We previously discussed the declaration of Harvard Professor Lawrence Tribe that former president Donald Trump could be charged with the attempted murder of former Vice President Michael Pence. Now, MSNBC legal analyst and Michigan Law Professor Barbara McQuade has gone one better. She told MSNBC viewers that Trump could be charged with manslaughter for his role in the January 6 Capitol riot.
Just as Tribe declared his theory was “without any doubt, beyond a reasonable doubt, beyond any doubt,” McQuade appeared equally certain that this was a serious and possible charge.
Anchor Nicolle Wallace was bouncing off comments of Rep. Liz Cheney on what the House might do to Trump when she turned to McQuade for legal analysis:
Wallace: “Let me ask you, I think what they’re saying is that even if you were that deluded, quote, ‘You may not send an armed mob to the Capitol or sit for 87 minutes and refuse to stop the attack. You may not send out a tweet that incites further violence.’ It sounds like around the violence. She’s looking at what the committee talks about as dereliction of duty. Is that a specific crime you can charge someone with, Barbara?”
McQuade: “It’s not a federal offense, but there actually is an interesting legal theory here for manslaughter, which Federal law defines as a death that occurs on federal property when a person acts with a recklessness mindset or even gross negligence. And so Donald Trump, unlike most ordinary citizens, has not only a duty not to do something bad, but an affirmative duty to take action to protect people. I think you could possibly put together a theory based on the facts that Liz Cheney just described to make Donald Trump responsible for the deaths that occurred that day.”
So let’s recap. Trump could be prosecuted for manslaughter because he had an “affirmative duty to take action to protect people”?
The problem is that many officials had an affirmative duty to protect individuals on that day, including congressional leaders and officials. There is no question that Trump waited too long to call back his supporters. Many of us criticized Trump for his insistence that Pence could effectively block certification of the election. I publicly condemned Trump’s speech while it was being given. However, I know of no case that would impose this affirmative duty on Trump as a criminal legal matter.
That does not change due to Trump’s speech before the riot. Indeed, such a use of the speech would contradict controlling Supreme Court precedent.
In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”
It is common for political leaders to call for protests at the federal or state capitols when controversial legislation or actions are being taken. Indeed, in past elections, Democratic members also protested elections and challenged electoral votes in Congress.
The problem for prosecutors is that Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.”
Trump also stated: “Now it is up to Congress to confront this egregious assault on our democracy…And after this, we’re going to walk down – and I’ll be there with you – we’re going to walk down … to the Capitol and we’re going to cheer on our brave senators and congressmen and women.”
If McQuade is referring to 18 U.S.C. § 1112, the courts have imposed an element that she does not mention even for involuntary manslaughter: proximate cause. United States v. Main, 113 F.3d 1046, 1049-50 (9th Cir. 1997) (“When the jury is not told that it must find that the victim’s death was within the risk created by the defendant’s conduct an element of the crime has been erroneously withdrawn from the jury . . . It is not relevant that § 1112 does not expressly mention proximate cause.”).
Thus, the standard jury instruction requires the following:
First, the defendant committed an act that might produce death;
Second, the defendant acted with gross negligence, defined as wanton or reckless disregard for human life;
Third, the defendant’s act was the proximate cause of the death of the victim. A proximate cause is one that played a substantial part in bringing about the death, so that the death was the direct result or a reasonably probable consequence of the defendant’s act;
Fourth, the killing was unlawful;
Fifth, the defendant either knew that such an act was a threat to the lives of others or knew of circumstances that would reasonably cause the defendant to foresee that such an act might be a threat to the lives of others; and
Sixth, the killing occurred at [specify place of federal jurisdiction].
Putting aside the accuracy of the portrayal of this crime, McQuade’s definition is so broad it could be used against the congressional leaders and staff for their own gross negligence and “affirmative duties.” The one area that has been studiously avoided by the House leadership and J6 Committee is the failure of Congress to take steps to prepare adequately for this protest despite warnings of potential violence. Indeed, the media has assisted in this effort with its own focus in coverage.
The Democrats in the final hearing hammered away at documents showing that the agency knew about violent threats in the days leading up to Jan. 6th. However, the Democrats have refused to pursue the lack of preparations on Capitol Hill as a focus of the hearing. On the day of the riot, many of us noted (before the breach of security) that there was a relatively light police presence around the Capitol despite the obvious risk of a riot. Once the crowd surged, they quickly were able to gain access to the building. Conservative media have featured a video showing an officer standing by as crowds poured into the building.
That obviously does not mean that there was not violence or that Capitol police did not bravely fight to protect the building. Most of us have denounced the riot as a desecration of our constitutional process.
Moreover, at some point, officers may have shifted to deescalating as crowds surged into the building. The question is why there were not more substantial barriers, like those used at the White House. Instead, some barriers were composed of a few officers using their bikes.
The available evidence indicates that the House was warned and that the need for National Guard deployments were discussed. There is a concern that, after criticizing such deployment and fencing around the White House in the earlier riots, the Democrats did not want to be seen following the same course.
An Inspector General report indicated that police were restricted by Congress in what they could use on that day. Previously, it was disclosed that offers of National Guard support were not accepted prior to the protests. The D.C. government under Mayor Muriel Bowser used only a small number of guardsmen in traffic positions.
There is a danger to adopting this type of broad definition of manslaughter and I would also oppose such a charge against Capitol officials. What Professor McQuade is suggesting would allow for the wholesale criminalization of negligence. While it is true that involuntary manslaughter can include a gross negligence basis, it is not as fluid as suggested on MSNBC.
This was not an impulsive suggestion by Professor McQuade. She has been hammering away at this charge for months. In July, she tweeted that Trump could face five manslaughter charges. She explained:
“Of course, he himself was the one who set this risk in motion by summoning the mob and then lighting the fuse with his Ellipse speech urging them to march to the Capitol, but that conduct raises some sticky 1st Amendment concerns. His inaction in stopping the violence does not.”
She then added: “DOJ, you up yet?”
Notably, in those tweets, McQuade emphasized a charge under “DC law, manslaughter” which can then be charged under the federal Assimilative Crimes Act. Again, the use of such a law would fail for the reasons above.
The Criminal Jury Instructions for the District of Columbia, No. 4.25.B emphasize that, while you do not need actual knowledge of the extreme risk of death or serious bodily injury, there must still be a showing of a gross deviation from the standard of care:
“The essential elements of involuntary manslaughter, each of which the government must prove beyond a reasonable doubt, are: 1. That the defendant caused the death of the decedent; 2. That the conduct which caused the death was a gross deviation from a reasonable standard of care; and 3. That the conduct which caused the death created an extreme risk of death or serious bodily injury. The gist of the difference between second degree murder and involuntary manslaughter is in whether the defendant is aware of the risk. To show guilt of second degree murder, the government must prove the defendant was aware of the extreme risk of death or serious bodily injury. For involuntary manslaughter, the government must prove, not that the defendant was aware of the risk, but that s/he should have been aware of it.”
The failure to do more in the face of a violent mob is not a compelling basis for such a showing and would likely fold back into those “sticky” constitutional concerns.
It is also noteworthy that D.C. officials have not moved to charge Trump on this or other crimes despite their earlier public statements. After the riot, DC Attorney General Karl Racine announced that he was considering arresting Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks and charging them with incitement. So what happened to that much discussed prosecution? Was that because Trump is just too popular with D.C. officials or there is a lack of interest in such prosecutions? It is because the desire to prosecute over January 6th outstripped the law and the evidence.
As with Tribe’s sensational claim, the suggestion of a manslaughter charge obviously thrills many viewers. However, it creates a misleading portrayal of the existing law and its limitations in my view.
Last month President Biden said “MAGA Republicans represent an extremism that threatens the very foundations of our republic.” Under the reasoning of McQuade, I assume he is now criminally responsible for the death of a teenager in North Dakota purposely hit and killed by a car driven by a man who justified his actions by stating the young man belonged to an extremist conservative group, or for the actions of the 4 men who beat a Marco Rubio canvasser into the hospital with a broken jaw.
Of course McQuade has been pushing her quack theory for months — that’s the reason she was invited to MSNBC in the first place. No honest, intelligent lawyer would ever set foot on that racist, hysterical chat show that tries to pass as a serious venue for serious discussion. McQuade obviously sold her soul long ago — her appearance on MSNBC is just the icing on the cake.
Thank goodness for Courts of Appeal and the SCOTUS. The reality is that there are folks out there like Lawrence Tribe and Barbara McQuade, skilled legal scholars whose biases overrule their training and common sense to a point where the unconstitutional becomes constitutional. An even scarier thought is that these people and others who share their biases get to sit on juries now and then and decide criminal and civil cases according to the personal and often extremist views.
In that case congress can be held accountable along with multiple governors and Healthcare related people and don’t forget Antifa for the damage caused during the last few years…from 2016 on.
She’s stretching so hard she risks pulling a hamstring.
