Below is my column in the Hill on today’s challenge to the counting of electoral votes in Congress. The challenge raises a long-standing debate over the authority of Congress in making such challenges. What is clear in my view is that Vice President Michael Pence does not have the unilateral authority claimed by President Donald Trump to simply “send back” electoral votes for particular states. Nothing in the Constitution suggests such authority and the Electoral Count Act expressly contradicts such claimed authority. Indeed, such an act could bring an unprecedented challenge and judicial intervention in the certification of the presidential election.
What is odd is the President’s continued assurance to his supporters that this is a possible path to victory. Shortly after the election, I wrote that I thought the President was laying the foundations for a “Death Star” strategy but that it would not likely succeed. To make that Luke Skywalker shot, he needed a perfect alignment of elements. None of those elements are present today. The over-hearted rhetoric from the President and his critics however are magnifying our divisions and anger.
Here is the column:
It is a touchstone of American constitutional law that nothing protects your right to shout “fire!” in a crowded theater. But what about yelling “fire!” in a crowded Congress? Democrats and the media have sounded the alarm that a planned challenge to electoral votes in Congress this week appears to be what Chuck Todd has called constitutional “arson” and Jake Tapper has called an attempted “bloodless coup.”
It is neither. Such rhetoric is disconnected from reality. Moreover, it also distracts us from critical constitutional issues. Ironically, the challenge is occurring rather close to the anniversary of the oral argument in Charles Schenck versus United States, the case in which Supreme Court Justice Oliver Wendell Holmes famously wrote that the First Amendment does not protect “falsely shouting ‘fire’ in a theatre and causing a panic.”
I have been an intense critic of that decision and of what Holmes wrote. However, the lines after that statement seem relevant today. They read, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”
The words of Todd, Tapper, and others seem designed to cause panic in an otherwise fireproof system. These individuals brush over the fact that Democrats have raised similar challenges against Republican presidents, with no cries about constitutional “arson” from members of Congress or the media. Indeed, some of those engaging in this rhetoric praised past challenges by Democrats in Congress.
When members like Senator Barbara Boxer challenged the certification in 2004, House Speaker Nancy Pelosi declared, “This is not as some of our Republican colleagues have referred to it sadly as frivolous. This debate is fundamental to our democracy.” Senator Dick Durbin said, “Some may criticize our colleague from California for bringing us here for this brief debate. I thank her for doing it because it gives members an opportunity once again on a bipartisan basis to look at a challenge that we face not just in the last election in one state but in many states.”
It was not constitutional arson then, and it is not that now. It is the use of a federal law to raise a challenge that has been raised in past elections over important issues of voter fraud or irregularity. As with past Democratic challenges, this one by Republicans will not succeed. However, the point of yelling “fire!” is to cause panic for political purposes. The same is true for the rhetoric used by Trump and his supporters in claiming that this election was stolen and that opponents are traitors. Since the inauguration (when a mob burned cars and rioted), we have seen violence in Washington, including the violence in Lafayette Park outside of the White House. Both sides have wiped their followers into a frenzy with such rhetoric. These are incidents of violence but not a coup from either the left or the right. Our constitutional system has survived far worse and will survive this period despite our best efforts.
In our current controversy, the more substantive issue is whether that law, the Electoral Count Act of 1887, is itself constitutional. The Wall Street Journal argued this week that the law is unconstitutional because there is no stated authority under the 12th Amendment for Congress to do anything other than count the votes certified by the states. If that is true, this challenge and prior challenges by Democrats are unconstitutional. The argument is not new. Academics have debated this poorly drafted law for decades.
There are reasons to question the Electoral Count Act. After all, the 12th Amendment states, in its relevant part, “The president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” That suggests to some that the process is ceremonial and ministerial. It is also important to note that the electoral votes of a given state can be challenged in the courts, as they were after the 2020 election. So it is not true that such votes are being submitted without legal support of their validity.
But there is a strong argument that the interpretation makes the special session largely perfunctory and without substance. Usually when a body is given a constitutional task, it must exercise a modicum of judgment on the validity or basis of the action. Even advocates of a narrow reading of the 12th Amendment often admit that it does not answer this question either way. It is silent on when certifications are challenged.
The problem with a narrow interpretation is that it creates a serious blind spot that led to the law in the first place. The 1876 presidential election between Rutherford Hayes and Samuel Tilden threw the country into a crisis when electoral votes from South Carolina, Louisiana, and Florida, were challenged. There was rampant fraud, as South Carolina reported over 100 percent turnout, and rival sets of electoral votes were submitted. Following the narrow interpretation means you can only count the votes, despite there being different sets of votes to count.
