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It’s staring us in the face

I’ve been writing and talking about former federal judge Michael Luttig’s hair being on fire about what being plotted for our future elections for a while, mostly based upon quotes from him in various stories. Luttig is a true blue rightwinger, not even a Never Trumper. (Apparently, he was the one who told McConnell you can’t impeach a president once he’s left office, giving him the argument for voting no.)

But to say he is freaking out is an understatement and I think it’s worthwhile to read his comments in full. He wrote this for CNN today:

Nearly a year and a half later, surprisingly few understand what January 6 was all about.Fewer still understand why former President Donald Trump and Republicans persist in their long-disproven claim that the 2020 presidential election was stolen. Much less why they are obsessed about making the 2024 race a referendum on the “stolen” election of 2020, which even they know was not stolen.

January 6 was never about a stolen election or even about actual voting fraud. It was always and only about an election that Trump lost fair and square, under legislatively promulgated election rules in a handful of swing states that he and other Republicans contend were unlawfully changed by state election officials and state courts to expand the right and opportunity to vote, largely in response to the Covid pandemic.

The Republicans’ mystifying claim to this day that Trump did, or would have, received more votes than Joe Biden in 2020 were it not for actual voting fraud, is but the shiny object that Republicans have tauntingly and disingenuously dangled before the American public for almost a year and a half now to distract attention from their far more ambitious objective.

That objective is not somehow to rescind the 2020 election, as they would have us believe. That’s constitutionally impossible. Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.The last presidential election was a dry run for the next.

From long before Election Day 2020, Trump and Republicans planned to overturn the presidential election by exploiting the Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment, if Trump lost the popular and Electoral College vote.The cornerstone of the plan was to have the Supreme Court embrace the little known “independent state legislature” doctrine, which, in turn, would pave the way for exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence’s ceremonial power under the 12th Amendment and award the presidency to Donald Trump.Get our free weekly newsletter

The independent state legislature doctrine says that, under the Elections and the Electors Clauses of the Constitution, state legislatures possess plenary and exclusive power over the conduct of federal presidential elections and the selection of state presidential electors. Not even a state supreme court, let alone other state elections officials, can alter the legislatively written election rules or interfere with the appointment of state electors by the legislatures, under this theory.

The Supreme Court has never decided whether to embrace the independent state legislature doctrine. But then-Chief Justice William Rehnquist, and Justices Antonin Scalia and Clarence Thomas in separate concurring opinions said they would embrace that doctrine in Bush v. Gore, 20 years earlier, and Republicans had every reason to believe there were at least five votes on the Supreme Court for the doctrine in November 2020, with Amy Coney Barrett having just been confirmed in the eleventh hour before the election.

Trump and the Republicans began executing this first stage of their plan months before November 3, by challenging as violative of the independent state legislature doctrine election rules relating to early- and late-voting, extensions of voting days and times, mail-in ballots, and other election law changes that Republicans contended had been unlawfully altered by state officials and state courts in swing states such as Pennsylvania, Wisconsin, North Carolina and Michigan.

These cases eventually wound their way to the Supreme Court in the fall of 2020, and by December, the Supreme Court had decided all of these cases, but only by orders, either disallowing federal court intervention to change an election rule that had been promulgated by a state legislature, allowing legislatively promulgated rules to be changed by state officials and state courts, or deadlocking 4-4, because Justice Barrett was not sworn in until after those cases were briefed and ready for decision by the Court. In none of these cases did the Supreme Court decide the all-important independent state legislature doctrine.

Thwarted by the Supreme Court’s indecision on that doctrine, Trump and the Republicans turned their efforts to the second stage of their plan, exploitation of the Electoral College and the Electoral Count Act.The Electoral College is the process by which Americans choose their presidents, a process that can lead to the election as president of a candidate who does not receive a majority of votes cast by the American voters. Republicans have grown increasingly wary of the Electoral College with the new census and political demographics of the nation’s shifting population.

The Electoral Count Act empowers Congress to decide the presidency in a host of circumstances where Congress determines that state electoral votes were not “regularly given” by electors who were “lawfully certified,” terms that are undefined and ambiguous. In this second stage of the plan, the Republicans needed to generate state-certified alternative slates of electors from swing states where Biden won the popular vote who would cast their electoral votes for Trump instead. Congress would then count the votes of these alternative electoral slates on January 6, rather than the votes of the certified electoral slates for Biden, and Trump would be declared the reelected president.The Republicans’ plan failed at this stage when they were unable to secure a single legitimate, alternative slate of electors from any state because the various state officials refused to officially certify these Trump-urged slates.

Thwarted by the Supreme Court in the first stage, foiled by their inability to come up with alternative state electoral slates in the second stage, and with time running out, Trump and the Republicans began executing the final option in their plan, which was to scare up illegitimate alternative electoral slates in various swing states to be transmitted to Congress. Whereupon, on January 6, Vice President Pence would count only the votes of the illegitimate electors from the swing states, and not the votes of the legitimate, certified electors that were cast for Biden, and declare Donald Trump’s reelection as President of the United States.

The entire house of cards collapsed at noon on January 6, when Pence refused to go along with the ill-conceived plan, correctly concluding that under the 12th Amendment he had no power to reject the votes that had been cast by the duly certified electors or to delay the count to give Republicans even more time to whip up alternative electoral slates.Pence declared Joe Biden the 46th President of the United States at 3:40 a.m. on Thursday, January 7, roughly 14 hours after rioters stormed the US Capitol, disrupting the Joint Session and preventing Congress from counting the Electoral College votes for president until late that night and into the following day, after the statutorily designated day for counting those votes.

Trump and his allies and supporters in Congress and the states began readying their failed 2020 plan to overturn the 2024 presidential election later that very same day and they have been unabashedly readying that plan ever since, in plain view to the American public. Today, they are already a long way toward recapturing the White House in 2024, whether Trump or another Republican candidate wins the election or not.Trump and Republicans are preparing to return to the Supreme Court, where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote. Barrett has not addressed the issue, but this turns on an originalist interpretation of the Constitution, and Barrett is firmly aligned on that method of constitutional interpretation with Thomas, Alito, and Gorsuch, all three of whom have written that they believe the doctrine is correct.

Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.

The Republicans are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be.Finally, they are furiously politicking to elect Trump supporters to the Senate and House, so they can overturn the election in Congress, as a last resort.

Forewarned is to be forearmed.Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.

Although the Vice President will be a Democrat in 2024, both parties also need to enact federal legislation that expressly limits the vice president’s power to be coextensive with the power accorded the vice president in the 12th Amendment and confirm that it is largely ceremonial, as Pence construed it to be on January 6.