Because Democrats are such stable, tolerant, understanding Nazis. Yet no commentary by Tribe, McQuade, Rachel Madcow, CNN, MSNBC, etc on how Biden incites violence, e.g. the brutal beating a DeSantis / Rubio canvaser suffered by Biden’s fascist thugs. Expect outright anarchy by Democrats when they lose the midterm elections far worse than Trump’s Inauguration Day. Violence is all they know
You wonder how on earth Tribe and McQuade can be professors of law, ‘educating’ the next generation of lawyers? They use their status as professor to give credibility to untenable legal positions. But they are preaching to the choir and do not convince anyone outside their political religion. In the end, their public statements harm te reputation of the law schools they are associated with. Perhaps law deans should point out that they have 1st amendment rights to say whatever they want to, but cannot do so in their capacity of law professor and demanding they do not disclose their employment with te law school when making public statements in a blog or as commentator on teevee.
A lot of the folks here don’t understand that these are exactly the kinds of things law professor ARE supposed to be talking about. They are THEORIES and they are always going to be controversial theories among professors in any discipline. John Eastman’s own theory which was used as the basis to justify a reason to overturn the election was no different except he tried to apply it in reality and that is when theories become dangerous. it didn’t have support and the majority of lawyers and law professors pointed out just how flawed it was that not even SCOTUS would have been able to go along with it.
This is noting more than McQuade thinking out loud about a possibility based on a theory and as Turley correctly pointed out in order for that to work a very specific set of circumstances would have to be set in motion in order for the theoretical charge to have any chance of succeeding.
NO it is not – Law PRofessors are NOT supposed to be constructing idiotic, illogical, legal theories for the purpose of framing their desired victims.
If you must construct a legal theory – that means you are far away from solid ground. You are talking about something that has never been done before. Therefore there is an enormous presumption that it was not ever done before because it is NOT the law, and NOT the constitution.
Worse still idiots like you buy this stupid nonsense.
It would be far easier to have rational conversations if the rest of us did not have to constantly swat down these idiotic legal theories or complete misunderstanding of the law – inspired by off the rails law professors and bought and sold by those like you.
And why is it those of you and the left are incapable of thinking – what if this idiotic legal theory was being used to gore my oxe ?
Come 2023 – you may get a lesson in that.
John, it’s so obvious you have no clue about what professors do. Posing legal theories is exactly what they do to challenge their students. Even Turley does it. Professors who propose THEORIES on originalism, or textualist legal thought are offering THEORIES.
They CAN construct legal theories if they want to. They may be crazy, controversial, or interesting. It’s literally part of their job. You’re so deep into “the left is mad “ shtick that you can’t see the forest for the trees. I wouldn’t be calling others stupid when you’re working hard at being one yourself.
Do you have to keep argument totally absurd nonsense ?
There is no point responding to this.
It is just a regurgitation of the same idiocy that you have sprayed for days.
Originalism is not a theory, it is a method of reading the constitution that if carefully followed produces the same results all the time.
I will be happy to discuss with you the merits of any other means of reading the law and constitution that also produce the same results all the time.
I have zero interst in any discussion of any method of reading the constitution that if carefully followed produces different results for different judges and different results from the same judge at different times.
It is a preference that the law in the rule of law be correct.
It is a requirement that the laws in the rule of law be clear.
This is not “theory” – it is a logical and natural requirement.
I can theorize that if I mix water and soap I will get an explosion – but in the real world that does not work.
We are in the midst of chaos that is causing anxiety, depression spikes in drug use and overdoses, and violence and crime.
These are the end results of your idiotic nonsense that there is no truth, no fixeds, that all ideas are equal – except those of the left which are magically more equal than others.
The ability of humans to conceive of infinite ideas does not make them all equal.
In the real world nearly all ideas FAIL.
I am not committed to “originalism”
But the REAL WORLD requires specifics to acheive the rule of law and self governance.
These must all to a sigificant extent be acheived – or everything degenerates into chaos.
We have thousands of years of experience that confirms the requirements necescary for “the rule of law”
A few decades ago – people like you who had no understanding of what that meant – existed, but for the most part they were not so stupid as to claim that they could magically replace the requirements that took thousands of years to work out with something that flitted into their head last night.
What is important about thousands of years of experience – is that whatever we do it must work and to do that it must not run afoul of nature or human nature.
I am not going to continue to explain to you over and over again why the earth is not flat.
With respect to your rant on legal theories.
A “legal theory” that makes a crime of constitutional acts – is immoral and unconstitutional.
A “legal theory” that makes crimes of acts that have been legal for decades, centuries – is immoral and unconstitutional.
If you wish to create a new crime – PASS A LAW.
If you are not happy with the constitution – Change it.
There are processes for each of these, and they do not involve the ravings for law professors.
“ With respect to your rant on legal theories.
A “legal theory” that makes a crime of constitutional acts – is immoral and unconstitutional.
A “legal theory” that makes crimes of acts that have been legal for decades, centuries – is immoral and unconstitutional.”
John, it’s irrelevant whether a legal theory makes something immoral or unconstitutional THAT is the whole point of it being a THEORY. A theory CAN be controversial, or even morally wrong. They are…theories and this is EXACTLY what professors bring up in class all the time, because it forces their students to to discuss the merits of the claims made in these legal theories and determine whether it is relevant, flawed, or even defend them despite the controversial nature of the theory.
That you don’t recognize this is staggering and I suspect this is more about you not WANTING it to be the case because it’s only what YOU want it to be. YOU want to deny the reality of what it actually Is because it punctures your ideological ego too much to accept.
Things that have happened in the past are not theories. They are facts.
When the constitution allows something – it is not a theory.
You are fixated on the word theory – which you are both wrong about, and even in the unlikely event you were not wrong about – you are abusing the word to try to make it appear that this is something off the wall from thin air.
It is something that has happened in the past – more than once, ipso facto it is valid.
Your goal is to try to pretend that by calling this a theory you can make the gigantic leap to “its a crime”
If this was an actual theory – something that had never happened before, but was plausibly constitutional.
In fact even if it was NOT plausibly constitutional – so long as Trump and Eastman beleived it was constitutional – it is still not a crime.
To be an actual crime – there must be a specific law – that does not violate the constitution that makes this a crime.
That law must be specific not general. Those engaged in the act must either know it is a crime or know it is wrong.
And they must actually go ahead and do it. And it must NOT be plausibly constitutional.
You can not arrive at a crime with half the elements, and you certainly can not with none of them.
Svelaz – you are off in never never land.
We are not in a law school class discussing hypotheticals.
And law school class hypotheticals have no place on the daily news.
CRT is litterally a legal theory. In its simplest forms it is the west is so racist and corrupt and that corruption permeates everything to the entire legal system, the laws the judicial system is systemically and irredeemably corrupt and can not be fixed and must be torn down and rebuilt for scratch – and only by historically oppressed people.
See how far that will get you in a court of law.
What you insist on calling a legal theory is a method, a plan of action that conforms with past history and is consistent with the constitution.
CRT as an example is NEITHER.
The “theory” put forth by the professor that started this is a method that does NOT conform with past history and is NOT consisten with the law, the constitution or the rules of statutory construction.
You constantly seem to beleive that because you like the outcome – that the means must be legitimate.
I do not like the fact that Clinton, Sussman and Danchenko are roaming the streets.
But aside from Sussman filing a false report – which is a real crime neither Clinton not Danchenko actually violated the law.
Their conduct was immoral, reprehensible. But it was not illegal.
It is likely that we will see similar problems trying to prosecute Hunter Biden.
While there is obviously some lawless conduct – he lied on his firearms application, and he clearly did drugs, probably sold some, and likely violated the mann act and may have had sex with underage girls. Though I would expect that to be proven before convicting him.
Norm am I frothing to lock him up.
The major “crime” Hunter was invoved in was making money off his Fathers power as a public servant.
It is not or should not be a crime for HUNTER to do so. But it IS a crime for a public servant to sell or allow to be sold the power of his office.
I think the conduct of the biden’s is immoral and unethical. I would impeach Joe in a second.
But convictng him of a crime requires more than the stench of corruption – it requires proof. It is my beleif that we can get there – maybe we have – I am not familiar with all the thousands of documents regarding Biden family corruption.
Regardless, a conviction requires an actual crime – narrowly construed and evidence of EVERY element of that crime.
Hunter and/or Joe are not guilty becuase they are repugnant and immoral, and I would like to see them in jail.
They are guilty when we have seen proof beyond a reasonable doubt of all the elements of the alleged crime.
You are quite litterally channelling Levante Baria – “show me the person and I will find you the crime”
That is how actually lawless totalitarian regimes – like the current one work, not how legitimate government functions.
“ It would be far easier to have rational conversations if the rest of us did not have to constantly swat down these idiotic legal theories or complete misunderstanding of the law – inspired by off the rails law professors and bought and sold by those like you.”
