December 2020

Will Pence Do the Right Thing?

On Jan. 6, the vice president will preside as Congress counts the Electoral College’s votes. Let’s hope that he doesn’t do the unthinkable — and unconstitutional. By Neal K. Katyal and John Monsky, Dec. 29, 2020.

President Trump recently tweeted that “the ‘Justice’ Department and FBI have done nothing about the 2020 Presidential Election Voter Fraud,” followed by these more ominous lines: “Never give up. See everyone in D.C. on January 6th.”

The unmistakable reference is to the day Congress will count the Electoral College’s votes, with Vice President Mike Pence presiding. Mr. Trump is leaning on the vice president and congressional allies to invalidate the November election by throwing out duly certified votes for Joe Biden.

Mr. Pence thus far has not said he would do anything like that, but his language is worrisome. Last week, he said: “We’re going to keep fighting until every legal vote is counted. We’re going to win Georgia, we’re going to save America,” as a crowd screamed, “Stop the steal.”

And some Republicans won’t let up. On Monday, Representative Louie Gohmert of Texas and other politicians filed a frivolous lawsuit, which has multiple fatal flaws in both form and substance, in an attempt to force the vice president to appoint pro-Trump electors.

Mr. Trump himself has criticized virtually everyone’s view of the election, from that of the Supreme Court to the F.B.I. to Senator Mitch McConnell, but he has never attacked Mr. Pence, suggesting he has hopes for the vice president. But as a matter of constitutional text and history, any effort on Jan. 6 is doomed to fail. It would also be profoundly anti-democratic and unconstitutional.

Both Article II of the Constitution and the 12th Amendment say that the votes of the Electoral College are to be opened by the “president of the Senate,” meaning the vice president. The Electoral Count Act, passed in 1887 to avoid chaotic counts like the one that followed the 1876 election, adds important details. It provides a detailed timeline to tabulate electoral votes, culminating with the final count to take place on Jan. 6, and it delineates the powers of the vice president.

He is to be the “presiding officer” (meaning he is to preserve order and decorum), open the ballot envelopes, provide those results to a group of tellers, call for any objection by members of Congress, announce the results of any votes on objections, and ultimately announce the result of the vote.

Nothing in either the text of the Constitution or the Electoral Count Act gives the vice president any substantive powers. His powers are ministerial, and that circumscribed role makes general sense: The whole point of an election is to let the people decide who will rule them. If an incumbent could simply maneuver to keep himself in office — after all, a maneuver to protect Mr. Trump also protects Mr. Pence — the most foundational precept of our government would be gravely undermined. In America, “we the people,” not “we, the vice president,” control our destiny.

The drafters of the Electoral Count Act consciously insisted on this weakened role for the vice president. They guarded against any pretense he might have to throw out a particular state’s votes, saying that the vice president must open “all certificates and papers purporting to be” electoral votes. They further said, in the event of a dispute, both chambers of Congress would have to disagree with a particular state’s slate of electoral votes to reject them. And they made it difficult for Congress to disagree, adding measures such as a “safe harbor” provision and deference to certification by state officials.

In this election, certification is clear. There are no ongoing legal challenges in the states of any merit whatsoever. All challenges have lost, spectacularly and often, in the courts. The states and the electors have spoken their will. Neither Vice President Pence nor the loyal followers of President Trump have a valid basis to contest anything.

To be sure, this structure creates awkwardness, as it forces the vice president to announce the result even when personally unfavorable.

After the close election of 1960, Richard Nixon, as vice president, counted the votes for his opponent, John Kennedy. Al Gore, in perhaps one of the more dramatic moments of our Republic’s short history, counted the votes and reported them in favor of George W. Bush.

Watching Mr. Gore count the votes, shut off all challenges and deliver the presidency to Mr. Bush was a powerful moment in our democracy. By the time he counted the votes, America and the world knew where he stood. And we were all lifted up when Mr. Gore, at the end, asked God to bless the new president and vice president and joined the chamber in applause.

Republican leaders — including Senators McConnell, Roy Blunt and John Thune — have recognized the outcome of the election, despite the president’s wrath. Mr. McConnell put it in clear terms: “The Electoral College has spoken. So today, I want to congratulate President-elect Joe Biden.”

