A Constitutional Mulligan? Trump Calls Again for a “Redo” of the 2020 Election

Last week, many of us expressed alarm over a statement by former President Trump that we might have to “terminate” constitutional rules in light of the release of the Twitter files. He has now denied saying that but repeats that the disclosures should mean that the election is “redone.”  There are no constitutional Mulligans in presidential elections.

There is a legitimate demand for an investigation into this scandal and censorship that clearly had some impact on the close election.

However, while I have been a vocal critic of Twitter and the full mobilization of media, political, and corporate interests against Musk, any suggestion that constitutional rules could be terminated or suspended is both dangerous and demagogic.

For that reason, I was glad to see Trump walking back the statement but there remain deeply troubling aspects to the continued call for the election to be “redone.”

On Monday, Trump insisted that he does not want to “terminate” the Constitution:

“The Fake News is actually trying to convince the American People that I said I wanted to ‘terminate’ the Constitution. This is simply more DISINFORMATION & LIES, just like RUSSIA, RUSSIA, RUSSIA, and all of their other HOAXES & SCAMS.”

However, the earlier posting was unequivocal in stating that the Twitter disclosures “allows for the termination of all rules … even those found in the Constitution.”

As I stated at the time, there is no basis for termination or suspension of constitutional rules in such a case. Moreover, the misconduct of one company would never be accepted by a court as grounds for retroactively reevaluating a presidential election two years later.

Notably, there was ample evidence of raw fraud in states like Illinois that may have given Kennedy his victory over Nixon. However, the election was not “redone” in light of those allegations.

In his latest posting, Trump repeated that

“steps must be immediately taken to RIGHT THE WRONG…Simply put, if an election is irrefutably fraudulent, it should go to the rightful winner or, at a minimum, be redone … Where open and blatant fraud is involved, there should be no time limit for change!”

Putting aside the clarification on the call for termination of such rules, there is no basis upon which a court could order an election in 2020 to be “redone.” The implications of such a power are chilling. Such judicial intervention could be used by judges to “redo” future elections when they disapprove of a candidate or party. It is an invitation to judicial activism and would be destabilizing for our constitutional system as a whole.

It is unclear what Trump is now demanding. Should a court declare him the winner and order the start of a new four-year term — negating the 2024 election? Would the court order a vote in 2022 and then another vote in 2024? None of that is even remotely possible on a legal basis.

Moreover, before declaring that the election is to be “redone,” the court would have to not only find that the company engaged in election fraud but that such fraud was determinative or decisive in the election. How does it do that? There were a myriad of issues pushing voters that year. A court could not say with any sense of confidence that Twitter’s conduct determined the outcome.

My concern is that such postings create a false impression for citizens that such a “redo” is possible. It fuels extraconstitutional demands on our system. We have the oldest and most successful constitutional system in history because it is not subject to such improvisation or impulse.

Besides, there is a practical redo in the works. Trump is already running in 2024. We do not have to “undo” 2020 when the public will have a renewed chance to vote for Trump in 2024.

352 thoughts on “A Constitutional Mulligan? Trump Calls Again for a “Redo” of the 2020 Election”

  1. I think the war against Trump has finally gotten to him. All the haters must be jumping for joy at vanquishing the invader! Trump never accepted the idea that no one pushes 10 million government workers around and lives to tell the tale, not even POTUS!
    Yes, the FF’s envisioned “civilians” running the country rather than the professional class of politicians and government workers we have now. Having said that, we may never again find a outsider so daft as to go up against the DC “swamp” protected by corporate media.
    Tragically, we will never know what benefits outsiders could have brought to a dysfunctional government machine. The FF’s can be excused for not seeing this coming, but what is our excuse?

  2. The voting records are not available. Many were discarded immediately, which stopped analysis. Arizona was ready to describe it’s recount results, but right before that happened Joe Biden and his team created the war in Ukraine. If Arizona had succeeded, the war would now be in Russia and probably America.

  3. So there can be a special prosecutor (complete with wall-to-wall MSM coverage) to investigate *foreign* influence of an election (RussiaGate). But there cannot be one to investigate *domestic* and law enforcement influence of an election?

    And if Russian influence, with Trump collusion, had been proven, what would the remedy have been?

    The Left wanted an investigation and a remedy (2016). Why doesn’t the same standard apply for 2020?

    1. The left was not seeking a “remedy” to the 2016 election. They wanted an investigation into (1) whether and to what extent the Russian government interfered, and (2) whether and to what extent the Trump campaign, or Trump himself, was involved in that interference. If it had turned out that Trump had personally conspired with Putin to commit crimes in order to swing the election in his favor, the remedy would have been his impeachment and the installation of Pence as president. If Pence had also turned out to have been involved, then the remedy would have been the installation of Paul Ryan as acting president! There was no scenario, and the left never claimed there was, in which an investigation could result in Hillary Clinton becoming president.

  4. It is WRONG to reward a criminal!!!! Do you see what this fake administration is doing to Our Country? Wait another two years? Will we even have a Country? Our Country is being invaded on purpose!!! Our energy production is being destroyed, and you say wait for the next election? What would our founding fathers do? They believed in truth, justice, and honest elections, and I believe they would right the wrong IMMEDIATELY!!!!

    1. Who is the criminal here? (1) Nothing Twitter did was a crime. (2) Nothing that has been revealed implicates Biden. So what are you talking about? Which criminal do you think is being rewarded?

          1. I passed by this comment earlier, but since then have seen a bunch of your responses. They were ignorant like this one, There was election interference augmented by government action. You won’t understand this, as you didn’t understand the others, but that didn’t stop you from insulting people far more intelligent and knowledgeable than you..

          2. “it’s a constitutional right.”

            Yes, influencing a US election (or trying to) is a right that has been interpreted to be available only to US citizens.
            Foreigners do not have the right.
            Citizens United expanded that right to influence elections to corporation and other organized groups under the theory that the 1st and 14th amendments created that right.
            Under this theory restricting corporations right to influence elections would restrict the corporations first amendment right and that would be a denial of the corporations right to “the equal protection of the laws” conferred to “persons” under the 14th Amendment.

