Challenge to the Electoral College Count

in the traditionally Republican state. But in a sixty two minute call on Saturday, just days before Congress is scheduled to certify the election results, President Trump pressured Georgia election officials to find thousands of votes and recalculate the election result to flip the state to him, just enough for him to pass Biden by one vote. All I wanna do is this. I just want to find uh eleven thousand, seven d eight votes, which is one more that we have.

Georgia officials responded by saying they have no evidence of widespread fraud and they'll stand by the election results. Joining me, the elections law expert Richard Brofald, a professor at Columbia Law School, the first, well, what is your reaction to President Trump calling Georgia's secretary of state and asking him to find eleven thousand, seven eight votes. It looks a lot like he is asking the secretary of state to commit a crime, and in so doing, it looks like

he is committing a crime. I mean, it is illegal to attempt to the private residence of the state of affair and impartial election. I'm quoted from the relevant federal law. It's illegal to procure or cause retabulation of ballots better known to be false or fraudulent. And that's again a pretty close paraphrase of the federal law. And there's a similar Georgia law that basically makes it a crime to

solicit somebody to commit election fraud. Given all of the audits and re audits and recount that Georgia has been through, as well as all the litigation it's been resolved and resolved and resolved against, so to say, can't you find a seven thousand votes for me? Sounds an awful law, like asking somebody to commit fraud, and that itself to

the crime. Now, the only thing that sort of draws you back from this is criminal laws usually require that the action be knowing and willful about that the person committing the act knows that it's a crime. And one thing that's a little hard to tell from all this is whether the president really believes that there are all these fraudulent votes out there and all these uncounted votes or whether it's just, you know, a gimmick, and whether maybe he should believe it given all of the court

decisions and all of the recounts that have occurred. So to try and push somebody to coerce by threatening with prosecution, or to to now induce somebody to commit election fraud is itself a crime, both federally and in Georgia. And the only hold up is this issue of state of mind. You have to be able to prove that this was done knowing that since would be committing fraud. There's also the rambling nature of the call, with President Trump jumping

back and forth between issues, and there's no explicit threat. Now. I mean, in some ways it's a little bit like from what we know about the Ukraine call, except this one's on tape. When he doesn't outright demand something, it's kind of what he's asking and then he's giving evidence. But you know, I haven't listened to very many types of mob bosses, but people tell me that that's what it sounds like. They very rarely say outright, you must do this. They kind of set it up in a

certain way that puts pressure. I mean, I think it sure looks and feels a lot like asking somebody to commit collection fraud. Whether it actually crosses that line, given state of mind, and given if you parse it word by word, be a closer question that certainly, whatever it is, it's totally improper, whether it is an outright crime, and there's certainly a case for calling it an outright crime.

It's the big question also is who would prosecute this crime? Well, of course right now general government camp was probably not going to prosecuting as the president, but presuming he doesn't attempt to pardon himself um, and there is a huge debate about whether a president can self pardon. Starting on January one, the U S Attorney UH, I guess, starting on the afternoon of January he was attorney to bring

the case. And of course they violates or at least there is a good argument that it violates Georgia law. And presumably the a local district attorney UM, the attorney I guess of the county where the state officials were sitting. I think that's Fulton County. UH could also open an investigation. And the president cannot pardon himself for a crimes committed

under state law. But Joe Biden has said that he's going to let the Justice Department do what if the Justice Department is supposed to do without any influence from him. There's also a political question of whether the Biden administration wants to start by prosecuting the former president, right. I mean, there are prudential questions as to whether this is a

wise move. I mean, the case for opening in the instigation is that this is, Yeah, it's one thing to sort of try and have somebody to try and commit election for something else from President United States is himself involved in a possible election fraud, and so given mistakes, there's a lot to be said for saying, you know that nobody is above the law. On the other hand, I could certainly understand the desire to put it all behind,