Vice President Kamala Harris would preside over the Joint Session in 2024. Neither Democrats nor Republicans have any idea who will be presiding after that, however. Thus, both parties have the incentive to clarify the vice president’s ceremonial role now.As it stands today, Trump, or his anointed successor, and the Republicans are poised, in their word, to “steal” from Democrats the presidential election in 2024 that they falsely claim the Democrats stole from them in 2020. But there is a difference between the falsely claimed “stolen” election of 2020 and what would be the stolen election of 2024. Unlike the Democrats’ theft claimed by Republicans, the Republicans’ theft would be in open defiance of the popular vote and thus the will of the American people: poetic, though tragic, irony for America’s democracy.

He’s speaking to the Supreme Court just as much as the public and the Republican Party. I don’t know if that majority has a conscience or intellectual integrity but if they do, this is the guy they may listen to.

… but even more what they will do if they lose

Mike Allen of Axios, one of D.C.’s most venerated purveyors of conventional wisdom, dropped a big bomb last week when he wrote that Democrats who study polling are panicking over the possibility that Donald Trump could win the trifecta in 2024 and end up with a “compliant filibuster-proof Senate majority in January 2025” courtesy of what data analyst David Shor, best known for his “popularism” theory, predicted would be “a minority of the vote. 

How’s that for a cherry on top of a shit-sundae? 

Allen pointed to a piece by Yale’s Simon Bazelon who accuses Democrats of “sleepwalking into disaster,” noting that a close presidential election in 2024 might take out Democratic Sens. Jon Tester in Montana, Joe Manchin in West Virginia, Sherrod Brown in Ohio, Bob Casey in Pennsylvania, Tammy Baldwin in Wisconsin, Kyrsten Sinema in Arizona, Debbie Stabenow in Michigan and Jackie Rosen in Nevada. Allen writes, “in all those states, hardcore liberalism is a tough sell,” as if the Democrats are unaware of that and these candidates know nothing about the states they will be running in.

Yes, of course, it will be a tough map for Democrats in 2024 because all those incumbents are up for re-election in what are, with the exception of West Virginia, battleground states which by definition are well … battles. Of course, that also means these same states are tough for Republicans. After all, they all lost in 2018.

The assumption in Allen’s piece, and others like this one from Ross Douthat, is that not only is the midterm election this November going to be a rout for Democrats because of an inevitable backlash against media-hyped “hardcore liberalism,” 2024 is already in the bag for the GOP as well.

This November is a lot closer and the usual midterm dynamics are apparent, so it’s not ridiculous to be worried about the Democrats losing control of Congress. But to assume Donald Trump has already won the 2024 election because of the party’s alleged “hardcore liberalism” is the predictable stale beltway dogma about politics in “Real America” which has never been an accurate analysis of why people actually vote. We should, however, be concerned that the Democrats will lose the 2024 election for an entirely different reason, and, in fact, every Democrats’ hair should be on fire. There is an excellent possibility that they will be shut out in 2024, but it won’t be because they lost the vote.

We have all heard about Trump’s followers in various states making moves to strike Democrats from elections boards and run for secretaries of state to oversee future elections. We know that Trump himself is still obsessively pushing the Big Lie that he actually won the 2020 election — and that nearly 70% of Republicans believe him. We have learned recently that members of Congress were actively involved in helping him do that, even in one case, asking the White House chief of staff for talking points to help make the case. The result of all this is to make the majority of Republican voters accept election results, as Trump openly declared back in 2016, only if the GOP wins.

Additionally, I think everyone is rightfully concerned that there will be another insurrection and that it will be much worse if that happens. It’s the sword of Damocles hanging over our entire democracy at this point and it’s hard to see how that problem can easily be fixed.

Unfortunately, that’s not all. The New York Times reported this week that Trump’s failed coup of 2020 is ongoing with action in various states to decertify the 2020 election and re-install Trump into the White House. Yes, it is preposterous, but it’s happening in a number of states with tremendous pressure being brought to bear on candidates and legislators to back up the idea that this is a legitimate process. The reporting indicates that many of these state office holders understand that it is ridiculous but they are signing on to the idea as another way to curry favor with Trump and his henchmen.

This effort is being led by John Eastman, the lawyer who proposed that the vice president can simply refuse to accept the electoral college votes and send it to the House of Representatives where a quirk in the Constitution would allow Trump to be certified for a second term. The judge who is overseeing the production of emails subpoenaed by the January 6th Committee referred to Eastman’s plan as “a coup in search of a legal theory” and proclaimed that the documents show Trump and Eastman “more likely than not” engaged in a criminal conspiracy to obstruct Congress. Apparently, Eastman remains undeterred and is still at it. According to the Times:

The fringe legal theory that Mr. Eastman and Mr. Epshteyn are promoting — which has been widely dismissed — holds that state lawmakers have the power to choose how electors are selected, and they can change them long after the Electoral College has certified votes if they find fraud and illegality sufficiently altered the outcome. The theory has surfaced in multiple states, including several that are political battlegrounds.

The Times characterized this project as being a way for some of the Trump grift crew, like Steve Bannon, Boris Epshtyn and Michael Flynn to remain relevant, but also as a way to keep the fervid True Believers agitated and engaged. All this handwringing over the 2020 election serves to reinforce the notion that the election system is entirely corrupt and untrustworthy, which is a real problem.

But that isn’t the most concerning aspect of this project.

The article quotes formerly highly respected conservative judge Michael Luttig making the most salient observation about what this is all about: “Trump and his supporters in Congress and in the states are preparing now to lay the groundwork to overturn the election in 2024 were Trump, or his designee, to lose the vote for the presidency.” He calls it “the clearest and most present danger to our democracy.” Lutting is anything but a “hardcore liberal” so you would think that the Republican establishment would be a bit nervous to hear something like that from a bonafide arch conservative like him. But they aren’t. They are letting this happen because it benefits them.

There are many things they may not like about Donald Trump, but this isn’t one of them. After all, if for some reason, Donald Trump doesn’t legitimately win in 2024 and therefore has no coattails, the congressional elections in all those battleground states could be very close. If people believe that presidential elections can be overturned by state legislatures, there’s no reason that other races shouldn’t have the same privilege.

So sure, Democrats should be worried about 2024 but they need to worry about what the Republicans will do if they lose just as much as what they’ll do if they win.

Salon

Check this out about Senator Ted Cruz:

An examination by The Washington Post of Cruz’s actions between Election Day and Jan. 6, 2021, shows just how deeply he was involved, working directly with Trump to concoct a plan that came closer than widely realized to keeping him in power. As Cruz went to extraordinary lengths to court Trump’s base and lay the groundwork for his own potential 2024 presidential bid, he also alienated close allies and longtime friends who accused him of abandoning his principles.

