Former Treasury Secretary Robert Rubin recently raised eyebrows with a warning that President Trump and his allies could exploit a procedural loophole involving the House Clerk to block duly elected Democratic members from being seated when the new Congress convenes on Jan. 3. Rubin didn't specify the mechanism, and he didn't respond to requests for clarification. But experts point to the clerk's role in calling the roll of members-elect—a duty that, in the 19th century, was occasionally abused for partisan gain.
The clerk for the new Congress is typically the carryover from the previous one—currently Kevin McCumber, elected by Republicans in 2023. McCumber is widely respected across the aisle, but that hasn't stopped speculation that Speaker Mike Johnson might replace him before the Jan. 3 session to install someone more pliable. The fear is that a partisan clerk could omit certain members from the roll, thereby altering the balance of power and handing control to Republicans.
Modern practice, however, offers little room for such maneuvers. When a member-elect presents a certificate of election from a state's top election official, the clerk is expected to include them. Challenges to an election are handled by the House Administration Committee, but the challenged member is provisionally sworn in and seated pending the outcome. That's a far cry from the 19th century, when clerks wielded significant discretion.
Historical examples illustrate the potential for abuse. In 1863, Clerk Amerson Etheridge excluded 16 members-elect from five pro-Union states while including three from Louisiana—a move that ultimately failed. Two years later, Clerk Edward McPherson omitted members from Tennessee, Virginia, and Louisiana, allowing Radical Republicans to take control of the House and override President Andrew Johnson's vetoes. In 1839, a dispute over New Jersey members led to a standoff that was resolved by electing John Quincy Adams as chairman until a Speaker was chosen.
These precedents show that the House has always retained the ultimate authority to determine its own membership. If a clerk refuses to act, the House can elect a new one or proceed to choose a Speaker and other officers. The Speaker may fire a clerk, but he cannot appoint a replacement; an interim appointment won't suffice. The House must act collectively.
This echoes the Jan. 6, 2021, situation when Trump pressured Vice President Mike Pence to reject electoral votes. Pence refused, citing his strictly administrative role. Similarly, a clerk's duties are largely ministerial, and any attempt to unilaterally disqualify members would likely backfire.
Rep. Jim Himes (D-Conn.) called the prospect a “break the glass scenario,” but the institutional safeguards appear robust. The House is the arbiter of its own elections, and members can challenge a clerk's actions immediately. As Democrats retake the House, the likelihood of such a stunt succeeding is low.
That said, the fact that this is even being discussed reflects the deep mistrust in today's political climate. With Ohio's 2026 House races already hinting at razor-thin margins, any perceived irregularity could escalate quickly. But as history shows, the House has weathered such storms before—and it will likely do so again.
