Politics

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.

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.

Heather Cox Richardson, November 26, 2020

This year of hardship and political strife brings us closer to the first national Thanksgiving than any more normal year.

That first Thanksgiving celebration was not in Plymouth, Massachusetts. While the Pilgrims and the Wampanoags did indeed share a harvest feast in fall 1621, and while early colonial leaders periodically declared days of thanksgiving when settlers were supposed to give their thanks for continued life and– with luck—prosperity, neither of these gave rise to our national celebration of Thanksgiving.

We celebrate Thanksgiving because of the Civil War.

Southern whites fired on a federal fort, Fort Sumter, in Charleston Harbor in April 1861 in an attempt to destroy the United States of America and create their own country, based not in the American idea that “all men are created equal,” but rather in the opposite idea: that some men were better than others, and had the right to enslave their neighbors. In the 1850s, convinced that society worked best if a few wealthy men ran it, southern leaders had worked to bend the laws of the United States to their benefit. They used the government to protect slavery at the same time they denied it could do any of the things ordinary Americans wanted it to, like building roads, or funding colleges.

In 1860, northerners elected Abraham Lincoln to the presidency to stop the rich southern slaveholders from taking over the government and using it to cement their own wealth and power. As soon as Lincoln was elected, southern leaders pulled their states out of the Union to set up their own country. For their part, Lincoln and the northerners set out to end the slaveholders’ rebellion and bring the South back into a Union in which the government worked for people at the bottom, not just those at the top.

The early years of the war did not go well for the Union. By the end of 1862, the armies still held, but people on the home front were losing faith. Leaders recognized the need both to acknowledge the suffering and to keep Americans loyal to the cause. In November and December, seventeen state governors declared state thanksgiving holidays.

New York Governor Edwin Morgan’s widely reprinted proclamation about the holiday reflected that the previous year “is numbered among the dark periods of history, and its sorrowful records are graven on many hearthstones.” But this was nonetheless a time for giving thanks, he wrote, because “the precious blood shed in the cause of our country will hallow and strengthen our love and our reverence for it and its institutions…. Our Government and institutions placed in jeopardy have brought us to a more just appreciation of their value.”

The next year Lincoln got ahead of the state proclamations. On July 15, he declared a national day of thanksgiving, and the relief in his proclamation was almost palpable. After two years of disasters, the Union army was finally winning. Bloody, yes; battered, yes; but winning. At Gettysburg in early July, Union troops had sent Confederates reeling back southward. Then, on July 4, Vicksburg had finally fallen to U. S. Grant’s army. The military tide was turning.

President Lincoln set Thursday, August 6, 1863, for the national day of thanksgiving. On that day, ministers across the country listed the signal victories of the U.S. Army and Navy in the past year, and reassured their congregations that it was only a matter of time until the United States government put down the southern rebellion. Their predictions acknowledged the dead and reinforced the idea that their sacrifice had not been in vain, as Lincoln himself did just three months later in the Gettysburg Address.

In October 1863, President Lincoln declared the second national day of thanksgiving. In the past year, he declared, the nation had been blessed.

In the midst of a civil war of unequaled magnitude and severity, he wrote, Americans had maintained their laws and their institutions, and kept foreign countries from meddling with their nation. They had paid for the war as they went, refusing to permit the destruction to cripple the economy. Instead, as they funded the war, they had also advanced farming, industry, mining, and shipping. Immigrants had poured into the country to replace men lost on the battlefield, and the economy was booming. And Lincoln had recently promised that the government would end slavery once and for all. The country, he predicted, “with a large increase of freedom,” would survive, stronger and more prosperous than ever. The President invited Americans “in every part of the United States, and also those who are at sea, and those who are sojourning in foreign lands” to observe the last Thursday of November as a day of thanksgiving.

The following year, Lincoln proclaimed another day of thanksgiving, this time congratulating Americans that God had favored them not only with immigration but also with the emancipation of formerly enslaved people. “Moreover,” Lincoln wrote, “He has been pleased to animate and inspire our minds and hearts with fortitude, courage, and resolution sufficient for the great trial of civil war into which we have been brought by our adherence as a nation to the cause of freedom and humanity, and to afford to us reasonable hopes of an ultimate and happy deliverance from all our dangers and afflictions.”

Lincoln established our national Thanksgiving to celebrate the survival of our democratic government.

Today, more than 150 years later, President-Elect Joe Biden addressed Americans, noting that we are in our own war, this one against the novel coronavirus, that has already taken the grim toll of at least 260,000 Americans. Like Lincoln before him, he urged us to persevere, promising that vaccines really do appear to be on their way by late December or early January. “There is real hope, tangible hope. So hang on,” he said. “Don’t let yourself surrender to the fatigue…. [W]e can and we will beat this virus. America is not going to lose this war. You will get your lives back. Life is going to return to normal. That will happen. This will not last forever.”

“Think of what we’ve come through,” Biden said, “centuries of human enslavement; a cataclysmic Civil War; the exclusion of women from the ballot box; World Wars; Jim Crow; a long twilight struggle against Soviet tyranny that could have ended not with the fall of the Berlin Wall, but in nuclear Armageddon.” “It’s been in the most difficult of circumstances that the soul of our nation has been forged,” he said. “Faith, courage, sacrifice, service to country, service to each other, and gratitude even in the face of suffering, have long been part of what Thanksgiving means in America.”