Notably, Mr. Pence has been silent. He has not even acknowledged the historic win by Kamala Harris, the nation’s first female, first African-American and first Asian-American vice president.

He now stands on the edge of history as he begins his most consequential act of leadership. The question for Vice President Pence, as well as other members of Congress, is which side of history he wants to come down on. Can he show the integrity demonstrated by every previous presidential administration? The American people accept a graceful loser, but a sore loser never goes down well in the history books.

We urge Mr. Pence to study our first president. After the Revolutionary War, the artist Benjamin West reported that King George had asked him what General Washington would do now that America was independent. West said that Washington would give up power and go back to farming. King George responded with words to the effect that “if he does that, he will be the greatest man in the world.”

Indeed, Washington did so, surrendering command of the army to Congress and returning to Mount Vernon for years until he was elected president. And he again relinquished power eight years later, even though many would have been happy to keep him president for life. Washington in this way fully realized the American Republic, because there is no Republic without the peaceful transfer of power.

And it’s now up to Mr. Pence to recognize exactly that. Like all those who have come before him, he should count the votes as they have been certified and do everything he can to oppose those who would do otherwise. This is no time for anyone to be a bystander — our Republic is on the line.

By Abe Mazliach, ago

‘I’m Haunted by What I Did’ as a Lawyer in the Trump Justice Department

No matter our intentions, lawyers like me were complicit. We owe the country our honesty about what we saw — and should do in the future.

By Erica Newland, Dec. 20, 2020, Ms. Newland worked in the Office of Legal Counsel at the Justice Department from 2016-18.

I was an attorney at the Justice Department when Donald Trump was elected president. I worked in the Office of Legal Counsel, which is where presidents turn for permission slips that say their executive orders and other contemplated actions are lawful. I joined the department during the Obama administration, as a career attorney whose work was supposed to be independent of politics.

I never harbored delusions about a Trump presidency. Mr. Trump readily volunteered that his agenda was to disassemble our democracy, but I made a choice to stay at the Justice Department — home to some of the country’s finest lawyers — for as long as I could bear it. I believed that I could better serve our country by pushing back from within than by keeping my hands clean. But I have come to reconsider that decision.

My job was to tailor the administration’s executive actions to make them lawful — in narrowing them, I could also make them less destructive. I remained committed to trying to uphold my oath even as the president refused to uphold his.

But there was a trade-off: We attorneys diminished the immediate harmful impacts of President Trump’s executive orders — but we also made them more palatable to the courts.

This burst into public view early in the Trump administration in the litigation over the executive order banning travel from several predominantly Muslim countries, which my office approved. The first Muslim ban was rushed out the door. It was sweeping and sloppy; the courts quickly put a halt to it. The successive discriminatory bans benefited from more time and attention from the department’s lawyers, who narrowed them but also made them more technocratic and therefore harder for the courts to block.

After the Supreme Court’s June 2018 decision upholding the third Muslim ban, I reviewed my own portfolio — which included matters targeting noncitizens, dismantling the Civil Service and camouflaging the president’s corruption — overcome with fear that I was doing more harm than good. By Thanksgiving of that year, I had left my job.

Still, I felt I was abandoning the ship. I continued to believe that a critical mass of responsible attorneys staying in government might provide a last line of defense against the administration’s worst instincts. Even after I left, I advised others that they could do good by staying. News reports about meaningful pushback by Justice Department attorneys seemed to confirm this thinking.

I was wrong.

Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.

Unlike the Trump Justice Department, the Trump campaign has relied on second-rate lawyers who lack the skills to maintain the president’s charade. After a recent oral argument from Rudy Giuliani, Judge Matthew Brann (a Republican) wrote that the campaign had offered “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.” Even judges appointed by Mr. Trump have refused to throw their lots in with lawyers who can’t master the basic mechanics of lawyering.

After four years of bulldozing through one institution after another on the backs of skilled lawyers, the Trump agenda hit a brick wall.

