears to be ubiquitous in our national media, as well as among those whom the media selectively choose to quote.

In sum: there is no logic or language in the Constitution that authorizes a former President to be tried for impeachment, let alone convicted and judged, with or without an accompanying sentence of disqualification.

If we indeed are to remain a government of laws, and not descend to rule by the passions of the moment, we have to adhere to the plain text of our entire Constitution. To argue by taking snippets from it out of context, in order to say (in effect) that the end justifies the means, is to unmoor ourselves from the rule of law --- which in the first instance comes from the sense of the Constitution itself.

[UPDATE 01/13/2021: In light of the House's resolution of today, I need to register a strong protest against the misuse of the word "impeachment". The headlines, for example, are all screaming that "Trump is the first President to have been impeached twice". To which I reply: "No, he has not -- he has not even been impeached once." 

To be "impeached", in the legal sense of the term, is to be convicted by the Senate, after a trial, upon articles of impeachment lodged with the Senate by the House of Representatives. The analogy is to an indictment by a grand jury: that grand jury can indict an official, but he is not convicted on the grand jury's charges until there has been a full trial, with a verdict of "guilty as charged." If that official were found "not guilty" of the charges, why would there ever be any note of triumph in claiming that the official had been "indicted"? The outcome is that he was found not guilty of the charges in the indictment, and that is what counts in the end.

So all that the House has accomplished today is not a "second impeachment" of President Trump, but only the bringing of a second charge to the Senate that hypothetically could, but which in reality will not (because Trump has only a week left in office), result in his trial and impeachment --- sc. removal --- from the office of President. Instead, he will be long gone from office before the House can even transmit its charges to a Senate that is actually in session (starting January 19 -- one day before the expiration of President Trump's term).

So -- don't fall victim to the media's manipulation of our language. "Impeachment" means the same as "removal from office after a trial by the Senate upon articles brought and prosecuted by the House, resulting in a judgment of impeachment." The House alone, in short, has no power to "impeach" the President (or any other official) by itself. All it can do is prefer charges against an official, which -- if true as found after a full trial with the whole Senate sitting as a jury -- would justify his or her removal from office, as having committed "Treason, Bribery, or other high Crimes and Misdemeanors" as required by Art. II, Section 4 of the Constitution. 

In sum, President Trump has not been "impeached" twice. In fact, he has not even been impeached once.]

The Democrats' Dilemma

In this post, I want to draw out some logical consequences of the Democrats having prevailed in the face of the multiple challenges to their majority in the Electoral College. I proceed in a series of logical steps:

1. The US Constitution does not address what happens if a President elect, as selected by the Electoral College, resigns or becomes incapacitated before his term of office, under the 20th Amendment, begins at noon on January 20 of the year following a presidential election. In either event, the President elect would not take the oath of office, and so would never become the President. That office would remain vacant until filled by some other procedure — but what law instructs us as to how that is to be done? 

2. Section 3 of the 20th Amendment provides for the replacement of the President-Elect by the Vice President-Elect, but only in the event the President-Elect dies before assuming office: 

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. 

3. That same Section goes on to specify: 

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. 

4. Those provisions, however, would not appear to address the situation where a duly elected President elect, having been chosen before his term was to start, resigns or becomes mentally incapacitated before January 20. In either of those events, it is not a case of the President elect’s having failed to qualify for office before the start of his term, although perhaps such an argument could be made. The better interpretation of the verb “qualify”, however, would be as referring to a temporary inability, as of January 20, to meet the express qualifications for the office of President (e.g., not having attained the age of 35 before January 20, as opposed to not being a native-born citizen, which would be a permanent disqualification) —- some such inability that can, and perhaps soon will be, cured in due time. But in the case of resignation, instead, the elected candidate declines to assume the office, as is his right in a free country; and in the case of becoming mentally unfit, he becomes incapable of performing the office. 

