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My question is inspired by the hypothetical actions of some of the recent insurectionists, one of whom was pictured below:

https://www.snopes.com/fact-check/zip-cuffs-capitol-riots/

At least 2 men raiding the Capitol bought restraints with them, as if they were preparing to take hostages.

Now this didn't eventuate, and we wont know their motivations for a while, if ever (they may have wanted some human shields, they may have been planning executions, or worse unspeakable things). But combining this with what was happening on the floor and Trump's rhetoric at the time, a crazy plan seems to emerge where they weren't hoping to just delay Biden's confirmation, but actually hold politicians hostage until they made Trump president.

Now this seems like something out of a bad action movie, but I also understand that the US constitution and procedural laws formalised many of these processes - x must occur on day y by process z - leaving little room for "we need to retake the vote because half to room was under duress" style concerns.

So if this insurrection plan succeeded, far fetched as it was, and they got everyone to say the right words to make Trump "win", how would that mess be cleaned up politically / legally?

How do you invalidate a congressional decision due to duress?

(If there is a "undo last action" ability of Congress, or "person A was out of position, therefore everything was invalid" ability, that sounds like it could be abused in the course of normal politics. Trump still has allies in Congress so such corrective action wouldn't be unanimous - some politicians would object to reverting the outcome)

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    I find it strange that one of the rioters was wearing a face mask (improperly). – user253751 Jan 13 at 14:59
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    @user253751: Masks do serve multiple purposes, you know. I doubt that any of the bank robbers depicted with bandanas over their faces in westerns were really concerned about the spread of disease :-) – jamesqf Jan 13 at 18:54
  • @jamesqf Not to this crowd they don't! This crowd has made not wearing a mask part of their identity... – user253751 Jan 13 at 19:10
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    @user253751 Contrary to media-promoted perceptions, only 12% of Republicans are anti-mask (9% of independents are, as are 6% democrats), and even that is artificially high, because many of the anti-maskers are only anti-maskers because they are against government compelled wearing of masks, and view any wearing of masks ceding ground to government overreach; only some view masks as ineffective. To put this in other words, more Republicans support abortion than are opposed to masks. – Jamin Grey Jan 14 at 0:21
  • @user253751: But if you look at pictures of the event, you'll see that quite a number ARE wearing masks. Not all the anti-COVID sort, of course. I recall seeing at least one wearing a gas mask, others with cowboy-style bandanas, &c. – jamesqf Jan 14 at 3:54
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The simple fact is that there is a ghost in the machine.

It is common to see questions on this forum discussing the working of the Constitution in some extreme condition. Perhaps because many people here have a connection to software engineering, the Constitution is viewed like a computer program, and the government is the hardware which runs that program. And like a computer, the government is assumed in each state to read the constitution, and if a clause matches the current state then execute that clause, and repeat. A computer follows rules it doesn't ever think about them.

But if the government is a machine, it is a machine composed of hundreds of thinking, intelligent agents. And in extreme conditions, the Constitution doesn't give a clear rule for getting from that state to the next.

A vote taken under duress is not a vote at all. There is no combination of "right words" that could make the vote a vote. If clarity was needed, a simple resolution would suffice. "The House refutes all actions taken in this chamber while members were bound and gagged".

So, yes, this would be a mess, but it is a mess that could be sorted out by the people upholding the Constitution, not following it mindlessly.

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    I guess that if some resolution like that had to pass the House of Commons, it would read "The House refutes all actions taken in this chambers while members were unwillingly bound and gagged." :-D – SJuan76 Jan 13 at 9:31
  • Also, I do not know all the specifics of USA, but in many places a vote is not enough. Laws and other decisions may need to be reviewed by some people (for example in the USA the POTUS has the opportunity to veto it, or delay signing it) and follow certain procedures (to be published in a certain manner, for example). And after all there are the constitutional tribunals. – SJuan76 Jan 13 at 9:37
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    Upvoting this answer as I, the OP, am a software engineer. Well picked. – Ash Jan 13 at 11:55
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    Bill Maher calls all the unwritten rules that Trump has broken "Gus rules", after the movie where a mule was signed as a kicker in (American) football, because there's no rule that says that a team member has to be human. – Barmar Jan 13 at 16:10
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    @Sjuan76 One wonders what sitcom-level circumstances would lead to a Congressperson voluntarily showing up on the House floor bound and gagged. – Sebastian Lenartowicz Jan 13 at 18:22
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If you want some kind of (non-US) historical precedent... all Acts of Parliament under the Cromwell regime (protectorate) were rendered void in the The Restoration.

The Statute Book is a blank from the close of the 16th year of Charles I. (1640–1) to the year of the Restoration, the so-called 12th year of Charles II. (1660). Yet the intervening period was a time of great legislative activity; the attention of Parliament was not solely directed to war, or finance, or constitutional experiments; there was much general legislation of every kind; many legal and social reforms were attempted which, if often premature and abortive, were yet in some instances permanent and farreaching.

I recall reading somewhere (but I can't find the ref again right now) that in some instances the Acts from the Protectorate were even literally burned after The Restoration. Thankfully (from historians' perspective) some copies survived. In any case, the years of the Protectorate were literally erased from the later (official) law books.

If you want something more in a US tradition, invoking an "Act of God" for overriding some procedural constitutional matters, would probably be the thing

At the presidential count ceremony in 1857 a dispute erupted over Wisconsin’s five electoral votes, which had been delivered a day after the deadline because of a blizzard. [...]

The Wisconsin votes didn’t make any difference in the outcome of the 1856 election. But some lawmakers warned that permitting the presiding officer to accept a state’s illegal vote could set a “dangerous precedent,” according to Congress’s record of the debate in the Congressional Globe. [...]

[In the end,] Wisconsin’s votes were counted because Congress had agreed that an “Act of God” had prevented the electors from reaching the state capital of Madison on time.

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  • I do not think neither of them are good examples: the Restoration example seems more like denying the legitimacy of Cromwell's Parliament than to stating that its members were "under duress" (if they had been they could have used it as a defense if the King tried to judge them). And a armed mob entering by force the Congress is not "an Act of God" by any measure. – SJuan76 Jan 15 at 12:48

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