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On the Wrong the Insurrectionists Committed: A Guide for Journalists

Watching journalists interview Republicans about the recent failed right-wing coup is just painful. Even the very best — George Stephanopoulos—just get it wrong.

Every interview I’ve seen goes something like this:

  1. Journalist: Will you admit Joe Biden won?

Ok. here’s the point these exchanges always miss:

Under our Constitution and federal law, point #2 is utterly irrelevant.

Under our law, the question is not whether there are questions or unanswered arguments in the state. Whether there are or not, that is irrelevant to the only thing at issue on January 6: (a) did Biden win, and (b) did members have any right not to count Biden’s electoral votes. Under federal law, SO LONG AS:

  1. the states have a process for contesting the election,

THEN Congress must count the votes of those electors. If #1-#4 are true, Members of Congress have no legal basis for objecting to that count. If #1-#4 are true, then whether or not a Member believes there was fraud or errors or an incomplete consideration of constitutional claims, it does not matter, legally, to whether the vote of those electors should get counted, because under the Electoral Count Act, Congress promised the states that if #1-#4 were true, then Congress would look no further than the certified results.

The constant appeal to the “Well, hold on, there” question is like arguing we don’t know whether the Kansas City Chiefs won the Super Bowl last year, because there could have been a bad call when they played the Vikings, and thus, it could really be that they shouldn’t have been in the playoff at all. (Or something like that: I don’t know squat about sports and am trusting Google to give me enough to suggest the point): Whether the Chiefs won the Super Bowl does not depend on whether every call in every close game was correct. Whether or not the calls were correct, the Chiefs “won” because they got more points than the 49ers in the Super Bowl on February 2, 2020 (of that I am sure).

Now, of course, a Member could say s/he believes the Constitution is wrong. Or s/he could say s/he believes the federal law is unconstitutional. Or s/he could say that s/he believes federalism is for the birds. Any of those claims would make sensible the decision to object to the counting of a state’s electoral votes.

But none of the insurrectionists say that. Instead, all of them swore an oath to uphold the Constitution and to follow the law. And then all of them violated that oath. All of them violated the clear direction of the Electoral Count Act, either out of ignorance or ego or ambition.

So here’s what a journalist (or citizen) should say to any one of these insurrectionists:

Federal law requires that Congress count the electoral votes from a state if (1) that state has a process for contesting election results, (2) that contest was completed at least 6 days before the College voted, (3) only one slate of electors was presented, and (4) there was no question about whether the votes of the electors were “regularly given.” All 4 of those conditions were true for every state in the union in this election. So then why did you, Congressman/Senator, choose to violate that federal law?

Make them defend breaking the law. Make them defend ignoring federalism. Make them defend violating their own oath. But please, stop inviting them to speculate about whether every ballot was a legal ballot. That is not — nor has it ever been—the question.

Or at least, it hasn’t been the question since 1887, when the Electoral Count Act was enacted. In 1887, Congress recognized it couldn't trust itself. As one Member reflected in 1884,

It has been demonstrated time and again that the political conscience is a flexible and elastic rule of action that readily yields to the slightest pressure of party exigencies … When the great office of President is at stake … it would be expecting too much of human nature, under the tyranny of party, to omit any opportunity to accomplish its ends, more especially under that loose code of morals which teaches that all is fair in politics, as in war or in love.

Whether what the insurrectionists did was “fair in politics” or not, it was plainly not supported by law. Force them to justify that. Stop allowing them to repeat plainly false claims that discredit the idea that Joe Biden was properly elected.

law professor, activist.

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