            The fundamental contradiction in the Courts thinking is that “persons” as described in 14A includes foreigners residing in the US. So if corporations are entitled to first amendment rights due to their personhood then foreigners in the US should also be entitled to the same rights ( to make the Courts interpretation of the Constitution not a contradiction) .

      1. Twitter colluded with the FBI and other State actors to interfere in the 2020 AND the 2022 elections. That’s illegal and an act of treason! Same with Facebook and the MSM. They are all guilty of election interference. Biden was well aware of the fraud operations being run by the Democrat Party so he too is guilty of treason.

        1. No, it is not illegal. Cite the law you allege it violated. Then explain how that law (if you can find one) can possibly be constitutional.

          As for your calling it an act of treason, the constitution explicitly says it is not. So you are in rebellion against the constitution, and by your own definition (but not the constitution’s) YOU have just committed treason!

          We are not discussing any “fraud operations” you wish to allege; we are only discussing Twitter’s censorship and manipulation, which was not against any law, not even if the Democrat Party and Biden personally were directly involved. Neither the Democrat Party nor Biden were state actors in any way.

          1. Milhouse/Anonymous/Svelaz (your styles are all the same):
            With respect, actually it is you who apparently does not understand the copious precedent under which private entities/parties are deemed “state actors” under the law, and therefore share in liability/culpability. Look it up.
            I offer no opinion as to such being prospectively found in actions against Twitter/Facebook, etc., but your simplistic dismissals warrant redress, in my opinion. (I agree that “treason” is a bit too far…)

  5. Sorry Professor, but you are absolutely wrong.

    All of the stuff that was botched from the 2020 Election through J6 IS the actual process that is supposed to be there to correct for election problems, for elections that are not trusted.

    When the courts refused election cases before the election – because they were not ripe – that was error that erodes trust in the election.
    When the courts dismissed cases afterwards on the basis of standing, or mootness, or latches, or some other excuses to avoid actually reviewing the evidence – that was error that erodes trust in the election.
    All those “doctrines” are court created – they are not in the constitution. While I understand the legal need for them, they absolutely NEVER should prevent subjecting an election to scrutiny.
    The process of certifying an election in the states is not supposed to be pro forma when it is – that was error that erodes trust in the election.
    The process of certifying an election in congress is not supposed to be pro forma when it is – that was error that erodes trust in the election.

    We can rant about whether Trump’s attempt to challenge the 2020 election in congress dotted all its I’s and crossed all the T’s.
    But the FACT is that the constitution allows – REQUIRES that Congress is the last arbiter of the trustworthyness of an election.
    Congress should never certify an election unless a supermajority of people trust the result.

    It is absolutely essential that we trust the results of an election.
    Most of the time that is easy – there was some evidence of Fraud in the CA Newsome recall – there were no consequential challenges.
    No one beleives there were 4M fraudulent votes in CA in 2021.

    Crys of fraud and foul only occur in close elections. But what is self evident today is that we have ever more close elections.

    That absolutely requires conducting elections in a way that it is transparently obvious that people can trust them.
    Again we can forgive errors and the mess that occured in AZ this year and in 2020, When the winning candidates win by 20pts.

    To this day many democrats beleive that the presidency was stolen in FL in 2000. There is absolutely zero doubt that Bush’s margin of victory was smaller than the error rate in the election.

    Myself and many others vowed we can not have that again.
    The Bushies responded by giving us black box voting terminals that have taken us 20 years to mostly get rid of.

    Elections MUST be transparent.

    Those on the left rant that elections must be easy. I disagree – there are good reasons they should be very hard.
    But that is a political question.
    But the trustworthyness of elections is not. That is Absolute – above all else.

    If anything less that a supermajority of people beleive that an election was not trustworthy GOVERNMENT MUST do something about it.
    Or the people are allowed to.

    That is not in the constitution – it is in the declaration of independence.

    We have fought over January 6th for almost 2 years. The left has sneered about election deniers – even though there are myriads of instances democrats have refused to accept elections. I beleive that the odds are there was sufficient fraud to flip the 2020 election – you and many others I respect do not. That’s fine. But there is still a problem – it has been 2 years – and you have not convinced me, nor as many as 150M other amereicans that the election was trustworthy. Whether we are right or wrong is not important.
    What is important is that we are absolutely right, that the election of 2020 does not deserve to be trusted.
    And the declaration of independence tells us that when government is not trusted – we have the right to alter or abolish it.
    But now we learn – most of us knew this before. But musks twitter files prove beyond any doubt, that there was a “vast left wing conspiracy” to DECEIVE the american people about Biden. That may not be ballot fraud, it may not be illegal. But it is fraud, and it is immoral, and it is another reason that the election is untrustworthy. It is also proof beyond any doubt that those involved in this vast left wing conspiracy are immoral and willing to act immorally to acheive their desired ends. How Big a step is it from a conspiracy to deceive the american people to ballot fraud ?
    One is not proof of the other. But is it proof of the willingness to act immorally. falsus in unum, falsus in omnibus.

    And I am going to return to January 6th. Those claiming thee protesters were not entitled to enter the capitol protest loudly, and petition government based on a lawlessly conducted and likely fraudulent election are WRONG, That was their right. The capitol should not have been locked. Congress was free to protect itself, they could have called in the National Guard to allow protesters to go through the capital peacefully, they could have called off the session of congress. But the could not violate the protestors 1st amendment rights and prevent protestors from bringing their grevance, their 1st amendment petition to congress. They were not required to be quiet or articulate to do so.

    And today that right seems even more justified. We can not prove ballot fraud in 2020. But there is no doubt there was a vast left wing conspiracy to decieve the american people.

    And when all other remedies failed – the right to redress by peritioning government was the last recourse, ….. before violence.