5. Neither does the 25th Amendment address the hypothesis of the resignation or incapacitation of a candidate-elect before actually assuming office. It speaks only to those who already occupy the offices of President or Vice President (i.e., who have taken the prescribed oaths), not to those who have yet to assume those offices and who have yet (or who are unable) to take the oaths. 

6. Finally, 3 USC Section 19 would also appear to fail to address the situation of any candidate-elect resigning or becoming incapacitated before assuming office. It begins as follows: 

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President. 

That statute is on the books by virtue of the authority granted to Congress by Section 3 of the 20th Amendment, quoted above. But by the terms of that Amendment, it applies only to cases where a “president shall not have been chosen” (emphasis added), which would not be the case under the assumptions made here, or it applies to cases where “the President elect shall have failed to qualify” (emphasis added), which just takes us back to the discussion in ¶ 4 above. There does not appear to be any predicate for that provision to kick in where a President elect is incapacitated or otherwise unable to be sworn in. 

7. The only language that could arguably be read to apply to the situation of a President elect’s resignation or permanent incapacity between the confirmation of his election and January 20 would appear to be the following original language in Article II, Section 1, clause 7 of the Constitution, which dates back to 1789: 

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President . . . 

Let us see how such a scenario would work out. Assume the following: 

8. As happened on December 14, the electors met in the various state capitals, and a majority (more than 270) cast their votes to elect Joe Biden as President, and Kamala Harris as Vice President. And on January 6, Congress confirmed those results, making Joe Biden the official “President elect”. 

9. Between January 6 and January 20, 2021, however, Joe Biden either voluntarily resigns as President elect, or becomes permanently incapacitated (i.e., has a totally disabling stroke, or goes into a coma from an accident, or becomes senile, or unable to speak, or suffers some similar serious disability). What happens then? Who is inaugurated as President on January 20, 2021? 

a. Does Kamala Harris automatically become President? By which constitutional provision, or federal statute? See above — there is no amended constitutional provision or statute that covers that precise situation. 

b. Nevertheless, let us assume that Kamala Harris steps up and demands that she be inaugurated as President on January 20, 2021, since (as she argues) the Vice President replaces the President in cases covered by Art. II, Section 1, Clause 7 of the Constitution, which remains in effect except only to the extent it was amended by the 25th Amendment quoted earlier. She argues — cogently, I would contend, that the “Resignation, or Inability to discharge the Powers and Duties of the . . . Office,” of either the President or of the President elect amounts to the same thing, because there is no one otherwise authorized to act in such a case except for the Vice President, who will have by then assumed office without challenge or disability. (There is no ability to provide for the appointment of a replacement VP elect, since any actual Vice President has to await appointment as specified in Am. 25, Section 2 -- see below.) She also would cite to Section 1 of the 25th Amendment, which is roughly to the same effect. (“In case of the removal of the President from office or of his death or resignation, the Vice President shall become President” -- but see the even more comprehensive provision in Art. II, Section 1, clause 7 of the original Constitution, quoted above.) 

10. So what are the consequences of Vice President elect Harris becoming President as of January 20, 2021 — or at any later time before the next presidential election? 

a. The first consequence is that she no longer will preside over the Senate. 

b. A second consequence will be that there will be no such presiding officer (apart from an agreed president pro tempore, chosen by seniority among the existing Senators) until a replacement Vice President is nominated by (now) President Harris and approved by a majority of both Houses of Congress (Am. 25, Section 2): 

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. 

c. But if Harris assumes the office of President as of January 20, 2021 or later, who will control the voting in the Senate, without her authority under the Constitution to break tie votes? Consider: If the Republicans, as now appears likely, lose both of the Georgia Senate elections, then the Democrats will have a 50-50 balance in the Senate, and (in a Biden administration) they could count on Vice President Harris to act as tie-breaker in the event of any stalemate or tie. 

