Tuesday, January 5, 2021

Part I

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How Does the Counting of Electors Actually Work and What Are the Worldview Issues at Stake? A Fascinating Story from American History That Just Collided with the American Present

Inevitably, there is a lot to discuss today concerning the presidential election, and this is going to raise basic constitutional questions, some very interesting worldview questions. And it’s going to point to some of the most pressing headlines in recent days. Some of them unprecedented, all of them basically confusing. Let’s try to clarify.

First we have the issue of the contesting of the electors, and this is going to take place on the 6th of January. That’s Wednesday of this week, when the United States House of Representatives and the United States Senate will gather together, presided over by the vice president of the United States as the president of the Senate for the final count of the votes from the Electoral College.

And this means that all of the states having certified the elections and the electors of those states, having cast their votes, according to the state selection, according to their own principles certified by the governor or the other respective constitutional authority, those reports were then mailed to the United States Congress, and they are to be opened officially on Wednesday. And they’re to be opened personally by the president of the Senate, which is the vice president of the United States. And thus the votes will be finally counted. So where’s the opportunity for controversy or challenge? Well, that’s not so much in the 12th Amendment. And then you may say, “Well, where did the 12th Amendment come from? And is that the last word?” Well, the answer is no, it’s not the last word, but boy, is this an interesting story.

One of the big worldview issues we have to confront is that in any constitutional system, without a monarch as head of state, that is a hereditary monarch, an unelected authority. Then eventually elected authorities are the only court of appeals. And so, as you’re looking at this, you come to understand that you have the electors, you have the voters in the state, you have the governors, the secretaries of state, you have the election commissioners, then you have the Electoral College, then you have the United States Congress. You got the vice president of the United States presiding over the Senate and over the entire process. And all of this complicated procedure is because in the American experiment of ordered liberty in this republic and its constitutional form of government, by which the citizens express themselves by their electoral decisions, it takes elected officials at all different levels of government and all different jurisdictions to come together to make certain that the integrity of the election is maintained.

Now, this really is a huge worldview issue, and it’s a major distinction between say the system in Great Britain and the system in the United States. In Great Britain, just remind yourself, there is a hereditary monarchy. If you look at the form of government, it is parliamentary in the context of a constitutional monarchy. The head of state in the United Kingdom or Great Britain is Queen Elizabeth I. She officially declares that a government is established. She asked the first minister to serve as the one in that capacity. Then the prime minister organizes the government and the Monarch in the British constitutional system establishes the validity of the government. And the Monarch can abolish the government requiring new elections.

But in the United States, our founders were determined not to have a constitutional monarchy or indeed a monarchy of any sort. And lacking a monarch who can declare the legitimacy of a government or can abolish the government. That means there has to be a system of checks and affirmations and all kinds of balances in our electoral system, but it also means that there is no final person to whom the United States and its citizens can turn to ask, where is our legitimate government? Eventually the American people have to turn to the representatives they have elected at various levels at various responsibilities to answer that question. And the complexity of answering that question is something that usually isn’t even on the mind of the average American, who goes to the polls, votes, sees how the election results are reported, and those who was going to be inaugurated or put in office on a date certain.

But given the circumstances of this contested election in 2020, Americans who are following the process are getting a pretty interesting education in civics and constitutionalism. But again, the worldview issue most important is to understand that the alternative to having a hereditary Monarch declare whether or not the government is legitimate is the fact that the representatives elected by the people themselves have to affirm together that the government is legitimate. But then that story does take us back to 1803. And then it’s going to take us to 1887.

First stop, 1803. That was the adoption of the 12th Amendment to the United States Constitution. That 12th Amendment declares how the Electoral College is to work. And that’s where the process of having a safe harbor for the electors, the electoral votes being sent to the Congress, the House and the Senate meeting together. And the vice-president of the United States officiating as president of the Senate. Well, the exact wordings of the 12th Amendment to the Constitution state, “The president of the Senate shall in the presence of the Senate and the House of Representatives open all the certificates and the votes shall be counted.” Now, just to state the obvious, that’s a very simple, straightforward process. That’s the process that will take place and has to take place according to our constitutional order, Wednesday in Washington, DC, as the House and the Senate gather together for the counting of the votes.