    And as the declaration of independence tells us by its very existance, as well as its words, as lexington and concord tell us, as thomas Jefferson tells us.

    When government loses our trust it is our RIGHT to alter or abolish it.

    Thomas Jefferson – The Tree of Liberty.

    “Yet where does this anarchy exist? Where did it ever exist, except in the single instance of Massachusets? And can history produce an instance of a rebellion so honourably conducted? I say nothing of it’s motives. They were founded in ignorance, not wickedness. God forbid we should ever be 20. years without such a rebellion. The people can not be all, and always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13. states independant 11. years. There has been one rebellion. That comes to one rebellion in a century and a half for each state. What country before ever existed a century and half without a rebellion? And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure. Our Convention has been too much impressed by the insurrection of Massachusets: and in the spur of the moment they are setting up a kite to keep the hen yard in order.”

    1. “ When the courts refused election cases before the election – because they were not ripe – that was error that erodes trust in the election.”

      It was not an error. It was about people ignorant on how the legal system works. That lack of trust is borne out of ignorance that was exploited by those seeking to manipulate the system. Republicans seeking court injunctions for problems they could have corrected long before the election. Judges on those cases kept pointing this out to the plaintiffs. Because it was obvious that they only brought up those issues just prior to election to crests doubt judges correctly dismissed the cases. They were following the rules set by SCOTUS about taking cases so close to an election. If republicans were really concerned about certain issues with election law they would have litigated them long before the election.

      “ When the courts dismissed cases afterwards on the basis of standing, or mootness, or latches, or some other excuses to avoid actually reviewing the evidence – that was error that erodes trust in the election.”

      It was not an error. Courts are REQUIRED to follow rules when considering cases. There is a specific reason why courts have these rules. Lack of standing, while you may disagree, is a necessary component of our legal system. You only disagree with lack of standing because it prevented baseless claims from being litigated in court Some cases were moot because affidavits were withdrawn or were pure hearsay. The majority were dismissed precisely because there was no evidence to show to the court. In some cases even the lawyers for the plaintiffs admitted to the judge’s face they had no evidence. The majority of these cases were desperate attempts to ‘validate” a bunch of conspiracy theories with no basis as in fact. The trust was “eroded” because the majority of the people are ignorant of the law and the rules of the court They were being manipulated by those who were pushing these conspiracy theories and seeking to manipulate the rules so THEY could cheat a system that was fair. A fair, but imperfect system, no system will ever be perfect, Exploiting it to sow distrust was exactly what republicans and Trump wanted.
      To this day no evidence of mass fraud or “rigging” of elections has been produced. The premise of this distrust is heavily reliant on the logic that a lack of evidence is proof that there is fraud.

      “ We can rant about whether Trump’s attempt to challenge the 2020 election in congress dotted all its I’s and crossed all the T’s.”

      This is actually very important. You say that trust in government is eroded because of these “errors’’ But here you admit Trump’s challenges were rife with errors, missteps, lack of evidence, not adhering to court rules, and sheer incompetence. These “errors” don’t inspire trust either. They don’t inspire confidence in the credibility of the challenges. No evidence to present in court? No case. Keep in mind that these are civil cases and it’s the plaintiff that MUST provide proof of harm in order for the case to proceed. The majority of these cases did not meet that crucial requirement. This was not an error of the court. It as an error of the plaintiff.

      “ And I am going to return to January 6th. Those claiming thee protesters were not entitled to enter the capitol protest loudly, and petition government based on a lawlessly conducted and likely fraudulent election are WRONG, That was their right. The capitol should not have been locked. ”

      Wrong. Protesters are free to air their grievances OUTSIDE the Capitol when congress is in session for official business. They cannot force their way in to disrupt the process with violence and death threats. Just as you cannot do that when congress is in session on other business.

      People can petition their government thru their REPRESENTATIVES. That is why there are called REPRESENTATIVES.. They can air their objections by demanding their representatives object to the certification. Many representatives did exactly that. BUT as are the rules they were in the minority and therefore the process continued after following protocol. Storming the capitol by force and assaulting law enforcement and seeking to harm lawmakers is not protected under the 1st amendment. Everyone who participated in the attempted insurrection was complicit. There have already been indictments and guilty pleadings on charges of sedition. The election was not fraudulent.. Multiple audits, investigations, hand recounts by Republicans have shown no evidence for such a claim. Absence of evidence is NOT evidence.

      1. “Wrong. Protesters are free to air their grievances OUTSIDE the Capitol when congress is in session for official business. They cannot force their way in to disrupt the process with violence and death threats.”

        The first two Pro-Trump protesters to die (Kevin Greeson and Benjamin Phillips) were hit by flashbang explosive devices and died shortly thereafter according to witnesses. They were OUTSIDE the Capitol. Cops started firing the devices deep into the crowd OUTSIDE the Capitol without warning or orders to disperse. So it looks like the serious violence was initiated by the police. If Pelosi had released the 14,000 hours of still unleased video we’d likely know by now.

        “The election was not fraudulent”

        Zuckerberg admitted that he colluded with the FBI to suppress the Hunter Biden laptop story and thereby rig the election. The 51 mostly retired intel chiefs deliberately lied and issued a false statement designed to make the public believe the Hunter Biden laptop story was Russian disinformation. And now the Twitter revelations. IIRC, only about 20,000 votes in three states would have thrown the election to Trump

        1. The rampant election fraud that occurred in the 2020 and just recently the 2022 elections have been proven beyond a shadow of a doubt. It’s a fact, not an opinion. As Professor Dershowitz said, “fraud vitiates everything.” That means because of the fraud that occurred in the elections they are not legal and cannot be allowed to stand. The amount of time that has passed or that Congress was snookered into certifying them is not relevant and has no basis in the legality of the outcome.
          If a person is murdered and years go by without any progress in cracking the case, but evidence is suddenly found years later implicating a person to be the murderer, is the case dropped because of the time that went by? No. And it is the same for elections as well.