Now, Cruz’s efforts are of interest to the House committee investigating the Jan. 6 attack on the U.S. Capitol, in particular whether Cruz was in contact with Trump lawyerJohn Eastman, a conservative attorney who has been his friend for decades and who wrote key legal memos aimed at denying Biden’s victory.

As Eastman outlined a scenario in whichVice President Mike Pence could denycertifying Biden’s election, Cruz crafted a complementary plan in the Senate. He proposedobjecting to the results in six swing states and delayingaccepting the electoral college results on Jan. 6 in favor of a 10-day “audit” — thus potentiallyenabling GOP state legislatures to overturn the result. Ten other senators backed hisproposal, which Cruz continued to advocate on the day rioters attacked the Capitol.

The committee’s interest in Cruz is notable as investigators zero in on how closely Trump’s allies coordinated with members of Congress in the attempt to block or delay certifying Biden’s victory. If Cruz’s plan worked, it could have created enough chaos for Trump to remain in power.Advertisement

“It was a very dangerous proposal, and, you know, could very easily have put us into territory where we got to the inauguration and there was not a president,” Rep. Liz Cheney (R-Wyo.), a Jan. 6 committee member, said earlier this year on the podcast “Honestly.” “And I think that Senator Cruz knew exactly what he was doing. I think that Senator Cruz is somebody who knows what the Constitution calls for, knows what his duties and obligations are, and was willing, frankly, to set that aside.”

The Jan. 6 committee’s investigators have recently focused on Eastman’s efforts to pressure Pence to declare Trump the winner, but there has been little public notice that Cruz and Eastman have known each other since they clerked together 27 years ago for then-U.S. Appeals Court Judge J. Michael Luttig. Cruz’s proposal ran on a parallel track to Eastman’s memos.

Luttig told The Post that he believesthat Cruz — who once said that Luttig was “like a father to me” — played a paramount role in the events leading to Jan. 6.

“Once Ted Cruz promised to object, January 6 was all but foreordained, because Cruz was the most influential figure in the Congress willing to force a vote on Trump’s claim that the election was stolen,” Luttig said in a statement to The Post. “He was also the most knowledgeable of the intricacies of both the Electoral Count Act and the Constitution, and the ways to exploit the two.”

Eastman, asked in an inquiry by a lawyer for the Jan. 6 committee whether he had “any communication with Senator Ted Cruz regarding efforts to change the outcome of the 2020 election,” declined to answer by invoking his Fifth Amendment right against self-incrimination. Eastman and his lawyer, Charles Burnham, declined a request for comment.(Thus far, the Jan. 6 committee has not subpoenaed Cruz, or asked for his voluntary cooperation, according to a source familiar with the matter who spoke on the condition of anonymity to discuss confidential matters. The committee has not announced the subpoena of any member of Congress as it deliberates how aggressively to pursue that line of inquiry.)

Cruz, after initially agreeing to an interview with The Post at his Senate office, canceled shortly before it was to begin and declined to speak to a reporter. The Post then submitted a lengthy set of written questions, only some of which were addressed directly by Cruz’s spokeswoman.

Asked whether Cruz had communicated in any way with Eastman about challenging the election, the senator’s spokeswoman, Maria Jeffrey Reynolds, did not respond directly.

“Sen. Cruz has been friends with John Eastman since they clerked together in 1995,” Jeffrey Reynolds said via email. “To the best of his recollection, he did not read the Eastman memo until months after January 6, when it was publicly reported.”

As for Cruz’s effort to fight the election results, the spokeswoman said: “He has repeatedly observed that, had Congress followed the path he urged and appointed an Election Commission to conduct an emergency 10-day audit and consider on the merits the evidence of voter fraud, the American people would today have much greater confidence and trust in the integrity of our elections and our democracy.”Advertisement

As Cruz fought to keep Trump in the White House, he frequently noted that this was not the first time he had played a leading role in trying to turn a contested election in favor of the Republican presidential candidate. Indeed, he had laid the groundwork 20 years earlier.

I give Cruz credit. He is one of the few to acknowledge that Bush vs Gore set the precedent for what they tried to do on January 6th.

Shortly after the 2000 presidential contest between Republican George W. Bush and Democrat Al Gore, Cruz — then a 29-year-old graduate of Harvard Law School — received an urgent request: There was going to be a recount of the Florida vote and Bush’s campaign wanted his help.

Cruz rushed to Tallahassee and arrived that afternoon, and he said he believed that after a “quick, perfunctory legal proceeding,” Bush would be declared the winner. But there were serious questions about who had received the most votes in Florida. By Cruz’s account, he played a pivotal role, rewriting briefs and sleeping for “a total of seven hours” in his first six days in Florida. He wrote in his memoir that he and others on Bush’s team were convinced Gore “was trying to steal the presidency.”

Cruz wrote that he was “astonished” at Gore’s move to contest the outcome, recalling how Richard M. Nixon had lost to John F. Kennedy amid fraud allegations but had “resisted the urge to contest the results and divide the country indefinitely. I thought it was a rather petulant display by Vice President Gore.”

Five years after writing those words in his 2015 memoir, it would be Cruz leading the charge to challenge a presidential election in an effort that continues to divide the country.

They literally have no shame. Or pride. Or integrity.

Two days after the 2020 election, as absentee ballot counts in swing states piled up in Biden’s favor,Trump tweeted the falsehood that “I WON THIS ELECTION, BY A LOT!” Around the time he sent that tweet, the president talked with Cruz on the phone, the senator from Texas has said.

Trump’s call underscored their remarkable reconciliation. During the 2016 presidential campaign, Trump had called Cruz “the single biggest liar I have ever dealt with in my life” and attacked Cruz’s wife and father. Cruz called Trump an “arrogant buffoon,” and refused to endorse the nominee at the Republican National Convention, which got him booed off the stage.Advertisement

But in September 2016, Cruz offered a quid pro quo: He would back Trump if the candidate agreed to select a Supreme Court justice from a Cruz-approved list. “The price of my endorsement was explicit,” Cruz later wrote in his book “One Vote Away.” Trump agreed, Cruz wrote. The nominee switched from calling Cruz “Lyin’ Ted” to “Beautiful Ted,” while the senator stood by Trump after The Post revealed the “Access Hollywood” tape in which Trump talked in vulgar terms about women. Cruz became a staunch ally during Trump’s presidency.

When Trump talked to Cruz two days after the 2020 election, the senator’s allegiance was tested anew. That night, to the shock of some of his aides, Cruz amplifiedTrump’s stolen-election claims on the Fox News show hosted by Sean Hannity, who moonlighted as one of Trump’s most influential advisers. He told Hannity’s millions of viewers that Democrats were “defying the law” because they didn’t want GOP observers to see ballot counting.