Well John that IS the whole point of having discussions and deviates isn’t it? If you are having to constantly “swat down” these legal theories it might just mean that your views and positions on these theories are just simply flawed or wrong and you cannot agree or admit it because you are too set into your flawed views of these theories.
“Well John that IS the whole point of having discussions and deviates isn’t it? ”
The crucible of public discourse is supposed to burn away the chaffe and leave us with gold.
That unfortunately does not work if those participating are dishonest or morons.
I am unlikely to win a debate on law with my dog – no matter how good my arguments are.
You continue to repeat over and over and over – claims that have been FACTUALLY proven WRONG.
The words in the constitution are clear – and to the extent they are not they must always be read in favor of the individual.
We must not create crimes from ambiguity. While ignorance of the law is not an excuse, vagueness in the law invalidates the law – or atleast the interpretation. Whether it is Hillary or Trump – the way the law and constitution are read must be the same.
Yet, you are unable to do that.
“If you are having to constantly “swat down” these legal theories it might just mean that your views and positions on these theories are just simply flawed or wrong and you cannot agree or admit it because you are too set into your flawed views of these theories.”
No it means you are wrong, and either stupid or stubborn or both.
The fact that I am unable to lead the mule to water does not mean the water is not there.
Eastman was not proposing a “theory” He was following the actual constitution, election law, and what he was proposing had actually been done before – aka no THEORY.
Further Eastman based it on Lawrence Tribes advice to Hillary Clinton in 2016 – rooted in the same actual law, constitution and ACTUAL history.
Both according to the constitution AND historical practice:
Legislatures appoint the states slate of electors – not the executive.
That is what is specified int he constitution,
was the norm in the distant past, and on occasion the legislature has interceded and rejected the electors the Sec State certified.
Next, independent of the legislature – Congress has the power to accept or reject individual states slates of electors.
And finally if Congress does not find sufficient electoral college votes, it can send the election to the combined house and senate as directed in the constitution.
And all of this has happened before.
None of it is theory.
“ Eastman was not proposing a “theory” He was following the actual constitution, election law, and what he was proposing had actually been done before – aka no THEORY.”
Wrong. It IS A legal theory. He was following a version of an interpretation of the constitution BASED on a theory that that was the original intent.
“ Underlying the conspiracy theories and fuzzy math is a more serious and pernicious legal theory central to most of Eastman’s claims: that state legislatures have some constitutional power to overturn, alter, or “decertify” their state’s presidential election results. This theory is constitutionally erroneous and should be firmly rebuked as part of preventing future attempts at election subversion.
https://www.cato.org/blog/state-legislatures-cant-overturn-presidential-election-results
Eastman was proposing his plenary authority THEORY.
“John Eastman’s Phony “Plenary Authority” Theory”
https://www.thebulwark.com/john-eastmans-phony-plenary-authority-theory/
He WAS following a theory.
Please review the election of 1876.
NOT A THEORY.
Multiple slates of electors were offered to congress from the same state.
Leglsialtors offered their own slates based on claims of election fraud.
Congress refused to certify sufficient electors to meet the criteria to win the election.
Congress appointed an election commission that studies the Fraud allegations,
a back room deal was worked out and Congress voted Hayes in as president.
REAL WORLD quite similar to 2020, and nearly identical to Eastman’s plan.
YOU can provide all the legal scholars in the world.
It does not change anything.
You said SCOTUS would have rejected this had it come to pass.
Had it come to pass – SCOTUS never would have heard the case.
But if they had, they UNDOUBTABLY would has said – Yup, follows the constitution.
BECAUSE IT DOES.
Eastman’s plan was a hail mary with near zero chance of succeeding.
But it was 100% legal and constitutional.
If you do not like that – CHANGE THE CONSTITUTION
If you really beleive that Easman and Trump committed a fraud.
Then you must Jail Tribe and Clinton too.
Eastman’s plan was a Hail Mary based on a theory. His plenary authority theory.
No matter how many ways you want to slice it and dice it it was based on a theory that has been shown to be flawed.
Originalism is a theory just there’s is the theory of gravitational force. Even the living constitution interpretation is a theory.
It’s a theory John.
You can play word games all you want.
Both Eastman and Tribe’s plan wrere based on the constitution, as well as what actually happened in 1876.
If you need to call a method the constitution allows that has occured in the past “theory” – I can not stop you from mind F#$king yourself.
If you need to call a method the constitution allows that has occured in the past “flawed”- I can not stop you from mind F#$king yourself.
Regardless, if you wish to prevent what Tribe and Eastman, Clinton and Trump contemplated, then you need to change the constitution.
Flawed or not, theory or not, the constitution allows it and it has been done in the past.
Therefore it can not possibly be a crime to attempt to repeat that.
Overall I am not interested in your word games. It is obvious you are abusing the words theory and flawed.
But engage in all the orwellian word games you wish.
This is not 1984, and 5 minutes of hate is not flying.
“If you need to call a method the constitution allows that has occured in the past “theory” – I can not stop you from mind F#$king yourself.”
These are not word games John. You are in full denial, even after I presented proof that what I’m saying is true. The theory of originalism began in the 1980”s. It began as a theory based on the federalist society’s ideas of how the constitution should be interpreted.
Originalist interpretation was not even a thing in the 1876 election dispute.
You keep blaming your inability to prove your point on “word games” because you cannot dispute the evidence I provided. The only things you have provided are “it is not a theory” as your only argument without anything to back it up. Your frustrations don’t lie with my points, they lie with your inability to refute them.
On your point that Eastman’ s theory was allowed by the constitution is wrong. The constitution does not allow the VP to choose alternate electors as his theory posits. Even by using the textualist method of interpreting the constitution. What happened in 1876 is nowhere near the same thing that happened in 2020. That is why it’s called a theory. Because it’s not certain that it can be applied to what happened in 2020. You said yourself that what Eastman did was essentially a Hail Mary which means it was based on an assumption (theory) that could be backed by what happened in 1876. A multitude of legal scholars have pointed out that legal theory is badly flawed for the many reasons they cite including the constitution itself.
It was not my wish to prevent anything. That is solely your own assumption. I’ll I did was say that Eastman’’s plan based on the theory that the VP could reject the electoral votes and choose a different set of electors is not supported by the law or the constitution. You went off on a rant about word games and whatnot because you cannot refute the points I made after provident evidence that my claims are correct.
“These are not word games John.”
Of course they are
“You are in full denial, even after I presented proof that what I’m saying is true.”
You proved nothing.
” The theory of originalism began in the 1980”s. It began as a theory based on the federalist society’s ideas of how the constitution should be interpreted.”
False. Again you are playing word games. I provided you with ONE of many lists of the rules of statutory construction. These are just are essentially the same as “originalism” except much more detailed. These are older than the United States.
Named originalism came about to RESTORE proper interpretation after the idiocy of left wing nuts starting in the 30’s
“Originalist interpretation was not even a thing in the 1876 election dispute.”
This argument is completely absurd. First it is completely irrelevant whether originalism existed as a named method of constitutional interpretation in 1876. The rules of statuory construction did exist.
But even more important than that.
1876 ACTUALLY HAPPENED. We do not need academic names nor nonsense by law professors about how many angels can dance on the head of a pin.
The 1876 election was widely beleived to have Fraud. State legislatures and State executives put forth different slates of electors to congress.
Congress refused the electoral college vote as provided to them. Appointed a commission, who reviewed the election, made recomendations recomended that Hayes was the actual winner.
This is LITERALLY the plan that Cruz has PUBLICLY admitted to attempting.
And does not differ from Eastmans plan in any way that has bearing on the constitutionality of Eastmans plan.
“You keep blaming your inability to prove your point on “word games” because you cannot dispute the evidence I provided.”
NO I am blaming your defective abilities in logic and facts.
The same problems you ALWAYS have.
“The only things you have provided are “it is not a theory” as your only argument without anything to back it up.”
Something that has already happened is not a theory – that not only backs it up. It ends the debate completely.
You are arguing that the present changes the past – which is ridiculously stupid.
You are wrong about originalism and its history, but that is irrelevant. We KNOW what congress did in 1876 – and BTW once earlier.
That is NOT a theory, it is irrlevant whether you call that originalism or not.
“Your frustrations don’t lie with my points, they lie with your inability to refute them.”
That is correct – it is impossible to persuade anyone who refuses to make decisions based on logic and facts.
“On your point that Eastman’ s theory was allowed by the constitution is wrong. The constitution does not allow the VP to choose alternate electors as his theory posits.”
Of course it does – The VP stands before congress with a stack of envelopes with the votes of various slates of electors.
Absolutely nothing in the constitution specifies what order he must read them in and which ones he must present first were there are conflicts.
In point of fact if anything the Constitution favors electors submitted by the legislators. Therefore using YOUR idiotic approach it is the slates submitted by each states Secretary of State that are “fake”
“Even by using the textualist method of interpreting the constitution.”
You are both wrong and off on a tangent. This is not about “interpretting the constitution”.
