Image for post
Image for post
Credit: Francis Chung / E&E News

Unless you are familiar with this corner of the law, it’s not obvious just how outrageous Senator Josh Hawley’s stunt in Congress was. Until Hawley announced he was going to object, the Majority Leader had kept a tight lid on the process. Once Hawley opened the door, 12 others followed in the Senate. No doubt, orchestrating that challenge was not the cause of the riot. But that challenge gave comfort to those who rioted, as did the clenched fist Hawley flashed to the (soon to be) rioters as he entered the Senate. …

Senator Josh Hawley continues to defend his indefensible behavior of 10 days ago. The indented part below is an oped published by Senator Hawley in the Southeast Missourian Thursday. Responses are my own.

Last week I objected during the Joint Session count of electoral votes in order to have a debate on the issue of election integrity.

This is the key point, and right out of the gate, he is confessing his error. Senator Hawley is free to ask for a debate on the issue of election integrity. He is free to stand on the floor of the Senate and give a speech about election integrity. But the question about his behavior was whether it was appropriate or even legal to object to the counting of the electoral votes in order to have a debate about election integrity. …

Image for post
Image for post

Senators Cruz and Hawley were not just acting badly or cowardly or opportunistically. It is important that people see why they were acting illegally.¹ And obviously, not necessarily just them. But illegality requires intent. Intent requires knowledge. And these two well-trained lawyers (and one former law professor) certainly knew what they were doing was wrong. That knowledge renders their acts illegal.

Why was it wrong?

The proceeding within which Cruz and Hawley raised their objection is governed by the Twelfth Amendment and the Electoral Count Act. The ECA fills in the details of the Twelfth Amendment. …

Image for post
Image for post
Senators Hawley and Cruz (public domain)

At the core of the Constitution’s democracy clauses is a fundamental distinction: While Congress is the “Judge” of its own “Elections,” it is the States that determine the election of the President.

This difference was the product of self-conscious design. The framers feared a President selected by Congress. They crafted a system to protect his selection from congressional interference as much as possible. Obviously, at some point, the vote of electors has to be counted. But never in American history has Congress purported to pierce the determination of the states in the casting of the electoral votes. No doubt the question has been raised. …

Image for post
Image for post

For some time now, I’ve been a critic of the Senate Majority Leader, Mitch McConnell.

I gave an extended account of why on Joe Rogan’s podcast.

I gave a more animated account of why when I had the honor of awarding McConnell the Motherf*cker Lifetime Achievement Award in 2019.

But the “why” should be obvious. Of all the bad that is Washington, DC, Mitch McConnell is the worst. Not because he’s lazy — he’s not lazy, in the least. Not because he’s stupid — to the contrary, Mitch McConnell is brilliant. …

Image for post
Image for post
From The Bulwark

I found this wonderful email in my inbox today:

Subject: Wtf is wrong with you?!

As a fellow Masshole now residing in Colorado, you’ll forgive me for speaking plainly here: how dare you scare people while we’re suffering through a pandemic, an economic crisis and a continuing autogolpe by a vulgar fat fuck who wants to squat in the people’s house. DURING THE HOLIDAYS, NO LESS.

In the words of my 16yo son, “sometimes you need to know when to keep your trap shut, bruh”

Now go say you’re sorry to Twitter. And wear a mask.

First, what a great word: “autogolpe.” …

Image for post
Image for post
Borrowed from the Endgame Parody

As Rick Hasen puts it, this is my effort to “Vulcan mind meld” with Stephen Miller. This is not a statement about what is likely. I’m not trying to worry anyone. I’m trying to point to where we should be looking, because so much is focused in all the wrong directions. So let me state it directly: stop with the obsession with the courts (it isn’t happening there) and stop with the attention to Mo Brooks (who is either an idiot or thinks you’re an idiot: Congress is not going to reverse this on its own, even if a Senator agrees with the objection). …

As reported by Rick Hasen at the Election Law Blog, Stephen Miller has now announced that alternative slates of electors are in fact voting in each of the swing states. Rick discounts the significance of this. I think he moves too quickly in reaching that happy conclusion.

The precedent is Hawaii, 1960. As Van Jones and I had written on CNN.com on November 4,

In 1960, Hawaii’s vote was incredibly close. On the first count, Nixon had beaten John F. Kennedy by 141 votes. On November 28, the acting governor certified a Republican slate of electors.

Ted Cruz has offered to argue Representative Mike Kelly’s case against Pennsylvania in the United States Supreme Court — assuming, of course, that the Court grants cert. What’s astonishing about the filings so far is their complete rejection of the only argument that Trump has for getting state legislatures to select alternative slates of electors. As this has been Trump’s endgame from the start, this rejection seems to signal clearly that the game is up. Cruz is posturing for 2024. Trump is going home.

From the start, many of us have been worried about this endgame strategy. John Heilemann says it was described to him in the summer by Steve Bannon. According to this plan, if key states go against Trump, then state legislatures would assert a “constitutional” power to select a different slate of electors, regardless of the vote in their state. …

About

Lessig

law professor, activist.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store