Week Ending

Democrats to Control Senate; Groups React to Riot; Removal of Trump Sought

Democrats to Control Senate; Groups React to Riot; Removal of Trump Sought

The storming of the U.S. Capitol January 6 overshadowed most developments in Washington, D.C., including the results of the Georgia runoff elections that saw Democrats gain control of the Senate and President-elect Joe Biden naming Merrick Garland as his nominee for Attorney General.

Energy trade groups such as the American Petroleum Institute, American Gas Association, Electric Power Supply Association and others issued statements condemning the violence that took place on Capitol Hill. Such groups often avoid harsh statements on politicians due to their members’ business interests, but API President and CEO Mike Sommers was among those saying President Donald Trump is responsible for encouraging a mob to move on the Capitol building. In a statement to the Washington Post, Sommers said Trump has proven himself unworthy of the office of president.

Lawmakers and others went farther and have sought to have Trump removed from office less than two weeks before his term ends and Biden is sworn in on January 20.

Among the aftermath of the riot that temporarily delayed Congress certifying the results of the electoral college for Biden and Vice President-elect Kamala Harris are requests for invoking the 25th Amendment of the Constitution to remove President Donald Trump from office. Rep. Adam Kinzinger (R-Ill.) became the first Republican lawmaker to make that call. In a video statement posted on Twitter, Kinzinger said President Trump is unfit for office and it’s time to invoke Section 4 of the 25th Amendment, which allows a majority of the cabinet and the vice president to remove a president from office.

Senate Minority Leader Charles Schumer (D-N.Y.) and House Speaker Nancy Pelosi (D-Calif.) called on Vice President Mike Pence to use the 25th Amendment. If Pence does not do so, the House may move forward with another impeachment proceeding, Pelosi said January 7.

Former Attorney General William Barr, who stepped down from the Trump administration in December, said Trump’s actions and words on January 6, inciting a mob to pressure Congress, was inexcusable. “The President’s conduct yesterday was a betrayal of his office and supporters,” Barr said in a statement to Politico.

The management board at Crowell & Moring LLP issued a statement January 7 that said the violence in the Capitol was a predictable result of a rally summoned by Trump, who reinforced false claims of a rigged election. The firm said, “The President has proven himself unfit for office, and a reckless and wanton threat to the Constitution.” It called upon Pence and cabinet members to invoke Section 4 of the 25th Amendment and declare Trump unable to discharge the duties of his office.

Crowell & Moring also urged “all law firm leaders and all lawyers in government to join in this call, and to stand up for the democratic institutions and traditions of our republic and the Constitution that gives them life and protection.”

The head of the National Association of Manufacturers, Jay Timmons, said Pence should strongly consider invoking the 25th Amendment of the Constitution, and Sean McGarvey, president of North America’s Building Trades Unions, said Trump should resign or face use of the 25th Amendment to remove him. “Any less action by the Cabinet and America should consider them all co-conspirators,” McGarvey said.

It remains to be seen if a majority of cabinet members would support removing Trump from office, and if an acting secretary at an agency would be authorized to take part in such a step. Transportation Secretary Elaine Chao, who is married to current Senate Majority Leader Mitch McConnell, said she intends to resign in protest over the events of January 6, while Acting Secretary Chad Wolf, at the Department of Homeland Security, condemned the violence but said he would not step down.

Interestingly, the White House on January 7 withdrew the nomination of Wolf to be DHS Secretary.

In her January 7 statement, Chao said her resignation would take effect January 11. Late in the day January 7, Education Secretary Betsy DeVos sent a resignation letter to Trump, indicating she would step down January 8.

Biden addressed the nation January 6, urging calmer heads to prevail, shortly after it was reported that he intends to nominate Garland, who is on the U.S. Court of Appeals for the D.C. Circuit, as Attorney General. Garland, who was denied a Senate hearing when he was nominated by former President Barack Obama to serve on the U.S. Supreme Court, has experience with administrative law and environmental protection statutes, which could be of use in a Biden administration that pursues steps to address climate change, legal observers noted.

Besides opening up a judge nomination spot on the D.C. Circuit, observers also indicated that Senate confirmation of Garland is more likely with the 50-50 split as a result of the Georgia runoff elections. With Democrats Raphael Warnock and Jon Osoff elected to the Senate – assuming the election results are upheld – Vice President-elect Kamala Harris would be a tiebreaking vote if needed, and tips the Senate to Democrats.

The change from Republican majority will put Sen. Joe Manchin (D-W.Va.) as chairman of the Senate Energy and Natural Resources Committee. Sen. John Barrasso (R-Wyo.), who had been chairman of the Environment and Public Works Committee, will be the ranking member on the Senate Energy Committee due to GOP leader term limits affecting Sen. Lisa Murkowski (R-Alaska). Both Manchin and Barrasso come from states with heavy coal resources, though Manchin has bipartisan skills that have made him a key player for legislation on many different topics, noted Scott Segal, partner at Bracewell LLP and co-head of the Policy Resolution Group at the firm.

Flipping the Senate to Democrat control, even with such a slim margin, will move climate change and clean energy legislation higher in the Biden administration agenda, according to Segal. Aggressive clean energy standards or comprehensive climate change legislation will be difficult for Democrats in 2021, but funding for clean energy and other measures could gain support if the end-of-2020 omnibus legislation that had many energy provisions is any guide, he said.

There are implications at FERC as well. Observers have noted that with Democrats holding the tie-breaking vote, Biden could nominate someone to fill Commissioner Neil Chatterjee’s seat who is a bit more progressive than if Republicans retained the Senate majority. Chatterjee’s term ends June 30 and he has indicated he intends to serve the full term. Chatterjee, a Republican, can remain at the Commission beyond June 30 if a replacement is not confirmed by the Senate. A Democrat is expected to be named as a FERC nominee by Biden.

A simple majority in the Senate also makes use of the Congressional Review Act to overturn late rules from the Trump administration more feasible, Segal added.

By Tom Tiernan ttiernan@fosterreport.com

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