There’s little doubt that Biden will be certified as president by the end of the day on Jan. 6 or in the wee hours of Jan. 7, but Trump’s allies could cast a cloud over the process — grinding it to a halt, attempting to force votes on alternate slates of Trump-supporting electors and raising untold objections to the proceedings that could disrupt the traditionally ceremonial event.
But the lack of clarity also create enormous opportunities for those who wish to limit or prevent the day-long spectacle that Trump’s allies are promising. That could include both Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell, who has been working to tamp down GOP support for challenges in recent days — drawing Trump’s fury.
“This is actually a point at which Congress could do a great deal to curb some of the more dilatory moves that some people might try to take,” said Scott Anderson, a governance studies fellow at the Brookings Institution and senior editor of Lawfare. “There’s lots of spaces to fill in, in terms of how they intend to interpret and apply the Electoral Count Act.”
In fact, while Congress has voluntarily submitted to the rules laid out in that 1887 law, there is a raging constitutional debate about whether lawmakers can deviate from it or ignore it altogether. And aides in both chambers say the rules are likely to change at least in some form for a simple reason: social distancing amid the pandemic.
Here’s a look at some of the little-known intricacies of the process that could become enormously important.
The Jan. 3 dilemma
The least-understood aspect of Congress’ electoral vote certification occurs days before the main event. On Jan. 3, the first day of the new congressional session, the House and Senate will adopt a set of rules that govern the Jan. 6 meeting.
The so-called “concurrent resolution” usually originates in the Senate, where the rules committee — chaired by Sen. Roy Blunt (R-Mo) — would issue the first version. In recent decades, even after fiercely contested elections like in 2000 and 2016, the rules have been adopted unanimously and without debate.
Those rules have been unaltered for decades, and they simply reaffirm that Congress will abide by the processes in the Constitution and in the Electoral Count Act. Those processes include a requirement that the vice president, in this case Mike Pence, will preside over the Jan. 6 session and that electoral votes are to be read aloud one state at a time, alphabetically.
Those rules also lay out the process for challenging electoral votes: it requires one House member and one senator to join together in writing to object. If that happens, the branches recess to their chambers and hold a two-hour debate, with each participant speaking up to five minutes. Then the chambers vote on whether to accept or reject the challenged electoral votes and then return to the joint session. A simple majority in the House and Senate would be expected to defeat any challenge to Biden’s votes, as they did in 2005, when Democrats forced debate on a challenge to Ohio’s electors.
But the rules aren’t etched in stone, and in fact some experts say Congress could ignore them altogether, since the House and Senate have broad authority to set their own internal rules and can’t necessarily be bound by the decisions of 19th century lawmakers. But ignoring the Electoral Count Act altogether would create a new degree of legal peril that congressional leaders are loath to unleash. Blunt’s office has declined to respond to multiple requests for comment about whether this year’s rules will match those of previous cycles.
An aide to Pelosi affirmed that she views the Electoral Count Act as the basis for the Jan. 6 procedures. A McConnell aide didn’t respond to requests for comment on his intentions for the Jan. 3 resolution.
Rather than take the extreme route of bypassing the Electoral Count Act altogether, constitutional scholars say lawmakers could use the opportunity to clarify and add onto existing processes in order to stave off uncertainty stoked by Trump’s hardline allies. That could include restricting Pence’s power to make sweeping procedural rulings or setting criteria that prevent him from introducing alternate slates of presidential electors in states won by Biden, a gambit some Trump allies have urged him to attempt.
‘What counts as a purported slate of electors from a state? Under what circumstances is a vice president allowed to present a potential slate of electors to the joint session? What types of objections are and aren’t in order?” said Michael Morley, a Florida State University election and constitutional law expert. These questions, he said, could all be clarified by Congress if they choose to supplement the Electoral Count Act rules with procedures that respond to the clear efforts of the president’s allies.