“They are setting the stage to potentially steal an election not just from the president but from the media,” Cruz said.(The allegation that Republican observers were kept from seeing the vote count was rebutted by those who ran the ballot operation and rejected by the Pennsylvania Supreme Court.)Advertisement

In the weeks that followed, as Trump allies lost a string of election cases, Cruz began suggesting he could lead a more effective legal strategy. He talked about his success in helping Bush’s legal team and howhe had argued a total of nine cases before the Supreme Court, mostly as the Texas solicitor general. Two days later, he announced he had agreed to represent Pennsylvania Republicans in their effort to block certification of that state’s presidential results. The Supreme Court rejected that request, though, a near-fatal blow to efforts to overturn the election in the courts.

But the next day, Trump and Cruz focused on another avenue to put the matter before the Supreme Court: a case filed by Texas Attorney General Ken Paxton, who argued his state had standing to ask the court to throw out election results in Georgia, Pennsylvania, Michigan and Wisconsin.

When Trump called on Dec. 8 as Cruz dined out, the president asked whether he was surprised about the loss of the Pennsylvania case, Cruz later recalled on his podcast, “Verdict with Ted Cruz.” Cruz said he was unhappy but “not shocked” that the federal court did not take a case about state law: “That was a challenging hurdle.”

When Cruz agreed to Trump’s request to argue the Texascase, it shocked some who knew him best. One adviser said he called Cruz to express dismay, telling the senator it went against the principles on which he built his political brand.Advertisement

“If you’re a conservative federalist, the idea that one state can tell another state how to run their elections is outrageous, but he somehow contorted in his mind that it would be okay for him to argue that case,” said the adviser, who spoke on the condition of anonymity to describe a private conversation.

Rep. Chip Roy (R-Tex.), who had served as Cruz’s chief of staff and was a former first assistant attorney general in Paxton’s office, tweeted that the case “represents a dangerous violation of federalism” that “will almost certainly fail.” He did not respond to a request for comment.

Cruz’s spokeswoman said that he agreed to Trump’s request because “he believed Texas deserved to have effective advocacy” but said that “he told President Trump at the time that he believed the Court was unlikely to take the Texas case.”

Cruz’s cooperation was seen as crucial by Trump’s allies. They believed his experience and standing as a senator brought credibility in comparison to the much-criticized work of Trump’s other attorneys, like former New York mayor Rudolph W. Giuliani, who would later have his New York state license suspended for making “demonstrably false and misleading statements” about the election. (Giuliani could not be reached for comment.)

With Cruz’s commitment secured, Trump tweeted the next morning: “We will be INTERVENING in the Texas (plus many other states) case. This is the big one. Our Country needs a victory!”

But the Supreme Court rejected the case — the second straight decision in which it turned down Trump’s allies.

So Cruz focused on a congressional plan. At least one member of the U.S. House and Senate was needed to contest a state’s presidential results. Rep. Mo Brooks (R-Ala.) had announced his intent to do so, and he found his Senate partner on Dec. 30 when Sen. Josh Hawley (R-Mo.) volunteered.

Eastman and Cruz’s actions soon began to directly complement each other.

Eastman wrote in the first of his two memos about overturning the election that his plan relied on a senator delaying certification — and he specifically mentioned the possibility that Cruz could do it. A second version of that memo doesn’t mention Cruz, but the first line in the six-page document still argues that state legislatures have the power to choose electors — mirroring Cruz’s plan.

Cruz’s role in the Senate was crucial because it was not clear that any other senator would join Hawley, a freshman who had campaigned as an outsider without Washington relationships.

On Jan. 2, 2021, Cruz unveiled his plan for states to start an “emergency 10-day audit,”backed by 10 other senators. The idea was met with ridicule even from some of Trump’s most vociferous supporters. “Proposing a commission at this late date — which has zero chance of becoming reality — is not effectively fighting for President Trump,” Sen. Lindsey O. Graham (R-S.C.) said on Twitter. The conservative magazine National Review lambasted the idea in an article headlined: “The Folly of the Cruz Eleven.”

Cruz nonetheless pushed forward. Trump promptly tweeted his delight that the effort was “led by Sen. Ted Cruz.”

Eastman, meanwhile, met at the White House on Jan. 4 with Trump and Pence to discuss his plan. The next evening, Cruz appeared on Hannity’s show. Without noting that he had played a key role in spreading Trump’s false election claims on the same show two months earlier, Cruz told Hannity: “We have an obligation to the country. You know, you look at polling right now that shows that 39 percent of Americans believe the election was rigged. That’s heartbreaking.”

The piece goes on to say that Cruz actually lost some allies for doing this. He had allies?

The next morning, at 8:17 a.m. on Jan. 6, Trump tweeted his support for the proposal that had been put forward by Cruz, without mentioning his name. He called for Pence to send the matter back to the states, which was in line with the senator’s proposal for a 10-day audit.

“States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval,” Trump tweeted.

Cruz’s advisers were conflicted. Some supported making every effort to overturn the election, but a number of them directly urged him not to support Trump’s false claims. One adviser, who spoke on the condition of anonymity to discuss a confidential conversation, asked Cruz to certify Biden’s election by citing a Post report about Trump’s phone call urging Georgia’s secretary of state to find enough votes to declare him the winner.

An even stronger rebuff came from one of Cruz’s most important allies: Chad Sweet, the former chairman of his 2016 presidential campaign. Sweet had known Cruz since they worked together on Bush’s reelection campaign in 2004. They had talked and debated countless times over the prior 16 years.

Now, just before the events of Jan. 6, Sweet urgedthe senatornot to challenge the results. Sweet had helped create a nonpartisan group in 2020 called Citizens for a Strong Democracy, which focused on strengthening public confidence in election systems. So he was intimately familiar with how falsehoods were being used to try to overturn Biden’s win.

Sweet told Cruz “that if he proceeded to object to the Electoral count of the legitimate slates of delegates certified by the States, I could no longer support him,” Sweet later wrote on his LinkedIn page.

But Cruz rejected his friend’s advice.

Cruz was the first Senator to voice an objection that morning, following Peter Navarro’s stupid “Green Bay Sweep” plan.

In his Senate speech, Cruz stressed that he objected to “all six of the contested states” and urged approval of his audit plan. As he spoke, rioters were already storming the outer barricade west of the Capitol. He based his plan on a provision in the Constitution that says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”

While legislatures previously had determined electors based on the popular votes, legal scholars said it was notable that the Supreme Court, in the 2000 Bush v. Gore case in which Cruz participated, said that a state legislature “may, if it so choose, select the electors itself.”