“America has never been perfect,” Biden said. “But we’ve always tried to fulfill the aspiration of the Declaration of Independence: that all people are created equal….”

Biden could stand firmly on the Declaration of Independence because in 1861, Americans went to war to keep a cabal of slave owners from taking control of the government and turning it into an oligarchy. The fight against that rebellion seemed at first to be too much for the nation to survive. But Americans rallied and threw their hearts into the cause on the battlefields even as they continued to work on the home front for a government that promoted the common good.

Lisa Cortés and Liz Garbus’ doc focuses on Abrams’ campaign for governor of Georgia but expands far past that to encompass nearly 200 years of voter suppression.

We haven’t had too many election years with quite this much attention paid to the process of voting, from allegations of voter suppression and voter fraud to President Trump’s recent suggestion that North Carolina voters cast ballots twice. But even before the act of voting became a hot-button issue in this particular election cycle, documentary filmmakers have turned their sights on the right to vote and the manipulations thereof.

Barak Goodman and Chris Durrance’s “Slay the Dragon,” which premiered at the 2019 Tribeca Film Festival and was released in April, went deep on the practice of gerrymandering. Dawn Porter’s “John Lewis: Good Trouble,” which was released by Magnolia and CNN in July, is a portrait of the late congressman that detours to explore the issues of voting rights for which he spent his lifetime crusading. And now, Lisa Cortés and Liz Garbus’ “All In: The Fight for Democracy,” which focuses on Stacey Abrams’ fight to become governor of Georgia but expands far past that to encompass nearly 200 years of every type of voter suppression.

It is the most comprehensive and far-reaching of the recent voting-rights docs, and with the election approaching it’s an uncommonly timely and urgent document of the many ways in which the foundations of democracy can be thwarted. So exhaustive that at times it’s exhausting, it’ll terrify anybody who’s worried that the true danger in this year’s election is voter suppression, not voter fraud.

Stacey Abrams is one of the producers of the film, which is organized around her run for governor against Brian Kemp – who, as Georgia’s sitting secretary of state, also oversaw the election in which he narrowly defeated her amid numerous examples of the closing of polling places and the purging of voter rolls. And she’s one of its key talking heads, all of whom are positioned at long tables with deep rooms behind them; the settings make it look like they’re lecturing or testifying before congress, and lend an air of gravitas to what’s being said and to the people who are saying it.

Of course, the issue deserves all the gravitas it can get, and the film takes it all the way back to the election of George Washington, when only six percent of Americans — white, male property owners – were eligible to vote. From there, it delves into the 15th Amendment in 1870, which gave Black men the right to vote (women were still excluded) and led to African-American congressmen elected at state and national levels.

In the Reconstruction era that followed the Civil War, the film points out, more than two-thirds of eligible Black people registered to vote in some southern states. But after congress agreed to withdraw troops from the South to effectively end Reconstruction, the states (initially in the South, but later elsewhere) began to find ways to exclude them from the voting rolls: poll taxes, literacy tests that were designed to be almost impossible to pass, then felony disenfranchisement coupled with statues that made arrests and convictions easy.

By the end of World War II, “All In” says, registration in the South had fallen to three percent of eligible African-Americans. And organizations like the Ku Klux Klan intimidated those who were registered. For instance, Maceo Snipes, a WWII veteran, was the only Black person to vote in Taylor County, Georgia in 1946, and was shot and killed by a group of men on his front porch soon after casting his ballot.

“All In” suggests that Martin Luther King’s march over the Edmund Pettis Bridge in 1965 was a turning point, when graphic footage of Alabama police savagely beating peaceful protestors woke up Americans and spurred President Lyndon Johnson to push for and get passed the Voting Rights Act of 1965.

At this point, the film’s clear storytelling gets a little diffuse; the movie alternates between sequences featuring Abrams’ race for governor with sections from the past, but then there are time jumps within the time jumps, and a sense that “All In” really is trying to fit it all in.

And there’s a lot to fit in, notably in recent years when opponents of the Voting Rights Act seized on Barack Obama’s election as a way to undermine the act by claiming it was no longer necessary. At the same time, says author Carol Anderson, the coalition of 15 million new voters brought to the polls to vote for Obama became “the hit list for voter suppression.”

The Voting Rights Act had been extended many times over the years, and always proudly signed by Republican presidents. But behind the scenes, a strategy to constantly challenge elements of the law in court finally hit pay dirt in 2013, when the Supreme Court under Chief Justice John Roberts – whose mentor was former Chief Justice William Renquist, once one of the leaders in voter suppression in Arizona according to the film – invalidated many provisions of the bill.

In the aftermath, “the floodgates” opened to voter ID laws that made it particularly hard for minorities to be registered, as well as purges of the voting rolls, poll closures and aggressive gerrymandering.

“Intimidation from the government is real, it is powerful, it’s because of changing demographics and the fear of what this larger vote can mean,” says Anderson.

All of this is a huge amount to cover, and the film strains to do it. But even if it feels a little disorganized at times, and occasionally overwhelmed by the mass of material it’s trying to cover, “All In” leaves the unmistakable impression that there is an organized effort to prevent some citizens from voting, and that President Trump’s claims of widespread voter fraud – which his own commission could not document – is part of that effort.

Justice Ruth Ginsburg did her best to stay in her seat in the Supreme Court before the election for all Americans. We must honor her by doing everything we can to make sure this happens.

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