The story of the Trump campaign’s attack on our elections could have been the story of the Trump administration’s four-year-long attack on our institutions. If, early on, the Justice Department lawyers charged with selling the administration’s lies had emptied the ranks — withholding our talents and reputations and demanding the same of our professional peers — the work of defending President Trump’s policies would have been left to the types of attorneys now representing his campaign. Lawyers like Mr. Giuliani would have had to defend the Muslim ban in court.

Had that happened, judges would have likely dismantled the Trump facade from the beginning, stopping the momentum of his ugliest and most destructive efforts and bringing much-needed accountability early in his presidency.

Before the 2020 election, I was haunted by what I didn’t do. By all the ways I failed to push back enough. Now, after the 2020 election, I’m haunted by what I did. The trade-off wasn’t worth it.

In giving voice to those trying to destroy the rule of law and dignifying their efforts with our talents and even our basic competence, we enabled that destruction. Were we doing enough good elsewhere to counterbalance the harm we facilitated, the way a public health official might accommodate the president on the margins to push forward on vaccine development? No.

No matter our intentions, we were complicit. We collectively perpetuated an anti-democratic leader by conforming to his assault on reality. We may have been victims of the system, but we were also its instruments. No matter how much any one of us pushed back from within, we did so as members of a professional class of government lawyers who enabled an assault on our democracy — an assault that nearly ended it.

We owe the country our honesty about that and about what we saw. We owe apologies. I offer mine here.

And we owe our best efforts to restore our democracy and to share what we learned to help mobilize and enact reforms — to remind future government lawyers that when asked to undermine our democracy, the right course is to refuse and hold your peers to the same standard.

To lead by example, and do everything in our power to ensure this never happens again. If we don’t, it will.

By Abe Mazliach, ago

Right-Wing Embrace Of Conspiracy Is ‘Mass Radicalization,’ Experts Warn

December 15, 202012:17 PM ET

Hannah Allam, KQED

The widespread embrace of conspiracy and disinformation amounts to a “mass radicalization” of Americans, and increases the risk of right-wing violence, veteran security officials and terrorism researchers warn.

At conferences, in op-eds and at agency meetings, domestic terrorism analysts are raising concern about the security implications of millions of conservatives buying into baseless right-wing claims. They say the line between mainstream and fringe is vanishing, with conspiracy-minded Republicans now marching alongside armed extremists at rallies across the country. Disparate factions on the right are coalescing into one side, analysts say, self-proclaimed “real Americans” who are cocooned in their own news outlets, their own social media networks and, ultimately, their own “truth.”

“This tent that used to be sort of ‘far-right extremists’ has gotten a lot broader. To me, a former counterterrorism official, that’s a radicalization process,” said Mary McCord, a former federal prosecutor who oversaw terrorism cases and who’s now a law professor at Georgetown University.

McCord was speaking at a recent online conference, Millions of Conversations, an organization aimed at reducing polarization. Along with McCord, several other former officials who served in senior national security roles said the mass embrace of bogus information poses a serious national security concern for the incoming Biden administration.

Weekend protest

They added that there’s no easy foil for a right-wing propaganda effort that amplifies fears and grievances on a nonstop loop. Those beliefs already have inspired political violence at protests over lockdowns and racial injustice. Political conspiracies drew thousands to last weekend’s pro-Trump rally, after which the Proud Boys and other violent extremist groups wreaked havoc in downtown Washington, D.C.

“Breaking through that echo chamber is critical or else we’ll see more violence,” said Elizabeth Neumann, who in April resigned her post leading the Department of Homeland Security office that oversees responses to violent extremism.

While it’s impossible to pin down the scope of such beliefs, analysts say, the numbers are staggering if even a fraction of President Trump’s more than 74 million voters support bogus claims that say, for example, the election was rigged, the coronavirus is a hoax, and liberals are hatching a socialist takeover.

Traffic numbers for right-wing outlets and livestreams suggest the support extends well beyond the margins. Recent polls also signal the spread: One survey found that around 77% of Trump supporters believe that Joe Biden won the election as a result of fraud despite no evidence to support that claim.