d. But if (in the scenario assumed above) VP Harris becomes President Harris on January 20 (or later), then she will no longer be able as of that date to resolve 50-50 ties in the Senate; nor will the Democrats in the Senate be able to resolve such disputes, since they will have to await the appointment of a new VP to decide tie votes. The Senate would likely agree upon a presiding officer pro tempore, but that person could not resolve any 50-50 ties, because he or she will necessarily be one of the 50 votes on whichever side is his or her party. 

e. The Senate could thus be deadlocked indefinitely over the approval of a person appointed by Harris as her Vice President, so long as none of the 50 Republicans (e.g., Collins, Murkowski or Romney) defects, and so long as all 50 Democrats adhere to their party’s line. 

11. Now you can begin to appreciate the pressure the Democrats will be under to keep Biden functioning as President for as long as he is physically up to the job (and perhaps even if he becomes incapacitated: remember how Edith Wilson kept the truth about her stricken husband from the public for seventeen months, until his second term ended in March 1921). 

12. But the Democrats will still be in a “Catch-22”: they cannot arrange for Kamala Harris to assume the presidency without losing, possibly until the end of Biden’s term, the ability to designate a Vice President who will be able to resolve any tie votes in the Senate.

The Coming Donnybrook of January 6 (Part III)

 The news keeps changing as the tallying of Electoral College votes in the Capitol on January 6 approaches. It is difficult at this point to project with any confidence how matters will turn out.

As explained in Part I and Part II of this series, the presidential election of 2020 boils down to what happens when the two Houses of Congress meet in an unusual (albeit quadrennial) prescribed joint session on this Wednesday, January 6. The first question that arises is: what law applies to that joint session?

The first answer is that it is the Twelfth Amendment to the Constitution, adopted in 1804, that requires the two Houses so to meet. The joint session is the necessary vehicle by which the outcome of the previous year's presidential election is officially determined and announced to the world.

But the next thing it is necessary to note is that the Twelfth Amendment is silent as to a number of matters that could arise (and have indeed arisen) with regard to the tally of electoral votes in the presence of the two Houses of Congress.

For example, what happens in the event that there are two competing slates of electors from a given State? Who decides which slate's votes are entitled to be included in the final tally?

And that is just the situation we have in January 2021: dual slates of electors have sent in their votes to the seat of the government from (at least) the States of Arizona, Georgia, Nevada, Pennsylvania, and Wisconsin. When the separate votes of those dual slates are opened by Vice President Pence and handed over for tallying, how will the two tellers from each House know how to proceed?

In the past, Congress drafted (and President Harrison signed into law) the Electoral Count Act of 1887, which purported (in the wake of the Tilden-Hayes electoral debacle of 1876-77) to specify how future joint sessions of Congress would resolve disputed and duplicate votes from a given State. But the reality is that the Electoral Count Act has never been deemed fully applicable to any election dispute from 1888 to the present. 

Moreover, many constitutional scholars have doubted whether Congress possessed the authority to enact it under the Constitution -- because it purports to bind future Houses of Congress separately as to how they must deal with future Electoral College votes, regardless of the Twelfth Amendment.  The principle is simple: by what law (or Constitutional provision) may one Congress irrevocably bind a future Congress to act (or not to act)? 

Under our federal system, it is only a provision in our Constitution that can so bind any current and future Congress. And the Electoral Count Act was not adopted as an amendment to our Constitution: therefore, it cannot be binding upon any Congress that does not voluntarily choose to adopt its provisions.

So it is instructive to learn that the 117th Congress, which was sworn in on January 3, has chosen to adopt, in the matter of counting the votes of the Electoral College, not the ECA holus bolus, but instead a joint resolution much reduced in scope:

Resolved by the Senate (the House of Representatives concurring), That the two Houses of Congress shall meet in the Hall of the House of Representatives on Wednesday, the 6th day of January 2021, at 1 o'clock post meridian, pursuant to the requirements of the Constitution and laws relating to the election of President and Vice President of the United States, and the President of the Senate shall be their Presiding Officer; that two tellers shall be previously appointed by the President of the Senate on the part of the Senate and two by the Speaker on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter ``A''; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from said certificates; and the votes having been ascertained and counted in the manner and according to the rules by law provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and together with a list of the votes, be entered on the Journals of the two Houses.

