One Cheer For Democracy

Give the Trumpers and the anti-anti-Trumpers credit for message discipline: They summon virtual flash mobs and the Two Minutes Hate over almost anything, but they hunker down over stories like this and know that silence will eventually do its job and everyone moves on. https://t.co/9Q4g1VC3z4

— Tom Nichols (@RadioFreeTom) September 21, 2021

Do you see any politician running on "the Eastman memo" and winning election to Congress on that issue?

I ask because Rick Hasan is right, the solution here is to amend the Electoral Count Act (of 1887) to "fix" some of the nonsense Eastman thought Pence could raise on January 6th.  I'm not sure if that should include language that "legal opinions expressed on Twitter, no matter the author, are not sufficient grounds for fucking with the ministerial and ceremonial acceptance of the electoral college results," but it probably couldn't hurt.

The solution, in other words, is to fix the law.  But Congress hasn't been in a "law-fixing" mood since Barack Obama was first elected President.  Congress did "fix" the President's cabinet by creating the Department of Homeland Security (which we could still just as well do without), but since then, what has it done besides cut taxes on the rich and play "chicken" with the debt ceiling?

If we are to do something about Eastman's crackpot view of the law, the solutions lie, as ever, with we the people.  No one can stop us from electing whatever clown we want to the Presidency:  Trump proved that. That he would never have been there but for the electoral college is something still where "silence" has done its job, and we all moved on (if we ever had moved toward amending Art. II, which we didn't).

Most people don't know what the Electoral Count Act is, and, as I say, Congress is not inclined to do anything about it just now.  That's not solely because of Trump:  Trump existed at all because of Newt Gingrich and Mitch "My goal is to make Obama a one-term President" McConnell.  But they held/hold office because of we, the people.  As ever, "moving on" means "doing what I want to see done, but not doing it because I am not the god emperor; though I should be."

Yeah, I'm really tired of all this Cassandra hand-wringing and whinging.

If we are going to fix the problems Trump tried (and failed) to exploit (the mob on Jan. 6th didn't do what Pence wouldn't do, either), we will have to work quietly and diligently to see that those concerns are addressed by the sole constitutional body which can address them.  Screaming in the streets won't do it (what, in the end, did it do for BLM?  Now people are screaming at school boards about "CRT".  Not that I think BLM was wrong to take to the streets; but now we have the blowback, and everyone wants to move on.  Or go back into the streets and scream at each other.  I'm thinking of the high school principal in Texas who was fired by his school board yesterday.  The meeting was filled with his supporters, but the school board felt the heat of the white racists more.  The solution there is not to keep the issue in the headlines until the next board election (that'll never happen).  It is to keep it alive among the voters in the school district, and defeat racism at the ballot box.  That CAN happen.)  Is this issue (the Eastman memo) dead because it won't be in the headlines much longer? Is that our gauge of what constitutes a political issue?

Maybe that's why pollsters are getting it wrong so often about election predictions.

If we care about an issue, and can get other people to care about an issue, we can see change occur.  If we rely on what's trending on Twitter or what's making the headline of the NYT or WaPo or WSJ, then fuck it, it's not a democracy anymore.  It's really as simple as that.

As for the terrible fears that we came close to what the Eastman memo argued, among the legal analyses and questions of soundness of the Eastman analysis is this not-so-minor roadblock:

One of the very first things that the 117th Congress did was to establish the rules for the counting of electoral votes. Consider Senate Concurrent Resolution 1 (it’s literally #1), as agreed to by the House, on January 3, 2021:

Resolved by the Senate (the House of Representatives concurring), That the two Houses of Congress shall meet in the Hall of the House of Representatives on Wednesday, the 6th day of January 2021, at 1 0’clock post meridian, pursuant to the requirements of the Constitution and laws relating to the election of President and Vice President of the United States, and the President of the Senate shall be their Presiding Officer; that two tellers shall be previously appointed by the President of the Senate on the part of the Senate and two by the Speaker on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter “A”; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from said certificates; and the votes having been ascertained and counted in the manner and according to the rules by law provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and together with a list of the votes, be entered on the Journals of the two Houses.

The first thing Congress–this new Congress–did was to repeat and adopt the rules from the ECA. Not all of them, of course, but it also agreed that “the votes having been ascertained and counted in the manner and according to the rules by law.” Both houses agreed to the rules entering the debate. And the President of the Senate doesn’t get to skip over Arizona because he doesn’t want to count their votes.

Eastman wanted Pence to skip over Arizona as a matter to return to so the VPOTUS could block receipt of the count and declare Trump the winner.  This would not have provoked "howls" from the Democrats; it would have been a violation of the rules the Congress itself could not accept.  The language also, I would argue, reduced Pence's role, as the ECA requires (through the 12th Amendment) to a purely ministerial one.  It was, in other words, locked and loaded 3 days before the day of the count.  Pence never had a chance; nor did Eastman.

These details do matter.*

We can go at it this way:

Any pol who would go along with this nonsense should be run out of public life on a rail. Any party that would throw their support behind a nominee who wanted to do this is fundamentally broken. https://t.co/XiZLdUg7dF

— Sonny Bunch (@SonnyBunch) September 21, 2021

Or we can give our opponents all the power and whinge that "They won't fight us so we can't win this argument anymore!" The silence of the supporters of the Eastman memo means nothing to the rest of us. It's not about fighting them, it's about supporting democracy.