The alternate slates of Trump electors carry no legal force. But the language of the Electoral Count Act indicates that Congress must consider any documents “purporting to be certificates of the electoral votes.” Multiple constitutional experts said in interviews that Congress could help define the boundaries of what are considered legitimate electoral votes — such as those endorsed by a governor, state legislature or other state authority — and prevent the Trump votes from being read into the joint session.
Trump allies could also seek to make a stand on Jan. 3 by attempting to amend the rules in their favor or opposing any new constraints adopted in either chamber. Although those votes would likely fail, they would provide an early window into the level of support for any challenges that they intend to bring on Jan. 6 — and just how many Republicans are prepared to vote to affirm Biden’s victory as well.
The Pence problem
Pence’s role in the proceedings is the most amorphous aspect, and the one that may ensure there is an air of unpredictability no matter how carefully Pelosi and McConnell attempt to script the process.
The Twelfth Amendment requires that the vice president oversee the joint session of Congress and open each state’s certificate of electoral votes. The Electoral Count Act spells out his role further, requiring him to hand over the opened certificates to four “tellers” — two appointed by the House and two by the Senate — who then read them aloud to the chamber. Pence then asks for any objections.
But neither provision indicates what criteria Pence may use to decide whether he may introduce alternative slates of Trump electors. In fact, the rules require him to introduce any papers “purporting” to be elector slates — and it’s up to him to determine whether Trump’s electors in states won by Biden should be considered by Congress.
Pence has huddled with the Trump allies who are attempting to overturn the results, and his public rhetoric has increasingly matched the president’s. One conservative Republican, Rep. Louie Gohmert, filed a lawsuit this week to throw out the Electoral Count Act procedures altogether, which he argues violate the Twelfth Amendment’s requirement that Pence use his own judgment about which electoral votes should be counted.
The suit isn’t being taken seriously in legal circles, but it does raise one crucial question: what does Pence think? Gohmert’s attorneys revealed Tuesday that they had attempted to reach agreement with Pence before filing suit but were unable to come to terms.
If Pence agrees with Gohmert’s theory, he can attempt to assert it when he presides over the Jan. 6 session. If he doesn’t, Trump and his allies are positioning it to be the ultimate betrayal of the president. And if Pence bows out altogether, the duty of presiding would fall to Senate President Pro Tem Chuck Grassley (R-Iowa).
Pence has worked closely with Capitol Hill Republicans throughout his tenure. But it’s unclear how closely he’s coordinating his plans with McConnell or Pelosi’s offices, or if he’s seeking clarity on the specifics of his authority. His aides did not respond to requests for comment.
“What communication is there between the VP’s office, Senator McConnell’s office, Speaker Pelosi’s office?” wondered Ned Foley, a constitutional law expert at Ohio State University. “What has the VP’s office received by way of alternate electoral votes? Does he have a plan for presenting them in the joint session?”
Alternate elector slates
The language of the Electoral Count Act is extremely vague on this subject. It requires that any papers “purporting” to be official electors be considered during the Jan. 6 joint session. But there’s no clear understanding of what criteria would be deployed either by Pence or by the National Archives, which has in recent elections been a clearinghouse for states to deliver their elector documents.
Foley noted that in 1889, following the first presidential election after the passage of the Electoral Count Act, a practical jokester from Oregon submitted a fake set of electors. In that case, the vice president at the time introduced the false electors during the joint session of Congress before requesting unanimous consent to ignore it and count the legitimate ones.
In 1961, Congress was forced to adjudicate competing slates of electors from Hawaii, whose governor certified a set for Nixon before reversing course after a recount and certifying a set for Kennedy. But the outcome of that fight had no bearing on the results of the election.
On Dec. 14, when electors gathered across the country to cast their formal votes for president, Trump’s electors in several states won by Biden — including Arizona, Pennsylvania, Georgia, Michigan, Wisconsin and Nevada — held informal gatherings to attempt to cast their votes as well.
