Jun 19
The two prongs of the Trump-Eastman argument for overturning the election on January 6
It has been overlooked that the Trump-Eastman scheme to overturn the election had two prongs.
One, the claim of widespread voter fraud, has been thoroughly debunked, and if I’m not mistaken there wasn’t a single such claim that had been shown to have any merit on Jan 6. 1/16
The second prong was the allegation that pandemic-related changes in voting procedures by election boards, precinct captains, and others in contested states violated laws and regulations that had been enacted in those states. 2/16
This claim was invoked just as much if not more by Eastman in his talks with Trump and the WH lawyers. The WH lawyers seem to have summarily dismissed it (they never even mentioned it), and in fact the claim is as untenable as the claim of actual voter fraud, 3/16
because people in those states were well aware that their state actors were making changes to election procedures that they thought were needed in response to the pandemic, and the legislatures did nothing to curtail their authority to do so or to reverse or rescind them. 4/16
The charge that those changes were unlawful therefore fails, b/c it denies the state legislatures the right to delegate authority to make changes to election procedures in response to extraordinary circumstances, and nothing in the U.S. Constitution bars that. 5/16
Now if neither prong of the Trump-Eastman “argument” is tenable, then Trump had no legal basis for the actions he took to keep himself in power after he had lost the election. And absent any such legal basis, he undoubtedly violated at least two federal criminal statutes. 6/16
Several days ago Barbara McQuade in a tweet made *this* the basis for the claim that Trump was convictable for violating two federal criminal statutes, and I am pleased to see that she has made the same case today in somewhat greater detail. 7/16 tinyurl.com/225d2an7
McQuade seems to be referring here to the theory that Pence had authority to either decertify the duly appointed electors on Jan 6 or to suspend the congressional proceedings and send the question of decertification back to the states on Jan 6. 8/16
What I have done in this thread is to show that @BarbMcQuade’s argument needs to be strengthened (and can be) by showing that Eastman’s “illegal state action” charge is also untenable. 9/16
Now if Trump gets away scot-free on the basis of a narrative that has zero validity in fact or in law and that he knew had been trashed by the legal authorities he *should* have trusted and relied on, then we can write the epitaph for American democracy now. 10/16
As Liam Brennan, a former federal prosecutor, has put it: tinyurl.com/225d2an7
“These revelations put great pressure on the DOJ and raise the question of whether our criminal law system holds any authority over the actions of a president.”
Which I read to mean: if the kind and amount of evidence the J6 committee has already produced fails to provide an adequate basis for indicting and convicting Trump, then the criminal law does *not* hold any authority over the actions of a president, 11/16
and Trump was right when he once claimed that as president he had the power to do anything — and there is a serious risk that we will find ourselves very soon living in a de facto, one-man rule, fascist-controlled country. 12/16
It might be contended that all that has been shown in the above is that Trump could be shown to have made an *error of judgment* about the law.
So be it. Criminals are not allowed to make errors of judgment about the law, or to be ignorant of the law — 13/16
and in this case Trump’s error of judgment (if it was in fact nothing more than that, which is doubtful) involved an error that threatened and continues to threaten American democracy itself. 14/16
The same is true of Eastman’s claim that SCOTUS might deem Trump’s claims to be non-justiciable political questions.
Clearly, if they were, then it would be even clearer that the “criminal law system [does not hold] any authority over the actions of a president.” 15/16
DoJ cannot possibly let any of this stand. 16/16
