As the dust settled on Capitol Hill, three Michigan Republicans voted to reject the election results—including their own victories.
WASHINGTON, DC—The day Congress was to certify the election of Joe Biden as the 46th President of the United States, rioters intent on stopping that certification, with the apparent assistance of local law enforcement, stormed the Capitol.
Some were armed. Some planted suspected explosive devices. Some were overheard saying they intended to hang Vice President Mike Pence, for not even he was safe from the fury of the pro-Trump mob. And others, identified to The ‘Gander as allegedly being from Michigan, erected gallows outside the Capitol.
Despite this, in an amazing display of courage and patriotism, Congress members still voted late that night, certifying the results of the election. Three Michigan representatives, however, voted against the election’s results: Lisa McClain (R-Bruce Twp.), Jack Bergman (R-Watersmeet) and Tim Walberg (R-Tipton).
They lost, and Joe Biden will be president on January 20. But it’s worth taking a closer look at what they voted for when they did as the mob demanded and refused to restore peace and accept the conclusion of the democratic process.
More Than the Top of the Ticket
While it can feel like the presidency is the only race when it’s on the ballot, the slew of down-ballot races are also deeply consequential. They elect local leaders, pass policy proposals, and most relevant to McClain, Bergman, and Walberg, they are how Congressional Representatives are elected.
The trio asserted without evidence the conspiratorial and disproven notion that rampant voter fraud altered the outcome of the election, which to them was a landslide in favor of Trump. Certifying the election, in other words, meant certifying an alternative reality.
But certifying the election is not a piecemeal process. A single ballot cannot be valid voting for McClain and invalid when voting for Biden. That logic extends to the entire election—either everything counts or none of it does.
What that means for the three Michigan Congresspeople is that in their effort to invalidate the election of President-elect Joe Biden, they would also invalidate their own electoral victories.
It isn’t entirely clear, as this would be the first time it happened, what that would mean for the US Congress, but the simplest way to describe the most likely outcome is the Senate would continue to function at reduced capacity and the entire House of Representatives would be unseated pending a new election.
Even if the House were to continue operating with only reelected incumbents arguing that they, at least, have a lawful election behind them, it would mean freshmen representatives like McClain would still lose their place in Congress.
And all of this, including removing McClain herself from office, wouldn’t do what its advocates hope.
Donald Trump Would Still Leave Office
If, ultimately, the lawmakers who voted against the certification and pro-Trump terrorists who stormed the Capitol wanted to keep Trump in office, their efforts were doomed from the start.
The Constitution is abundantly clear on this particular point: A president’s term ends on Jan. 20 following a general election year.
The idea that invalidating the election means Trump would stay in office never had constitutional merit. In order to be president, someone needs to be duly elected and certified in early January. The failure to do so would still mean Trump’s term of office would end, it would just deny president-elect Joe Biden the job. Vice President Mike Pence would be limited in the same way as Trump; when Trump’s term ended at noon on Jan. 20, so would his. He could not assume the office.
The leadership of the United States would have to travel along the constitutional order of succession. That means, if the House was held over from the previous session into Jan. 20, the president of the United States would be Nancy Pelosi. If all members of the House were unseated, however, the new president would be 88-year-old Sen. Chuck Grassley, the president pro tempore of the Senate. Assuming a new election was held, that person would be only temporarily in office.
In short, Bergman and Walberg would have disrupted their careers, and McClain would have all but torpedoed hers. The very likely possibility is that a successful delay would have only served to make Joe Biden the 47th president instead of the 46th, with either Pelosi or Grassley filling the role for several months.
How It Actually Shakes Out
Since the attempt on the part of McClain, Bergman, and Walberg to disrupt democracy failed, and Joe Biden is certified by Congress to be the next president of the United States, the constitutional crisis they would have sparked has been avoided. But their attempt itself has resulted in significant criticism.
There have been calls for the trio to resign because of their votes to capitulate to domestic terrorists. (It’s important to note that unlike their Republican colleagues, Michigan Reps. Fred Upton [R-Kalamazoo] and Peter Meijer [R-Grand Rapids] joined Democrats’ vote to impeach Trump, and have recognized Joe Biden as duly elected.) Michigan Democrats have accused them of an attempt to “undermine the will of voters” with conspiratorial rhetoric surrounding unsubstantiated and frequently legally dismissed claims about election fraud. Worse, that rhetoric fueled, either directly or indirectly, the very attack on the Capitol that led the trio to having to shelter from domestic terrorists during a deadly pandemic, which caused not just rioters but members of Congress to be exposed to what may turn out to be a superspreader event.
And that raises another consequence. In a letter Pelosi sent in the aftermath of the attack urging Pence to invoke the 25th Amendment and remove Trump from office, she also made an allusion to the 14th Amendment.
Often cited in legal cases for its pledge that all citizens of the United States have the rights and privileges granted to citizens of the United States regardless of circumstance of birth, one lesser-known provision of the 14th Amendment also prohibits anyone who has engaged in insurrection against the United States from holding federal office. Those currently serving in Congress or the presidency who commit insurrection immediately are removed from office.
The question Pelosi’s letter raised is, if by fomenting the attack on the Capitol, did McClain, Bergman, and Walberg take part in the insurrection? If they did, that’s it. Their careers in Congress are done, for having contributed to or conspired to unlawful acts.
It’s increasingly suspected that at least some members of Congress did more than rhetorically contribute to the attack. Axios reports that lawmakers are growing concerned some of their colleagues directly aided in the attempted coup. Rep. Tim Ryan (D-Ohio) mentioned an investigation into more than one member of Congress who provided tours in the lead-up to the attack, suspecting that these were reconnaissance efforts for the later attack.
In addition to any criminal charges filed as a result of that investigation, anyone found to be helping overthrow the United States government would trigger the 14th Amendment and be removed immediately from office.
For an attack that led to multiple deaths and one of the darkest days in American political history, that is, for many, just the beginning of justice.