especially since it probably it's ever got into court. It probably is not completely open and shut, but there's certainly a lot of a lot there that could support an investigation and possibly an indictment. So far, we have a federal court dismissing the lawsuit that Congressman Louis Gohmert brought against Vice President Pans. What did you get from that dismissal? Well,

they were utterly impatient with it. I mean, I think even more than the dismissial by the distrecorded dississial by the Court of Appeals, which shouldn't even wait till it was briefed, I mean over appealed immediately. Uh. And the Court of Appeals knocked it out before even for all the papers were filed. Um, it's a pretty preposterous lawsuit. I mean, it was not decided on the merits. That was decided on standing and other technical issues, but on

the merits. Um. The idea that the vice president has a substantive role to play it just makes no sense given that you know, in many elections, including this one, the vice president himself will be affected by the outcome. So the idea that you would give him a role in deciding whether or not he wins his own election. Uh,

and given a substantive role, just makes no sense. On Wednesday, nearly a dozen Senators are going to be joining with dozens of their colleagues in the House and objecting two votes from several closely fought states where Trump has claimed baselessly that fraud cost him the election. There is a legal basis for that, isn't there? Yeah? Um, so under the combination of the Constitution and the Electoral Account Act, which is the law that Congress adopted to govern the

this exact process. Um. The the electoral votes are on January six, and this is my statute. Congress comes into session. Um. The envelopes that contain the submissions from the fifty states in district Columbia are opened um by the Vice President, who the President of the Senate, the Congress together the House, the Senate in one chamber of the House chamber, and then they're handed over to the clerks, and the clerks

then read them in the states in alphabetical order. UM. My guess Alabama's first, I forget the number of actoral votes Alabama less. I think it's nine in a month. The confident of that, and that's accepted unless somebody objects. Under the law, you need to have one member of the House and one member of the Senate both objects. If only somebody from one chamber of objects, nothing happens, you need to have one number from each chamber to object.

If that occurs, then they are supposed to resets. Each chamber is supposed to meet separately and debate for up to two hours as to whether or not they should accept or reject the vote from the the challenge state. But under the law, both chambers have to say no when presented with a set up with the electoral votes

of the state if they want to reject it. So you would need both the House and the Senate to say no. It seems very unlikely that Alice is going to say no since House has a narrow Democratic majority, and given the number of Republican senators in the Senate who said they're not going to say no, it seems

unlucky the sentup will say no either. But the process will take time because not only is there two hours of debate, but they actually would need to vote, and under COVID circumstances, with the chambers not being full, the vote could take some time, particularly in the House, which is a very big body. So it's conceivable of the vote itself will take an hour or more, and there would be a separate vote on each challenge state. And we don't know how many states the Republicans intend to challenge.

I guess we've been hurting here. He read a maximum of six six states that were somewhat close and the

final count. But that could mean that this could take at least twelve hours and probably at least eighteen and accounting the time it takes to vote, so they could be very well debating during the night, and this could very well take until the morning or maybe even midday on the seventh, until it's results if they really want to go ahead and have a debate on each of them, and I'm guessing at six states that they might want to challenge. So Rich, I have a question about that

eighties law. Doesn't it contemplate that there's two competing groups of electors that are being presented by the state. There are two different scenarios. One is if there is one set of electors, and what I was describing with a scenario for challenging that that's all there is. There's no there are no other official submitted electors for many of the states. All the states have submitted just one set

of electors. Other scenario, and this does deal with something which occurred in the election which led to the seven law, is that there were disagreements in the states, and in a couple of the states in the eighteen seventy six the governor sent in one set of electors and the legislature sent in something else. If it's two dueling sets of electors, um, the two chambers have to agree. But if if they can't agree, it's supposed to be the set that the governor signed, so there is a safety

valve if they disagree. Or as if it's just one set of electors, if they disagree, that those electors count because you need both chambers to vote them down. So the prevailing wisdom is that there is no possible way that the votes won't be counted and Joe Biden won't be deemed the winner. Do you agree with no possible way?

