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Saturday, January 02, 2021

Mike Pompeo? (Updated)

Criticizing Lin Wood's legal acumen is fish-in-a-barrel stuff these days. Still I was struck by this: In his prediction/call/hope that Vice President Pence would be arrested and executed for treason, Wood said that Secretary of State Mike Pompeo would take charge of the Senate on January 6 and would save the election.

Obviously this is nonsense, and I do not know whether Wood believes it. But I am curious how he got there--even if you know nothing about law or the Constitution, what is the logical progression that gets the Secretary of State--an executive-branch officer whose existence is not provided for in the Constitution--presiding over a joint session of Congress and performing a function that is constitutionally delegated to the VP? The only thing I could think of is that Wood went through the line of presidential succession to find the next executive-branch officer and decided that person must perform the VP's functions if the VP is sitting in prison awaiting execution. This is wrong for several reasons, but I think that is it.

By the way, I am with the many people believing that this insanity does not end on January 6. Someone will seek to enjoin Chief Justice Roberts from issuing the oath to Biden or will seek to mandamus Roberts to issue the oath to Trump. Someone will challenge a Biden-signed law or Biden-issued executive order and argue that Biden is not really the President. Someone pointed out that the birther lawsuits continued into December 2012. And I would not be surprised if some Republican House members made noise about impeachment, which would be the appropriate vehicle (as opposed to these nonsense lawsuits) for removing a President who won the office by deceit or wrongdoing.

I also continue to believe that none of these will hurt the Republican Party or any individual Republican officials, in the short or long term.

Updated: Apparently, there is a different version of Pompeo, the Hero, in which Pompeo becomes acting president. According to the December 16 LawFare podcast, Senate Republicans will delay count-and-challenge until January 20 (Cruz's demand for a 10-day study, followed by referral to state legislatures, would achieve), then obtain a ruling from OLC that § 19 is constitutionally invalid to the extent it allows a non-executive officer to become acting president. The OLC ruling would require the executive branch to accept Pompeo as acting president, while the rest of the government would presumably recognize Nancy Pelosi as acting president.

Posted by Howard Wasserman on January 2, 2021 at 10:12 AM in Howard Wasserman, Law and Politics | Permalink

Comments

@ a non -

I'm still not sure to what you're referring.

Also, I don't like this "who said it first" bit, both because it's bad regardless (boo to anyone who questions a president's legitimacy), and because there's an enormous difference between inflammatory political rhetoric -- which politicians on both sides of the aisle have been doing since at least the Clinton presidency (see, e.g., the "birther" nonsense) -- and the sort of very tangible action we're seeing today.

Posted by: a non | Jan 2, 2021 6:09:39 PM

When their party elders started calling president-elects illegitimate in 2016.

Posted by: @ a non | Jan 2, 2021 2:09:34 PM

Howard,
Unfortunately, the idea of individual responsibility and accountability is SO passe. The evidence indicates that if one is a member of the political class of extremely well to do, there are no consequences for aberrant behavior.
For those states that don't recognize Biden's authority, perhaps the federal executive branch will decide to withhold allocated funds, or at the very least, delay the disbursement of those funds.
Who would have imagined that the unraveling of the USA would be facilitated by those on the right side of the political spectrum as opposed to those leftist radicals of the 1960s and 1970s.

Posted by: paul sonnenfeld | Jan 2, 2021 12:44:07 PM

@thegreatdisappointment - how did the Dems help create this?

Posted by: a non | Jan 2, 2021 12:25:43 PM

Funny. Maybe that idea, came to his mind, from the "Presidential Succession Act of 1947". I quote clause d(1):

" If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b), then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of War, Attorney General, Postmaster General, Secretary of the Navy, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor."

End of quotation:

So, according to that list, first comes the Secretary of State simply. But, it is obviously out of context ( legally).

Here to the act by the way:

http://www.congressionaltimeline.org/Documents/80th_07181947_doc1_pg1-2.pdf

Thanks

Posted by: El roam | Jan 2, 2021 11:04:07 AM

It's the legitimacy crisis.

And Dems have helped create it.

You are right on all counts, but I'll go you one better.

By the end of 2021, at least 20 states will not be recognizing Biden's authority.

Posted by: thegreatdisappointment | Jan 2, 2021 10:28:22 AM

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