The assumption is that Congress was given this task with an implicit right to confirm the validity of votes before counting them. This is not like the pardon power given to the president without any stated limitation other than applying solely to federal crimes. This is an action left to Congress without any specifics of how to carry it out in the face of controversies. For almost 150 years, Congress has exercised the authority to scrutinize and even decline to count votes in certifications.
If a challenge could be made in the judiciary, it seems likely the Supreme Court would note the ability of Congress to consider such challenges. But most of us would likely view that authority to be very narrow. Otherwise, a partisan Congress could ultimately reverse an election. That is also why Congress should reconsider and replace the Electoral Count Act. It is a debate worth having after Joe Biden is sworn in.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
This column was updated.
The actual evidence, including video, forensic analysis of machines, live hacking of the machines, and sworn affidavits, is baseless? You are a brainwashed sheep.
Just because you call it “actual evidence” doesn’t make it actual evidence of illegal acts. Maybe it is, maybe it isn’t.
How about you present your video evidence. Let’s see what it shows. Focus on specifics, not your vague description.
https://thescoop.us/flashback-leftists-praised-anti-kavanaugh-protestors-who-took-over-capitol-hill-building-in-2018/
FLASHBACK: Leftists PRAISED Anti-Kavanaugh Protestors Who Took Over Capitol Hill Building In 2018
When far-left radical communists protesting against the appointment of Justice Brett Kavanaugh to the US Supreme Court took over the Hart Senate Office Building atrium on Capitol Hill on October 4, 2018, leftists on Twitter PRAISED them.
JUST IN: Anti-Kavanaugh protesters take over the Hart Senate Office Bldg. atrium on Capitol Hill.
— MSNBC (@MSNBC) October 4, 2018
Trending: Unarmed Female Trump Supporter Who Was Shot And Killed By Capitol Police Identified As 14-Year Air Force Veteran Ashli Babbitt
“THIS is what democracy, patriotism, and heart looks like,” tweeted Twitter user @WendiUnraveled.
Completing this poll entitles you to TheScoop.us updates free of charge. You may opt out at anytime with a single click. Here’s our Privacy Policy.
“Thank you to everyone able and willing to stand up and speak out.”
THIS is what democracy, patriotism, and heart looks like. Thank you to everyone able and willing to stand up and speak out.
— wendi (@WendiUnraveled) October 4, 2018
Twtter user @GMT_0923 tweeted, “So grateful for these protesters! I’m with them in solidarity and spirit!! #KavaNOPE”
So grateful for these protesters! I’m with them in solidarity and spirit!! #KavaNOPE
— GTrain (@GMT_0923) October 4, 2018
Another Twitter user @barbn1943 said, “Thank you everyone single one of you! This brings a feeling of pride where I’ve only had disgust this week. Thank you.”
Thank you everyone single one of you! This brings a feeling of pride where I’ve only had disgust this week. Thank you.
— GoBluWave 🌟 (@barbn1943) October 5, 2018
Twitter user @RosieE2017 tweeted, “Wish I were there!”
Wish I were there!
— Emily Rose (@RosieE2017) October 4, 2018
It’s ludicrous to compare the two.
The Kavanaugh protesters were peaceful. They did not break into people’s offices, they did not break windows, there were no arrests for carrying firearms, they went through the normal screening entry, …
Some riots are more equal than others.
https://www.axios.com/riots-cost-property-damage-276c9bcc-a455-4067-b06a-66f9db4cea9c.html
Exclusive: $1 billion-plus riot damage is most expensive in insurance history
The vandalism and looting following the death of George Floyd at the hands of the Minneapolis police will cost the insurance industry more than any other violent demonstrations in recent history, Axios has learned.
…..the arson, vandalism and looting that did occur will result in at least $1 billion to $2 billion of paid insurance claims — eclipsing the record set in Los Angeles in 1992 after the acquittal of the police officers who brutalized Rodney King.
My Rioters Are Good, Yours Are Bad
Democrat leaders and the MSM tacitly and openly supported BLM/Antifa rioters. The Capitol Building rioters got the message: When you feel aggrieved — riot.
Goose meet gander.
If it’s credibility you want, then try acting on principle, not expediency. Condemn violence, any violence — no matter who commits it, what their target is, or their motivation. Adopt the principle that reason is the only proper means of settling disputes.
Impeach Donald Trump, Remove Him, and Bar Him From Holding Office Ever Again
https://thedispatch.com/p/impeach-donald-trump-remove-him-and
Good idea. THAT will put a lid on the tinder box, eh?
