CNN reports: “The majority of the money has come from organizations tied to people aligned with former President Donald Trump and his false claims of a stolen election.”
Atlanta Journal Constitution reports. The article notes that Fulton County is “home to a tenth of all Georgians.” Under Georgia’s new law, “the State Election Board can replace a county’s election board following a performance review/audit/investigation. Then, a temporary superintendent would enjoy full managerial authority of how the county counts votes and staffs polling places.” Thus, the request for a performance review “by two dozen state senators” is a significant first step “toward a possible takeover of Fulton County’s elections.”
Politico reports: “Lawmakers on the Jan. 6 select committee describe their probe’s reach as still undefined.” For what it’s worth, I think it’s important to focus on whether–and if so how–the “Stop the Steal” organizers thought they were going to actually, from their perspective, stop the steal (meaning how they thought that disrupting the joint session of Congress to count the electoral votes would prevent Biden from becoming president on January 20 and how they thought they could give Trump a second term). Did the “Stop the Steal” organizers really believe they could accomplish this, given the Electoral Count Act? If so, why did they have those views? Did they also think that simply by delaying the counting of electoral votes they could somehow extend Trump’s stay in office, despite the Twentieth Amendment and the rules for determining who serves as Acting President in the event that the counting of electoral votes remains incomplete at noon on January 20? These kinds of questions, it seems to me, are important in preparing for a risk of a second “stop the steal” movement on January 6, 2025.
Despite Senators Hawley and Cruz joining Rep. Mo Brooks and other GOP House members in objecting to electoral votes in favor of Biden, the result of the joint session pursuant to the Electoral Count Act was never going to be other than Biden’s victory. And if somehow the counting of electoral votes had been delayed all the way to noon at January 20, Speaker Pelosi would have been entitled to step in as Acting President under the Twentieth Amendment and 3 U.S. Code § 19. If (God forbid) the insurrectionists had been successful in murdering Speaker Pelosi (and also Senator Grassley as president pro tempore of the Senate at the time), then Secretary of State Mike Pompeo would have become Acting President at noon on January 20. Was that the “Stop the Steal” organizers’ objective? If so, to what end? Would Pompeo have attempted to assert power as Acting President indefinitely, or would he have felt obligated to restore order to permit completion of the counting of electoral votes, which would have resulted in Biden becoming president under the Twentieth Amendment for the remainder of his term (albeit in an Inauguration ceremony that had been inappropriately delayed by one ore more days)? Perhaps the Select Committee should call Pompeo as a witness to hear his understanding of the circumstances leading up to, and on, January 6.
But the real risk for January 6, 2025, it seems to me, is that there are more Senators and Representatives like Hawley, Cruz, Brooks, and all the others who were willing to embrace the “Stop the Steal” movement from inside the Capitol despite Attorney General Barr (among many others) having called it “b__sh__.” Is the Select Committee going to be able to tackle that problem? If so, how? And if not, then what?
(Note: this post has been corrected to reflect Senator Grassley’s place in the line of succession on January 6; thanks very much to a reader of the blog for pointing out the erroneous omission.)
Washington Post reports. We know Trump wanted to overturn the result of the election. What we don’t (yet?) know is the full extent of the lengths he went in this effort and whether anything he did crossed the line into seditious conspiracy under 18 U.S. Code § 2384. There is also the possibility of Trump crossing the line into criminal culpability under 18 U.S. Code § 371, which involves intent to defraud the United States. Trump’s various conversations in December and early January concerning so-called “stop the steal” activities, including those he had with Acting AG Rosen, could potentially be relevant to the inquiries that the Select Committee and the current DOJ are pursuing.
Margaret Sullivan in The Washington Post, explicitly invoking the work of Tom Mann and Norm Ornstein, calls for Big Media to reframe its approach: “The democracy beat shouldn’t be some kind of specialized innovation, but a widespread rethinking across the mainstream media.”
NBC: Arizona’s former Secretary of State, Ken Bennett, is resigning his role in supervising the Cyber Ninjas on behalf of the state senate. Having been shut out of the process, he announced: “I cannot put a rubber stamp on a product [when] I am being locked out of its development.”
Also, the audit’s “Twitter account, @ArizonaAudit — was permanently suspended by Twitter along with seven other pro-audit accounts that promoted former President Donald Trump’s lies about last fall’s vote.”
The Atlanta Journal Constitution reports. The Georgia legislature is thinking of new ways to strip power from the Secretary of State’s office, another apparent rebuke to Brad Raffensperger.
