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.
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?
Mischiefs of Faction has new analysis of 2018 data. Their assessment: “Republican candidates looking for electoral success may want to think carefully before welcoming Trump’s endorsement.”
Some emphasize the division between Republicans, others the attempt by Democrats to enlist Cheney and Kinzinger in establishing a responsibly bipartisan investigation:
The Hill, Politico, Washington Post, NY Times, WSJ
… to the January 6 select committee? Reports are that she might.
It’s fascinating to hear Trump talk about the historical example that Bruce Ackerman and David Fontana wrote about in their article, Thomas Jefferson Counts Himself into the Presidency. One could rehash how that precedent should be characterized (a point I consider in Ballot Battles) and why it’s inapposite to Pence’s situation in 2020. But it seems more relevant for present purposes to reflect on what’s inside Trump’s head, as revealed by his words and tone of voice, compared to the reality of the situation as it concerns both the popular vote and relevant Electoral College procedures applicable to the 2020 election. If one is trying to get a handle on Trump’s “Big Lie” and specifically the gap between Trump’s claim of a stolen election and the truth of Biden’s valid victory, this audio from Washington Post reporters Carol Leonnig and Philip Rucker, for their new book, is as good as place as any to start.
Bottom line from nationwide deep dive: “the findings illustrate a lack of evidence to back up claims of widespread cheating.”