At the online conference, participants characterized the shift as a mass radicalization. Neumann said the issue keeps her up at night worrying about where the country is heading. She talked about family members who’ve gone down the right-wing rabbit hole of disinformation. She said conversations with them require patience and negotiation, such as laying out her conditions for coronavirus safety protocols at family gatherings.

Neumann said it’s hard to imagine what it would take to replicate those tough conversations on a national scale, given the power and reach of conservative media.

“I am wrestling with: How do I help people that have, unbeknownst to them, they’ve become radicalized in their thought? They hold views they didn’t hold 10 years ago because all they listen to is that conservative infotainment,” Neumann said. “Unless we help them break the deception, we cannot operate with 30% of the country holding the extreme views that they do.”

Show of force

Jason Dempsey, a military analyst and former Army officer on the panel, said too many people are turning to force as a response to fears over political divisions, whether through the military and law enforcement, or the formation of local armed groups. The election-rigging rhetoric only ups the ante as Democrats are painted no longer just as fellow citizens with different views but as enemies who must be vanquished.

“There are no easy answers, even if they’re carrying guns and wearing body armor,” Dempsey said. “We’ve got to get past that and be wary of the idea of militarism that doesn’t lead to a common conception of service, but leads to the kind of tribalism where we have to protect ourselves and our families by force against those we disagree with.”

On the conference call, the analysts agreed that the leftist fringe also is hardening and promoting its own conspiracies. But they said there’s simply no equivalency with the right in terms of the volume of disinformation and conspiracy, or in its connections to violent acts.

“There is a monetization of outrage on both sides,” Neumann said, “but in particular the conservative infotainment sector makes money off of that outrage.”

On the topic of solutions, the panelists floated ideas about education, media literacy, trusted mediators. But they added there’s little chance of progress until Trump, a superspreader of conspiracies and disinformation, is out of the White House.

“Leadership matters,” said Kori Schake, who was a senior adviser in the State Department, Defense Department and the National Security Council. “It really matters that the president of the United States is an arsonist of radicalization. And it will really help when that is no longer the case.”

Entrenched polarization

The online conference wrapped up the way many such discussions do: without a clear solution, at least in the near-term. The same what-do-we-do conversations are happening in political circles, among researchers and at tech companies.

Nobody expects polarization – or its spinoff, radicalization – to go away when Trump is out of office. It’s now a fixture of the American political landscape, part of an international trend toward right-wing populism, said Arie Kruglanski, a University of Maryland professor who’s written extensively about radicalization. He said the erosion of trust in public institutions leaves ample room for disinformation to take root.

“We don’t trust the government. We don’t trust the Congress. We don’t trust the Supreme Court. We don’t trust now the science. We don’t trust medicine. We don’t trust the media for sure,” Kruglanski said. “So who do we trust? Well, we trust our tribe. We trust conspiracy theories that tell us what we want to hear.”

Kruglanski said revolutions and wars throughout history offer examples of how quickly extremism can go mainstream.

“Every large political movement started at one point as a small fringe minority,” he said. “And when it catches on, it can engulf the whole society. So, you know, the danger is there.”

By Abe Mazliach, ago

Edelweiss Pirates: The Anti-Hitler Youth

by Accidental Talmudist

Barthel Schink was a German teenager who led a resistance movement of Hitler Youth dropouts who fought Nazi tyranny.

Born to a postal worker and a homemaker in Cologne in 1927, Barthel was one of five children. Like millions of other young Germans he was conscripted into the Hitler Youth, the only legally permitted youth group in the country (the Boy Scouts were banned in 1935.)  Membership was mandatory for Aryan boys, even if their parents objected. Parents were informed that children who didn’t join would be taken from their homes and placed in orphanages. There was a similar youth organization for girls, but the focus was on turning young boys into eager warriors for their Fuhrer.

By 1940, the paramilitary group had eight million members, all of whom were being brainwashed in weekly meetings and rallies to support Nazi ideology.