This resolution is more noteworthy for what it doesn't say than for what it says. Its opening provisions track exactly the first three sentences of the ECA, as codified in 3 USC § 15 -- but the resolution leaves off entirely the remainder of Section 15, which admittedly is a notorious conundrum (I quote it here just for the sake of completeness; don't expect to understand what it says):

Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

Did you follow that? At the very least, you can see that the joint resolution adopted by the 117th Congress did not include the requirement of the statute that objections to any given slate of electors be made in writing, nor did it include the time limitations on debate over any given objection. And if you understood the remainder of the statute, you qualify for an advanced degree in statutory construction. But if you didn't, join the innumerable ranks of legal scholars who have disagreed over the meaning and application of these provisions. Take, for example, this convoluted language:

. . . and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. 

 The phrase "if there shall have been no such determination of the question in the State aforesaid" refers to the language of 3 USC §§ 5 and 6, as quoted in my previous post. And as I demonstrated there, no such "final determination" will have occurred in any disputed swing State by January 6 -- so that there could not have been submitted to the national Archives the required "certificate of final ascertainment" as called for by 3 USC § 6, in order for a slate of electors to be regarded as having been duly "certified by the [State's] executive" for purposes of the ECA.

Even under the (non-binding) provisions of the ECA, therefore, there is no means by which the two Houses of Congress may separately decide which of the competing electoral returns from any given State is to be counted in the final tally, unless they both agree that a given slate's votes from that State should be counted in preference to any votes from any other slate from that State. And to emphasize my conclusion: the ECA provides no rule of resolution when there are competing electoral slates from a State, none of which has been duly certified by the State's executive because there has not yet been any "final ascertainment" of any such slate as of the date that the two Houses of Congress meet on January 6 in Washington.

Thus even if the 117th Congress had elected to follow all the provisions of the ECA, there would be no mechanism in place beforehand by which its two Houses may resolve the issue of which of two competing slates of (uncertified) electors should be counted -- unless and only if both Houses agree upon the same slate of electors from a given State.

And will that happen? The question may be simple in the House of Representatives, which has no equivalent to the Senate's filibuster. Its representatives, by a simple majority vote (with the Democrats in the majority for now), may determine that it will count the votes of the Democrat electors from a swing State, and not those of the Republican electors. 

But the Senate is a different matter, because it still is governed by the filibuster rule, which requires the vote of 60 Senators to cut off debate on any given question.  Thus if enough Senators (41 or more) decline to approve any given slate of electors from a swing State, there will not be two concurring votes for that slate in the two Houses of Congress.

There has been some reporting that the debate following objections to a given slate shall last in each House for a maximum of two hours -- but that assertion relies upon the language (see above) in 3 USC § 15 that was expressly not incorporated into the joint resolution which the 117th Congress passed, as also quoted above. Thus there will be no time limit on the debate about any particular electoral slate unless the particular House approves such a time limit, which approval would require (again) sixty votes in the Senate to cut off debate.

The same reporting has declared, without any authority, that in a case of an impasse between the two Houses over two competing slates, the slate which has been "certified" by that State's governor must take precedence. But again, that position relies upon the following language of the ECA (3 USC § 15), which (I repeat) has not been adopted by joint resolution of the 117th Congress:

. . . But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.

Moreover, as analyzed above, this provision of the ECA, even if the current Congress had adopted it,  could not possibly resolve the dispute between competing slates when the authenticity of neither slate has been "finally ascertained" under the procedures of that State by the time (January 6) that both Houses of Congress meet to count the electoral votes from each State. 