Though they were not certified by any state officials, these GOP slates have encouraged Pence to treat them as legitimate alternate slates on Jan. 6. And Gohmert’s lawsuit, joined by Arizona’s 11 GOP electors, seeks to remove any potential barriers to Pence making a unilateral decision about which electors to introduce.
“The vice president’s office or the National Archives has never made any judgments as what qualifies,” Foley added.
But federal laws also stack sharply in favor of counting only elector sets that have been certified by a Dec. 8 “safe harbor” deadline, and when disputes arise, to count only the slate certified by the state’s governor.
The coronavirus factor
There’s one aspect of the Jan. 6 process that House and Senate aides say will necessarily have to change — and it could have untold consequences. It’s simply untenable, they say, to cram 535 lawmakers into the House chamber, possibly for a day-long session, while Trump allies lodge objection after objection.
Though no final procedures have been adopted, Pelosi’s office indicated that she is considering protocols that the House has relied on since the start of the pandemic: asking some lawmakers to sit in the public galleries to maximize social distancing and requiring votes to occur in small groups, with access to the floor strictly limited.
“The procedures are outlined in the Electoral Count Act but the Speaker will continue to consult with the Attending Physician on COVID protocols,” said spokesman Drew Hammill.
It’s unclear, though, how those limits might impact the broader proceedings, and whether it could complicate the ability of Trump’s allies to upend the smooth transition of power.
Pelosi on Tuesday rolled out a strict set of social distancing procedures that will limit access to the floor of the House on Jan. 3, when members of Congress will also be sworn in for a new session. The rules restrict access to no more than 72 lawmakers at a time. It’s unclear if similar restrictions will be enforced on Jan. 6.
Gabby Orr contributed to this report.
Pelosi to move forward with impeachment if Pence doesn’t act to remove Trump
“In protecting our Constitution and our Democracy, we will act with urgency, because this President represents an imminent threat to both,” Pelosi said in the letter to Democrats on Sunday night laying out next steps.
The House will try to pass a measure on Monday imploring Pence to invoke the 25th Amendment, through which he and the Cabinet declare Trump “incapable of executing the duties of his office, after which the Vice President would immediately exercise powers as acting president.” If Republicans object, as is virtually certain, Democrats will pass the bill via a roll call vote on Tuesday.
“We are calling on the Vice President to respond within 24 hours,” Pelosi wrote. “Next, we will proceed with bringing impeachment legislation to the Floor.”
But it’s not clear when exactly the Senate will take up the House’s measure. The Senate isn’t scheduled to return until Jan. 19, but will hold pro forma sessions on Tuesday and Friday. In theory, a senator could try to pass the House resolution by unanimous consent, but as of now it appears unlikely that it would pass.
On Monday, multiple House Democrats plan to introduce impeachment resolutions that would become the basis of any impeachment article considered by the House later this week.
Rep. David Cicilline (D-R.I.), who will introduce an article of impeachment against Trump on Monday, said on Sunday that roughly 200 Democrats have co-sponsored the measure.
Currently, 211 voting members (plus three nonvoting members) support Cicilline’s legislation, and they are hoping to reach 217 voting members by Monday morning, enough for the House to impeach Trump, one Democratic source familiar with the matter told POLITICO.
A small number of Democrats have opted not to co-sign the bill, but privately say they will vote to support the resolution on the floor, the source added.
The impeachment effort in the House is likely to be bipartisan, with Democrats expecting at least one GOP lawmaker — Rep. Adam Kinzinger of Illinois — to sign on. A handful of other House Republicans are seriously weighing it, according to several sources, though those lawmakers are waiting to see how Democrats proceed, and some are concerned about dividing the country even further.
Among the GOP members whom Democrats are keeping an eye on are Reps. John Katko of New York, Brian Fitzpatrick of Pennsylvania, Fred Upton of Michigan, Liz Cheney of Wyoming and Jaime Herrera Beutler of Washington.