1876 actually happened. There were no constitutional challenges – there could not be. No one would have standing to challenge the actions of congress. What occured in 1876 is by default constitutional. You can not challenge it today. But if you could actually get to court – which you can’t, you could argue that the court shoudl disregard that because congress acted unconstitutionally. That would be an impossible argument to win. But you are free to try.
“What happened in 1876 is nowhere near the same thing that happened in 2020.”
If by not nearly the same, you mean almost exactly the same you are correct.
in 1876 Congress initially refused to accept either slate of electors from states where there were claims of fraud.
They formed a commission to investigate the allegations, and ultimately chose the slates of electors submitted by the legislatures.
“That is why it’s called a theory.”
Not a theory, it is a method, a plan of action, based on prior history.
“Because it’s not certain that it can be applied to what happened in 2020.”
Of course it can trivially Congress could do exactly what it did in 1876 and accept only the legislature appointed electors from states with allegations of lawlessness and fraud and Trump would end up winning the election.
“You said yourself that what Eastman did was essentially a Hail Mary which means it was based on an assumption (theory) that could be backed by what happened in 1876. ”
It was a hail mary pass ONLY because Congress was not going to CHOOSE to do what it did in 1876.
It was still free to do that. The FACT as the constitution is written is that on Jan 6th Congress is free to accept or reject electors as it wishes.
It can reject electors from a state submitting only one slate for whatever reasons it wishes. Or it can accept them.
It can pick either of multiple slates of electors from any state – for any reason it wishes. It has the complete freedom to accept or reject any slates of electors for any reason. The constitution gave congress a choice, and it did not constrain that choice in anyway.
Please read the rules of statory construction – they have evlolved over centuries, most are far older than originalism, and textulaism and living constitution nonsense. Originalism as you describe it came into being in the early 80’s to RETURN to the historical means of reading the constitution. I would note that we NEVER have read statutes using the “living constitution” nonsense. It is and remains legal nonsense.
” multitude of legal scholars have pointed out that legal theory is badly flawed for the many reasons they cite including the constitution itself.”
Which they clearly have not read. Regardless, Eastman not only cites the actual constitution, what actually occured in 1876 but also Lawrence Tribe in 2016. You would be hard pressed to lose a constitutional conflict more decisively.
There is no theory here.
It is inarguable that What eastman planned was fully inside the powers of the VP and the congress.
Anyone claiming otherwise should be stripped of their law degree
This was a hail mary from the start – not because of constitutional issues, but because of political issues.
There was near zero chance that Pence and ALL congressional republicans would go along with this,
The constitution specifies how Congress as a whole makes election decisions. and that would have required Pence to do as asked, AND the congressional delegations of 26 separate states to ALL vote by the majority of members for each and every step in this process.
Cheney’s vote alone as just ONE example would have thrown the election to Biden
Further had by some miracle Eastman succeeded – the summer BLM riots would have looked like Sesseme Street.
That alone would have precluded large numbers of republicans from agreeing to this.
If I was a congressmen or Senator, while I would have had zero problems rejecting slates of electors from states with credible allegations of fraud. That is not the same as then as the next step voting to elect Trump.
The Cruz plan – which is near identical with respect to constitutionality, but far more politically palletable – which was to near precisely do as was done in 1876 and form a commission to review the election fraud was the approach that was both constitutionally sound and politically feasable.
Even Cruz’s plan was a hail mary – lust less of one than Eastmans. I beleive Cruz planned to have congress direct the National Guard to hand recount the election in all contested states and gave them 10 days to do so.
Something very similar to that should have been done almost immediately after the election.
Semocrats should have RUSHED to agree to that. While there is a good chance that Trump would have picked up GA in a full hand recount,
The vote was close, Trump had already picked up 4,000 votes from machine counting errors in Dekalb county, and we have very credible evidence that ballots were scanned many times in Fulton county.
It is unlikely Trump would have picked up sufficient additional votes from a recount in other states.
We have already seen the results of the AZ audit – While that found lots of indicia of Fraud, the poor quality of the administration of the election in AZ (and everywhere) meant that it was not possible to distinguish fraudulent ballots from legitimate ones.
Though the results of a complete hand recount would have been even closer – Trump still would have lost and Biden would have more legitimacy than he has today.
I would note that the FACT that Trump would have still lost a full hand recount, does not mean the election did not tip because of fraud.
It just means a hand recount would not have been able to identify fraudulent ballots.
We did not know in Jan 2021 the scale of the ballot harvesting operation. We do know.
Eastman’s Plan was based on the FACT that the constitution directs the VP to open and count the votes of the electors.
That is right out of the constitution.
It does NOT tell him the order to count the slates of electors
it does not tell him what to do if there are multiple slates of electors.
Where the constitution does not specify the VP is free to chose.
Eastman is 100% correct about that.
I would suggest actually reading Eastman’s memo.
It is fairly detailed. Eastman did not expect that when Pence counted the legislatures slates that congress would accept that.
the VP can count the electors any way he please, but he can not declare the winner over the objections of Congress.
The VP is like the chair of a committee or the foreman of a jury, he controls the process, he controls the order of events,
He controls his own choices. He does not control the votes of the rest of the committee or the jury.
It should be self evident for your inability to make any argument beyond – lots of people agree with me, that you have ZERO basis at all to claim that Trump, Eastman or anyone else engaged in a Crime.
And that is the real point that you duck entirely.
You can play all the word games you want – they do not actually matter.
You have failed on every single point – but in this instance you could win most of them and STILL not have a crime.
In fact even if Trump had planned to blow up the Capital killing all of congress and appoint himself President, you STILL would not have an actual crime.
In law a conspiracy requires several things:
A plan that is an actual crime.
An action to put that plan into effect,
The plan to actually take place OR to be thwarted by arrest.
The eastman plan was constitutional.
Ultimately it never took place.
If robbers plan to rob a bank.
buy masks and shotguns
and drive arround the bank on the day of the robbery returning home because they decide it is not going to work
You can not arrest them and convict them.
So you have a plan that was constitutional and legal.
That ultimately did not happen.
You are not even close to a crime.
And you are obviously trying to criminalize politics.
We get into this nonsense with you all the time.
When we are trying to determine if an act was criminal – the actual law matters.
Some details matter, Some do not.
What color dress Clinton was wearing on the day she faxed classified information to her home does not matter.
The fact that she faxed it to her home does.
What the constitution actually says matters,
What 1000 law professors say when it does not conform to the constitution does not.
You can not manufacture crimes.
The fact that an entire congress and VP in 1876 had no qualms about acting in exactly the ways you keep claiming are criminal matters.
You and your law professors are litterally arguing that approximalely 250 senators, congressmen and the VP conspired to committ a crime in 1876.
You are not winning that. BTW 1876 is NOT the first time Congress decided a presidential election – it is just a near perfect match to 2020.
Originalism is not a theory – it is a method.
But that is NOT what is critical.
You can call things, theories, methods, whatever you want.
Calling various things theories does not alter the FACT that some work, and some do not.
The living constitution “theory” does not work. It results in the rule of man, not law.
It results in an unstable social contract, and undermines trust in government.
Whether you like it or not trust in government is MANDITORY for self government – frankly all government.
And contra the left – Government is obligated to earn the trust of citizens. Citizens are not obligated to trust government.
PART of trusting government is stable law.
A common aphorism is that ignorance of the law is not excuse – that is only true to the extent that the law is stable.
That it is the same from day to day. That when it changes it does so because with substantial difficulty we the people have changed it.
I will be happy to consider your proposals for different methods to interpret the law and constitution.
But I have ZERO interest in any “theory” that does not result in constitution and law that each of us following the same objective standards do not reach the same results all of the time – if we do so honestly.
YOU are here fighting over idiotic claims that there was an insurrection on J6 or that Trump committed some crime on J6,
Based on idiotic “theories” of law that have NEVER been used before.
What you are advocating for is LAWLESS – it is the rule of man not law.
You can pass moral judgement on those involved in J6 – you can call them patriots or traitors as your politics drives you.
But when you use criminal law against them – you MUST do so narrowly, you must do so respecting their rights.
You must not do so using unusual and never before tried “theories”. you must do so consistent with the application of the law in the past.
Who is a criminal MUST not vary based on who is judge today, or what party controls the executive. or where the jury pool comes from.
We require a jury of 12 to unanimously convict someone of a crime. But in truth that Jury is a proxy for All of us.
The legitimacy of government sanctions – loss of liberty, property or life, rests on the trust of nearly all the people that justice is being done, that the law is being followed.
We tend not to individually acquaint ourselves with every trial of every burglar. But if we did, we should uniformly come to the same conclusions as the jury. If that does not occur – we are lawless. Chaos, violence and destruction will follow.
The right likes to blame the recent spike in violence on weak left wing nut DA’s.
And there is some truth to that.
But high among the causes is the lefts injection of chaos into the country.
