Thursday, December 17, 2020

Donald Trump Is An Institutionalist

Well, Mike Johnson thinks so, and to him, that’s the same as millions thinking so.

I actually consider this more damaging than Trump’s Twitter ranting, because Johnson sounds reasonable. Emphasis on “sounds.” He makes two wholly ungrounded arguments that are central to his thesis, but that don’t stand up to scrutiny.

First, he argues that millions of people suspect the Presidential election (but not the rest of, like his re-election?) was fraudulent. Set aside the fact Trump’s lawyers never made that evidentiary presentation in any of nearly 60 court cases for the moment. Where does he get this number of suspicious citizens? Professor Otto Yerass? Might as well cite him, there’s no other basis offered for that number. Connected to that is the sotto  voce assumption that these concerns are sua sponte, so they must be valid. They are not coming from the “grassroots,” of course; they are coming from the White House. And when the allegations reverberate, the echo is used as evidence of the truth of the propaganda.

His primary argument, however, is that courts in America (or executives, like Gov. Greg Abbott did) changed the election rules in their states in violation of Art. II, Sec. 1, Clause 2.  Interestingly, the Supreme Court should have violated the plain language of Art. III, Sec. 2, Clause 2.  The Court denied the motion from Texas on the grounds of standing, i.e., jurisdiction.  Granting the motion would have meant the Court recognized the power of one State to interfere in the laws of a sovereign state, even when that 
State did not come to court with "clean hands" (Texas did what Johnson complains of; Abbott changed the rules of the election in Texas, an election which selected electors.  That issue was actually litigated in federal court, and Johnson's position was repudiated.)  Johnson's argument, of course, is not the high-minded one that a legal principle must be upheld (that's a bit too abstract for the Court anyway, as it involves more a question of giving an opinion than a question of Constitutional law, i.e., that someone's rights have been violated).  Johnson's argument is actually that the wrong person won in the states Texas sought to join in its motion to grant Texas a suit (there was no suit, only the motion to allow one).   I don't know what laws, if any, were changed in Louisiana, but they were altered in Texas.  Sauce for the goose is sauce for the gander.  If the votes in the states challenged by Texas were invalid as a matter of Constitutional law, so would be the votes in Texas, at a minimum.  But the argument is specious because the legislatures have granted power to the courts and to executives to alter election practices when the need arises, as they did during the covid pandemic.

Or is Representative Johnson going along with Sen. Rand Paul's argument?
There is, in other words, a public interest in making voting as widely available as possible, and that interest can include the executive or the courts reacting to situations the legislature cannot react to in a timely manner.  The Constitution is not the straitjacket Rep. Johnson would like it to be, and even Alito and Thomas agreed on that.  They'd have granted Texas' motion, but denied the relief.  Johnson thinks the Court should have heard the case, even if they denied any relief sought.  That, of course, would mean the Court was simply issuing an advisory opinion, especially as even Alito and Thomas had already made up their minds as to how the "trial" should end.  Hardly exemplary of an "objective" and "disinterested" judiciary, but damn the consequences, we have an election to win!

Or to discredit, which is what Rep. Johnson is trying to do.  He just wants to keep his white gloves clean as he does it.

All of these arguments from Trump supporteres and quiet Trump supporters come down to the issue of voter suppression.  Some people should be allowed to vote, and other voters should not be allowed to vote; especially when it's clear the majority of voters don't agree with the preferred outcome of the complainers.  Johnson argues that a legal principle is involved, but that legal principle is that certain people shouldn't have access to voting, and making it easier for them to vote in a time of crisis is actually unconstitutional.  His argument about "fraud" in the election is actually rather revealing:

I was a young volunteer in a big election lawsuit in Louisiana in the late nineties. What I learned is that election fraud is hard to prove. You have to have precision, and to do it in a very short time frame. And you have to have evidence beyond refute, and affidavits by witnesses that have credibility. I think the Trump campaign—and the Biden campaign—had the lawyers lined up. But, in this case, it appears that some of the larger law firms that might have been lined up early on, for whatever reason backed out, and Rudy Giuliani was in charge. And I don’t think their army of lawyers was large enough. I don’t know. It’s a question, not a statement, but did they have enough lawyers who had experience in election-fraud challenges? This is not to blame anyone. It is not so much that there are persons responsible for this. Normally, an election-fraud case will be one Senate race. Here, you had it happening across the country all simultaneously, and you had this very short window to prove it, and it was a scattershot, shotgun approach by necessity, and, because of that, it wasn’t successful.

First, the argument here is that big lawfirms are better than small ones because:  reasons.  I've worked for large lawfirms, and seen them crush small firms, and seen small firms run rings 'round them.  Any generalization on this issue is entirely specious.  But more important, the big law firms backed out of these suits for a very good reason:  at no point did Trump or his supporters provide any evidence of fraud, on a large or a small scale.  Rudy Giuliani and other lawyers in other cases pointedly denied their cases were about fraud, because they knew how hard it is to prove fraud (in any civil case), and that they didn't have the evidence to back that claim.  The one case I know of where the court had a hearing on the merits found no evidence of fraud whatsoever, and dismissed the case with prejudice on that basis.  Note how Johnson goes from a fairly rational analysis:  "Normally an election-fraud case will be one Senate race," to a sweeping and unsubstantiated generalization in the next:  "Here, you had it happening across the country all simultaneously...."  We've left the realm of Constitutional infirmity based on the ability of executives and courts to act in a specific area of law, and leapt onto the crazy conspiracy train of nationwide fraud coordinated in all 50 states and countless voting precincts among millions of people with no evidence whatosever it happened except the outcome of the election, and the only person injured by this fraud is the losing Presidential candidate.  Apparently it didn't affect Rep. Johnson because he won re-election.  One wonders what he would argue if his opponent cried "foul" based on this sweeping allegation of his.