But wait, just a minute. The constitution itself was ratified in 1788. This 12th Amendment came in 1803. Why was the amendment necessary? Well, it was necessary because the first several presidential elections in the United States indicated that there needed to be a stated process for declaring the legitimacy of the election and the results of the Electoral College and thus the 12th Amendment. But that’s not where the story ends. We have to go from 1803 to 1876. In 1876, 73 years after the 12th Amendment had been ratified, Americans face a very difficult situation. In the presidential election of 1876, the president at the time Ulysses S. Grant had decided he would not run for another term in office. The Republican candidate in 1876, was Rutherford B. Hayes. You hear the name, you recognize it. You know that he eventually became president. The democratic nominee in 1876 was Samuel J. Tilden. Tilden actually got more votes in the Electoral College than Rutherford B. Hayes.

Tilden got 184. Hayes got 165. So you would think just looking at the numbers that Tilden would have been declared the winner of the election, but he wasn’t. And that’s because electors were contested from the states of Florida, Louisiana and South Carolina. This was in the aftermath of the civil war. It was a very ugly period in American politics. And Americans went for months not knowing who the next president would be. After months of maneuvering, leaders of the two parties reached a compromise and Rutherford B. Hayes was declared the winner. 20 electors were awarded to him rather than to Tilden with the agreement forced by the states in the South, that the process known as reconstruction would come to an end. Well that point virtually all Americans understood that there was a problem in the way the Electoral College was operating, or at least more properly in the way that the votes were being calculated and counted by Congress.

But it would be 10 years later when passions had cooled a bit, Congress adopted in 1887, what was known as the Electoral Count Act. And that counting act was intended to avoid the kind of Electoral College confusion that had happened in the wake of the election of 1876. And so what Congress attempted to do in 1887 was to make the process nonpartisan. That is to say no group of leaders of Republicans and Democrats would be able to swing a deal. Instead when there was a challenge such as in 1876 had been listed with Florida, Louisiana and South Carolina, then all it would take would be one member of the House or one member of the Senate to make the argument about the legitimacy of the result from the Electoral College and after debate, eventually Congress would determine the electors and eventually settle the question.

Now that brings us to 2020, is this the first time that we have had an announcement that there will be such a challenge? No. As recently as 2004 Democrats, that is a handful of Democrats offered a challenge to the election result from the Electoral College. They were challenging specifically electors from Ohio who were committed to the incumbent president, George W. Bush, who had been declared to be reelected. That particular appeal didn’t get very far. And the democratic nominee at the time, John Kerry himself had already conceded the race. So it’s not a perfect parallel, but nonetheless, that process has always been there.

And Missouri Senator Josh Hawley, following the example of several Republicans in the House have indicated that they do intend to challenge the electors from about six different states. Now what’s going to happen? Now, here’s what’s really important. And we have to watch the actual statements made by these Republican senators in particular, who say that they will participate in the challenge to the electors. Not one of them is indicating in any way that he or she believes that this challenge will lead to any other result than Joseph Biden being declared the elected president of the United States to be inaugurated on January the 20th.

That’s really crucial. President Trump may think that the outcome could be different, but every single one of the senators speaking in support of the challenge has indicated that he or she does not expect that there will be any fundamental change to the election. So for example, Senator Hawley has pointed to questions about the electors in Pennsylvania. Senator Cruz has pointed to the need for an audit of sorts when it comes to the election, in order to allay fears or concerns about fraud on the part of millions of American citizens. Is this the right place to offer this kind of challenge? Well, let’s just put it this way. What’s going to take place on Wednesday will be unprecedented and it will be unfruitful in terms of changing the election. It does also run the risk of undermining the legitimacy of the United States government. On the other hand, it is a provision that is currently a part of the statutory law of the United States.

Here we have to recognize that political leaders on both sides that is at least both ends of the political spectrum are using this as an opportunity for opportunism. That’s what they’re doing. They both mean to imply more than they actually believe. On the left there are those who are saying, “Look, this is the breaking of another democratic norm is the undermining of our system of electoral democracy and its legitimacy.” That’s an exaggeration. By the end of the day, or at least say the end of the 24 hour period that begins on Wednesday, it is very, very likely, almost certain that the American constitutional order will be rolling on. But there are those on the right who at least once some voters to think that what they’re attempting to do is to reverse the election when actually they are doing no such thing. One little footnote to inject here is that I would think it likely that there will be a challenge to the constitutionality of the Electoral Count Act of 1887.