The left is pushing massive poorly considered change on the country – even the world rapidly and wondering why people are anxious, depressed, violent. The left is upending the rule of law all over the place – again causing anxiety, depression and violence.
All change is not good, and even good change must be accomplished with care because change is disruptive, and disruption causes anxiety depression, violence.
Regardless, we have processes for change – that is what the constitution is therefore – to make change very difficult and slow and carefully thought out – but still possible.
Any “theory” of law or government that enables small segments of those with power to perform large change it inherently destabilizing and will lead to chaos, anxiety, depression and violence.
You can call the above “Theory” if you wish – but it is how the world and the humans in it actually work.
Ignore that at your peril – which you have
John every legal scholar calls originalism a theory. I even posted a paper by a professor at GW discussing the…theory.
It seems it’s you who is wanting to play the word game. Your insisting on calling it a “method” which is not wrong does not negate the fact that it is still a theory. You really don’t seem to grasp the concept of why it’s called a theory by the majority of legal scholars.
“Calling various things theories does not alter the FACT that some work, and some do not. Nobody disputes that including me.
“The living constitution “theory” does not work. It results in the rule of man, not law.
It results in an unstable social contract, and undermines trust in government.”
That’s not true. Justice Scalia proved that in his Heller opinion. He bypassed originalist theory I order to square his reasoning on the idea of an individual right to bear arms. He completely avoided the history and tradition of the past.
You can’t have trust in government when even the justices who supposedly believe in the originalism theory of interpretation are constantly avoiding it when it doesn’t benefit their own views. Alito used a 16th century French individual to contort his reasoning behind the repeal of Roe.
Even interpreting the constitution using originalist theory does not produce the same results. Justice Ketanji Jackson beautiful demonstrated that when she made the point using originalist theory to show why Alabama’s claims on gerrymandering were inconsistent with the 14th amendment. I would be surprised if the other conservative justices ignored her very accurate description of the originalist interpretation of the 14th amendment. If they vote for the state they will prove that they are NOT doing what you claim they should be doing to gain trust in government.
“But when you use criminal law against them – you MUST do so narrowly, you must do so respecting their rights.
You must not do so using unusual and never before tried “theories”. you must do so consistent with the application of the law in the past.”
They are being judge by the narrow interpretation of the law and they ARE doing so by respecting their rights. The majority of those convicted or charged have been according to the evidence they stupidly provided when the majority filmed themselves or admired to their crimes on facebook. No theories were required in those instances. Even in those cases where they were found guilty on charges of sedition. A law that Trump created.
“We tend not to individually acquaint ourselves with every trial of every burglar. But if we did, we should uniformly come to the same conclusions as the jury. If that does not occur – we are lawless. Chaos, violence and destruction will follow.”
Not everybody will ever come to the same conclusion as the jury. That is simply not possible. The only thing that matters is what the jury decides. Not the public. That’s a theory that has a poor chance of being widely accepted anytime. But It is still… a nifty little theory.
Still ranting about word games.
Over many centuries – starting before the US founding, the courts have developed rules for statutory interpretation.
Most of these are ancient.
These rules provide a method of reading statutes, constitutions and case law.
The purpose of these rules to assure to the greatest degree possible that judges personal views do not drive their decisions.
To assure that different judges at different times throughout the country always arrive at the same decision given the same law and the same facts. And nearly identical decisions given similar law, constitutions and fact.
It is to assure that meaning of the law and constitution can only be changed by actually changing the law and constitution through the legitimate processes.
That is not merely the requirements of the rules of statutory construction – most of which are ancient. It is also a requirement of the rule of law not man.
The rule of law not men, explicitly means that laws can not be changed a posteriori by men without going through the standard process of creating law or amending a constitution. Without that certainty – you have the rule of man not law.
AGAIN all of this is ancient and long predates the word “originalism”.
The “living constitution” is an approach that evolved – arguably starting in the thirties – though there are antecedents for over a century.
SCOTUS throughout the 19th century tenaciously refused to accept the broad grants of rights in the constitution and the 9th and 14th amendments. I doubt that the term living constitution was used in the 19th century, nor even the 30’s I am not sure the actual term came into use until AFTER the term originalism.
Regardless, like originalism the term is signficantly after the application.
Papers on originalism are attempts to formalize centuries of practice as a means to invalidate a new trend that had a few decades of limited practice.
AS I have previously noted I do not agree with specific tenants of what is today called originalism – because they modern and incorrect.
Specifically – the constitution was inarguably written to define the limits of government. The addition of the bill of rights and the 9th and 14th amendments were actual afterthoughts – with many arguing they were unnecessary – because the powers of government were already limited, but the constitution. During the ratification of the constitution there was actually a fight over including the bill of rights. One of the arguments against the bill of rights was that these would be falsely construed as the only rights of people – hence the 9th and 10th amendments were added to the bill of rights – to make explicit that the rights in the bill of rights are NOT the only rights we have.
Regardless, unarguably our founders intended a government of enumerated and limited powers with all else being the domain for free people.
Are you or anyone else arguing that was their intention ?
Living constitutionalists violate that principle.
Modern originalists do so less, but still violate that principle.
Living constitutionalists violate the core premise of the rule of law – that courts FIND the meaning of law, that they do not have the power to CHANGE the meaning of law. That we can only change the meaning of the law or constitution by actually changing it.
Many modern originalists err – because the do not recognize the constitutions central premise of limited enumerated powers and broad individual rights.
So PLEASE quit pretending that I have much to do with what you keep calling “originalist theory” – I do not.
Rejecting the distinctly modern and obviously specious living constitutionalism. does not mean adopting modern Borkean originalism.
There are SOME modern legal scholars that are returning to an accurate understanding of the constitution and law as intended by our founders.
There is also a debate within the right as to specifically how to deal with the MESS that living constitutionalists have left us with.
About 50 years of Supreme court precident – a great deal of which can not be resolved with the actual constitution or the rule of law.
Your rants over Eastman are just a modern example of this idiocy.
The constitution directs the VP to count the votes of electors. It provides no further direction regarding how to do so.
It provides a constraint in that the final authority on the election rests with congress not the VP. The constitution gives that power to congress
but does not provide direction as to the excercise of that power.
Therefore the VP can count the vote however he wishes. The Check on how he does so is first and foremost the congress, and after that the people. Congress can accept or reject the count of the VP as a whole on in part – as it chooses – constrained ONLY by the people.
There constitution provides no other appeal to this process.
YOU have ranted that Trump has lost all kinds of court challenges to the election.
But nothing in the Constitution refers to courts and elections. Nowhere in the constitution are the courts given any power over elections,
I am not arguing that they do not have any power – only that the clearly do not have an enumerated constitutional power.
Conversely the constitution explicitly sets up State legislatures as both controling federal elections and as the check on federal elections.
As the constitution is written – there is no reference at all to electors certified by the State Department of State. The constitution specifies hat electors are provided by the legislature. The legislature is inherently a Check on elections. If there is a perception of fraud or lawlessness in elections – it is within the power of legislatures more so than courts to remedy that. Not only are legislatures superior to courts in election disputes according to the constitution – but Congress is the ultimate authority. The most fundimental reason that 1876 is important regarding 2020 is that the reason that Congress intervened in 1876 was allegations of fraud. It is clear in the constitution that congress is the final check on elections. It is clear from 1876 that includes when there are claims of fraud and lawless elections.
You keep ranting about eastman and theories and constitutional scholars.
How many constitutional scholars does it take to undo history ?
The answer is THEY CAN’T.
Congress is the final check against election fraud lawlessness and any other reason that something might be seriously wrong regarding an election. As an example if purported president elect died prior to congress voting on the election.
That is so – no matter how much you rant about Eastman or theories or constitutional scholars.
It is so, because that is what the constitution says.
It is so because that is how the constitution has been applied historically.
You can not make a crime out of trying to do something that was both legal and constitutional and actually occured in the past
Ranting about constitutional scholars dancing on the head of a pin does not change that.
And this is also why so much of the country does not trust you or the left.
You think that your arguments regarding constitutional scholars bolster your claims.
They do not. All they do is prove how insane the left has become and how badly it has corrupted our institutions.
The fact that so many on the left constantly offer such bat$hit crazy nonsense, that is so broadly accepted by so much of our institutions just proves how corrupt those institutions have become.
There is a pyramid out there produced by the left that is purportedly showing conspiracy theories that have proven true and those that have proven false. That pyramid lists the claims regarding Epstein as proven true, and the Qanon claim of powerful pedophiles manipulating the government as false. Yet, they are the SAME claim.
This is how bat$hit crazy the left is – Truth becomes false if Alex Jones says it, but is true once again if AOC says the same thing.
Outside your bubble – people do not beleive you. Because you are Bat$hit crazy and blind to the massive contradictions in your claims.
You have wasted paragraphs over the word “theory” – where you are both wrong and tangential.
You have ranted about originalism – again both wrong and tangential.
You rant about scholars “theories” that are OBVIOUSLY wrong and refuted by history.
