Former Florida GOP Rep. Matt Gaetz withdrew his nomination as Minister of Justice on Thursday which new allegations about sexual relations he had with a minor emerged. Gaetz had already announced his immediate resignation from Congress, but it is possible he could take a seat in the next Congress in January.

How would this work? First, Gaetz must rescind his intention not to take the seat he won in November in Congress starting in January 2025. He officially resigned from Congress on November 13 when he submitted a letter declaring his resignation “effective immediately”. Adding: “I do not intend to take the oath of office for the same office in the 119th Congress.”

There is no existing precedent for a member of Congress resigning from one congressional session, but then taking the same seat they were elected to in the next. That makes this a bit murky – and there is competitor legal analyses for the situation.

If Gaetz claimed he now intends to take the seat in January, someone could sue to stop him from doing so. It could be Florida’s Secretary of State, who could argue that his resignation was official and that the special election to fill his seat was already underway. It is unclear how courts would rule in such a situation as it is unprecedented.

Alternatively, the House may refuse to seat him. But the Supreme Court ruled in the case of Powell v. McCormack of 1969 that Congress cannot use criteria outside the Constitution’s qualifications for office to refuse to seat a duly elected member. Again, courts have not decided the issue of a member revoking his intention not to take his seat. If this were to happen, Gaetz could theoretically sue to claim his seat.

The other option would be to let Gaetz take the seat and then expel him. However, expulsion requires a two-thirds vote in the House and is a step that is rarely taken. Only six members have ever been expelled from the House, three of whom were expelled for siding with the Confederacy in the Civil War.

All of that could be moot if Gaetz decides not to go back on his resignation. And he has every incentive to do so. Among the fallout from his resignation is the fact that it stopped the release of a House Ethics Committee report detailing allegations that he had sex with a 17-year-old girl. Gaetz has denied the allegations. The committee voted against releasing the report on Wednesday because he was no longer a member of Congress. If he were to take his seat, the ethics investigation would remain live and the report would likely be released.

The Florida Secretary of State’s office has already been tasked with setting a date for a special election to fill Gaetz’s seat. If he honors his resignation decision, the special election will go forward.

So far, Gaetz has given no indication of his political future after withdrawing his nomination for attorney general.