Austin Sarat, a professor of law and politics at Amherst College, said Cruz’s plan had a deeper constitutional underpinningthan Eastman’s outline of a scenario in whichPence could overturn the election himself, although Sarat stressed he didn’t agree with it.

“I think that Cruz thing was much more dangerous because it has the kind of `constitutional plausibility’ that the Pence thing never had,” Sarat said. “Not because it was well-grounded, but one could make the argument the Constitution provides for it.”

In fact, there was no evidence of widespread fraud that would have changed the results in any of the six states that Cruz said he contested. Soon after Cruz finished speaking, rioters began breaking into the Capitol, and he went to a secure location.

Hours later, after the rioters were removed and the Senate returned to its session, Eastman emailed Pence’s lawyer, Greg Jacob, at 9:44 p.m., to plead for one last effort. Eastman suggested a “minor violation” of the law to enable a 10-day delay for legislatures to conduct an audit, according to a document released by the Jan. 6 committee — again mirroring Cruz’s plan.

Cruz’s effort to reject the Arizona results failed by a vote of 93-to-6. It seemed clear his path to overturn the election was over, and he huddled with his staff about whether to proceed with his plan to object to the Pennsylvania results.

For months, one of those staffers, communications director Lauren Bianchi, had promoted Cruz to the press as a smart and savvy constitutionalist. But now, in a telephone conference call with the senator and other aides, she pleaded with Cruz to stop. At that moment, she said in an interview with The Post, “I felt like he wanted to hear what I wanted to say.”

So she spoke up.

“My message to the senator, after reflecting on the day and seeing how the country was being torn apart, was: `We’re going to live tofight another day. There are concerns about election integrity. Let’s keep fighting but today is no longer the day to fight. You need to be a unifier.’ ”

“Senator,” Bianchi said she told Cruz, “you need to be the adult in the room.”

As she hung up the phone, Bianchi said, “I felt very alone” and she wasn’t sure what Cruz would do.

He rejected her advice.

In the days that followed many of his closest allies broke their ties.

Carly Fiorina, who Cruz chose to be his running mate in 2016 said in interview with Washington Post Live in May 2021 that she thought Cruz had spread unsubstantiated claims of election fraud, Fiorina said of Cruz and others who aided Trump, “My only explanation is they’re focused on short-term political gain, political expediency and clinging to power.”

Ya think?

Cruz, meanwhile, is making all the moves of a likely 2024 presidential candidate appealing to the Trump base.

He went on Tucker Carlson’s Fox News show to apologize for calling Jan. 6 “a violent terrorist attack,” saying his “frankly dumb” language referred only to those who attacked police officers, not “peaceful protesters supporting Donald Trump.” He played up claims that the government was somehow involved in the attack on the Capitol, asking an FBI official at a Senate hearing, “How many FBI agents or confidential informants actively participated in the events of Jan. 6?”

Last month, he visited Trump at his Mar-a-Lago resort in Florida and tweeted a photo of the meeting. He rode shotgun in the lead vehicle in a trucker convoy protesting pandemic-related mandates in a March 10 event. He posed a series of confrontational questions to Supreme Court nominee Ketanji Brown Jackson regarding her views on anti-racism.

Asked recently by an online site called the Truth Gazette whether he is considering seeking the presidency again, he responded: “Absolutely, in a heartbeat.”

God have mercy on our souls.

I wrote about the very conservative former Judge Michael Luttig’s advice on how to fix the Electoral Count Act the other day Today Politico reports that he was instrumental in getting Mike Pence to refuse to overturn the election. Ryan Lizza interviewed him for his podcast:

J. Michael Luttig:I was first called by the vice president’s outside counsel, Richard Cullen, on the evening of Jan. 4. We now know that that was after the fateful Oval Office meeting that day between the president and vice president, where John Eastman made the argument that the vice president could overturn the election unilaterally as presiding officer.

Ryan Lizza: And you know John Eastman?

Luttig: John Eastman was one of my clerks — over 25 years ago — and Richard Cullen is one of my closest friends in all of life. And we had been, at that point, talking seemingly every day — if not multiple times a day — throughout the entire Trump administration because, of course, our close friend, Bill Barr, was attorney general.

So he called me. I was having dinner. No big deal: this is like your best friend calling. He called the night of the 4th and says, “Hey, Judge, what do you know about John Eastman?” And I said, “He was a clerk of mine 30 years ago.” He says, “Well, what else do you know?” I said, “I don’t know. John’s an academic, he’s a professor, he’s a constitutional scholar — and he’s a brilliant constitutional scholar.”

Lizza: This is sort of shocking to hear you say this, considering the way that most people have been introduced to John Eastman.

Luttig: Well, read everything that was written about him before, you know, Jan. 6.

Lizza:So that’s interesting: the person who was the architect of the attempted coup, essentially — I think it’s fair to use that language — was actually a well-respected legal mind with sound views of the Constitution and not some legal quack.

Luttig: That’s correct: The farthest thing from it. So Richard said, “Well, you don’t know, do you?” And I said, “Know what?” He said, “John’s advising the president and the vice president that the vice president has this authority [to reject electoral votes] on January 6” — two days hence. And I said, “Wow, no, I did not know that. Well, look, you can tell the vice president that I said that he has no such authority at all. And Richard said he knows that, I said OK, and we hung up.

So I told my wife about the call, and I said, “Wow. This is big.” I got up the next morning — I get up about 4:45 — and I’m having my coffee, and Richard calls — which is not unusual. But the call was unusual. He said, “Judge, can you help the vice president?” And I said, “Sure, what does he need?”

He said, “Well, we don’t know what he needs.” And I said, “What do you mean you don’t know what he needs? Then why are you calling me?” He said, “Look, this is serious.” I said, “OK, I understand. What do you want?” He’s talking with Marc Short and the vice president. And he says, “We need to do something publicly, get your voice out to the country.”

At that point, I said, “Oh my gosh, Richard, I don’t even have a job, much less an official one. I have no platform from which to speak.” I’m out here in Colorado at 6 in the morning. I don’t even have a fax machine. I said, “I really don’t even have a thought.” And he said, “This is urgent.” I said, “I understand.” He said, “I’ll call you back in five minutes.” So we hung up, and I sat there, finished my coffee — just racking my brain.

Just try to put yourself in my position. I had not a clue [what to say].