I'm going to say that, given how insane this entire year has been, I don't want to say that, UM, but I will say that there is no kind of legal or constitutional way that all of the law, the constitutional and legal provisions, and the votes that we know of in Congress all point in the direction that this may take longer than normal, longer than ever before, but that they will all be, that they will all be resolved and Biden will get is what I think. It's

three hundred and six electoral votes. It might take twenty four hours, but that should be the way it works. Out. There is reporting that Vice President Pence's aids are developing a plan for him to acknowledge the reality of the November election, but at the same time making a statement about President Trump's claims about election fraud that have been disproven. Is their room for him to do that? To make a statement? My impressionist that's never happened. But I don't

know that anything that would stop that. He is the presiding officer. He's got the castle, so it would be hard to see how he could be stopped. I suppose members of Congress could object, but um, since I don't think anything like that has happened before, we don't know how that scenario would play out. He does that, McCall, he is standing up on the rostrum, and it's possible. Thanks for being the Bloomberg Law Show. Rich that's Professor

Richard Rofault of Columbia Law School. A DC federal appellate court has ruled that requests for information by Congressional Oversight panels don't require the approval of the majority members. The two to one decision overturned a district court opinion for

the Trump administration. The appellate Court's decision affirms the right of minorities on the oversight committees at least seven members on the House Committee and five in the Senate to request information from federal agencies and to get the courts to step in if the agencies refused to comply with a request for information. That's distinct from the subpoena power of congressional committees, which requires a majority of the committee

joining me. Is David Sklansky, a professor at Stanford Law School, start by explaining what the lawsuit was all about. But that's the lawsuit filed by Democratic members of the House Committee on Oversight and Reform. They sued the General Services Administration for failing to give them information that they had requested about the lease of the post office building in the District of Columbia to Donald Trump and company. So now this is under the seven member rule, not about

a subpoena. That's correct. Um, There's a federal statute that says that certain number of members of either the Senate oversyche Committee or the House oversych Committee, it's five members of the Senate Committee or seven members of the House Committee can request information on any matter within the purview of the committee from the executive branch and the Executive

branch has to supply it. That's without a subpoena. The lawsuit was brought by seven the Democratic members of the House Committee on Oversight and Reform, and they requested information pursuance of the federal statute, and the administration refused to provide it. So they went to court. So tell us

what happened at the trial court level. The trial courts, the Settle dist the court um in the District of Columbia ruled against the plaintiffs because the trial courts said that they lacked standing, and standing as a technical legal doctrine that says that uh, federal courts can't decide questions

the abstract. They can only decide questions. They can only take on a case when there's something concrete at stake, and it has to be at stake between the people who are bringing the case and the people who are being sued. So I can't see, for example, because I think that my son was unfairly taken advantage of or he did out of something. And you also can't see even if some organization that you're a part of has

been wrong. So I'm a professor at Stanford, but I can't sue because I think Stanford University has a right that was infringed on somehow, or Stanford University was unfairly damaged. And that's true for members of Congress too. Members of Congress generally are not allowed to se because they think that Congress is not being treated well, but they can sue if they individually have been injured in some way

that the court has the power to address. So the district court said that these members of Congress lack standing to complain about a violation of this statute because the statute didn't really protect them to protected Congress. So the House of Representatives could sue, but these individual members couldn't sue. That's what the trial court said. Okay, so tell us now what the appellate court said. The Power Court said, it's not true that these individual members of Congress weren't

her they were hurt. This is a statute that gives a right two groups of congressional representatives to request information from the executive branch, even when they're in the minority. So it's an unusual statute in that way. And there is something we all have to stay to you. The Court of Appeal said, between these individual members and the administration, these individual members say we have a right to this information under the statutes, and the executive brand said, we're

not giving it to you. So the Court of Appeal said, these members do have standings to pursue this lawsuit. Now, that doesn't mean that they're gonna win. It doesn't mean that they have a right to the information. It doesn't even mean that the court ultimately should decide whether they

have a right to the information. Because the Court of Appeal said that the trial courts can consider uh an argument that the Trump administration raised, that it would be inappropriate for courts to get involved in this question altogether.

