Yesterday’s Good News Roundup (GNR) diary “Don't Waste Your Energy Freaking Out About Manufactured Garbage Stories” and today’s NY Times editorial prompted me to write this.
Did we come close to a constitutional crisis on Jan. 6th? It depends on whom you ask. If you ask the editorial board of The New York Times the answer is yes.
The Times (subscription) begins their argument as follows:
However horrifying the Jan. 6 riot at the U.S. Capitol appeared in the moment, we know now that it was far worse.
The country was hours away from a full-blown constitutional crisis — not primarily because of the violence and mayhem inflicted by hundreds of President Donald Trump’s supporters but because of the actions of Mr. Trump himself.
In the days before the mob descended on the Capitol, a corollary attack — this one bloodless and legalistic — was playing out down the street in the White House, where Mr. Trump, Vice President Mike Pence and a lawyer named John Eastman huddled in the Oval Office, scheming to subvert the will of the American people by using legal sleight-of-hand.
Mr. Eastman’s unusual visit was reported at the time, but a new book by the Washington Post journalists Bob Woodward and Robert Costa provides the details of his proposed six-point plan. It involved Mr. Pence rejecting dozens of already certified electoral votes representing tens of millions of legally cast ballots, thus allowing Congress to install Mr. Trump in a second term. Link
They base their premise on the chance that the six point plan proposed by the attorney John Eastman (who clerked for Clarence Thomas and “drew controversy in 2020 for an op-ed which erroneously suggested that then-presumed Democratic nominee for U.S. Vice President Kamala Harriswas not an American citizen and thus not legally eligible for the position.could have come to fruition and precipitated a constitutional crisis. “(Wikipedia)
Here are the six points in the plan:
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VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically is required).
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When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. This would be the first break with the procedure set out in the Act.
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At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment -- is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.
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Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.
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One last piece. Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one — a constitutional no-no (as Tribe has forcefully argued). So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules (which includes the filibuster). That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.
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The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position -- that these are non-justiciable political questions – thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.
These were a lot of things that had to to go right for Trump and his co-conspirators to prevail, not the least being that Pence would have had to go along with it (and we know he didn’t). For this reason I think the doomsday scenario laid out in The NY Times editorial is somewhat overblown. It was necessary to reveal what Trump was doing behind the scenes but to say that “the country was hours away from a full-blown constitutional crisis” seems a bit hyperbolic to me.
I think Trump was trying to put together a metaphorical airplane that would fly with Eastman providing disparate parts and trying to connect them with a grab bag of nuts with unfitting bolts. The not demonstrably insane Mike Pence I figure sat there wishing he could be anyplace else knowing the plan was lunacy. We know from the Woodward and Costa book “Peril” that when asked by Pence Dan Quayle advised him he had 'no flexibility' in overturning election though I think Pence was covering his ass since I doubt he was crazy enough to believe it was possible.
The Saturday Good News Roundup on Daily Kos excerpted stories like this from Politico Magazine...
GNR excerpted the Jennifer Rubin OpEd from The Washington Post titled Republicans’ trail of destruction may haunt them. After describing how the Republicans may very well sabotage themselves with their positions on abortion, vaccination, mask wearing, the economy, and national security Article, she concludes:
Even Democrats — who are often loath to sound “too negative” or to use blunt language instead of complex policy arguments — should be able to figure out a campaign message for 2022. Republicans are neither conservative in economic outlook (look at the business community’s reaction to the debt ceiling standoff) nor pro-life (consider the innocent life they put at risk in their management of the pandemic). They fail to put the country’s national security above partisan politics. Theirs is a radical, reckless and revanchist* party — one far too dangerous to trust with power. Call it the “Chaos Party,” a term that will remind suburban voters and college-educated voters why they fled the GOP in 2020.
What do you think? Are things as bad for our Democracy as some pundits say? Will the Republicans who have embraced Trump and/or Trumpism (like my hypothetical airplane) crash and burn as conservative columnist Jennifer Rubin basically predicts? More to the point, do you think even with all the cheating and voter disenfranchisement we can expect from Trump and his supporters he can win?
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Footnote
* I had to look the word “revanchist” up: a policy of seeking to retaliate, especially to recover lost territory