Could a rogue clerk bollix House control on Jan. 3? It’s not quite that simple.

In a recent op-ed, President Bill Clinton’s former Treasury Secretary, Robert E. Rubin, startled me with bizarre twist on potential electoral manipulation. Like others before him, Rubin boldly suggests that President Trump and his allies could also exploit “a procedural loophole involving the Clerk of the House that could enable them to refuse to seat duly elected Democratic members when the new Congress convenes on Jan. 3.”

Rubin does not elaborate on what that procedural loophole is, nor did he respond to several requests I made by e-mail asking him to explain. After discussing this with knowledgeable experts, I concluded he was probably referring to the fact that the clerk for a new Congress, by long-standing custom, is the carryover clerk from the previous Congress. Today that clerk is Kevin McCumber, elected by the Republican majority in 2023. By all accounts, McCumber is highly thought of on both sides of the aisle.

That leads to speculation that House Speaker Mike Johnson (R-La.) may oust him before noon on Jan. 3 when the new Congress convenes and replace him with a new clerk more amenable to cooking the election-count books.

How could the clerk be able to omit from his rollcall of members-elect certain individuals or states, thus disenfranchising them and thereby swinging majority control of the House back to the Republicans? Keep in mind that an election can be contested by a losing candidate or by protest from another member-elect. However, at least in recent times that does not entitle the clerk to refuse to recognize the certificate of election presented by a state’s designated top election official (e.g., the governor or secretary of state). Those contests are investigated by the House Administration Committee, but in the meantime the challenged members are provisionally sworn and seated.

It wasn’t until I explored the historical record that I realized it has not always been so. In the 19th century, the office of clerk was highly partisan, and there were several instances in which clerks simply refused to call the names of certain members thereby blocking their being sworn and seated.

In 1863, House clerk Amerson Etheridge excluded 16 members-elect from his call of the roll, including from five pro-Union states, while including three members from Louisiana. That effort failed, and a new clerk, Edward McPherson, was then elected. However, two years later, in 1865, during reconstruction, McPherson omitted the names of members-elect from the states of Tennessee, Virginia and Louisiana, thereby allowing the Radical Republicans to take control of the House, elect their Speaker, Thaddeus Stevens, and override many vetoes by President Andrew Johnson.

In 1839, in a dispute over the clerk refusing to include the five New Jersey members-elect on the roll, there was considerable debate over the legitimacy of a non-elected clerk in a new Congress unilaterally disqualifying certain members-elect. In that instance, a motion was offered to let the House determine whether to seat the five. When the clerk refused to recognize the motion, one member offered a motion to elect the oldest member of the House to be chairman of the body. When he refused the offer, another motion was offered to elect Rep. John Quincy Adams as chairman of the House until a Speaker was elected. That motion was adopted.

The prospect of a clerk assuming the powers once exercised by the office some two centuries ago boggles the mind. But it is reminiscent of the electoral vote count on Jan. 6, 2021, when Trump attempted to pressure Vice President Mike Pence, presiding over the joint session, to invalidate the presidential election results. Pence refused, explaining that he could not do it under the Constitution because his role was strictly administrative in nature, with no discretion to disallow the votes of any state.

When it was rumored that the Speaker might fire the current House clerk and install a new one just before the new Congress convenes, Rep. Jim Himes (D-Conn.), ranking member on the House Intelligence Committee, exclaimed that is a “break the glass scenario for us.”

Fortunately, the precedents are clear that in the absence of a clerk, the House must proceed immediately to the election of a new one. The Speaker may remove a clerk, but he may not appoint a new one. An interim appointment or elevation of the deputy clerk, will not suffice. The House is the ultimate arbiter of any election contests, just as it is over the election of its Speaker, its clerk, and other officers.

Don Wolfensberger is a 28-year congressional staff veteran culminating as chief of staff of the House Rules Committee. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).