Transcription
This is Democracy Watch, Mark. This is a video that I've wanted to record with you for quite a long time. I'm especially concerned as we are watching Mike Johnson refuse to swear in Representative Elect Ghalva. That his unwillingness to actually go ahead and swear in a Democratic member of Congress could be him testing the fence and laying the the the groundwork here to refuse to swear in any Democratic members of Congress as we look toward 2026 and beyond. And so, to what extent do you think that this serves as a blinking red light, uh, as we look forward into Republicans continuing to execute this broader scheme of refusing to, you know, allow any Democrats to serve in government?
Yeah. So, look, I get this question a lot and I understand the concern. And believe me, I I I worry about everything. I I I I game out every possibility. And, you know, for people who don't know, this situation has arisen because, um, a Democrat won this special election as as as uh Brian said, and the House has been uh sort of out of session because Mike Johnson doesn't want to swear this member-elect in because they would provide, she would provide the last vote, the last signature or vote necessary to release the Epstein files. Right? So that's why you hear people refer to where we're at right now as the Epstein shutdown because the Republicans in the House literally won't reconvene and allow this person to be sworn in because if they're sworn in, then then the next thing you know, the Epstein files are going to have to be voted on or released, and they don't want that happening. So that's like the backstory. And the reason why I start with that, Brian, is that that is not a backstory that we're going to have very often. Right. Typically, the House is not out of session for months on end. The fact is that we should all be highlighting the fact that Republicans in the House are simply not doing their job. You want to know why the government is shut down? Well, one of the reasons the government is shut down is because Mike Johnson won't have the House Republicans show up to work, uh, at all. Um, so, you know, it's a very unusual fact pattern.
The state of Arizona and the member-elect have gone to court and basically they are relying on a a case from 1969 called Powell v. McCormick, um, which basically says if you meet all of the criteria that the Constitution sets out, the age requirements, and you know, you've been elected and and and all of that to serve in the House of Representatives, then the House can't refuse to seat you. That, um, you know, in a nutshell, if you meet the constitutional requirements for being a member of of Congress, you can't be denied a seat, uh, for as a member of Congress because the House Speaker doesn't like you or, you know, for some for some unrelated thing that they can ultimately move to expel you, but that that's a higher threshold of vote vote count, like so that's what they're relying on. The flip side is that I think the House Republicans are going to say, and, you know, we'll we'll their response will be like, look, we're not in session. Like, yeah, we have these pro forma sessions where we're like in for like, you know, three minutes at a time, but we're not in session. And the House Speaker controls the floor, and so the House Speaker hasn't said, I'm not going to swear in the member-elect. He's just said, I'm not going to swear in now. And so that's, I think, a fair presentation of what the two sides are in terms of the presidential effect. You know, the thing that people need to remember is that the House, unlike the Senate, is not a continuing body. What does that mean? The Senate never actually loses, uh, its all of its membership. There is always some number of senators who are still in their term. That is not true in the House. Um, when we get to, uh, next January, every member-elect who appears before the Clerk of the House for swearing in will be just that. They will be members-elect. They won't be automatically members of the new, uh, Congress. So, you know, Mike Johnson will have tools available to him to make mischief. He'll have tools available to him to try to muck up the gears, but he actually won't be the person swearing in new members at the beginning of next January. That's done by the Clerk. Right now, the Speaker-elect plays a ceremonial role there, but, you know, but it is ultimately not in the position of the House Speaker to make that decision then, and that's really, um, you know, a different situation.
Okay. So in light of what you said, given given the latitude that Mike Johnson has, how are you thinking about the possibility of success of, uh, Attorney General Chris Maiz's lawsuit against Mike Johnson?
Look, in cases like this, you can never you can never know for sure. I mean, these these things just don't come up that often. You know, in, uh, on the one hand, you you know, uh, Maiz has the precedent Powell v. McCormick, which says, you know, someone who is duly elected, who meets all of the constitutional requirements, can't be refused to be sworn in. On the other hand, the Speaker, you know, will point to the fact that he can, he is a constitutional officer who controls the House of Representatives, and courts have been extremely deferential, uh, and said that essentially they cannot order the House of Representatives on how it governs itself. So, so these are what are referred to sometimes as political questions, right? The seating or the non-seating of members is kind of a political question. So you have like these two precedents which kind of bump up against each other, you know, and we'll see what the courts say. Um, I think the important thing for people to know is that this really is an outlier situation. So, I don't want people thinking that what happens here presidentially is going to necessarily control what is going to happen next January when we're talking about a new slate of members of Congress, or even what this case would look like, by the way, if the House comes back into session. I mean, I think this case would look very different, um, from the standpoint of Maiz's, uh, if the House came back into session and a week or two went by and they were still not swearing her in, right? Because then the House, kind of, then it looks a lot more like Powell v. McCormick, right? Where the House is just, the House Speaker is just saying, I'm not swearing, swearing her in. The problem that Maiz has right now is that that isn't Mike Johnson's position. Mike Johnson's position is not, I'm not swearing in the member, the member-elect. Mike Johnson's position is, we are in pro forma session. Literally nothing is happening. We are not voting on anything. She's not missing any votes, uh, because we're not voting. And so there's no, you know, the court can't tell us whether it has to be a Sunday or next Tuesday that we that we that we swear her in, particularly when the House is not in session.
Well, you know, the pushback to that is going to be, okay, but he swore in two members during pro forma sessions anyway. So, didn't he undermine his ability to say that not being in session is adequate justification to not swear a member in?