Accordingly, we are left with this essential question: how will the joint session of both Houses of Congress decide which of the votes from the two competing slates of electors shall be counted in the final tally on January 6? The first State to present that question (in the required alphabetical order) will be Arizona, which will come up quite early in the count. And according to news reports, we may expect Republicans in both the House and Senate to object to the counting of the slate of Democratic electors from Arizona, on the ground that they were not "regularly chosen", but were chosen by fraudulent manipulation of the ballot results.

If the respective Houses then withdraw to consider the objections to each slate separately, we may expect (if there are enough Democrats physically present to vote) that the House of Representatives will vote to reject the slate of Republican electors, and to accept the votes of the Democrat slate. But what about the Senate, which is ostensibly controlled by Republicans?

As I noted, individual Republican Senators could draw out the decision upon any slate by maintaining the floor with a filibuster, which would require sixty votes to terminate. The Senate will lack a full complement on January 6: the results of the election in Georgia will not yet be final, but Kelly Loeffler of Georgia will be entitled to take her seat as the current incumbent, pending the final results of the election.

The Republicans in the Senate will therefore be down by one member, to 51. The Democrats will have 48 seats, because Kamala Harris will not have to vacate her seat until she assumes the Vice Presidency on January 20 (if she and Biden are confirmed as winners of the votes of the Electoral College by then). It will therefore take 40 of the 51 Republican Senators -- providing more than 40% of the total of 99 votes -- to uphold any filibuster against the approval of any of the Democrat slates from swing States.

But if the Republicans can pull off a filibuster of the electoral count for any one State, the Senate could nevertheless agree to take up in joint session the next State in alphabetical order, and so proceed through the votes of the entire Electoral College.  Let us assume that by the time the entire canvass of agreed electoral votes is complete between the two Houses of Congress, there remain uncounted the votes of the five swing States mentioned above (Arizona, Georgia, Nevada, Pennsylvania, and Wisconsin), plus Michigan, another contested State. 

Those six States have a total of 79 electoral votes among them. Their failure to have countable votes (under the scenario assumed) would mean that the total number of electors recognized by Congress as duly appointed and voting would be (538 - 79 =) 459, so the required majority to be elected would be 230. But if Biden lost the votes from those States, his current total of 306 would be reduced by 79, to 227 --- three votes short of the required majority. We would then have a Twelfth Amendment situation, in which no candidate for President (or Vice President) received the requisite majority of electoral votes.

That amendment provides that in such a situation, the election of the President proceed "immediately" to the House of Representatives, and the election of the Vice President be decided by the Senate: 

. . . if no person have such majority [of the Electoral College], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. . . .

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.      

 The vote in the House, however, is specified in the Twelfth Amendment to be taken by counting each State's delegation in the House as a unit:

But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

Since the composition of the House of Representatives as of January 3, 2021 has twenty-six (or possibly twenty-seven) State delegations with a majority of Republicans, and only twenty or so delegations in which the Democrats enjoy a majority (with the remaining delegations equally divided), any such election will favor the incumbent, President Trump. Likewise, the Republican majority in the Senate would be sufficient to re-elect Pence as his Vice President.

If the Republicans cannot muster at least 40 votes in the Senate to stave off the Senate's concurrence with the House on the electoral count, then the tally will proceed inexorably to the point where Vice President Pence will have to announce Joseph Biden as the winning candidate. The voting on Wednesday, accordingly, will tell you all you need to know about the course of the country over the next four to eight years.

 

The Coming Donnybrook of January 6 (Part II)

 In my first post in this series, I laid out an overview of presidential elections as governed by Article II, Section 1 of the Constitution, as subsequently amended by the Twelfth, Twentieth and Twenty-fifth Amendments. With that as background, it is time to turn to the specifics that will happen next Wednesday, January 6, in our Capitol.