So he calls me back in five minutes: “You got anything yet?” And I said, “No, I don’t, Richard.” He says, “I’ll call you back in 10 minutes.” So he calls back in 10 minutes, and I said, “Richard, honest to goodness, I have no earthly idea what I can do.” And he says, “I’ll call you back in 10 more minutes, but we’ve got to move.” He called back in 10 minutes, and I said, “Alright, I opened a Twitter account a couple of weeks ago, but I don’t know how to use it.” He said, “Perfect.” And I said, “I told you: I don’t know how to use it.” He said, “Figure it out and get this done.” So I called my tech son who works for Peter Thiel, and I said, “How do I tweet something more than 180 characters long?

Lizza: Wait a second. You’re in the position here where the vice president is being pressured by the president of the United States to overturn the results of the election. And you’re the go-to legal mind who’s respected among Republicans that the vice president is looking to to essentially stop a coup. Do I have that right?

Luttig: To answer the question you’re asking: I understood the gravity of the moment and the momentous task that I was being asked to help the vice president with. I had been following all of this very closely in the days leading up to it. It was then — and may forever be — one of the most significant moments in American history. I’m a cut up, but I’m deadly serious when the time comes, and that day, I was as serious as I can possibly be.

Lizza: But first, you’ve got to learn how to tweet.

Luttig:So my son … well, first off, he says, “Dad, I don’t have time for this. You’ve got to learn this stuff on your own. … I’m busy.” To which I said something like, “Just tell me right now how to get this done, or I’ll cut you out of the will.”

The only thing I knew how to do was type out in prose all I wanted to say. Well, that was like 10 tweets [long]. So I go down to my office, and I open up the [Twitter] instructions on my laptop and I copy and paste what I’ve written on my iPhone into my laptop into a Word document, and then I set about to divide it up into 180-character tweets. I read it and reread it multiple times and then, I take a deep breath and I hit “tweet.”

Almost immediately, reporters started calling me: “Judge, what are you doing?” And I say, “What do you mean?” And they said, “You didn’t just tweet what you just tweeted for no reason.” And … I said, “If I tweeted this for a reason, I would not be at liberty to tell you.” Minutes later, The New York Times ran the tweet…

Lizza: And more importantly, the vice president cited your legal analysis on Jan. 6 in his famous letter explaining what his responsibilities and authorities were that day.

Luttig:Yes, that might be the greatest honor of my life. But it came to my attention in the least auspicious way. I got two back-to-back emails on [January] 6th from two of my clerks — both of them to the effect of: “Judge, we know what you’re doing.” And I said, “Guys, I don’t know what you’re talking about.” They said, “The vice president is on his way to the Capitol, and he cited you in his letter to the nation.” And they sent me a copy of it.

That’s the first time that I ever knew what was to happen with the tweet from the day before. No one had ever told me that. I had no idea. And they obviously didn’t want and didn’t intend to tell me — and that’s fine; it’s none of my business. I was floored to read that and honored.

Lizza: That was a total surprise? In the most important moment of Vice President Pence’s life, that letter justifying that no, he cannot overturn the results; his role as simply ministerial — that was a total surprise to you that he cited your legal analysis as the justification for his view?

Luttig: Complete, utter surprise. And the vice president called me the next morning to thank me.

Lizza: Can you tell us a little bit about that conversation?

Luttig: He was the most gracious person in the world. I was at a UPS Store in Vail, Colorado, standing outside freezing, and my wife was sending a package. A call came [on my phone] as spam. I never answer spam calls, but I had nothing else to do. So I answered it. I said nothing for seemingly 15 seconds. And then a voice said, “Is this Judge Luttig?” And I was startled and said “Yes, it is.” And the voice said, “Please hold for the vice president.”

I scurried out to the car so I’d have some privacy. The vice president got on: “Judge, this is Mike Pence.” And I said to the vice president that it was the highest honor of my life that he had asked me and I will be grateful to him for the remainder of my life.

That’s a little bit too Pence-ishly obsequious for my taste but whatever. Luttig is one of the premiere conservative legal minds in the country and he did the right thing, so good for him.

And speaking of Pence, he’s already wavering on his allegedly “strong” condemnation of his Dear Leader. What a marshmallow.

Back in November of 2000, I recall telling everyone who would listen that there was no way that the Supreme Court would take the case of Bush vs Gore. It was unthinkable that they would want to wade into a partisan argument being waged in the state of Florida over the disputed election result. After all, only 537 separated the two candidates in a state that would decide the electoral count. And the circumstances couldn’t have been more partisan: the dispute was happening in a state run by the Republican candidate’s brother and two of the justices on the Court had been nominated by that same candidate’s father. How could the Supreme Court even think of intervening under these circumstances, particularly since the process in place under Florida law was still going on and there are remedies for a stalemate written into the Constitution?

Well, history proved me an ass. 

As you know, the Supreme Court took the case and not only decided in favor of George W. Bush, they did it on a strict party-line vote. It still stands as the most blatantly partisan decision in American history. The conservatives used inane inverted reasoning to say that it would violate Bush voters’ equal protection rights to have the votes recounted under the standards set forth by the state and would harm Bush’s “legitimacy” if the recount was to change to Gore’s favor and then back again. To add insult to injury they also insisted that the decision did not set a precedent, writing:

“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

Yes, it does present many complexities, none of which were considered in that notorious decision.

Recent polling by Quinnipiac shows that 61% of Americans say the Supreme Court is motivated mainly by politics with 67% of Democrats and 56% of Republicans in agreement. The Supreme Court has lost the trust of most Americans over the past few years and I would suggest that this decision was a major factor. It was just so overtly political that it’s impossible to overlook.

As a result of that traumatic event, which I think has been underappreciated as a precursor to the modern right’s ongoing assault on voting rights in the 21st century, I have had little faith that the courts would resist intervening if the situation presented itself again. I admit that I was pleasantly surprised to see that former president Donald Trump’s handpicked majority resisted the temptation to take up any of the bogus cases that he and his henchmen spewed forth after the election. Trump was certainly disappointed by that, calling them “cowardly” and reportedly fuming that they refused to step in and hand him the White House. (It must have burned him up to realize that the Court had done so for the Bush family and not for him.)

So, as much as I hate to admit it, the courts may be our last hope of saving our democracy despite that horrible precedent. 

As you no doubt know by now, there are many machinations happening in certain battleground states at the behest of the Trump extremists in the Republican Party. They are doing the usual voter suppression and intimidation tactics. But there is more going on that requires immediate attention and it goes beyond the Electoral Count Act reforms the Congress is currently contemplating which includes:

• Extending the safe harbor deadline, the date by which all challenges to a state’s election results must be completed.
• Clarifying that the role of the vice president on Jan. 6 is purely “ministerial,” meaning the vice president merely opens the envelopes and has no power to reject electors.
• Raising the number of members of Congress needed to object to a state’s electors; currently, one lawmaker from each chamber is enough to do so.