Why? Because on its face that particular statute adopted by the government of the United States in 1887, does appear to undermine the specific provisions, the simplicity of the language of the 12th Amendment to the US constitution. That’s going to be debated for months and perhaps for years to come and probably will not make much of an effect on the American electoral process. Nonetheless, constitutional questions are always interesting and they are important because our constitution is in the end, the actual form of our government.

Part II

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The Presidential Election and the Verdict of History

But then came a second big headline related to some of the same questions. But this one came down to president Trump and a phone call. Are you surprised about that? In this case, the phone call was made by the president on Saturday to the state of Georgia’s Secretary of State, Brad Raffensperger, and on the phone call as well was Ryan Germany, the chief lawyer for the Georgia Secretary of State. In the phone call that as it turns out was about an hour in duration and was both recorded and transcribed.

It turns out that the president openly asked the Georgia Secretary of State to find him just short of 12,000 votes in order to award president Trump rather than Joe Biden, the electors from Georgia. The transcript reveals that the president said, “I just want to find 11,780 votes, which is one more than we have.” There was also language that could be described as intimidating used by the president to the Georgia Secretary of State and his lawyer. The president had said, “You know what they did, and you’re not reporting it. You know that’s a criminal, that’s a criminal offense. And you know you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. That’s a big risk.” The New York Times referred to the president’s language as an effort to cajole and bully elected officials in his own party, but more than anything else, it seems to demonstrate the fact that even as even his closest advisors and other constitutional officers, some weeks ago came to the conclusion that Joe Biden was elected president of the United States and won the November 3rd election.

President Trump simply cannot and will not come to the same conclusion. He will not concede the race. He will not concede that he lost. Now, here’s something we need to note. If you look at president Trump, first of all, look at Donald Trump, the man, Donald J. Trump, the man who wrote the book, The Art of the Deal, the man who founded Trump University, you go down the list in his own writings long before he became president he said that the one thing you must never do is admit defeat publicly. And if anything, this is a man who gave us decades before he was elected president the game book by which he was going to play.

And furthermore, just go back to the 2016 race for the Republican nomination. In the Iowa caucuses, Ted Cruz, the Texas Senator won. Even then Donald Trump, who was simply running for the Republican nomination, said that the only way he could have lost the Iowa caucuses is if there was massive fraud and the election was stolen, but the primary system moved on, and now we’re at a much larger arena.

We’re talking about the presidential election itself. President Trump is absolutely focused on one fact that is undeniable. He in 2020 received several million more votes for president than he did in 2016. That’s a remarkable achievement. And furthermore, it is extremely difficult for a challenger to an incumbent president to come even close to winning if the incumbent gains more votes, not to mention millions more votes for reelection than he did for election.

But nonetheless, this is where Donald Trump himself becoming so much the focus of the 2020 election actually resulted in massive voter turnout for both parties. It was one of Donald Trump’s great achievements that he did turn out millions more votes for his reelection, even then for his election in 2016. The problem is that by any honest, reckoning, Joe Biden turned out millions more than the millions more that Donald Trump produced in 2020. Donald Trump decided long ago to make himself the center of his story and to make himself the center of his electoral cause in 2016, and in 2020.

In both cases, there were pluses and minuses. If you make yourself the sum and substance of your campaign, your own personality, your own character, then you attract the people who are going to vote for you. And if you are particularly powerful, those numbers can increase as they did. The problem is that can also increase opposition on the other side. But the fact is that the phone call made to the Georgia Secretary of State was inappropriate. It was unprecedented. It is not going to change the result of the election, but it does raise all kinds of issues related to Donald Trump that will not serve him well, as he is considered in the course of American history.

And as he may be actually plotting a political future for himself, this is a very bad way to get that future started. It’s a phone call that never should have been made. And that’s something that his aids, his closest assistants fully understand. Whether the president understands that at this point, only he knows.