Across the Capitol, at least two Republicans — Sens. Pat Toomey of Pennsylvania and Lisa Murkowski of Alaska — have called on Trump to resign. On Saturday, Toomey told Fox News, “I do think the president committed impeachable offenses,” but told CNN the next day that he does not believe there is enough time to impeach.
Sen. Ben Sasse (R-Neb.) has also said he would consider articles of impeachment.
Another option has emerged among some Republican and moderate Democratic circles — censuring Trump — though it remains highly unlikely to advance.
A censure resolution would gain far more support in the GOP than impeachment. Some Republicans have privately been pushing for that route and are trying to get Biden on board, according to GOP sources. That group of Republicans is also warning that impeachment could destroy Biden’s reputation with Republicans.
But censure is considered a nonstarter in an incensed House Democratic Caucus, where members see it as a slap on the wrist that gives Republicans an easy out.
The Democrats’ enormous step toward impeachment on Sunday comes after Pelosi and other top Democrats held a private call on Saturday night in which they discussed the potential ramifications that a lengthy impeachment trial could have on Biden’s presidency.
Democratic leaders discussed several options to limit the political effects on Biden’s first 100 days, with one option — floated by House Majority Whip Jim Clyburn (D-S.C.) — for the House to delay the start of an impeachment trial in the Senate by holding on to the article of impeachment.
Senate Majority Leader Mitch McConnell (R-Ky.) has sent out a memo to senators explaining that the Senate could not take up impeachment until Jan. 19 at the earliest, absent unanimous consent.
A final decision has not been made, and House Democrats will discuss the matter on a 2 p.m. caucus call on Monday.
Lawmakers are already privately expressing concerns about returning to the Capitol for multiple days this week, worried about both a potential coronavirus outbreak and whether the building is secure, given how easily an armed pro-Trump mob invaded on Wednesday.
The Capitol physician urged House lawmakers and staff to get tested in a memo Sunday, saying they might have been exposed to someone who had the virus while huddling for safety in a large committee room for hours on Wednesday. During the hourslong lockdown, several Republican members refused to wear masks despite being offered them by Democrats worried about the spread of the deadly virus.
Melanie Zanona, Olivia Beavers and Marianne LeVine contributed to this report.
Matt Hancock Scraps “Unnecessary Training Modules” Blamed For Slowing Vaccine Rollout
5 min read
Matt Hancock said people will no longer need to undertake training including an anti-terrorism course to give the coronavirus jab after MPs said “bureaucratic rubbish” was delaying mass vaccination.
It comes as MPs called for the government to produce targets for the number of people given immunity before lockdown can be lifted.
The health secretary said a series of “unnecessary training modules” are being scrapped to speed up the process of getting people qualified to deliver the jab.
Speaking in the Commons, Sir Edward Leigh said he was shown by his fellow the Tory MP, a qualified GP, the “ridiculous form” he had filled out to start delivering the vaccine.
“When he’s inoculating an old lady, he’s not going to ask her if she’s come into contact with Jihadis or whatever, so the Secretary has got to cut through all this bureaucratic rubbish,” he said.
In response Mr Hancock said: “I am a man after Sir Edward’s heart and I can tell the House that we have removed a series of the unnecessary training modules that had been put in place, including fire safety, terrorism and others.
“I’ll write to him with the full panoply of the training that is not required and we have been able to remove, and we made this change as of this morning and I am glad to say it is enforced.
“I am a fan of busting bureaucracy and in this case I agree with him that it is not necessary to undertake anti-terrorism training in order to inject vaccines.”
Dr Fox had earlier challenged Boris Johnson to drop the “bureaucracy” and “political correctness” of the forms vaccine volunteers must fill out.
He told MPs: “As a qualified but non-practising doctor, I volunteered to help with the scheme and would urge others to do the same.
“But, can I ask the Prime Minister why I’ve been required to complete courses on conflict resolution, equality, diversity and human rights, moving and handling loads and preventing radicalisation in order to give a simple Covid jab?”