To be fair, the whole idea of elected partisans running elections is problematic, but when an elected partisan acts professionally, as Raffensperger did, it’s hard not to be cynical when legislators say they are trying to depoliticize the process by curtailing the Secretary of State’s authority.
Luke Broadwater of the NY Times was on the Daily podcast and provided a superb overview and analysis of the political dynamics leading up to and surrounding yesterday’s hearing.
The Lawfare podcast went even deeper into details, with Quinta Jurecic and Molly Reynolds joining Benjamin Wittes for one of their typically insightful discussions.
Significant development in litigation over the Big Lie and its consequences.
As reports of today’s select committee hearing are starting to roll in (from The NY Times, The Washington Post, Politico, The Hill, and elsewhere), I’m struck by the fact that the ongoing threat to democracy is not diminished by Trump no longer being an incumbent president. While there’s the issue of executive privilege, which Biden’s DOJ reportedly has waived, and although the idea of an incumbent president attempting to secure a second term contrary to the will of the voters is especially obnoxious to self-government, the danger posed by The Big Lie (and what I call “electoral McCarthyism”) does not depend on holding onto Article II power.
Instead, as I mentioned in an earlier post, the biggest risk that Trump starts a second term on January 20, 2025, as a consequence of his being awarded electoral college votes that he did not win as a result of the popular vote in the relevant states, is from members of Congress being willing to declare him the winner even though he actually lost, in a second–and this time successful–version of the Big Lie. In this respect, while it’s good that Liz Cheney and Adam Kinzinger are part of the select committee, what will be the enduring significance of the fact that they are the only two Republicans (and serving in defiance of their own party’s leadership)? If the rest of the GOP is willing to defy the reality of election returns, because it is enthralled in the “electoral McCarthyism” of Trump’s insistence that he wins elections regardless of the evidence, and if these Republicans control Congress on January 6, 2025, what’s to protect the will of the electorate then? Is there a plan, either through the work of the select committee or otherwise, to confront this problem?
As the committee’s hearings begin with riveting testimony of the horrific violence at the Capitol on January 6, and with much discussion about the need for the committee to figure out what caused the breach of the Capitol that day (including Rep. Kinzinger’s op-ed), I hope that there will be recognition that the threat on January 6, 2025 probably won’t be a repeat of the security failure that occurred this year. True, it is possible that America will lose its democratic system of self-government as a result of a violent overthrow of the Republic, but I think the security forces of the Biden Administration, as well as Congress’s own protection with its Capitol Police, will be much better prepared in the event of civil unrest after the 2024 presidential election.
Instead, I think the much more significant threat to America’s capacity for democratic self-government will come from the abuse of legal machinery that would permit the party that loses the presidential election to negate the outcome that the voters want and to install a different winner. That could happen without a single drop of blood being shed, if security forces do their job in keeping civil peace even as control of the government is determined, not democratically, but through an abuse of power. How could it happen? It would involve features of what we all witnessed between November and January, but without the violent breach of the Capitol. There would be an effort to get state legislatures, or state governors, to assert control over a state’s electoral votes regardless of the actual popular vote in pivotal states. There would be a willingness in Congress of Representatives and Senators to have the outcome of the presidency determined not based on what the voters actually wanted, but based solely on partisan votes in Congress itself.
The key point is this: the entire existing apparatus of antiquated rules that would permit this kind of anti-democratic “coup” through the exercise of state and federal government power remains in place today, ready to be employed again by partisans wishing to use it this way. Trump’s effort to get a second term that he didn’t win from voters by the use of this apparatus failed because state-level officials didn’t go along with his plans (this time) and, even more significantly, because he lacked sufficient votes in Congress under the arcane procedures of the Electoral Count Act. But he is endeavoring to replace state-level officials with individuals who will be more compliant with his wishes next time and hoping to have a more compliant Congress as well.
Will the select committee, in addition to being backward-looking in determining how the Capitol could have been breached to the point of such deadly violence, be forward-looking on what reforms are essential to prevent a repudiation of self-government (whether bloodless or bloody) after ballots are cast in the November 2024 election and the losing side doesn’t like the outcome?
The Network for Responsible Public Policy last week hosted a discussion on the current status, and future prospects, of the For the People Act, still pending in the Senate as S1 (having been enacted by the House as HR1). Dan Weiner of the Brennan Center and I offered different perspectives on the content on the bill, the priorities of its components–I emphasized the need to combat gerrymandering before the midterm maps are drawn–and strategies for getting priorities adopted. I thought it was a really good discussion: while Dan and I agreed on some key objectives, there definitely were differences in how to think about the pending bill and how best to protect American democracy at this current moment of great stress. You can watch the discussion either at the above link or here.