Unfortunately, that’s inadequate to the problem. The New York Times reported that according to Yale Fellow Matthew Seligman (who wrote a 100 page paper on the subject but didn’t publish it for fear of someone actually using it to steal an election) The Electoral Count Act of 1887 has been a ticking time bomb from the beginning. Seligman told the Times:

“Its underexplored weaknesses are so profound that they could result in an even more explosive conflict in 2024 and beyond, fueled by increasingly vitriolic political polarization and constitutional hardball.

It just took an amoral, sore loser like Donald Trump to fully expose it. 

The most prominent concern is what Seligman calls the “governor’s tiebreaker,” a loophole that could result in a constitutional crisis. The Times laid out the scenario:

Suppose that on Jan. 6, 2025 — the next time the Electoral Count Act will come into play — Republicans control the House of Representatives and the governorship of Georgia. Seligman conjures a hypothetical yet plausible scenario: The secretary of state declares that President Biden won the popular vote in the state. But Gov. David Perdue, who has said he believes the 2020 election was stolen, declares there was “fraud” and submits a slate of Trump electors to Congress instead. Then the House, led by Speaker Kevin McCarthy, certifies Trump as the winner.

Perhaps most stunning is the fact that even if the Democrats had a Senate majority at the time and rejected the Georgia GOP slate, those 16 electoral votes would still go to Trump. If, after all you’ve seen this past year, that doesn’t convince you that we have a problem you haven’t been paying attention.

So what’s to be done? It’s unclear. (In fact, it’s unclear if even the modest reforms they are talking about can find 10 GOP senators to vote for it.) Seligman suggests that it include a provision for judicial review in case a governor or legislature takes it upon themselves to overturn the popular vote in their state. Conservative legal superstar Michael Luttig, a former Federal Appeals Court judge, takes that suggestion a step farther.

In an op-ed in the New York Times last week, Luttig suggested that the reform should explicitly give federal courts the power to decide disputes in these matters and require them to decide the cases quickly. It’s entirely possible that these cases would, once again, wind up before the Supreme Court.

My first reaction to that idea is, as George W. Bush would say, “fool me once, fool me twice, won’t get fooled again…” On the other hand, as the Washington Post’s Greg Sargent pointed out in his excellent piece on this subject, we don’t really have much choice — “it’s basically either that or a situation in which a Speaker Kevin McCarthy decides which electors count.” No thank you.Advertisement:

I think there’s a pretty good chance even this Supreme Court would deny Donald Trump’s attempt to do this in 2024. But would they deny Republicans like Florida Governor Ron DeSantis? Or Missouri Senator Josh Hawley in a legitimately close election? Frankly, I doubt it. That opinion that was not supposed to be a precedent is actually a precedent. And I think it might be one of the few precedents this conservative majority will follow. 

Salon

Jane Mayer has a long piece about McConnell’s role in the Trump era up at the New Yorker. She says that McConnell really loathed Trump but had made a pact with the devil to get his tax cuts and judges, which we already knew. She also claims that he wanted to extricate the party from him but wanted to see if they could maintain their majority in the Senate before making a move:

As it turned out, the Republican leadership’s complicity with Trump was not only cynical; it also may have been an egregious miscalculation, given that voter data suggests his unchecked behavior likely cost the Republican Party the two Georgia seats. The chaos and the intra-party warfare in the state appear to have led large numbers of moderate Republican voters in the suburbs to either vote Democratic or not vote at all. And in some deeply conservative pockets of Georgia where the President held rallies, such as the Dalton area, Republican turnout was unexpectedly low, likely because Trump had undermined his supporters’ faith in the integrity of American elections.

By dawn on January 6th, it had become clear that Loeffler and Perdue were both going to lose. The personal and political consequences for McConnell were cataclysmic. Stuart Stevens, a Republican strategist who helped lead Romney’s 2012 Presidential campaign and was a founder of the anti-Trump group the Lincoln Project, told me, “McConnell had a forty-eight hours like no one else. He became Minority Leader and his Capitol was invaded. Domestic terrorists got inside it this time—unlike on 9/11.” (On that day, Al Qaeda had planned to crash a United Airlines flight into the Capitol, but the plane went down after passengers overwhelmed the hijackers.) Stevens went on, “And what happened in Georgia was incredible. He’s scared to death, too, at how corporate America is responding. Supporting the overthrow of the U.S. government isn’t good for business.”

After the January 6th insurrection, dozens of the largest corporate campaign donors, including A.T. & T., Comcast, and Honeywell, used their cash to send a message: their political action committees would no longer contribute to the hundred and forty-seven Republican representatives and senators who had opposed certification of the Presidential election even after the Capitol riot, on the spurious ground that the process had been less than fair. Even Koch Industries, the huge oil-refining conglomerate that has served as the conservative movement’s piggy bank for decades, said that it was reëvaluating its political contributions. McConnell, who once infamously declared that the three most important ingredients for political success in America are “money,” “money,” and “money,” was reportedly alarmed. A spokesperson for McConnell denies this, but, according to the Associated Press, he spent much of the weekend after the Capitol assault talking with colleagues and the Republican Party’s wealthy corporate donors, promising that he, too, was finally done with Trump.

Still, with another impeachment trial looming in the Senate, it’s unclear whether McConnell will truly end his compact with Trumpism. His recent denunciation of Trump sounded unequivocal. But he and his Republican caucus could make the same miscalculation that they made in Georgia, choosing to placate the Trumpian base of the Party rather than confront its retrograde values and commitment to falsehoods. So far, McConnell has been characteristically cagey. Although he let it be known that he regards Trump’s behavior as potentially impeachable, he also signalled that he hasn’t personally decided whether he will vote to convict him. He explained that he wants first to hear the evidence. He also rejected Democrats’ requests that he bring the Senate back from a winter recess to start the impeachment trial immediately, saying he prefers that the Senate trial begin in mid-February. Meanwhile, Nancy Pelosi, the Speaker of the House, has said that she might start the trial process by sending the article of impeachment to the Senate as early as January 25th. Either way, it will be left to Chuck Schumer, the leader of the new Democratic majority in the Senate, to take on the politically perilous business of presiding over the trial of a former President—an unprecedented event in American history.

“I think McConnell is trying to have it both ways,” Stevens told me. “He absolutely doesn’t want to impeach and convict Trump. It would split his base and cause members of his caucus to face primary challengers.” Stevens contended that McConnell, by signalling his openness to impeachment without committing to convicting Trump, was trying to avoid a meltdown of the Republican Party. Stevens likened McConnell to the top engineer at Chernobyl, who, after the power plant malfunctioned, thought that he could micromanage a nuclear disaster: “He tried to take the rods out.” Stevens added, “If he really wanted an impeachment conviction, he’d have done the trial right away.”