Eyes on the prize.

*Another analysis points out Pelosi could have simply shut down the joint session until January 20, 2021. At that point Pence would no longer be VPOTUS, and so would be impotent to do anything at all:

Had Pence done any of what Eastman’s memo suggested, the plot would not have prevailed because the House of Representatives under Speaker Pelosi’s leadership would have caused the Twelfth Amendment’s joint session to come to a halt incomplete. Given Majority Leader McConnell’s acceptance of President-elect Biden’s victory, which he acknowledged in his speech on December 15, the day after the electoral college vote, it’s highly likely that the Senate under McConnell’s leadership would have joined the House under Pelosi’s in opposing any move by Pence to announce entirely on his own, based on his own manipulation of the process contrary to the procedures of the Electoral Count Act, that the Trump-Pence ticket was reelected. But the key point for Twelfth and Twentieth Amendment purposes is that the House under Pelosi’s leadership could have caused this halt in the joint session’s procedures even without the Senate’s participation. After all, it takes both chambers to conduct the joint session, and thus if the House shuts it down (even potentially kicking the Senate out of its own chamber), the joint session can’t proceed to completion to identify whether any candidate has won an electoral college majority. Likewise, if the process has broken down with the inability to identify whether any candidate has an electoral college majority, then there is no predicate for the backup “contingent election” procedure in the House (in which each state’s delegation gets a single vote).

With a stalled and incomplete count because of a standoff between Pence and Pelosi, the Twentieth Amendment becomes the relevant constitutional provision (not discussed in Eastman’s two-page memo, but the relevant part of the analysis in my Loyola Law Review article and the Atlantic essay). From the House and Pelosi’s perspective, because the counting of electoral votes remains incomplete, if that condition continues all the way through until noon on January 20, then Pelosi is in a position to assume the role of Acting President (and entitled immediately to receive the nuclear football, with its launch codes). Pence might take the alternative view, that he’s “gavel[ed] President Trump as reelected,” but then it becomes a question of whom the Pentagon recognizes as Commander-in-Chief: Pelosi as Acting President under the Twentieth Amendment, or Trump based on Pence’s asserted claim that the electoral count has been completed over the House’s objection and non-participation. Based on all we know about General Milley, from both before January 6 occurred and especially with all that has come to light since, in the context of this Pence-Pelosi standoff, Pelosi was going to be the one to prevail as consistent with the Constitution.

Moreover, once noon has passed on January 20, Pence is no longer Vice President (or Senate President) by virtue of the Twentieth Amendment. Thus, the Pence-Pelosi standoff will end this way: With the Vice Presidency still vacant, and Pelosi as Acting President, the joint session under the Twelfth Amendment and the Electoral Count Act will resume properly despite Pence’s earlier attempt to derail it. Once that proper process is complete, it will yield thLast point: I’ve read that the Eastman memo proves the need to reform the Electoral Count Act. To be clear, I’ve long been strongly in favor of reforming the Electoral Count Act. But what Eastman proposed was for Pence to bypass the ECA, declaring it to be unconstitutional, and purporting to proceed on his own authority based on his own (highly disputed) interpretation of the Twelfth Amendment. Improving the ECA might reduce the risk of a future Vice President trying to make that kind of move, because with a better ECA in place, it would make that kind of unilateral power grab by a Vice President even more brazen and politically untenable. But ECA reform can’t eliminate this risk entirely. To do that, it would be necessary to undertake the even more difficult task of revising the Twelfth Amendment itself, to remove its frustratingly ambiguous language about the process of counting electoral votes in the joint session, including the role of the Senate President.e conclusion that it would have all along: Biden and Harris have electoral college majorities and are duly elected. At that point, Biden becomes President under the Twentieth Amendment, and Pelosi is no longer Acting President. The whole process obviously would have been horribly messy, and deserving of the label “constitutional crisis,” but it would have ended with Eastman’s plan in failure.

Proving the system is more resilient than we realize.  And a reminder the 12th Amendment and the ECA were passed precisely because of problems with the electoral college vote count in the past.  It may not be the best of times or the worst of time, but the sky is certainly not falling.

And on the issue of statutory reform, it may be we need constitutional amendment, as well:

Last point: I’ve read that the Eastman memo proves the need to reform the Electoral Count Act. To be clear, I’ve long been strongly in favor of reforming the Electoral Count Act. But what Eastman proposed was for Pence to bypass the ECA, declaring it to be unconstitutional, and purporting to proceed on his own authority based on his own (highly disputed) interpretation of the Twelfth Amendment. Improving the ECA might reduce the risk of a future Vice President trying to make that kind of move, because with a better ECA in place, it would make that kind of unilateral power grab by a Vice President even more brazen and politically untenable. But ECA reform can’t eliminate this risk entirely. To do that, it would be necessary to undertake the even more difficult task of revising the Twelfth Amendment itself, to remove its frustratingly ambiguous language about the process of counting electoral votes in the joint session, including the role of the Senate President.

Just because these things are not in the headlines, doesn't mean we can't talk about them.  We'll just have to work to get a more responsible class of solons representing us.  Right now the conversation is dominated by clowns like Cruz, Crenshaw, Hawley, Greene, and Cawthorn.  If we do something about that, we may be on the way to doing something about the 12th Amendment and the ECA.