If you can get 100 history scholars to claim Germany won WWII – will that bring Hitler back to life and have him ruling the world ?
John B. Say, using the election of 1876 does not apply to the election in 2020. There are multiple flaws in Eastman’s theory which is based on what happened in 1876. The first problem is that STATE election laws were NOT the same as as state election laws in 2020. In 1876 governors in some states were allowed to appoint an elector unilaterally if there was a dispute. Many of the states where elections were disputed there were claims of fraud, violence and intimidation.
In the 2020 election WITH completely different state election laws which some REQUIRED state electors to be certified by their respective legislatures. That didn’t happen because lawmakers bypassed that process and faked the certifications of the new slate of electors and recorded that attempt with the national archives.
The problem Eastman’s theory faced was two fold. The constitution clearly did not allow the VP do to what Trump wanted him to do. The only reason it happened in 1876 is because the entire congress chose to compromise. The VP did NOT unilaterally invalidate the disputed EC votes. Then there is the problem of using the fake electors who where NOT certified according to the law in their respective states. THAT is why Eastman’s THEORY was doomed to fail. Eastman admitted that using his theory would never pass the Supreme Court’s scrutiny. THAT is why your premise about using Eastman’s THEORY is wrong.
“John B. Say, using the election of 1876 does not apply to the election in 2020.”
Of course it does – the constitution is unchanged with respect to provisions regarding the electoral college.
“There are multiple flaws in Eastman’s theory which is based on what happened in 1876.”
Not a theory, and false.
“The first problem is that STATE election laws were NOT the same as as state election laws in 2020.
In 1876 governors in some states were allowed to appoint an elector unilaterally if there was a dispute. Many of the states where elections were disputed there were claims of fraud, violence and intimidation.”
We are debating the process that occurs in Congress – the specifics of states in 1876 and 2020 are completely irelevant.
AGAIN, the constitution has not changed.
I would note that the claims in 2020 are much the same as the claims in 1876.
In 1876 there was no mailin voting, but there was also no secret balloting. What we call illegal ballot harvesting today was the norm in 1876.
Party opertatives sought out voters with party preprinted ballots, got voters to sign them and then operatives deposited those ballots in ballot boxes. A very close pattern to what occured in 2020.
“In the 2020 election WITH completely different state election laws which some REQUIRED state electors to be certified by their respective legislatures. That didn’t happen because lawmakers bypassed that process and faked the certifications of the new slate of electors and recorded that attempt with the national archives.”
It is impossible to make sense of what you write as you can not even keep your own arguments correct.
The constitution asigns the control of federal elections to state legislatures – not to state courts, not to state executives.
Even if the legislature delegates the conduct of the election and its certification to the executive. It is still perfectly constitutional for the state legislature to reject the election as conducted by the executive – for any of innumerable reasons – failing to follow the state election laws ALONE would be sufficient.
Even if you believe that a legislature can delegate the conduct of elections to the executive – it is still free to constitutionally and unilaterally overrule the executive. THAT is precisely the constitutional check on lawless and fraudulent elections.
THAT is exactly what we saw in 1876 – and the constitution has not changed since then
“The problem Eastman’s theory faced was two fold. The constitution clearly did not allow the VP do to what Trump wanted him to do.”
False the constitution provides that Congress as a whole under the direction of the Vice president decide to certify or not certify the election.
The power to do so is constitutionally given to the congress at the direction of the VP.
“The only reason it happened in 1876 is because the entire congress chose to compromise. ”
Correct, proving beyond any doubt at all that congress has the power to accept or reject all or part of the vote of the electoral college, and to choose between competing slates of electors.
“The VP did NOT unilaterally invalidate the disputed EC votes.”
The VP controls the process. Even Eastman did not expect that Pence would be able to unilaterally invalidate anything.
only that he could control the order in which states and slates were presented – which obviously he can.
“Then there is the problem of using the fake electors who where NOT certified according to the law in their respective states.”
Again the constitution assigns the SOLE responsibility for federal elections to the legislature – They are FREE to declare an election lawless and choose electors on their own. If you did not want that to occur the executives and courts should have followed the existing state election laws – they did not. Regardless the purportedly certified electors were NOT done according to the laws of their respective states.
That is precisely why some states selected their own electors.
“Eastman admitted that using his theory would never pass the Supreme Court’s scrutiny.”
Not a theory and no matter what the outcome of the attempt the supreme court would not have done ANYTHING.
Just as the State legislature can step in an unilaterally ignore the results of an election it deems lawless and fraudulent
And I would NOTE that the states legislatures did conduct hearings in which they FOUND evidence of lawlessness and Fraud
before they voted to put forward the legislature selected slate of electors.
Congress is constitutionally free to accept or reject slates of electors as it choses.
There is ZERO possibility at all SCOTUS would step into that.
That is an absurd claim.
The determination of whether something is legal or not is not determined by law professors, It is determined by the courts – and particularly the supreme court.
There is a snowballs chance in h311 that SCOTUS is going to accept claims that actions that occurred int eh past and conform with the constitution are crimes.
It will never happen – no matter how many law professors theorize otherwise.
As to some of your other claims – legal theories become dangerous when they deprive individuals of their life or liberty.
That would be the “theories” of the LEFT.
“ There is a snowballs chance in h311 that SCOTUS is going to accept claims that actions that occurred int eh past and conform with the constitution are crimes.”
Actions that occurred in the past are irrelevant. It’s actions that occurred in the present. The president and his co-conspirators illegally tried to use fake electors in order so overturn a legitimate election. They tried to force the VP to refuse to count the EC under the false claims of voter fraud. Claims that have been long debunked and proven to be baseless. It would have been an unconstitutional action by the Trump administration. It was based on Eastman’s flawed legal theory.
“Actions that occurred in the past are irrelevant.”
Stupid and false.
When something has occured in the past and was not regarded as a crime – it should not be treated as a crime in the present absent a change in the law.
“The president and his co-conspirators illegally tried to use fake electors in order so overturn a legitimate election. ”
Keep beating that dead horse.
Again look into the 1876 election – this is exactly what happened then.
It is still an open constitutional question whether the state legislature can appoint electors independently of what the executive does in the election. The text of the constitution says that federal elections are the exclusive domain of the state legislature – not the state executive, not the state courts.
Or put more succinctly – your claim that legislature appointed electors are fake is ahistorical, not supported by the constitution, and merely your oppinion.
You keep spraying us all with “overturn an election” as if that is an actual crime. That is ludicrously stupid BS.
Hillary continued to try to “overturn an actually legitimate election” – long after inauguration day – no one is fitting her for an orange jumpsuit.
You are free to express your view of Trump’s conduct in 2024.
In the meantime – there is no crime.
“They tried to force the VP to refuse to count the EC under the false claims of voter fraud.”
Cut the BS – only absolute morons think claims of fraud were false – the actual question is was fraud, error, and lawlessness – ALL of which were present sufficient to alter the results of an election that turned on a total of 45,000 votes in 3 states.
Anyone trying to claim as FACT that is false with absolute certainty – is smoking way too much whacky weed.
You are free to beleive the courts. you are free to beleive the lawlessness was justified, you are free to beleive the private takeover of 6 cities election machinery – something that has NEVER occured before was OK, you are free to beleive that either the massive ballot harvesting did not occur, or that it did not effect the outcome, you are free to beleive the myriads of often very large scale problems that all leaned one direction had no effect.
But claims of election fraud are correct, and claims that it did not effect the election are mere opinion. Others are free to disagree.
YOU are attempting to criminalize differences of opinion – AGAIN.
“Claims that have been long debunked and proven to be baseless.”
Nope. Just recently video was released of a woman dumping over 100 ballots into a drop box – I beleive in Michigan.
Numerous people have been arrested for large scale election fraud and plead guilty to small scale fraud.
In 2022 we are seeing a repeat of the fiasco of late (and illegal) reprogramming of voting machines that occurred in MI and GA.
In both cases this effected not only the presidential race but down-ballot races by thousands of votes.
Further this is a known problem with DVS equipment and one to the reasons that late reprogramming is illegal.
Only two counties found this LARGE problem – in both cases adjusting Trump’s vote count by several thousand votes.
Not enough to flip those states – but these problems were in only TWO counties – other counties were not checked for the same problem.
The AZ audit did not find this problem in AZ – but AX did not try to change voting machine programming 2 weeks before the election.
I can go on and on.
You FALSELY assert claims of fraud were debunked – only a very tiny number actually were.
Even now – in a different election – the Gascon Recall in LA, that is tied up in court – because an audit of the signatures on the recall petition has found that of the signatures that LA election officials rejected – 39% are proving valid voters. If that rate holds – the Gascon recall will take place.
There is a further claim that the LA county election offices required number of signatures is way too high – because there are still 500,000 fraudulent names on the LA country voter registry that a federal judge ordered removed more than 2 years ago – that were not.