And by the way, for all his high-mindedness and seriousness, Rep. Johnson was just looking for an advisory opinion out of the court, something courts are not supposed to do.  Unless, of course, it's an opinion you agree with:

Right, but that is all they gave us, and we can read into that whatever we choose. It’s conjecture on our part. That they wouldn’t grant a relief, arguably, of overturning the election—yes, that would be an extreme request. But what we were hoping is that they would take some aspect of this and make some sort of affirmative statement. If they had just affirmed the plain meaning of the Electors Clause, that would solve all sorts of chaos going forward. I say this for Americans of both parties or any party, or whoever they voted for: we all should have an interest in these very specific clauses of the Constitution being followed. 

Affirmed it but not held it applicable in this case?  To get there they'd have to affirm the authority of states to sue each other every time one state passes a law another state doesn't like.  Is that really worth such an "affirmative statement" as Rep. Johnson desires?  Something that is nothing more than dicta, like Holmes famous statement that "Three generations of imbeciles are enough!"?  Or that you can't shout "FIRE!" in a crowded theater (you can, especially if there is one.  You might be charged with a petty crime, but the idea that you can't do it as a matter of Constitutional, or even federal, law, is an error, based on dicta.)  There's a reason we have the category of "dicta" in court opinions.  There's also a reason dicta is not law.

So, how is Trump an institutionalist?

It seems like one upshot of what you are saying is that if the election had been stolen for Trump, not Biden, everyone should acknowledge that, too. It shouldn’t be about party. And so the point Trump should be making is that he would be standing up for the Constitution, no matter who the election was being stolen from.

That’s exactly right. I have gone to great lengths to say, “We have to be intellectually consistent about this.” It’s not just about the support of Donald Trump in 2020. It’s about the institutions themselves. And if people doubt the veracity of the election system, that is the foundation of the maintenance of the Republic. We can’t keep a republic if people don’t think their vote counts.

Right, in a weird way, Trump is an institutionalist because—

Right! Precisely. He doesn’t articulate it in the same way that some old constitutional-law nerds would, but that’s what he is. That’s exactly right.

There's a recognized term for this argument:  bullshit.  No one confuses Donald Trump with someone concerned with the institutions of either government or law.  The doubt about the election system is coming from him, not in spite of him.   Johnson is clever, but his argument is self-contradictory:

... I am a lawyer. I don’t engage in conspiracy theory. I want to deal in fact and truth. So many of these legal efforts have had such a difficult time having courts actually review the evidence. Some were kicked out on standing. It takes a while. It is a very detailed challenge to actually prove fraud in an election. It takes time and has to be methodical, and I don’t think that happened in all these cases. And I think that’s why people have all these lingering doubts. 

Again, the courts haven't reviewed the evidence because no evidence has been presented.  The lingering doubts are not because the courts have summarily dismissed so many baseless and frivolous claims, but in spite of that.  What Johnson refuses to see is what's right in front of his face:

I don’t see a grand conspiracy. What I see is a lot of chaos and confusion across the land, and the result is that this election will have this giant question mark hanging over it. I saw a new poll: a huge amount of the country doubts the election and thinks it was stolen from Donald Trump. Thirty-six per cent of registered voters in America believe the election was stolen. That is a problem. Whether it was stolen or not, the fact that such a huge swath of the country believes that it was is something that should keep all of us up at night.

He doesn't see it because his argument falls apart the moment he does.  The chaos and confusion has an origin point, and that point is the Oval Office.  If 36% of Americans think the election was "stolen," that's because Donald Trump keeps claiming it was.  It's not because anyone has presented any evidence that our courts, which are established precisely to decide this sort of thing, have found credible, or even found at all.  Even "stolen" is a legal term.  Most people today believe OJ Simpson killed two people, despite a criminal trial that said he didn't.  But nobody is screaming about it on Twitter, so the country has moved on.  Is he guilty?  Maybe to ordinary people, but nobody is trying to arrest him and put him in a private jail.  Should they be?  If most of the country believes Simpson is a murderer, isn't that "something that should keep all of us up at night?"  No?  And maybe that's because most people aren't being pummeled with the idea that Simpson is a murderer.  I was talking to my daughter the other day.  She'd finished all her Xmas shopping, but was feeling compelled to buy a few more gifts.  Why?  Mostly because of the relentless advertising telling her to order now to recieve her purchases before Xmas.  Does she need to buy more gifts?  No.  Would she think to buy them on her own?  No.

Do we need to hear about "fraud" in the election after Monday?  No.  Are we going to? Yes.  Is our reaction to that ceaseless whine proof there is something to the conspiracy theory?  Of course not.  Rep. Johnson is trying to put lipstick on a pig.  He can put a Santa suit on it; but it's still a pig. 

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