Part III

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The Power of the Presidential Pardon: Why Our Constitutional Founders Believed This Power Would Be Dangerous but Necessary

But then that leads us to another issue related to president Trump. And he produces so many headlines and unprecedented number of headlines in themselves that it’s very difficult for any one of these headlines to stay current for long. One of them has to do with the series of pardons that even to this point, president Trump has issued as he is preparing to leave office. Now, by the way, the fact that he is issuing these pardons at this time indicates that in some sense, he does understand that he will be leaving office on the 20th of January. Otherwise there would be no reason for the timing of these pardons. Just to summarize some of the pardons are non-controversial and clearly appropriate. Others are questionable, but that’s always the case with presidential pardons.

Some of them appear to be quite inappropriate. For example, pardoning people who were close to the president, the pardoning of whom could only be explained by proximity to the president. That’s always questionable. It also has to do with the fact that there were at least two members of Congress or former members of Congress who had been duly convicted of crimes. And both of them were basically pardoned by the president.

By the way, the president has the constitutional authority to pardon or to commute sentences. They’re not the same thing. A pardon means that legally it’s as if the crime didn’t happen. A commutation means that the penalty is either eliminated or minimized. Usually it means that someone is released from prison on the basis of time serve the remainder of the sentence is commuted. In the case of a commutation, the criminal conviction remains on the individual’s record. There were also some people who have been convicted, who had been associated with Blackwater, and of course, that also led to international controversy.

Now here’s something else that takes us back to the constitutional order, big worldview issues. Once again, part of the problem here, or at least part of the reality is that we don’t have a king or a queen. Now we don’t want a king or a queen. There’s a very good reason why the American founders turned away from a monarchy, a hereditary monarchy, but one of the powers of a monarch was the power to pardon or to commute sentences. The ultimate final court of appeal in Great Britain is the monarch who has had throughout the centuries of British history, the power of partner commutation. There was a lot of founding discussion and controversy and argument even about whether or not the president of the United States should be given that authority.

But nonetheless, the founders decided that the power of the pardon should be invested in the presidency. And presidential pardons have often been controversial throughout the entire course, honestly, of the presidential pardon history in the United States. And you could just consider the fact that when President Bill Clinton left office in January of the year, 2000, there was enormous controversy, indeed, nearly universal by-partisan outrage at the fact that he had awarded a pardon to Mark Rich, a financier who had been convicted of multiple felonies. And the pardon came after some members of the Rich family have been involved in affairs close to the Clintons, including fundraising for the Clinton campaign. To state the obvious, it doesn’t look good, it didn’t smell right. And when it comes to pardons, it is in the historical and the justice interest of the American people that pardons be used sparingly, and that they actually operate as a final court of appeals in a situation in which a conviction is genuinely unjust or a sentence is wrong, weighed in the balances of justice.

We actually do need the president of the United States to have the power of the pardon and in a bipartisan consensus throughout American history, it’s been recognized as a dangerous power, but a necessary power because at the end of the day, lacking a monarch here we are, again at that worldview issue so central to our constitutional order, we don’t turn to a hereditary monarch. So to whom do we turn? Well, eventually it is the one who is elected president of the United States and holds that term in stewardship for the American people for so long as his or her term of election. It’s not a perfect system, but we can look at the wisdom of the founders and understanding that the one thing worse than having the power of presidential pardon would be not having that power. No ultimate court of appeal, no way eventually for the president in the name of the people to write a wrong, but that’s the point, pardons should be used to right a wrong, not to make a wrong, even more wrong.

There’s been plenty for us to think about today. And let’s just remember that today is that special runoff election for two Senate seats in Georgia. The outcome of these two special elections will determine which party holds the majority in the United States Senate for the next two years. And as I’ve discussed repeatedly on The Briefing and made very clear in a lengthy comprehensive analysis yesterday, this is a hugely important question. It has to do with whether or not the new democratic administration will be able to steam roll legislation and policies through both the House and the Senate. Or whether the Senate itself will serve as a break and a moderating influence on the course of American politics for at least the next two years.

But remember the legislation adopted for the next two years will not affect only the next two years, but the kind of political order that is inherited by your children and your grandchildren. Keep that in mind, all eyes are on Georgia today.