The trial court also consider an argument that the Trump administration raised that this statute doesn't give right to members of Congress that they can pursue in court, and the trial courts can consider an argument that the Trump administration raised um that the kind of information that these members were requesting is not the kind of information that the

statute authorizes them to request. So the Trump administration could still win in court when it goes back to the trial court, assuming that the administration continues to contest the lawsuits. So that the Court of Appeals didn't say that the point does automatically win. It just said they don't lose on standing grounds. Now, as a practical matter, Um, the

administration is about the change hands. So there's gonna be a new director of the generalman Services Administration and the new president, and it's highly unlikely that the new administration is going to continue to resist giving this information to Congress, so the student is likely to become UH moved once

the new ministration takes over. Um. What what will stay on the books, though, is the decision by the Court of Appeals that a minority UH a group of minority members of either of the Congressional oversight committees, the Senate Oversight Committee or the House Oversight Committee can sue in court two force the administration to comply with the requests that are made pursue into the Sederal Statute Section type of five. Does this ruling fit in with the way

the Supreme Court has ruled in cases recently involving Congress suing. Well, that's what the Court of Appeals disagreed about. So that's the as is normal on a federal Court of Appeals. Beside the case, the case is decided by a three judge Channel three of the judges on the United States Court of Appeals for the discuss Columbius Circuit, and those

judges slipped to one. Two of the judges thought that he requests that these members of Congress we're making and the lawsuit that they filed falls within the decisions of the United States Screme Court. Is made about when Congress is allowed to s and when Congressional committees are allowed to because the United States treame Court has made it clear that the House of Representatives can sue to get traditional enforcement UH, it's right under the law, and Congressional

committees consue to enforce their subtoenas. On the other hand, individual members of Congress can't to complaint, meaning that the committee or UH or the House of Representatives as a whole or the Senate as a whole was unfairly treated and didn't get what they're entitled to under the law. So the question in the cases is a group of five members of the Senate committee or seven members of the House committee, is that UM like UH when those

people sue. Is that like an individual member of Congress doing saying I think Congress has has been injured or is it like um individual members of Congress doing when they impact themselves have been injured. So there was a disagreement among the three judges, and two of them said that the Screen courts earlier decisions suggests that these members of Congress have standing, and one member of the court

thought otherwise. He said that the decisions of the United Satescreen Corps proper the interpreted suggest that these members don't catch standing. Congressional subpoenas seem to be not worth the paper they're written on recently, at least in the last four years, because it doesn't seem like there's any enforcement power. They have to go into the courts and then it takes forever. And as we've seen in many cases, the Trump administration is coming to an end before some of

these cases are coming to an end. So is this a better way, like for this one oversight committee to get information, an easier way than through subpoena? Well, it's easier in the sense that the party that is in the minority and request of information without getting the committee as a whole to approve it. But once the request is made, if the administration fails to comply, you have

the same problem that you have with subpoena. That enforcing a right information in federal court can take a long time um and the administer ration can run down the clock. That's exactly what happened here in this decision is coming at the very end of the Trump administration. Now, I wouldn't say that that means that it's useless. It happens that Trump lost the election and he's on his way out.

But if he had won the election, he would have been in office for another four years, and it would have been meaningful that the court had said that there

was a right to this information. Still, it's unclear how quickly they would have gotten the information even with this ruling, because, as I mentioned, the ruling just says that that the standing doctrine doesn't block this too, the administration still had other arguments for why the lawsuits shouldn't be allowed and why they shouldn't be required to turn over the information, and it could well be that litigating those additional issues would have taken another four years. Thanks so much for

being on the show. That's David Skolanski, professor at Stanford Law School. And that's it for the addition of the Bloomberg Law podcast. I'm June Grosso. Thanks so much. For listening, and remember you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and wherever you get your favorite podcasts. And please listen to The Bloomberg Lawn Show every weeknight at ten pm Eastern on Bloomberg Radio