      2. First – the absolutely most ignorant person with regard to legal systems here is YOU – by an enormous margin.

        You have no idea what the difference between a civil and criminal case is, what a subpeona actually is and how it is enforced, what a warrant is,
        What are the requirements. What constitutional rights are and how they are enforced. What the rules of statutory construction are or even that they exist.

        We have spent thousands of years constructing the system we have – and while still not perfect, what we have when actually followed is pretty good.

        When it is not followed – and those of you on the left try to game the system all the time – it fails.

        The duty to conduct trustworthy elections OBVIOUSLY rests with government – not candidates.

        That is a truth that you can not change by mangling the law.

        You do not seem to grasp that our law does not appeal aribitrarily. It exists and is shaped as it is, because that is how we have found works.
        Law is not a game you play to try to win power. It is a system that we have that was constructed to preserve order AND protect rights.

        With respect to the 2020 (and 2022) elections – the answers is pretty trivial.

        A majority of people do not trust our elections, and beleive that cheating – primarily if not exclusively by democrats has occured.

        The duty of government, the courts, the law is to correct that perception.
        Either by punishing the fraud or by real inquiry that convinces the overwhelming majority of people that the results were trustworthy.

        In that courts have FAILED.

        Whether you like it or not that is beyond dispute.

        This is not about Trump. It is not about his lawyers, it is not about your mistaken idiocy about the functioning of the courts.

        One of the ways that you can tell that the process was not correctly followed is because people still do not trust the election results.

        The duty of the courts in 2020 was not to give Trump what he wanted, not to give democrat lawyers what they wanted, but to restore the publics trust in elections.

        That requires inquiry that either proves there was no fraud and misconduct, or proving and punishing the fraud that occurred.

        Again the Court FAILED.

      3. It actually pains me to continue to call you out as a liar.

        That is not civil, that is not how public discourse is supposed to be.

        We are not supposed to accuse others regularly of lying
        Because people are not supposed to regularly lie.

        There have been myriads of audits conducted by Republicans.
        Those audits have uniformly found errors, flaws, defects problems and plenty of evidence of fraud.

        You are lying.

        I have covered the facts regarding all of this previously

      4. Why are you still here ?
        Why would anyone want to hear what you have to say about anything ?

        You have been lying, you have been and still are defending those who not just lied, not just suppressed the truth but silenced those trying to speak the truth.

        I can not think of an anything that was not also a crime that would be more immoral.

        You Biden, DNC, Democrats, the media, Social media have burned your credibility to the ground.

        You are not merely liars you are destroyers of the truth, and destroyers of those who tell the truth.

        Why should anyone trust you about anything ?A

        Why should anyone beleive you about anything ?

        Why should you be beleived about election fraud ? About J6 ? About MAL ?

        Falsus in uno, falsus in omnibus
        Falsus in omnibus, falsus in omnibus

      5. “Amendment I
        Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

        Nowhere in the text of the first amendment or elsewhere in the constitution are REPRESENTATIVES mentioned with respect to the right of the people to petition govenrment.

        The right to petition government goes back all the way to the magna carta.

        The right to petition government has been found to REQUIRE government to provide petitioners access to courts, to the legislature, to congress to individual government agencies.

        The failure of King George and the british parliment to respond to citizens petitions is repeatedly listed in the declaration of independence as the justification for insurrection.

        Our founders petitioned the king and parliment through colonial legislatures, but when these were dissolved through citizens committees and individuals writing letters. Franklin cross the Atlantic to petition the king and Parliament – he did so with no authority beyond that of concerned citizens.

        The entire continental congress was quite literally an unauthorized and treasonous body.

        The american revolution occured because the brittish refused to accept and give consideration to the petition of insurrectionists.

        Your attempted mangling of the first amendment is ludicrously stupid and completely ahistorical.

        It is also at odds with long, long traditions in the US.

        Just in the past 10 years – left leaning groups have marched on and into state capitols accross the country.
        Protestors and petitioners marched through the US capitol during the Kavanaugh hearings.

        Nearly everyday small groups and sometimes larger ones make their way INTO the capital to protest and petition the govenrment.

        The only instance I am aware of EVER where protestors were not permitted to enter the capitol was J6.

        Even your idiotic argument STILL requires allowing J6 protestors INTO the capital – the offices of many representatives are in the capitol itself.

      6. I would further note that actual video and records indicate that it was the capitol police that triggered the violence.

        It was the capitol police that used bean bag guns, rubber bullets, mace, and batons on protestors BEFORE any protestors acted violently.

        I would note that is also self evident from the fact that protestors did not come armed to the protest.
        There were no guns, if there were knives – no one used any. No one came with rocks, or frozen water bottles, Everything that protestors used was found at the scene.

        It is self evident that the protestors did not come with the intent or expectation of violence.

        They tried to get it to the capitol – which they first amendment requires. So long as they were not thwarted there was no damage no violence.

        There was no arson, and contra false leftist nonsense no smearing of excrement.
        Barriers were removed and occasionally damaged. With unbelievably rare exceptions that was all.

      7. At Lexington and Concord – a real insurrection about 300 protestors were armed with guns, they fired on and killed 70+ british soldiers.

      8. The Jan 6 Capitol Building incident (riot? what riot?) was the result of a plot initiated by Nancy Pelosi and aided and abetted by the FBI, the Capitol Police, Antifa, BLM and the intelligence community to discredit and disrupt the electoral challenge that was underway. There was no insurrection. Did the protestors bring guns or other similar tools or equipment commonly brought for insurrections? No. It was a setup, pure and simple. Peaceful Trump supporters and other demonstrators were infiltrated and manipulated by the FBI, Antifa, BLM and agents of the Capitol Police whose purpose it was to start a riot. Even so, the demonstration remained mostly peaceful aside from a few isolated incidents, which were probably the work of the agents provocateur. Unfortunately for all of us they were successful and we are now stuck with an illegitimate administration hellbent on the destruction of our country. Unless, of course, a rebellion to evict the tyrant from his illicit perch should somehow happen. What’s III% of 80 million?
        Anybody who says otherwise is a Democrat propagandist and a communist, just like the MSM, pre-Musk Twitter, Facebook and most of the [Deep State] govt.

