January 6 and abuse of legislative & executive powers

In a recent essay on the need to revise the Electoral Count Act (as well as in a recent New Yorker interview), I have emphasized the need to focus on the abuse of Article I legislative powers in connection with the January 6 insurrection. The attempt to nullify Biden’s Electoral College victory, including the violence at the Capitol that was part of that attempt, would not have occurred without Representatives and Senators—like Mo Brooks and Josh Hawley—being willing to object to electoral votes cast for Biden, without having any valid basis for those objections under the existing Electoral Count Act or the Constitution. Under 3 U.S.C. § 5, the joint session of Congress was obligated to accept as “conclusive” all electoral votes cast by electors whose appointment the courts had confirmed “at least six days before” the casting of those electoral votes, pursuant to laws enacted before Election Day in November. 

Even the effort to get Vice President Pence to unilaterally nullify Biden’s Electoral College victory (regardless of how the Senate and House of Representatives would have voted on the objections raised by Brooks, Hawley, and other members of Congress) was an attempt to abuse Article I legislative powers—because Pence would have been acting in his Article I role as Senate president, and not as a member of the Article II Executive branch of the federal government. 

I have emphasized this point because I think it is important for setting priorities on how to avoid the risk that the kind of election subversion that failed on January 6, 2021 might succeed on January 6, 2025.  If Trump is a candidate in 2024, he obviously won’t be an incumbent. But the risk of an effort to nullify an Electoral College victory of his Democratic opponent remains largely the same. To be sure, Trump wouldn’t have an incumbent Vice President to pressure. But the possibility that pro-Trump Representatives and Senators might be willing to abuse their role under the Electoral Count Act and Twelfth Amendment still very much exists. 

Trump as a non-incumbent candidate in 2024 could repeat much of the improper behavior he engaged in as part of his effort to subvert the 2020 outcome. He could attempt to pressure election officials to “find” votes or otherwise manipulate the process of counting ballots and certifying results. He could also attempt again to arm-twist members of state legislatures, hoping to get them to submit rival sets of electoral votes on his behalf. He could even try to march to the Capitol on January 6, 2025 in an effort to intimidate members of Congress into acting on his behalf. These moves would be made as the standard-bearer of his party, rather than an officeholder, but in a two-party system they would constitute major misconduct in an effort to manipulate the election’s outcome.

Thus, in assessing the risk of election subversion on January 6, 2025, it makes sense to focus on what we have learned in connection with January 6, 2021 about the potential abuse of Article I legislative powers that might occur again. 

Still, in addition to the attempted abuse of Article I legislative powers, the evidence presented in the hearings held so far by the House January 6 Select Committee demonstrates significant abuse of Article II executive, powers. Trump’s effort, with the assistance of Jeffrey Clark, to get the federal Department of Justice to interfere improperly with state election procedures, especially in Georgia, was an abuse of Article II authority. (Thankfully, it was adamantly resisted by other DOJ officials, including Jeffrey Rosen and Richard Donoghue.)  Any attempt by federal officers, whether civil or military, to seize ballots or voting equipment would have been an even more egregious abuse of Article II power, but fortunately it seems that this outrageous idea was quickly dismissed as a non-starter.  And if President Trump had attempted to use any federal officers, including Secret Service agents, as part of an effort to use force to affect the joint session of Congress on January 6, that would have been an especially unconstitutional plot to use his Article II office seditiously against the procedures that the Constitution itself establishes for the confirmation of Electoral College results.  

Consequently, we must take seriously the ways in which Trump as an incumbent attempted to cling to power after losing the election. Indeed, as Bob Bauer has recently argued, the combined lesson of Watergate and the January 6 insurrection, is that there serious dangers of incumbent presidents acting improperly as they seek a second term. While the two-term limit was intended to strike a balance between permitting the reelection of a popular incumbent and avoiding the risk of abusing the powers of the presidency to win reelection, it may be necessary to recalibrate this balance in light of the ways the powers of the presidency have increased since FDR.Yet even as we remain attentive to this issue, we should not lose sight of the more immediate danger we face from potential abuse of congressional power in the context of counting Electoral College votes. Amidst all of the talk of what crimes Executive Branch officials, including President Trump, may have committed in connection with the January 6 Insurrection, what about the members of Congress who set the stage for what occurred? Whether or not their conduct may be untouchable as a result of the immunity provided by the Speech and Debate Clause of the Constitution (an issue I do not address here), their moral culpability for what happened on January 6—and the abuse of their role in the process of counting electoral votes—must be at the center of attention if we are going to prepare properly for the 2024 election. 

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