Section 1 of Article II grants Congress the power to set the day for the election/appointment of electors in each State who will cast their votes for President and Vice President, and also the day on which they gather in their respective State capitals to cast and record their votes. The Twentieth Amendment fixes the day when the new Congress meets in Washington to start business, which is January 3 of each year. And as noted in the last post, that Amendment also specifies that the terms of the current President and Vice President end at noon on January 20 following each presidential election.

These constitutionally specified dates establish the framework of the following discussion. Pursuant to its authority under Section 1 of Article II, Congress has provided in 3 USC § 1 that electors shall be chosen on the first Tuesday after the first Monday in November of every fourth year, and 3 USC § 7 sets the first Monday after the second Wednesday in December as the date on which all the electors chosen are to vote. (You can reference any of these sections in this link to Title 3 of the United States Code.)

Thus far we are on solid constitutional ground. Next we move to the date on which the electoral votes from each State are opened and tallied. In my previous post, I quoted the controlling language from the Twelfth Amendment about how the President of the Senate is designated to open all the certificates from the various States in the presence of the assembled two Houses of Congress, after which the votes "shall be counted" -- but no date for this is specified.

Fortunately, the Constitution gives Congress the necessary power to fill in gaps like this, through what is called the Necessary and Proper Clause (Article I, Sec. 8, cl. 18). And Congress in this case has established January 6 of the year following a presidential election as the date when the two Houses shall assemble -- not as a single deliberative body, but maintaining their own separate identities, rules and powers. It has done so via the opening sentences of 3 USC § 15:

Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A . . . 

Section 15 of Title 3 was first enacted in 1887, as part of the Electoral Count Act ("ECA") designed to resolve questions that arose during the much-disputed 1876 presidential election (see my previous post for links). No scholar has any problems with these opening phrases of Section 15, and Congress has duly followed them in each year subsequent to a presidential election since 1889. So once again, we would appear to be on firm statutory ground in predicting that the above is just what will take place in the chambers of the House of Representatives starting at 1 p.m. Eastern Time on January 6, 2021.

But this time, there will be fresh problems under this statute, hinted at by its language "all the certificates and papers purporting to be certificates  of the electoral votes . . ." (my emphasis added). For next January 6, Vice President Pence (acting as President of the Senate) will open the envelopes to find that there were two sets of votes cast in December in certain crucial ("swing") States by two sets of people claiming to be the authorized electors from those States -- one set Republican, and the other Democrat, and both of those sets were duly signed and forwarded to him, pursuant to the following language of the Twelfth Amendment:

[The electors] shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate . . .

Notice that under the Constitution, the electors self-certify their own lists of votes; there is no provision for any involvement in the voting process by either the executive or the judicial branch of any State.

But many commentators and legal scholars are drawing a distinction between those certifications attested to by the States' respective governors (in all cases under discussion here, the certificates of the Democrat electors) and those which have no such attestation (or if they do have one, it is signed by a lesser State official). On just what law are they basing such a distinction?

They cite to this language, from Section 6 of Title 3 of the United States Code:

It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by section 7 of this title to meet, six duplicate-originals of the same certificate under the seal of the State . . . 

That may well be, but the question has to be put: under what authority granted to it by the Constitution did Congress claim to be able to impose duties such as these upon the "executive" of each sovereign State?

It turns out that Congress passed the first law requiring such authentication by a State's executive in 1792, after the first, but before the second, presidential election. (Act of March 1, 1792, ch. 8, § 3, 1 Stat. 239, 239-40 -- see the discussion in this article, starting on page 608.) There were members of Congress who questioned Congress' ability to impose such a requirement at the time; apparently the majority felt they were empowered to do so by this language in Article IV, Section 1 of the Constitution:

Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings [of a State] shall be proved, and the Effect thereof.