      1. The declaration of independence is incredibly important.

        It is the legal and philosophical framework for insurrection.

        It is the legal and philosophical frame work for legitimate and illegitimate government.

        The constitution is the blue print for our government. It is not the justification for our government – the declaration is.

        The constituton tells us how to build a government – it does not tell us how to tell when it has failed.

        The declaration does.

        The constitution tells us what government will look like.
        The declaration tells us Why we have that or any government.

    2. Sorry, John Say, but you are wrong.

      The process of certifying an election in congress is absolutely supposed to be pro forma. The votes are to be counted in front of Congress and that is it.

      The actual FACT is that the constitution does not allow, let alone “REQUIRE” that Congress be “the last arbiter of the trustworthiness of an election”. There is not one word in the constitution giving Congress such a power.

      You say “Congress should never certify an election unless a supermajority of people trust the result.” But there is no “certifying” in the constitution; Congress is supposed to simply witness the count and that is all. Nothing could be more ministerial or “pro forma” than that.

      You say “That is not in the constitution – it is in the declaration of independence.“. But the Declaration of Independence is just a piece of paper, with no legal authority whatsoever. The Constitution is the supreme law of the land.

      1. “The process of certifying an election in congress is absolutely supposed to be pro forma. The votes are to be counted in front of Congress and that is it.
        The actual FACT is that the constitution does not allow, let alone “REQUIRE” that Congress be “the last arbiter of the trustworthiness of an election”.”

        Obviously you have neither read the constitution – nor have any familiarity with history.
        Congress deciding an election is not common, but it has occured repeatedly.
        It is ABSOLUTELY true that the final say regarding elections is with congress.

        Neitehr Constitutions nor law are EVER pro forma. We do not encode cermimony into law or constitution. PRetending otherwise is ludicrously stupid and ahistorical and anti-constitutional.

        Neither the constitution nor the law EVER delegate a power where the exercise is not a choice.
        When the constitution requires congress to certify an election – that absolutely dictates that it can refuse to do so.
        The constitution then specifies what will happen if it does not.
        In fact that happened very early on, and we did not like the result so we amended the constitution – not to change the final authority of congress over elections but to change the details of how that power was excerised.

        I would further note that your argument violates both sanity and reason, as well is the fundimental principles of the constitution itself.
        You can pretend that the 2020 election was pure snowy white, but large scale election fraud does occur and specially it has in the past
        In the 1878 Hayes Tilden election Tilden was the apparent winner of the electoral college. But there was large scale fraud accross the country and Congress refused to certify Tilden as the winner. Congress appointed a commission to examine the claims of election fraud, and that commission recommended Hayes as the winner. There was of course and infamous back room deal struck.

        Regardless the more important point is that Congress did NOT certify the electoral college winner.
        Congress OBVIOUSLY has the power to reject electoral college votes.
        There was no constitutional challenge to this. And there would be no successful one today.

        The constitution gives congress the FINAL decision in any election.
        Congress can litterally do any damn thing it pleases in ANY election.

        There is but a single check on the power of congress to decide an election as it pleases.
        And that is that if its action offends the electorate – i.e. if its action is not accepted as justified by people – such as by uncorrected election fraud, then the people might litterally revolt.

        Absolutely every aspect of every single part of every election rests on one and only one critical factor – the trust of the citizenry.
        Precisely as Jefferson said int he declaration of independence. If the citizens do not trust the government, it is their right to alter or abolish it.
        Every election from dog catcher to president to the certification vote of congress rests ont he requirement that even if people do not like the final outcome they accept it as legitimate.
        It was absolutely clear in 2020 that WAS NOT the case. Our courts did us a vast disservice making things WORSE by refusing to conduct inquiry. Those of you on the left failed to grasp how important it was to persuade those who did not accept the results with sunlight and facts rather than an unyelding effort to hide everything in darkness. The purpose of process and even the law is to secure TRUST.
        If you fail to do so – you are lawless.

        You doubt me ? Take a look at what happened in East Germany in 1989. Jeffereson’s words int he declaration of independence come to life.
        A gigantic totalitarion regime collapsed in an instant – because the people withdrew their consent. Not through elections, not through process.
        But merely by taking to the streets. The east German police and military were unwilling to murder their own people – the same thing happened in Hungary and checklosovakia decades earlier – but one thing was different in 1989. The USSR was too weak and unwilling to send Russian troops to do what East German forces refused to to. After East Germanny fell the rest of the USSR fell like dominos.

        We very nearly had the same thing in Tianamen a few months earlier.

        We are teetering on the edge of the same thing in China and Iran right now. It is possible that both govenrments will survive at the moment – but only by taking draconian steps to crush their own people. And that may not be enough – we will see.
        It is probably only a matter of time before both Iran and China topple – just as the USSR did.

        The constitution tells us nothing about this. The declaration of independence tells us all about this. Not becuase it is the formal law of the land – as the constitution is. But because it reflects accurately the laws of human nature, the core of the social contract.

        So not only do you have a constitutional problem – but you have a fundamental problem of a violation of the social contract.

        Regardless, you screwed up in 2020, and the damage is going to be with us for a very long time.
        The majority of americans do not trust our elections – YOU did that. Partly you did that by conducting lawless elections – using covid to make up new rules at the last moment without going through the required process to get people to assent to those laws, and partly by failing to subject results that were not trusted to sunlight. You revel that 61 courts refused to inquire into the conduct of the election, when that universal refusal itself undermines trust further.

        That J6 would happen was beyond any debate – YOU made sure it would happen.
        You should thank god that it was NOT an actual insurrection – had 1000 people or even 100 arrived with ar-15’s there would have been an entirely different outcome. There were only 300 minutemen at Lexington and Concord when “the shot heard round the world” was fired.