The brainwashing did not work on Barthel. He was uncomfortable with the forced conformity and militaristic ideology of the Hitler Youth movement. He started getting together for hikes and bike rides with other disaffected Hitler Youth who, like Barthel, had a moral compass and critical thinking skills.They called themselves the Edelweiss Pirates, named for the Edelweiss badges they wore on their jackets. A sturdy flower that grew in the Alps, the Edelweiss became a symbol of resistance. Something of a street gang, these working-class teenagers had long hair and wore colorful clothing that set them apart from the somber, bland attire of the Hitler Youth. They listened to and sang “unapproved” music by Jewish composers, a crime punishable by arrest. The Pirates appreciated the freedom that came with breaking the Hitler Youth’s restrictive rules, but Barthel wanted to do more than have a good time. He wanted to fight the Nazi regime.

Under Barthel’s leadership, the Pirates started playing “pranks” like pouring sugar water into the gas tanks of Nazi vehicles. They spray-painted walls and buildings in the dead of night with slogans such as “Down with Hitler” and “No More Nazi Brutality.” Their motto was “Eternal War on the Hitler Youth.”

The grass-roots movement spread throughout Germany, with Edelweiss Pirate cells in major cities like Dusseldorf, Hamburg, Frankfurt and Leipzig. They were able to identify each other because of the Edelweiss pin and their noncomformist style of dress. The largest group was Barthel’s crew in Cologne. Some of the boys dropped out of school to avoid conscription in the Hitler Youth, and they got jobs in factories or mills.

The Pirates’ anti-Nazi activities escalated from attacking Hitler Youth patrols to stealing from Nazi supply lines, looting Nazi warehouses, and dropping anti-Nazi leaflets in city centers. They committed brazen acts of sabotage such as derailing train cars and disrupting Nazi supply chains. They wanted to join the Allied forces to fight Nazis on the battlefield. When Pirates were captured their heads were shaved to humiliate them, then they were beaten and sent to reform schools, psych wards, or labor camps. Despite the danger, some Edelweiss Pirates groups shielded German deserters and escaped labor camp prisoners.

In July 1944, Barthel and several other Pirates were arrested for planning to blow up a Gestapo headquarters in Cologne. They were imprisoned and tortured for four months. On November 10, 1944, a gallows was set up on a public thoroughfare in Cologne. Barthel Schink and four other teen Edelweiss Pirates, along with seven adult members of the anti-Nazi resistance, were hanged in front of hundreds of Nazis. Barthel was 16 years old.

Israeli Holocaust Memorial Yad Vashem honored the Edelweiss Pirates as Righteous Among the Nations in 1998, but their story has not been widely known. Female Pirate Gertrud Koch, who survived the war, explained to a reporter, “We were from the working classes. That is the main reason why we have only now been recognized. After the war there were no judges in Germany so the old Nazi judges were used and they upheld the criminalization of what we did and who we were.” Gertrud spent decades urging the German government to recognize the Pirates’ heroism, and finally in 2005 they were “politically rehabilitated.” Their criminal status was invalidated and they were officially honored as resistance fighters and heroes. The street where the public execution took places has been named Schink Strasse and there is a plaque recognizing Berthel and the other martyred Edelweiss Pirates.

By Abe Mazliach, ago

1918 Germany Has a Warning for America

Donald Trump’s “Stop the Steal” campaign recalls one of the most disastrous political lies of the 20th century.

By Jochen Bittner

HAMBURG, Germany — It may well be that Germans have a special inclination to panic at specters from the past, and I admit that this alarmism annoys me at times. Yet watching President Trump’s “Stop the Steal” campaign since Election Day, I can’t help but see a parallel to one of the most dreadful episodes from Germany’s history.

One hundred years ago, amid the implosions of Imperial Germany, powerful conservatives who led the country into war refused to accept that they had lost. Their denial gave birth to arguably the most potent and disastrous political lie of the 20th century — the Dolchstosslegende, or stab-in-the-back myth.

Its core claim was that Imperial Germany never lost World War I. Defeat, its proponents said, was declared but not warranted. It was a conspiracy, a con, a capitulation — a grave betrayal that forever stained the nation. That the claim was palpably false didn’t matter. Among a sizable number of Germans, it stirred resentment, humiliation and anger. And the one figure who knew best how to exploit their frustration was Adolf Hitler.