Not even a little bit. The establishment is blaming Trump for EVERYTHING. Their approach to blaming Trump and smearing his supporters as domestic terrorists will backfire. It will not just make things calm down and go away.
No one is saying that it will put a lid on the tinder box.
It will only get Trump out of office, which is appropriate based on his actions.
It didn’t smear average Trump supporters as domestic terrorists.
Turley: you’re in the class of people who have attempted to soften the implications of what Trump has been doing since he enterred Washington. Sorry, a throwaway line about how you’re one of “many of us” who vaguely disagree is just a rationalization. Clearly your blog comments are full of the type of comments that get the type of white base off that invaded the Capitol yesterday…
You’ve got some work to do, Jon. You need to backpeddle. You need to explain the implications of your actions, or ommissions of actions. You done f’d up. I actually believe that you never meant for this stuff to happen. But it did…, and you’re squarely in the middle of the class that have carried the water and done the work for Trumpism. You didn’t plan to be there and don’t have the power to channel the runaway train back yourself, I know. But this isn’t business as usual.
Interested in seeing what you write about today. I’m going to be honest, my hopes aren’t high. But they are hopes.
Elvis Bug
Now everyone wants to clean themselves of everything they have done they quickly forgot when the masses led by the Democrats wanted to destroy the Supreme Court, everyone is to blame when Schumer says we are going to change America who is he to impose on others what he wants we are here Because America is a capitalism, we pay taxes, we respect its laws, but don’t impose your shit on us.
What did you think would happen when you impeached, under false pretenses, a President who was the choice of close to half of America?
What did you think would happen when you spent each and every day denigrating 73 million Trump supporters, calling them “bitter clingers,” “deplorables,” who live in “flyover country,” who go to work, pay their taxes and just want to be left alone?
What did you think would happen when you stole an election, right out in broad daylight…with the help of folks who are supposed to be on our side…I’m talking about the Georgia Secretary of State here. Then did it again two days ago, with the help of the very same SECSTATE.
What did you think would happen when the Supreme Court of these United States refused to hear us on a case in which they have primary jurisdiction?
What did you think would happen when 74 million Americans watched the folks supposedly on their own team, tell them to roll over and suck it up?
Going forward…Knowing that 74 million Republican, Independent, along with a few million Democrat voters did NOT vote for stacking the Supreme Court, the admission of Puerto Rico & DC as states, the “Green New Deal,” massive wealth redistribution, gun confiscation or national lockdowns or mask mandates…What do you think will happen when a totally leftist controlled government tries to ram those policies down our collective throats?
I am very afraid. And you should be too. Rather than decry the brave patriots in DC today (minus actual criminals) we should take today as a cautionary pause. But we won’t. Y’all better Buckle Up.
Mike Ford
Red State com
Trump wasn’t impeached under false pretenses.
The election wasn’t stolen.
Prove it.
I’ll do that right after the person who said he was “impeached, under false pretenses” and “you stole an election, right out in broad daylight” proves it.
You do want everyone to have to prove their claims, right?
Glad you focus on the 74 million people. It highlights the fact that Trump has *never* won a popular vote.
https://jacobinmag.com/2020/05/george-floyd-minneapolis-uprising-police-brutality/
No, We Should Not Condemn Uprisings Against Police Murders Like George Floyd’s
05.28.2020
In the aftermath of a Minneapolis police officer’s murder of George Floyd, some of our nation’s media have turned to some crucial questions which must be addressed:
Should we condemn looting?
Yes, we should condemn the looting of the Global South by Western militaries and multinational corporations. We should fear the terrifying possibility that the COVID-19 vaccine will be enclosed, privatized, and sold for profit; and the looting of underdeveloped nations and underinsured people that would ensue.
We should fight back against the looting of underdeveloped nations’ coffers by odious debts and structural adjustment programs being drawn up and imposed by international institutions at this very minute.
But should we care about the other kind of looting?
It would take a heartless monster not to care about the looting of homes and buildings by vulture capitalists. We should organize against the impending wave of evictions that will crash into our communities as soon as courts reopen. And we should fight back against the theft of stable homes and schools; the unnecessary destruction of lives due to their prioritizing food over rent.
We care that whole working-class communities will be gentrified, their buildings replaced with housing for wealthier, whiter families, who bring in a bigger haul of loot for the landlord. We should be outraged that police are looting homeless people’s encampments, and we must demand that safe vacant homes and rooms no longer be hoarded away from unhoused people.