        And what is most wierd about all this is that while contra to many idiots here – the AZ Audit did not prove there was no election fraud.
        In fact it DID prove there was very real fraud, probably enough to flip the election. At the same time it proved that manually recounting all the ballots would have confirmed a Biden win. It would not have disproved what we now know was the most likely means of election fraud. But it would have disproved the most strongly featured and easiest to test claim – that the voting machines had rigged the election. That the counting itself was corrupted. Had you actually allowed scrutiny, you would have significantly increased the level of trust among those who did not trust the results. Instead by refusing to allow sunlight in you hardened the distrust Rassmussen has been polling the 2020 election since just after the election. They consistently find 59% of americans beleive the 2020 election was stolen. You can rant that Rassmusen leans right – so what ?
        It is not consequentially better is only 49% of the people beleive it was stolen.
        Frankly if 11% of the people beleive it was stolen – you have a serious legitimacy problem.

        “There is not one word in the constitution giving Congress such a power.”
        Then you have not read the constitution.
        “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members”

        Tilden did not win the 1876 election.

        “You say “Congress should never certify an election unless a supermajority of people trust the result.”
        That is not a constitutional requirement is a a paraphrase of the declaration of independence.
        Which is just a restatement of the social contract, which is the foundational justification for the existance of ANY government.
        You can reduce the supermajority requirement – as we have seen intotalitarian states through history – but doing so requires FORCE.
        When the USSR did not send tanks to east Germany – the whole USSR collapsed.

        ” But there is no “certifying” in the constitution; Congress is supposed to simply witness the count and that is all. Nothing could be more ministerial or “pro forma” than that.”
        The word witness does not appear, whether you like it on not they are not there to “Witness the count” – again there is NOTHING misisterial or pro forma in the constitution. That is not merely a fact it is a rule of statutory and constitutional construction.
        Nothing exists in law or constitution without meaning or purpose. The electors are perfectly capable of counting their own vote.
        They are perfectly capable of certifying it. If the constitution delegates that to congress that inherently means that congress is not required to accept the count.

        You say the process is pro forma – yet again that is ahistorical. Every single election in my lifetime has had challenges to the count. Probably every single election in US history. No one has EVER said those challenges are unconstitutional. Congress is busy trying to change the rules for objecting – the effort to change them explicitly proves that they accept challenges as legitimate, they are merely changing the process not trying to eliminate it. Even Democrats in congress do not actually accpet the claim you are making that the process is pro forma.

        “You say “That is not in the constitution – it is in the declaration of independence.“. But the Declaration of Independence is just a piece of paper, with no legal authority whatsoever. ”

        How ignorant can you be, The declaration of independence is far more important than the constitution and has far more inherent authority.

        The declaration of independence is the LEGAL DOCUMENT asserting not just OUR right to abolish the governmnt we were part of but ANY peoples right to do so. The overwhelming majority of nations that have formed since 1776 have used the US Declaration of independence as the legal foundation for their own independence.

        Ho Chi Minh and the vietnamese adopted the Declaration of independence in breaking from French Rule after WWII.
        They did not – and I do not think any other nation int he world adopted the US constitution.

        The Constitution is a blue print FOR government.

        The declaration of independence is the conditions for legitimate government.

        “The Constitution is the supreme law of the land.”
        It is. It is not however the justification for legitimate government.

        If you do not like the declaration of Independence – try John Lockes Two Treatises of Government

        Regardless, we can quibble all you want. The FACT is that the lower trust in government is the more FORCE government will need to exert to survive. Are you actually arguing against that ?

        Frankly your position is preposterously stupid.

        I noted 1876, but lets presume a hypothetical election in which one candidate wins the electoral college, and days before congress is supposed to certify the election it is found out beyond any doubt at all there was massive fraud, or that the president elect is actually a foreign puppet,
        or both the president and vice president elect are killed.

        Are you claiming that congress has no recourse but must certify the election anyway ?
        The process in congress exists as the last possibility to fix the unlikely possibility of generally accepted problems with an election.
        It is unarguably something that should very rarely occur. It inherently exists to deal with completely unforeseeable problems.
        If it did not exist – we would have to create it.

        I would note that the 1800 election under the original rules of the constitution ended up in the house and took 36 votes before it was resolved.
        In the 1864 election the electoral votes of two states – Lousiana and Tennese were invalidated

        1. Sigh. It’s funny that you claim “Obviously you have neither read the constitution”, and then go on immediately to show that YOU have never read it. There is not one word in the constitution to support any of your claims. The constitution is quite specific about Congress’s role, and it says nothing about “certifying” the result. Congress is merely to witness the count, and if someone gets a majority that person automatically becomes president. No certification by congress is required or expected. That is the constitution, and if you think otherwise then you cannot possibly have ever read it.

          You wrote: “When the constitution requires congress to certify an election – that absolutely dictates that it can refuse to do so.” Stop right there. The constitution does NOT require congress to certify the election, and does not provide for such a thing. There is no such thing as certifying it. Congress’s only role is to witness the count. That is explicitly in the constitution, which you have never read.

          I am not even going to bother reading the rest of your novel-long comment, since I’ve already shown what an ignoramus and a liar you are.

          1. I have already addressed this.

            The word witness does not appear in the constitution.

            From nearly the start there have been issues with presidential elections.
            by the mid 19th century we had exactly the problem we have now, counting electors is meaningless when there is massive fraud.
            The constitution specifies what happens when the rest of the election does not work.
            I believe it took 36 ballots for Jefferson to be elected.

            There are many ways that an election can go south, the answer IN THE CONSTITUTION is that congress has the final word.

            We should go to enormous effort to avoid that outcome. But we do not avoid it by accepting a botched election, we avoid having to have Congress restore trust in the election by conducting an election so transparent and trustworthy that there is no need for congress to intervene.