Don’t get me wrong: This is not about comparing Mr. Trump to Hitler, which would be absurd. But the Dolchstosslegende provides a warning. It’s tempting to dismiss Mr. Trump’s irrational claim that the election was “rigged” as a laughable last convulsion of his reign or a cynical bid to heighten the market value for the TV personality he might once again intend to become, especially as he appears to be giving up on his effort to overturn the election result.

But that would be a grave error. Instead, the campaign should be seen as what it is: an attempt to elevate “They stole it” to the level of legend, perhaps seeding for the future social polarization and division on a scale America has never seen.

In 1918, Germany was staring at defeat. The entry of the United States into the war the year before, and a sequence of successful counterattacks by British and French forces, left German forces demoralized. Navy sailors went on strike. They had no appetite to be butchered in the hopeless yet supposedly holy mission of Kaiser Wilhelm II and the loyal aristocrats who made up the Supreme Army Command.

A starving population joined the strikes and demands for a republic grew. On Nov. 9, 1918, Wilhelm abdicated, and two days later the army leaders signed the armistice. It was too much to bear for many: Military officers, monarchists and right-wingers spread the myth that if it had not been for political sabotage by Social Democrats and Jews back home, the army would never have had to give in.

The deceit found willing supporters. “Im Felde unbesiegt” — “undefeated on the battlefield” — was the slogan with which returning soldiers were greeted. Newspapers and postcards depicted German soldiers being stabbed in the back by either evil figures carrying the red flag of socialism or grossly caricatured Jews.

By the time of the Treaty of Versailles the following year, the myth was already well established. The harsh conditions imposed by the Allies, including painful reparation payments, burnished the sense of betrayal. It was especially incomprehensible that Germany, in just a couple of years, had gone from one of the world’s most respected nations to its biggest loser.

The startling aspect about the Dolchstosslegende is this: It did not grow weaker after 1918 but stronger. In the face of humiliation and unable or unwilling to cope with the truth, many Germans embarked on a disastrous self-delusion: The nation had been betrayed, but its honor and greatness could never be lost. And those without a sense of national duty and righteousness — the left and even the elected government of the new republic — could never be legitimate custodians of the country.

In this way, the myth was not just the sharp wedge that drove the Weimar Republic apart. It was also at the heart of Nazi propaganda, and instrumental in justifying violence against opponents. The key to Hitler’s success was that, by 1933, a considerable part of the German electorate had put the ideas embodied in the myth — honor, greatness, national pride — above democracy.

The Germans were so worn down by the lost war, unemployment and international humiliation that they fell prey to the promises of a “Führer” who cracked down hard on anyone perceived as “traitors,” leftists and Jews above all. The stab-in-the-back myth was central to it all. When Hitler became chancellor on Jan. 30, 1933, the Nazi newspaper Völkischer Beobachter wrote that “irrepressible pride goes through the millions” who fought so long to “undo the shame of 9 November 1918.”

Germany’s first democracy fell. Without a basic consensus built on a shared reality, society split into groups of ardent, uncompromising partisans. And in an atmosphere of mistrust and paranoia, the notion that dissenters were threats to the nation steadily took hold.

Alarmingly, that seems to be exactly what is happening in the United States today. According to the Pew Research Center, 89 percent of Trump supporters believe that a Joe Biden presidency would do “lasting harm to the U.S.,” while 90 percent of Biden supporters think the reverse. And while the question of which news media to trust has long split America, now even the largely unmoderated Twitter is regarded as partisan. Since the election, millions of Trump supporters have installed the alternative social media app Parler. Filter bubbles are turning into filter networks.

In such a landscape of social fragmentation, Mr. Trump’s baseless accusations about electoral fraud could do serious harm. A staggering 88 percent of Trump voters believe that the election result is illegitimate, according to a YouGov poll. A myth of betrayal and injustice is well underway.

It took another war and decades of reappraisal for the Dolchstosslegende to be exposed as a disastrous, fatal fallacy. If it has any worth today, it is in the lessons it can teach other nations. First among them: Beware the beginnings.

By Abe Mazliach, ago