Even the 2020 democratic primary showed evidence of large scale election fraud – with a court in Newark tossing 250,000 ballots as fraudulent.
In GA the Raffensberger agreed to random signature audit was Stopped when the signature error rate in one of the best counties in GA was found to be 6% – that is 24 times the rate needed to flip the election, and the actual rate of fraudulent signatures was 0.6% – 3 times the rate needed to flip the election.
In a separate private Audit of Fulton county ballots – after reviewing only 2% of the ballots scans provided several hundred duplicate ballots – ballots that had been scanned multiple times were found, before the court shutdown the inquiry.
I do not beleive a single state of the 6 swing states can reconcile the number of ballots against the number of voters to within 200,000 – with records indicating more ballots than voters.
In every single state that has been checked – chain of custody documents for ballots are missing. or completely wrong for very large percentage of ballots – hundreds of thousands.
Chain of custody documents are the required proof that Election officials did not inject ballots into the election (ballot box stuffing) as Johnson famously did in his first senate race.
Absolutely NONE of these and many many more claims have been “debunked”
Every single claim of election fraud has not held up to what limited examination it has been given.
The Benford numbers statistical claim requires the number of voters at precincts to be truly random. They are not.
But numerous statistical examinations of voting patters demonstrating that the vote patterns in the 6 swing cities were not consistent with other blue cities. Not consistent with blue cities were the Zuckerberg election interferenace operation was not present, not consistent with immediately adjacent blue suburbs. Put simply Biden did several percent better in the 6 cities that Zuckerberg interfered with than he did anywhere else in the country. He did so uniformly throughout those cities right up to the political boundaries of those cities while even a block away from the political boundaries in identical neighborhoods Bidens performance dropped radically.
If Hillary had the evidence of Election fraud, actual interferance and lawlessness in 2016 that Trump does in 2020 – the whole Republican party would be in jail.
“It would have been an unconstitutional action by the Trump administration.”
It would be unconstitutional – if we ignore the constitution and oh, yes, history.
“It was based on Eastman’s flawed legal theory.”
Still not a theory.
Separation of powers is not a theory.
The Bi-cameral legislature is not a theory.
The electoral college is not a theory.
It is a CONSTUTITIONAL FACT that congress can accept or reject slates of electors from any state.
There is nothing in the constitution that is pro forma.
It is a historical FACT that they can and have accepted state slates of electors from the legislature rather than from the executive.
If you do not like that – change the constitution.
Trump didn’t shoot and kill the only person who died that day. A Capitol Police officer who was negligent with his weapon before did. HE should be charged with manslaughter. Trump wasn’t anywhere near Nancy’s little insurrection coup.
Thank you for your sober and surgical non-political legal analyses.
It is the same for any progressive “news”. The next dim witted progressive “analyst” will have to out do this progressive clown. The progressive “news” does not report, they stir emotions.
Fox News does this all the time. They have tons of “analysts” stirring emotions of the gullible Fox News viewers. It’s a winning formula perfected by Fox. Proof of their success is in their numbers.
Brian, you are no smarter here than on TV. You appeal to the gullible. Fox News does not.
You have been mistaken most of the times. Fox News is mostly correct and corrects itself when it is not.
Brian, you need to enter some type of program to get your head put back on straight.
And yet it is viewers of left media that are the most poorly informed and most likely to beleive actual hoaxes.
“ And yet it is viewers of left media that are the most poorly informed and most likely to beleive actual hoaxes.”
Nope.
Fox News viewers have been shown to consistently be misinformed and buy into the “hoax” excuses for years.
“ STUDY: Watching Only Fox News Makes You Less Informed Than Watching No News At All”
https://www.businessinsider.com/study-watching-fox-news-makes-you-less-informed-than-watching-no-news-at-all-2012-5?amp
To be fair according to the study that applies to MSNBC and CNN too.
So your claim is not accurate.
““ And yet it is viewers of left media that are the most poorly informed and most likely to beleive actual hoaxes.”
Nope.
“ STUDY: Watching Only Fox News Makes You Less Informed Than Watching No News At All””
Yes, we should all trust studies from the same idiots that still can not admit that the Collusion Delusion was a HOAX by Clinton.
Why exactly should I beleive you or the sources you provide – over the actual EVIDENCE available to each of our own eyes.
Recently an MSNBC host gathered about a dozen Trump voters from western PA to discuss J6 and the election.
She asked the typical left wing nut questions, and was eviscerated live on the news by a bunch of blue collar Trump supporters – who ACTUALLY knew the facts – though they did mis one false remark by the reporter – the excrement on the walls of the capital claim is another left wing nut myth.
Regardless, I am not here to defend Fox – though you probably should watch it, or something besides wherever you are getting your nonsense.
You arguments are repetitive, dull, false, and have been disproven sufficiently that repeating them is dishonest.
And you are getting that idiocy from somewhere.
Your attacks on others are pretty much all projection.
I am liberatian. Core to everything for me is facts and logic. If you disprove a single premise in any claim I make, I will re-evaluate everything that depends on it.
That is my nature. It has been my entire life. I do not find my self re-evaluating things that often anymore – because I have already been challenged many many many times, and I have had to re-assess and as necessary correct values and rarely principles.
And I would have to do that again if you EVER made a credible point. But you don’t – EVER.
I could not live as you. The massive logical conflicts in what you say would cause my brain to self destruct if I did not correct them.
If the values of the left – if your arguments – actually worked – I could live with that. I do not require the world to work as I want it to.
I require my values and principles to work with the world as it is .
I government regulation on the whole actually worked – I could embrace that. But it does not.
If massive government spending did not ultimately make us worse off – I could live with that. But it does not.
It should be very hard to find someone as wrong as much as you are.
Oh why not, go for it. Not only would the effort fail to convict Trump, the evidence will prove Pelosi and Bowser defied the intel and were themselves derelict in their duties.
Are you saying that Pence could not challenge the certification of the electorates?
🤔 Um, no. I said nothing about Pence, certification, or electors. Troll somewhere else.
I believe constitutionally and by law, he is empower to select which of two competing slates of electors to offer first.
I also beleive he can control the order in which slates of electors are presented for vote.
But the vice president can not unilaterally accept or reject electors – Congress can.
Separately, even if Trump/Eastman actually sought to do something that was ultimately deemed unconstitutional, that is still not criminal, unless they knew it was unconstitutional from the start.
“ I believe constitutionally and by law, he is empower to select which of two competing slates of electors to offer first.
I also beleive he can control the order in which slates of electors are presented for vote.”
You believe wrong. All Mike Pence could do is open the envelopes and confirm the counts as certified by the states. That’s it. The constitution says nothing about controlling the order or which slate of electors to offer first. Eastman’s theory posits that Pence could do that. Even the courts do not agree he can, the congressional staff who KNOW the procedures on the EC count KNOW he can’t do that. Even Pence knew he coudln’t do that.
Eastman’s theory relied heavily on the idea that Pence could choose which electors to use and clearly, historically, and textually the constitution and the framers intent was NOT what Eastman theorized.
“ Separately, even if Trump/Eastman actually sought to do something that was ultimately deemed unconstitutional, that is still not criminal, unless they knew it was unconstitutional from the start.”
They DID seek to do just that. They even sued in court to make it happen and it was dismissed almost immediately. It WAS unconstitutional meaning it was ILLEGAL. Eastman acknowledged that his theory was very likely not constitutional. There is a reason why these are still called…THEORIES.
“You believe wrong.”
Nope.
” All Mike Pence could do is open the envelopes and confirm the counts as certified by the states.”
Obviously false. The constitution has the VP presiding over the process. The constitution is not ceremonial.
“The constitution says nothing about controlling the order or which slate of electors to offer first.”
That is correct, it also says nothing about opening envelopes or state certification.
Nowhere in the constitution is there any power over elections given to the state as a whole or the state courts or state governors.
Pence could perfectly within the constitution take the slate of electors offered by the state legislature and present them to congress, and throw the ones certified by the executive in the trash.
“Eastman’s theory posits that Pence could do that. Even the courts do not agree he can”
False – you will NEVER see a court rule on this. NEVER. We are dealing with an issue that is entirely contained within the congress.
There is absolutely no way on the planet that the courts will EVER involve themselves in the process of congress deciding to accept or reject electoral votes. This is constitutionally ENTIRELY up to congress. Biden could have won 50 states. And Congress could reject just over half the electoral votes through the election to congress and the courts would not step it.
There MIGHT be an actual insurection if they did, but there is absolutely no role for the courts in this.
“the congressional staff who KNOW the procedures on the EC count KNOW he can’t do that”
Which of them was there as the framers wrote the constitution ? or when the congress decided the election of 1876 ?
The congressional staff does not control this. Pence and the members of congress do. They alone decide whether the accept or reject slates of electors. The constitution gives them a decision without any qualifications or constraints.
If you do not like that – change the constitution.
“Pence knew he coudln’t do that.”
Pence knew it was political suicide – that is all.
Frankly it was political suicide no matter what he did.