Yeah, I look, I think that this goes to the question of which perspective you view it from. Do you view it from the perspective that Mike Johnson needs a justification? Or do you view it from the perspective of the plaintiff needs an exigency? Right? Like the question is like, who's like, what's the status quo? Who is the one that is trying to say the other needs to yield? And I think, you know, obviously the member-elect and Mike Johnson and and and Chris Maiz, the Attorney General of Arizona, would say, look, she still can be doing constituent services. And so it's not true, there's no harm for her not having been sworn in. She doesn't have the resources of the House of Representatives to represent her constituents, uh, in ways that aren't voting on the floor. And that's I think their best argument. Mike Johnson's argument on the other side is like, look, the session, yes, we have done pro forma swearing in because it was a convenient scheduling for the member-elect, it was it was convenient for me, Mike Johnson, but that doesn't create a right to be for us to for for a member-elect, a new member-elect, to commandeer the floor of the House for their ceremony, essentially. That that ceremony can be at our convenience, not at their demand. And and, you know, I I'll be, I'm watching this from the sidelines. You know, I'm watching the arguments on both sides. I'll wait to see what the trial courts say and then whether this goes up to the Court of Appeals and maybe even the Supreme Court. What I suspect is going to happen is that this case will eventually moot itself. You know, it maybe the trial court rules or doesn't yet even rule. But at some point, you know, the House of Representatives will have to come back into session. Uh, yeah, and when it does, then I think Mike John, then then either Mike Johnson is going to swear them in, or it's going to be a very different lawsuit. It's going to have a much different veneer to it because then the member-elect will say, "Look, I'm missing votes on legislation."
Is there some concern that, let's let's jump ahead and say, worst-case scenario, the most cynical view of this is that, um, the Republicans may be testing the fence here to see how much they can get away with in terms of not swearing in members because, you know, they've committed the crime of having a D next to their name? Is there any concern that with the Attorney General of Arizona's lawsuit being put forward, that if for the reasons that you laid out, uh, Mike Johnson wins here and Representative Elect Adalita Ghalva loses and Chris Maiz loses, that that will serve as some, as some, you know, pretext, flimsy and tenuous though it may be, some pretext for Mike Johnson and Trump and the Republicans to move forward and say, hey, this might actually be a tool that we have moving forward because now we've got some precedent here that we can point to where a judge, judge says that we don't have to, uh, swear in members in a timely manner, and let's see how far we can get away with this?
Yeah, like I said, look, we are always balancing, always balancing the risk-reward ratio and calculus of like, if we bring a case and we win, what's the benefit? If we bring the case and we lose, what are the potential downside, um, downstream consequences of that? And I'm sure that that AG Maiz has made that calculation. I'm sure the Representative-elect has made that calculation. Like I said, my suspicion is this won't have a lot of downstream effects because I I just, it's hard for me to imagine that this government shutdown goes on for so long that litigation jumps up from the district court to the Court of Appeals to the Supreme Court. We start to get really binding precedent. And even then, it will be a very odd case. I mean, you know, I I I remember this, uh, when we were talking about doing this episode, and you're right, you've wanted to do this for some time. Um, you know, there was this very weird circumstance back when Rod Blagojevich was the governor of Illinois, and he was essentially auctioning off a U.S. Senate seat. It was quite unseemly, and he wound up appointing someone to the seat, and that person, um, showed up at the, uh, Senate doors to be sworn in, and the Senate turned him back and said, "Nope, you don't have both certificates. You don't have both signatures on your certificate of election." And he said, "It doesn't matter. You know, I was appointed by the governor. That's constitutional. That's a constitutional power. Uh, and, you know, your paperwork doesn't matter." And they said, "Too bad. You have to go get the paperwork." So, they went back to the state. The, uh, one of the Democratic, I think it was the Democratic Secretary of State, who was supposed to countersign the paperwork, said, "I won't sign it." And that went to court, and there was in fact litigation about like this issue about whether or not this person, uh, gets seated. And ultimately, the court held that the Secretary of State needed to sign the paperwork. They signed the paperwork. Then it it came to the Senate, and the person was seated. By then, kind of the political controversy around it had kind of moved on. The dialogue had moved on. You know, it was still, it's still an important case. It's one I remember, but it's not one that like comes up that often. Oftentimes, these seating cases are kind of one-off. So, look, do I worry that Mike Johnson will make bad-faith use of anything? Yes, I do. I think he'll make bad-faith use of anything he possibly can. That's what he's built to do. That's what Donald Trump does. Donald Trump lies every day. I'm worried about the election monitors in California, not because they're going to find fraud, but because Donald Trump will make bad-faith use of whatever they do. So, I worry about that all the time. But I am, you know, I'm optimistic, let's put it this way, that this case will not wind up defining the law in a meaningful way that outside of the rhetorical use that Mike Johnson will make of it, that it will have, uh, otherwise binding consequences.
Well, look, I know I can speak for a lot of people in saying that in the event that this is this precedent is abused in any way, that I'm grateful that we have folks like you and your team that are standing by ready to fight this thing, uh, not only in the media where it especially matters, that's why I do what I do, but also in the courts, in ground zero where this stuff, where these battles are actually being fought. So, one small step that everybody watching can take to support Mark's work and elevate his voice is to sign up for Democracy Dock. I'm going to put that link right here on the screen and also in the post description of this video. I use it on a daily basis. If you're not yet signed up, trust me, do yourself a favor and sign up. I'm Brian Taylor Cohen.
I'm Mark Elias.
This is Democracy Watch.