Three prominent law professors, two of them former U.S. attorneys, described in the Washington Post Thursday actions taken by former president Donald J. Trump to subvert election results in multiple states that merit Department of Justice investigation as federal crimes. Laurence Tribe, Barbara McQuade, and Joyce White Vance argue that Attorney General Merrick Garland has a duty, at the very least, to investigate Trump based on information already in the public record. Not doing so would be “a grave mistake.”
Allowing the crimes of high-profile malefactors to go unpunished has a history in this country stretching from the end of the Confederacy through the Nixon and Reagan presidencies. Reluctance to prosecute those in the highest offices as well as in corner offices, one could argue, led to an attempted coup by Trump and the attack on the Capitol by domestic terrorists on Jan. 6. Trump was born into wealth that his whole life insulated him and his family from accountability. To restore some sense of “justice for all” requires an end to that Teflon streak. Not just for Trump, but for his kind.
That buck starts with Trump as a unique threat to this democratic republic. “Attempted coups cannot be ignored,” the trio write. As in, let Trump get away with it and he and his allies will try again.
Election law expert Rick Hasen worries that groundwork is underway for the next such election challenge.
Hasen told The New Yorker‘s Jane Mayer he is “scared shitless” about the array of new laws enacted in red states to empower legislatures to undertake not just vote suppression, but election subversion. “Election officials are being put in place who will mess with the count.”
Hasen writes at Slate, “Forget bonkers accusations about Italy using lasers to manipulate American vote totals and expect white-shoe lawyers with Federalist Society bona fides to argue next time about application of the “independent state legislature” doctrine in an attempt to turn any Republican presidential defeat into victory. “
Trump himself pointed to that prospect in his interview with the Washington Post’s Carol Leonnig and Phil Rucker for their book, “I Alone Can Fix It.” Other conservative operators sent the same signals via Mayer’s reporting, Hasen writes, including Leonard Leo, co-Chairman of the conservative Federalist Society:
So how does this argument work? Article II of the Constitution of the United States provides that state legislatures get to set the “manner” for choosing presidential elections. Similarly, Article I, section 4 gives the state “legislature” the power to set the time, place, and manner for conducting congressional elections, subject to congressional override. In practice, these clauses have been understood as allowing the legislature to set the ground rules for conducting the election, which are then subject to normal state processes: election administrators fix the details for administering the vote, state courts interpret the meaning of state election rules, and sometimes judges and officials decide when state rules violate state constitutional rights to vote.
For example, in the run-up to the 2020 election, the Pennsylvania Supreme Court decided that a state law requiring that mail-in ballots must arrive by Election Day to count violated the state constitution’s provisions protecting voting rights in light of the election being conducted during the pandemic. It extended the receipt of ballots by three days.
Republicans challenged that extension, arguing that the U.S. Constitution makes the legislature supreme, even if the state legislature would otherwise be violating the state constitution as determined by the state supreme court. This is the “independent state legislature” doctrine because it proposes that the legislature is supreme against all other actors that might run elections. This is a wacky theory of legislative power, but it is one that four Supreme Court justices (Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas) expressed support for in various opinions during the 2020 elections, and it echoes an alternative argument that former Chief Justice William Rehnquist, joined by Justice Thomas and former Justice Antonin Scalia, made in the Bush v. Gore case ending the 2000 election and handing victory to Republican George W. Bush.
That argument failed in the Pennsylvania case, but the five or six conservatives on the Supreme Court might see it otherwise the next time Federalist lawyers present it, more carefully refined.
Now maybe the courts won’t bite on this theory—in 2020, Justice Kavanaugh seemed wary of the argument because it came very late in the process. But it might not take court involvement to create chaos and try to flip election results. A state legislature dominated by Republicans in a state won by Democrats could simply meet and declare that local administrators or courts have deviated from the legislature’s own rules, and therefore the legislature will take matters into its own hands and choose its own slate of electors.
Should Republicans control Congress in early 2024, they could well accept these arguments as they count Electoral College votes, even as such arguments were rejected by a Democratic-led Congress (over the objections of well over 100 Republican members of Congress) in 2020. They might try to count the votes from the state legislature rather than votes reflecting the people’s will. The independent state legislature argument—which would essentially overturn U.S. elections to make the loser the winner—would have an air of respectability that would not depend upon a claim that the election was rife with fraud or stolen, but that the actions of the state’s governor, or courts, or election administrators violated the Constitution by usurping the legislature’s rights. Again, all of this is scarily plausible.
Thus could end two and a half centuries of popular democracy.
Trump and his family business are already under investigation for financial crimes in New York City and state. But Trump and any co-conspirators must be held to account not just in the court of public opinion but, if justified, in federal courts. There is a slow-motion coup in the planning stages for the next presidential election Republicans lose, and popular democracy be damned.
Update: Listen to this guy.