“Eastman’s theory relied heavily on the idea that Pence could choose which electors to use and clearly, historically, and textually the constitution and the framers intent was NOT what Eastman theorized.”
You continue to use the word theory – historically you are wrong. constitutionally you are wrong, textually you are wrong.
It should be trivial to understand that you are wrong – because YOUR “theory” is that congress deciding the election results is cerminomial – a formality. Yet, nothing in the constitution is cerimonial or a formality.
The constitution does not delegate a responsibility without the power to excercise it. It does not provide for a decision to be made without that decision being a choice.
“they DID seek to do just that. They even sued in court to make it happen and it was dismissed almost immediately.”
Your out in la la land. There is no such lawsuit – there was no need for one.
” It WAS unconstitutional meaning it was ILLEGAL.”
You are doubly wrong – it is not unconstitutional, and unconstitutional does not mean illegal.
“Eastman acknowledged that his theory was very likely not constitutional.”
Nope.
What he said is that it was not likely successful.
“There is a reason why these are still called…THEORIES.”
Something that happened is not a theory.
Michigan Law Professor Barbara McQuade could be another new face proving that Trump Derangement Syndrome (TDS) exists. It’s self-evident that McQuade is delusional (characterized by or holding idiosyncratic beliefs or impressions that are contradicted by reality or rational argument) and is trying to literally b-a-s-t-a-r-d-i-z-e the law to reach a predetermined conclusion to “get” Donald Trump. McQuade’s arguments are pure ends justifies the means bull sh!t.
It’s just a theory. It’s what professors posit all the time. Calm down Nancy.
It’s a lunatic theory like all the others that the left uses to ensure the stupid and the fools. They got you.
I have been saying for a while that “The political left has shown its pattern of propaganda lies within their narratives so many times since 2016 that it’s beyond me why anyone would blindly accept any narrative that the political left and their lapdog media actively push?”
Delusional theories are dangerous. Look at the nonsense that arrose from the collusion delusion.
Not only was a massive hoax perpitrated on the country – but nearly every day these same legal scholars were explaining how the end was night and some bizzare legal theory for republican culpability for something that was entirely a democratic HOAX.
The collusion delusion is an IQ test – for ordinary people, for politicians, and for lawyers and legal scholars.
If you did not look at the known FACTS in late 2016 and respond with – “this is bat schiff crazy” – then you are too stupid to vote.
We know alot more now. But there was never a moment in time when it was more plausible to beleive Trump colluded with Putin than that Clinton colluded with Putin. There was never a moment in which it was rational to beleive that Putin would want Trump to be president.
Anonymous, wrote, “It’s just a theory. It’s what professors posit all the time.”
In this context, that is an unethical rationalization.
Also; are you really so ignorant that you don’t realize that nothing you wrote contradicts anything I wrote?
Professor McQuade is intentionally slinging b-a-s-t-a-r-d-i-z-e-d ends justifies the means sh!t on the walls to see what sticks in the hive minds of the gullible sheeple supporting the political left. It’s low hanging rhetorical fruit for the sheeple to consume and hopefully parrot enough for it to go viral. This has been the same TDS tactic used since 2016 with all things related to Trump and the gullible sheeple are more than willing to consume and later parrot whatever biased bull sh!t they’re fed by their shepherds.
It’s clear that you’re one of those gullible sheeple and, of course, a you’re also a troll.
Fin.
Physician, heal thyself. Attend to your own faults.
Safeside824 wrote, “Physician, heal thyself. Attend to your own faults.”
Out with it you trolling fool, what are my faults that I should attending?
Impatient, angry, unhappy, depressed or has mood swings when criticized. Looking down on others as inferior. Pretending to be superior to others. Lack of empathy for others. Not a doctor though, maybe you are just an entitled jerk.
Safeside824 wrote, “Impatient, angry, unhappy, depressed or has mood swings when criticized. Looking down on others as inferior. Pretending to be superior to others. Lack of empathy for others.”
Not a word of that is based on actual facts. You’re making up lies to demean me to others, that’s what’s called intentional defamation. Only a coward and an internet troll would hide behind an anonymous psydonyme in a comment thread and launch into unsupportable libelous written activity as you just did.
Safeside824 wrote, “Not a doctor though…”
Based on the apparent education level of the things you’ve written in these threads, it’s pretty clear to me that you don’t have the education level that would generally associated with a Doctor or any other level of higher education degree. An old adage comes to mind, “never attribute to malice that which is adequately explained by stupidity”; but then again, you could be hiding behind the facade of an idiot so you can use your higher intellectual knowledge for intentional malice which would be evil, as in profoundly immoral and wicked.
Safeside824 wrote, “…maybe you are just an entitled jerk.”
Since the definition of entitled is “believing oneself to be inherently deserving of privileges or special treatment” then your characterization is another unsupportable lie; however, your use of the word “jerk” is a fair opinion, I hate everyone equally so that might come through as being a jerk and I own it.
Fin.
Stevie, more word salad? Man yells at clouds, tells them to stay off his lawn. You sure do love the sound of your own voice. #1 You asked. #2 The DSM-5 is not written to demean or degrade, it’s for diagnostic purposes. Again, you asked. Then we have the DARVO, but that was expected…you can’t help yourself. Hating everyone equally is probably the problem (Lack of empathy). I honestly feel sorry for your spouse and sprogs.
Safeside824 wrote, “Stevie, more word salad? Man yells at clouds, tells them to stay off his lawn. You sure do love the sound of your own voice. #1 You asked. #2 The DSM-5 is not written to demean or degrade, it’s for diagnostic purposes. Again, you asked. Then we have the DARVO, but that was expected…you can’t help yourself. Hating everyone equally is probably the problem (Lack of empathy). I honestly feel sorry for your spouse and sprogs.”
An internet troll suffering from Histrionic Malevolence Syndrome is a reasonable way of describing what you do in these threads.
You and I are done, troll someone else.
Nope, you didn’t even read them…got zero out of eight. Show your work. You are completely in control…ignore me. You’ll bloviate one of your screeds, if it has merit, I might agree. If not, I might rebut. Despite your inflated opinion of yourself, you are not that important.
I use closed captions and when I see “MSNBC” or “Tribe,” I just reach for the remote control. Not interested in fogging up my mind. Tough enough in today’s world.
Fascist Democrats use Gov, law enforcement, Big Tech, Censorship, Media, Big Banks, Business, Education, Healthcare, Violence, etc to ENFORCE their FASCISM!
How it started “The Italian fasci of the late 19th and early 20th century were typically focused on the interests of workers and their families,”
How it is going “By January 1915, this group’s members were being referred to as fascisti. Mussolini was closely associated with this interventionist movement, but the movement had no direct link with the fasci di combattimento (“fighting bands”) he gathered in 1919—bands which then inspired the many Blackshirt squads who facilitated the fascist takeover of Italy in 1922”
Democrats since 2008…Obama election…have become FULL FASICISTS!
Democrats use the Goebels playbook to destroy this country. Unfortunately, like in Germany, they have willing participants in the media and the legal profession.
A riot forced by police, overseen by Pelosi, a probable Whitmer-event, and Capitol Hill “heroics” that resulted in the murder of two unarmed women, and diverse people assaulted.
If anyone was to apply the ‘reasonable person’ standard to Tribe and McQuade they would have to conclude that they are not reasonable people. I daresay there are hardly any reasonable people in DC, the MSM, and certain law schools.
“[T]here actually is an interesting legal theory here for manslaughter . . .”
Translated into plain English: “I want Trump in jail. So I’ll make up something out of whole cloth.”
And she’s a law professor?! There is nothing more frightening than nonobjective “law.”
Long gone are the days when MSNBC had any resemblance to actual news, if it ever did. What I find even more startling is that the critics of Fox for partisanship take no note whatsoever of the shortcomings of MSNBC. It makes me wonder if this is intentional or pure bias. Observation- probably the latter as their world is one dimensional to a much greater degree than partisans on the right.
Not long gone. Never there. The MS stands for Microsoft. In other words, Bill Gates. At the time the cable feed started, NBC was owned by General Electric. Now it is owned by Comcast. There was never any attempt “to resemble actual news.”
MSNBC is a one-note symphony playing in an echo chamber. It’s my number-one stop for confirmation bias whenever I feel the need. Which is never.
I’ve watched McQuade offer her commentary several times on Cable TV over the past roughly 6 months or more, and until this most recent commentary re: manslaughter, she was in my view always confining herself to the facts as she knew them. As Professor Turley breaks it down for us, McQuade may have stepped a bit too far this time around.
I am curious about where MSNBC finds these people that always seem to parrot their own talking points?
I would also accuse “Professor” Tribe of always rewriting the facts that are in evidence to present his case. He does both the case he is trying to argue, and himself, a great disservice in the advancement of his clearly partisan ideas. I have seen more thoughtful arguments presented by ambulance-chasing attorneys than I have ever seen from him on a good day.