So what can Turley say today, oh, maybe it just doesn’t rise to the level, just as Turley sees nothing wrong with any phone call from the POTUS to Ukraine or the state of Georgia, nothing Trump does rise to the level. Of course, if Trump would have lied about a personal affair, then of course it’s impeachable.
You live in an alternate universe of fake news.
Senator Boxer’s challenge was preceded by clear evidence of potential voters having to wait in line for hours because there weren’t enough voting facilities in Democratic voting areas of Ohio. It had been reported on. There were videos and photographs. The result of the election was in no doubt, the loser having conceded early in November.
There was no evidence behind these Republican challenges.
The president is still claiming that he won in a landslide and the election has been stolen from him.
The president roused a mob and sent it at the Capitol.
You keep positing drivel and DNC Talking Points and tell patent lies about that which you disagree.
There is ample evidence….just look at the PA Supreme Court Decision, or Stacey Adams sister’s decision down in Georgia…..and if you have any gray matter in that swelled head of yours….you would see why this Election is seen by half the People in the Nation as being corrupt.
But your reputation here renders your comments worthless.
Yourst is the life of a Troll on display.
+10
THURSDAY ON JOHNATHAN TURLEY’S BLOG
Tonight the Professor is weighing these subjects as possible columns for Thursday:
1) Leftist students at obscure, private college demand removal of faculty member for defending Trump election claims. Turley will portray the effort as an ‘ominous assault on free speech’ while noting that many members of Congress are also defending said claims.
2) Twitter freezes Trump’s account in an ‘ominous assault on free speech’. Turley will link previous columns detailing ‘big tech’s hostility towards conservatives’.
3) New York Mayor Bill de Blasio yells at Assistant for leaving backdoor open to freezing temperatures. Assistant was bringing in groceries for de Blasio’s family. Turley will paint the ‘incident’ as ‘liberal hypocrisy towards working people’.
4) Black male teenager rips purse from arm of Jewish grandmother on Chicago’s Lake Shore Drive. Turley will wonder why mainstream media ‘overlooked’ this story.
5) Illegal Aliens discovered working as dishwashers at prominent Los Angeles hotel. Said hotel is frequent host to ‘limousine liberals’.
That…was hilarious.
You forgot the potential blog post topic of how Bill Barr deserves high praise for not joining the crowd that assaulted the Capitol.
+10
Bahahahahahaha!
Elvis Bug
This is really good- you’ve captured it perfectly.
Very funny! Like you, I can easily predicted what Professor Turkey will write about news items.
Is this blog on Parler now? Haha
This is the Democrat nominee for VP instigating violent riots that have left multiple Americans dead:
“Everyone beware. They’re not gonna stop before election day in November, and they’re not gonna stop after election day… They’re not gonna let up and they should not.”
Kamala and Joe’s campaigns were promoting and contributing to the Bail out fund for these rioters and thugs. Over 30 people were killed in the riots and over a BILLION in property damage done all last summer. Cities were on fire, minority and black-owned businesses were looted and destroyed. The reporting on the media cable channels? Not more than a peep from any of the Establishment Media. Nothing like we saw yesterday.
Trump supporters are being smeared en masse as Domestic Terrorists? Will the media investigate and report accurately on what happnened yesterday at the Capitol? Antifa infilatration? How Trump supporters were by and large peaceful protestors? No. They will report the LIE and foment the rage that is now being pushed underground.
https://www.fbi.gov/contact-us/field-offices/washingtondc/news/fbi-seeking-information-related-to-violent-activity-at-the-us-capitol-building
FBI Seeking Information Related to Violent Activity at the U.S Capitol Building
The FBI is seeking information that will assist in identifying individuals who are actively instigating violence in Washington, D.C. The FBI is accepting tips and digital media depicting rioting and violence in the U.S. Capitol Building and surrounding area in Washington, D.C., on January 6, 2021.
If you have witnessed unlawful violent actions, we urge you to submit any information, photos, or videos that could be relevant at fbi.gov/USCapitol.
Please use this form to submit any images, videos, or other multimedia files you have related to possible violations of federal law committed. Our goal is to preserve the public’s constitutional right to protest by protecting everyone from violence and other criminal activity.
You may also call 1-800-CALL-FBI (1-800-225-5324) to verbally report tips and/or information related to this investigation.
If you do not have an attachment but have information to provide, please submit it at tips.fbi.gov.
Dissolve the FBI. It is corrupt and useless.
Did I miss the Press Release where the FBI was doing that for Antifa violence in Portland, Seattle, Washington DC, and other places?