Mr Johnson said he had been “assured by the Health Secretary that all such obstacles, all such pointless pettifoggery has been removed”.
The government has been attempting to recruit thousands of volunteers to help with a mass vaccination programme, and with the recent approval of the more easily deliverable Oxford/AstraZeneca version has today revealed the location of seven mass vaccination centres set to open next week.
The Prime Minister’s official spokesman told journalists at a briefing they would be at Robertson House in Stevenage, the ExCel Centre in London, the Centre for Life in Newcastle, the Etihad Tennis Centre in Manchester, Epsom Downs Racecourse in Surrey, Ashton Gate Stadium in Bristol and Millennium Point in Birmingham, and it is expected they will be run with a combination of NHS staff and volunteers.
But so far the government has not said how many people need to be inoculated before it has an impact on the coronavirus restrictions.
Mr Hancock was asked by a number of MPs if the measures could be eased once the top few tiers in the vaccine priority list had been clear.
Former Conservative chief whip Mark Harper said once the top four groups, which includes care home residents and staff, frontline NHS workers, the clinically extremely vulnerable and everyone over 70 “we’ve taken care therefore of 80% of the risk of death”.
Adding: “What possible reason is there at that point for not rapidly relaxing the restrictions that are in place on the rest of our country?”
The health secretary replied: “We have to see the impact of that vaccination on the reduction in the number of deaths, which I very much hope that we will see at that point, and so that is why we will take this – an evidence-led move down through the tiers, when we’ve broken the link, I hope, between cases and hospitalisations and deaths.”
The ex-Tory minister and another doctor, Andrew Murrison, said: “The logic of anticipating what is going to happen in two or three or four weeks’ time from the number of cases we are getting at the moment is that we can do the same in reverse.
“That is to say, when we have a sufficient number of people vaccinated up we can anticipate in two or three or four weeks’ time how many deaths have been avoided.
“That means, since it cuts both ways he will be able to make a decision on when we should end these restrictions.”
Mr Hancock replied: “The logic of the case that Dr Murrison makes is the right logic and we want to see that happen in empirical evidence on the ground.
“This hope for the weeks ahead doesn’t take away, though, from the serious and immediate threat posed now.”
The Cabinet minister said the challenge for the government is to increase the amount of doses available, claiming “the current rate-limiting factor on the vaccine rollout is the supply of approved, tested, safe vaccine”.
He added: ”We are working with both AstraZeneca and Pfizer to increase that supply as fast as possible and they’re doing a brilliant job.”
But Labour’s shadow health secretary Jonathan Ashworth called for the government to ramp up its vaccination programme to six million doses a week.
He told the Commons: “The Prime Minister has promised almost 14 million will be offered the vaccine by mid-Feb. That depends on around two million doses a week on average.
“Both [Mr Hancock] and the Prime Minister have reassured us in recent days that it’s doable based on orders.
“But in the past ministers have told us that they had agreements for 30 million AstraZeneca doses by September 2020 and 10 million of Pfizer doses by the end of 2020.
“So, I think people just want to understand the figures and want clarity. Can ministers tell us how many of the ordered doses have been manufactured?”
Mr Ashworth added: “Two million a week would be fantastic but it should be the limit of our ambitions, we should be aiming to scale up to three, then five, then six million jabs a week over the coming months.”
How South African police are tackling pangolin smugglers
Quiet, solitary and nocturnal, the pangolin has few natural enemies, but researchers believe it is the most trafficked mammal in the world. The tough scales covering its body are sought after for use in Chinese medicine, in the erroneous belief that they have healing properties.
The animal has also been of interest to researchers during the coronavirus pandemic. Related viruses have been found in trafficked pangolins, though there is continued uncertainty around early theories that pangolins were involved in the transmission of the virus from animals to humans.
After South African police seized a pangolin from suspected smugglers, BBC Africa correspondent Andrew Harding witnessed how vets tried to save the animal’s life.
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