That power to legislate is granted pursuant to the Full Faith and Credit Clause (Art. IV, Sec. 1), which is necessary in a federal republic to ensure that lawful acts done in one State may receive binding effect and recognition in every other State. Every student of constitutional law, however, learns that "full faith and credit" does not extend to every act of a sister State (for example, a law authorizing bigamy in that State), and that the devil is in the details. Which is why, no doubt, the Framers specified that Congress was to streamline interstate recognition of State acts and proceedings by enacting "general laws", i.e., laws of general application to all States alike.

Is 3 USC § 6, which replaced the 1792 Act in 1887, such a "general law"? Since it applies only to an event that happens every four years, and which event was already self-authenticating under the original Constitution (as well as under its successor Twelfth Amendment, which was adopted twelve years after the 1792 Act, yet which left the provision for elector self-authentication unchanged), it could be argued that the statutory authentication requirement is not a proper exercise of Congress' powers under the Full Faith and Credit Clause, because it is not a "general" law, but a highly special one. 

If that were so, then the certification by a State's executive carries no special constitutional significance, and is instead like a paraph following a signature: it adds nothing to the authority of the document that carries it, but it does help prevent forgeries.

Let us, however, give 3 USC § 6 the benefit of the doubt, assume it is valid, and proceed with the analysis. In that case, we have to take account of what it next says:

. . . and if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate under the seal oanswer is f the State to the Archivist of the United States a certificate of such determination in form and manner as the same shall have been made . . .

What is this reference to a "final determination" in that State "of a controversy or contest concerning the appointment of all or any of [its] electors"? To understand the reference, we need to consult Section 5 of Title 3, which explains it in detail, and whose title is "Determination of controversy in the appointment of electors":

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

Is this 1887 statute (known as the "Safe Harbor" law, due to the deadline it establishes for a "final determination" to be deemed "conclusive") starting to have any repercussions with you today? What has been going on since November 3 (and even before that date) in the states of Arizona, Georgia, Nevada, Pennsylvania and Wisconsin (as well as others), if not multiple "controversies and contests" of the election results in those States? And is it the case, even as of this date (January 1), that there has been in each such State a "final determination" of those contests or controversies?

As best as I can tell from searching the Web, the answer is "No." The Trump campaign, for example, still has a petition to review the discrepancies in Pennsylvania pending before the U.S. Supreme Court. And he just filed a petition there involving the election in Wisconsin. There are contest cases and election audits still pending in Arizona and Georgia, as well; the status of cases originating in Nevada is unclear. (There are more recent developments in Georgia at this link.)

One thing, however, is certain from a review of all of those links: not a single one of those five States had "finally determined", by December 8, 2020 (the "Safe Harbor" deadline for the 2020 election), all of the pending controversies in that State. (Nevada is a possible exception, but the information there is incomplete.) 

There are two consequences of this fact: (1) there were no results in any of those States which may be deemed "conclusive" for purposes of the ECA; and (2) it is still not possible, as of this writing, for any governor of any of those States (except possibly the governor of Nevada) to have sent in his statutorily required authentication of his State's electors following the "final determination" of all election controversies in that State.  

Have you followed that? It turns out that, under a combined reading of 3 USC §§ 5 and 6,  the governor of a State is supposed to wait to send in his certification of electors to the President of the Senate until after any and all election controversies in that State have been finally determined. Any certifications sent in before that time are premature, and should not receive any recognition as such. (See the further discussion of this point in the article by Stephen Siegel linked above, in note 420 on p. 610. He points out that in the contest between Bush and Gore in Florida in 2000, Governor Jeb Bush had to send in a second certification after the contest terminated in December 2020, since the first had been ineffective.)

I have yet to see a single commentator or law professor in any article on this complicated subject make the points above. Most are quick to dismiss the protest procedure with words such as "Oh, the statute gives the final authority to the governor, so these protests can go nowhere, because the governors all certified the Democratic party's electors. Biden has to win on the January 6 count."

As we will see in my next post, the ECA provides different rules when the elector slates have not been certified under 3 USC §§ 5 and 6. And those rules, if the Houses elect to follow them, could make the proceedings very interesting.