They are right in doing this for the Capitol Building incursion…..but the same effort should be made for Leftist Groups as well especially in the wake of Riot, Arson, Looting, and assaults/murders of Police Officers.
You seen any Federal Indictments of Antifa or BLM thugs?
Do you not know how to use Google to answer your questions?
Or are you just too lazy to check before posting your questions here?
I’ll help you start. Here’s the answer for Portland –
https://www.fbi.gov/contact-us/field-offices/portland/news/press-releases/fbi-portland-is-seeking-information-on-individuals-inciting-violence-during-first-amendment-protected-peaceful-demonstrations
‘When Antifa and BLM organized protests vastly more violent and destructive than anything we saw today, Joe Biden and Kamala Harris helped to raise bail money for them. This is the necessary context in which to understand their selective moral indignation over today’s events.’
@dineshdsouza
No. These Trumpers attacked the US Capital Building in an attempt to install an unelected president. It was a coup and was far worse then we have seen in a very long time.
Molly,
You continue to show yourselves a foolish Liar!
It’s a distractable fact at a minimum of 8 states there was multiple vectors of fraud in Nov 3’rds vote that barely illegally moved Biden to the electoral lead.
But you& your people do not wish to give the state legislator & investigators what is need to do their jobs.
By Default anyone supporting those fraudulent results have & are abetting in multiple Felonies against us American Citizens & in our court we find you people guilty as hell & unforgivable.
Sorry typos/spell ck from everywhere… it’s late:
Oky1 says:
January 7, 2021 at 12:25 AM
Molly,
You continue to show yourselves a foolish Liar!
It’s a demonstrable fact at a minimum of 8 states there had multiple vectors of fraud in Nov 3’rds vote that barely illegally moved Biden to the electoral lead. You won Nothing!
But you& your people do not wish to give the state legislators & investigators what is needed to finish their jobs. Obstruction!
By Default anyone supporting those fraudulent results have & are abetting in multiple Felonies against us American Citizens & in our court we find you people guilty as hell & unforgivable.
aka: Close enough to this time of night.
You know quite well that the allegations of fraud have been shown to be baseless. You are a traitor to the US.
They ransacked the office of the Senate Parliamentarian, video here of the remains: https://twitter.com/alizaslav/status/1347033165764972551
Today’s crime, from A Crime a Day:
40 USC §5104(e)(1)(B) & §5109 make it a federal crime to enter the floor of either House of Congress through the use of force and violence.
And a person was shot and killed while security defended the building, which was foreseeable given the mob’s violent entry, so throw some felony murder charges on top of that.
Giuliani tried to call Sen. Tuberville to urge him to object to all states, in an effort to further delay the acceptance of the EC votes. Except he called the wrong number and left the message on someone else’s voicemail. And that person released it. Audio here –
https://twitter.com/LoopEmma/status/1347027323590221825
There is no bar too low for them.
The same people who allowed tech oligarchs to censor free speech, who shut down the country for a year & closed churches & schools & gave $700 billion of your money to foreign nations like Burma & Nepal are united tonight in the belief that it’s all Trump’s fault.
LOL. Poor Rudy can’t even conspire competently.
The Senate has voted 93-6 against the objection to certifying Arizona’s EC votes.
The House probably won’t vote for another hour, given the larger number of members who wish to speak.
Trump, in July –
“Anarchists, Agitators or Protestors who vandalize or damage our Federal Courthouse in Portland, or any Federal Buildings in any of our Cities or States, will be prosecuted under our recently re-enacted Statues & Monuments Act. MINIMUM TEN YEARS IN PRISON. Don’t do it! @DHSgov”
Let today’s Capitol vandals be charged.
Joe Biden is prohibited from holding public office in the US government – By his own admission, then Vice President Joe Biden used upwards of $1 billion of US government loan guarantees in a bribery coercion scheme to threaten the Ukraine president to immediately terminate the Prosecutor General who was investigating the corrupt practices of Burisma Holdings, as well as the involvement of board director Hunter Biden.
This criminal act constitutes a federal felony crime and disqualifies Biden from holding public office.
http://stateofthenation.co/?p=24296
He has not been indicted, much less convicted.
You are delusional.
Biden openly BOASTED of it and the footage has been shown over and over.
He wasn’t doing anything illegal.
No matter what you believe about it, he has not been indicted, much less convicted, of a felony, and he is not disqualified.
Not YET.
Guest 4579 is our usual troll who is hyper-active today.
The international community was agreed that the Prosecutor General needed to go and Biden was acting on official behalf of the US government.