            Whether you like it or not – the final word on elections was given to congress by the constitution.
            Further that HAD to be that way.

            How do you think the constitution would have resolved an election if on the day the electoral vote was counted it was found that one of the candidates had bribed enough electors to win ?

            Is congress just going to raise their eyebrows and say “Que Sara Sara” ?

          2. “I am not even going to bother reading the rest of your novel-long comment,”
            Your choice. Don’t care.
            “since I’ve already shown what an ignoramus”
            Your obviously smart, though not as smart as you think you are.
            But you are also smart enough to know that remark is error.
            But not smart enough not to say it.

            “and a liar you are.”

            The word liar has meaning.
            There are a few who post here regularly.
            Musk is over on twitter revealing that alot of people that had positions of trust were liars.

            A liar is someone who knows something is false and says it anyway.
            It is not merely someone you disagree with.

            If you are smart enough to know that, then accusing me of being a liar proves yourself a liar.
            You actually have to be stupider than I think you are to accuse me of being a liar without proving yourself a liar.

            Regardless it would be wise to ratchet down the ad hominem.
            It is poor argument.
            and it makes you look foolish.

  6. How is fraud possible on a legal basis? Oh I see, the Constitution is too fragile in this case. Turley can’t wrap his brain around it, so? Pursue it w noble intentions and the smartest team that can be assembled and let’s see where it goes!! Sorry Turley, I’m passed the fear factor on this one.

    1. I can tell that you are not even close to Turley’s intelligence by your misspelling of the simple word “passed.”

  7. So what’s the remedy? In law school they taught us there must be a remedy, and saying he’s running again, isn’t remotely an equitable cure. It’s not tha same thing and undoing the acts done by the WH resident surely needs to be part of any remedy. I agree we can’t ignore the Constitution, so what then is the recouse?

    1. If the Idiots in DC & Colorado COG keep attacking Military Airbases inside Russia the Ruskies will remedy all leadership questions in the US.

      Ask Major Kong for further info. 😉

    2. The actual remedy was the things Trump tried to do and was thwarted – right down to and including J6.

      J6 was a protest that turned mildly violent because Pelosi unconstitutionally tharted the first amendment rights of protestors.
      It was not an insurrection.
      We are not AT the level of insurrection YET.

      But if we continue this nonsense if those on the left continue to allow the ends to justify the means. If there is no moral boundary they will not cross to win. Eventually more radical steps that may include force become justified.

      Read the declaration of independence – we do not jump right to force. We must be long suffering.

      I do not personally think we get there.

      I was disappointed that 2022 was not the tipping point, But I beleive with certainty a tipping point is coming.
      And that results in a cascade failure on the left.

      1. “ The actual remedy was the things Trump tried to do and was thwarted – right down to and including J6.”

        He was “thwarted” by his own incompetence and that of his lawyers. He was “thwarted: by his failure to provide evidence of his claims. His remedy to those failures was to incite a crowd of violent prone protesters to attack the capitol.

        “ J6 was a protest that turned mildly violent because Pelosi unconstitutionally tharted the first amendment rights of protestors.”

        False. That was no “mild” violence. It involved weapons, assault on law enforcement, destruction of government property, theft, and issuing calls to execute lawmakers. That was not an example of “mild” violence. Constantly downplaying what really happened to avoid the fact that it was much worse than is deliberately wanting to ignore the truth.

        Pelosi did not thwart the 1st amendment rights of the protesters. They were already freely protesting long before they decided to attack the Capitol. Violent assault and forcing your way into a restricted areas is NOT protected under the 1st amendment rights. Just as in inciting a riot is not protected free speech.

        Trump and republicans tried every conceivable lie and conspiracy theory to justify baseless accusations. THEY were trying to change the rules when they knew they were not going to win. They WANTED to change the rules after they lost. That’s not what following the rule of law is.

        The left was not pushing these nutty conspiracy theories. The left was not seeking to change the rules midway thru the election process. The left was not trying to create fake electors to justify changing the results. The right tried to push a nonsense theory that had no constitutional basis.

        The right just tried to argue in Harper vs. Cooper that the independent legislature theory is a credible argument. Fortunately very competent lawyers poked huge holes in that argument by brilliantly using what the conservatives love the most. With originalist and textual interpretation. Even justice Alito was frustrated by not being able to shoot down arguments against it.

        In the end this is not about the left. This is about the right seeking power through any means including violence and threats of execution. The right constantly making up theories to justify their corrupt attempts at subverting democracy is the real threat. They are the real authoritarians and fascists. They are the ones who prey on the ignorant and exploit the weak minded. They are the ones who enrich themselves thru scams and gritting. The right is not as big as they think it is. They are victims of their own inflated rhetoric and it shows.

        1. “He was “thwarted” by his own incompetence and that of his lawyers. He was “thwarted: by his failure to provide evidence of his claims.”
          As is typical you fail to understand how courts work.

          In a civil case you make a claim, you provide what evidence you have – the affadavits that Trump brought to court are 1000 times what is necescary, the court accepts your case, and then there is discovery – discovery gives both parties to the case subpeona power – the ability to leverage the power of the courts to get the evidence to prove your claim. Discovery allows Trump lawyers to depose election officials, to examine election equipment, to review election records and chain of custody. to review security video.

          AFTER discovery comes a hearing in court – where the parties president witnesses and evidence, and where they cross examine witnesses.

          None of this happened, because the courts used legal nonsense to prevent these cases from reaching discovery.

        2. It is not the responsibility of the Trump campaign to assure that democrats and election officials do not engage in Election Fraud.

          The Courts have a duty to assure that elections are trustworthy that goes beyond nonsense about whether Trump’s lawyers are competent – either in your opinion or that of the courts.

          1. It is not the role of the candidate or the electorate to prove that an election was fair and accurate. It is the duty of those running the election to prove that it was fair and accurate.

            1. amen

              I have not addressed specifics, because it is not necescary, but conducting an election that is trustworthy is not hard.
              There are probably thousands of ways to do it – more.

              The core problem is that there are trillions of ways to do it wrong.

              This is not unusual. It is actually the norm in the world.

              Look arround, there are thousands of different ways to make a delicious hamburger.
              One for every taste.

              But if you start from nothing – not even a cow, there are trillions of ways to get it wrong.

        3. It is unlikely that the court is going to adopt ISL wholesale.

          But the claim it was poked holes in is garbage. I listened to the arguments of the left and the Justices shredded them.

          Fortunately for you – Supreme Court cases more so that other cases are less about the legal skills of each party and more about the the actual law and constitution.

          And Contra your idiotic claim ISL is supported by originalism. No state court in the country ever ruled on federal elections prior to the end of the civil war. At that time there was ONE state supreme court ruling on Federal Elections – essentially deciding that specifically for northern troops stationed in the south that mailin voting did not violate the constitution. The case went to the supreme court – which spilt 4:4 so the lower court decision stood.

          That was the FIRST instance of a state court deciding a federal election issue and it did not occur until 75 years after the constitution was ratified.

          Both the plain text of the constitution and the early history of the country actually support the reading of the constitution that restricts federal elections to the legislature.

          The big problem that ISL has is that it is the wrong fix to a very serious problem.

          As a Rule the federal courts do not conduct judicial review over state court decisions – except where constitutional issues or federal laws are involved.

          As such – with few exceptions the decisions of state supreme courts on state law is as sacred as the US supreme court with regard to federal law.

          And mostly regardless of the problems – that is how it should be.

          But some state supreme courts have vastly exceeded any concept of actual judicial authority, and at this time there is little ability to reign that in.

          I can assure you, one way or another that will not last long.

          In the case before the supreme court right now the problem has already been solved – the state supreme court flipped from 4:3 to 2:5.
          So this case is actually already decided.

          But the bigger issue is not.

          SCOTUS in prior decisions sent a message that redistricting is a political not legal or constitutional question – and therefore not the legitimate domain of the courts. That was a correct decision. There is no objectively correct way to set congressional districts, and no constitutional issues actually implicated. Redistricting is NOT the business of the courts.

          But some state courts have not taken heed of that. And that is why SCOTUS has taken this case.

          Predicting the supreme court is difficult, but if SCOTUS did not intend to act – they did not need to take the case.

          SCOTUS has many choices in this case. Adopt ISL – which contra your claims is the originalist solution. Adopt a modified ISL,
          Decide that State Supreme court cases involving federal elections are subject to federal judicial review. Impose SCOTUS’s political questions doctrine on the states or leave the lower court decision alone.

          Every choice except the last is a victory for conservatives.

          Personally I think they should adopt rigid ISL. Because that is what the constitution says. There are already 3 clear votes for that.

          That said ISL is NOT inherently the correct way to manage elections. The constitution may SAY that elections are the exclusive domain of the legislature, but that is no better than the exclusive domain of the governor or courts.
          Our system is supposed to work best with checks and balances. But that requires courts to rule on the constitutionality of laws, NOT to rewrite the laws. Which BTW is another possibile outcome of this case – SCOTUS could rules that state courts can conduct constitutional review of State legislative actions, but are limited to determining constitutionality. That the courts are not free to construct remedy’s – they are not free to legislate.

          And that BTW is the fundimental problem. State Supreme courts (as well as Federal courts) are taking on the roll of legislatures and congress and they are not free to do so.

          I do not think that conservatives will win the ISL fight – because although it is constitutionally correct, it is just a shell game. There is as much danger in a legislature with no oversight as a state supreme court that thinks it is a legislature.

        4. I would note the fundimental question in this case is not ISL.

          This case was taken by SCOTUS because the state supreme court assumed the power to legislate in a federal election.

          It is near 100% certain that democrats will LOSE this case – in fact they already have, the state supreme court in question has flipped from 4:3 to 2:5.

          Regardless it is highly unlikely that SCOTUS is going to afirm the state supreme court meddling in federal elections.

          The only question in this case is what Remedy SCOTUS is going to apply.
          Democrats are losing this case no matter what.

        5. Apparently you did not listen to the arguments. I did. Supreme court justices are very tough questioners.
          They were very hard on both sides. If you were to judge the outcome of this case by the exchanges between conservative justices and democrat lawyers – Democrats are in deep trouble. Conversely if you judged based on the same exchanges with republican lawyers – republicans are in trouble.

          Regardless, justices from Barret and Kavanaugh and Gorsuch to Alito, Roberts and Thomas have been eviscerating left lawyers in pretty much all cases in front of them.

          That does not tell you how they will decide.

    3. If they taught you in law school that every wrong has a remedy, you should ask for your money back, because they taught you nonsense. That is not the law and never has been. There are many wrongs for which the law has never even pretended to have a remedy.

  8. Is it possible that Trump feels this urgency to fix 2020 not because he thinks he would be reinstated, but rather so that our elections can be trusted again? If we don’t air out the clear malfeasance of 2020, how can we ever fix it for the future?

  9. Clearly, hindsight leaves no doubt that massive fraud was the difference that gave Biden his “victory”.
    Since the law doesn’t apply to those myriad of fraudsters, then neither should the protection of the laws apply to them.
    The entire population should get a free crack at them with no legal repercussions.
    Nobody would commit election fraud if they wouldn’t be able to walk the streets afterwards.

  10. Mr. Turley says Trump’s desire to do a do-over is too extreme, and that such things have never been done in the past, to which I would reply, our nation has rarely been in such extreme danger before as it is NOW, and extreme measures are sometimes needed to right extreme wrongs! I say that the present anti-constitutional actions by the deep state and Dems demands extreme measures to save us.

  11. The present government of the United States is arguably criminally elected and therefore illegitimate. Your remedy: try again after they have a few more years to clean up the loose ends. Thanks Bucko! When people say the law has let them down, they’re talking to you!

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