At first, political observers from both parties considered it possible that McConnell was merely using the threat of an impeachment trial as a brushback—a way to hold Trump in line as he left office. Then McConnell directly accused Trump of having “provoked” the mob. Jim Manley, who served as the senior communications adviser to Harry Reid, the former Democratic Majority Leader, told me, “There is no going back now. He has decided to cut his losses, and do what he can to make sure Trump is no longer a threat to the Republican Party.” McConnell and other Republican leaders, Manley suggested, “have gotten as much out of Trump as they can, and it’s now time to make sure Trump is damaged goods.”

But the risks for McConnell and other Senate Republicans are high. It’s never good for a party leader to get out too far ahead of his caucus members—he risks losing their fundamental support. Senator Lindsey Graham has criticized McConnell’s decision to blame Trump for the Capitol riot and has warned that, “without Trump’s help” in 2022, “we cannot take back the House and the Senate,” adding, “If you’re wanting to erase Donald Trump from the Party, you’re going to get erased.” McConnell’s maneuvers have also stirred the wrath of such powerful right-wing media figures as Sean Hannity, the Fox News host known for his unyielding sycophancy toward Trump. Hannity has called for McConnell to step down from the Party’s leadership in the Senate.

But if McConnell can muster the additional sixteen Republican votes necessary for a conviction—doing so requires the assent of two-thirds of the Senate, and the fifty Democratic senators are expected to vote as a bloc—he will have effectively purged Trump from the Party. Moreover, after a conviction, the Senate could hold a second vote, to bar Trump permanently from running for any federal office. Such a move might strengthen McConnell’s clout within the Party and help his wing of traditional Republicans reëstablish itself as the face of the G.O.P. Al Cross, a veteran political reporter and the director of the Institute for Rural Journalism, at the University of Kentucky, said, of McConnell, “I think he sees a chance to make Trump this generation’s version of Nixon, leaving no doubt who is at the top of the Republican heap.” Banning Trump would also guarantee that a different Republican will secure the Party’s nomination for President in 2024. Otherwise, Trump threatens to cast a shadow over the Party’s future. He has discussed running again, and, shortly before flying to Florida on January 20th, he stood on a tarmac and vowed, “We will be back in some form.

Jentleson, the former Senate aide, thinks that McConnell and his party are in a very tricky spot: “The glue that kept the Tea Party and establishment Republicans together during the past few years was tax cuts and judges. And McConnell can’t deliver those anymore. So you could basically see the Republican Party coming apart at the seams. You need to marry the forty per cent that is the Trump base with the ten per cent that’s the establishment. McConnell is like a cartoon character striding aside a crack that’s getting wider as the two plates drift farther apart. They may not come back together. If they can’t reattach, they can’t win.”

There is another option: McConnell could just lie low and wait to see if the Democrats self-destruct. A divisive Senate impeachment trial may undercut Biden’s message of bipartisan unity, hampering his agenda in the crucial early months of his Presidency, when he needs momentum. McConnell has already seized on the fifty-fifty balance between the parties in the Senate in order to obstruct the Democrats. He’s refusing to devise rules for moving forward on Senate business unless Schumer yields to his demand not to alter the filibuster rule. Reviled by progressives, the rule requires a supermajority of sixty votes to pass legislation, rather than the simple majority that the Democrats now have if Vice-President Kamala Harris casts a tie-breaking vote. McConnell, who wrote a memoir titled “The Long Game,” is a master at outwaiting his foes. And, as Jentleson observed, one can never overestimate the appeal for politicians of “kicking the can down the road,” especially when confronted with tough decisions.

McConnell could conceivably make a play that would avoid a direct showdown over convicting Trump. A conservative legal argument has recently been advanced by J. Michael Luttig, a prominent former federal appeals-court judge: the Senate, he says, has no constitutional authority to hold an impeachment trial after a President has left office. Luttig’s argument has been challenged by numerous constitutional scholars, some of whom have cited an instance in which a lesser official was impeached after leaving office. But this politically convenient exit ramp is alluring, and Luttig is held in high regard by conservatives. The Republican senator Tom Cotton, of Arkansas, a Harvard Law School graduate, has eagerly embraced the theory, arguing, “The Founders designed the impeachment process as a way to remove officeholders from public office—not an inquest against private citizens.” So has Joni Ernst, of Iowa, who is a member of McConnell’s leadership team.

Christopher Browning, a historian of the Holocaust and Nazi Germany, told me that McConnell has been almost “Houdini-like at escaping his own devil’s pact” with Trump. In a widely admired essay in The New York Review of Books, from 2018, Browning called McConnell “the gravedigger of American democracy,” and likened him to elected officials in Weimar Germany who struck early deals with Hitler, mistakenly believing that they could contain him and his followers. When I asked Browning if he still regarded McConnell in this way, he said that the new Minority Leader had “cut a better deal than most.” McConnell was “lucky that Trump was so lazy, feckless, and undisciplined.” Hitler didn’t go golfing, Browning pointed out. But Browning found little to celebrate in McConnell’s performance. “If Trump had won the election, Mitch would not be jumping ship,” he noted. “But the fact is Trump lost, and his coup failed. And that opened an escape hatch for Mitch.” Browning warned, however, that “the McConnell wing was ready to embrace Trump’s usurping of democracy—if Trump could pull it off.”

If McConnell does vote to convict Trump of high crimes and misdemeanors, it won’t be the first time that, out of political convenience, he has turned on his party’s leader. In 1973, when McConnell was an ambitious young lawyer, he wrote an op-ed in the Louisville Courier-Journal which referred to Richard Nixon’s Watergate scandal and denounced the corrupting influence of political money. Given McConnell’s later embrace of unregulated political funds, it may seem hard to square the author of that high-minded piece with the McConnell of today. But what remains consistent is that then, as now, he was acting in his self-interest. He later confessed to a biographer that the newspaper column was merely “playing for headlines.” McConnell was planning to run for office, as a Republican, and one thing was certain: he needed to protect himself from the stain of a disgraced President. 

It certainly appears to me that they are going to come together to vote against impeachment on procedural grounds. It’s the cowardly way out but will probably appease their rabid base because they don’t know any better.

As far as McConnell, he can make soaring speeches denouncing Trump every day until he drops dead and it won’t change a thing. He is one of Trump’s most important collaborators who protected him throughout his ignominious reign. He can’t erase that stain. And the truth is that McConnell’s stain on the Senate and the nation is even bigger than that.

My Salon column this morning:

Students of the modern conservative movement often date the recent supercharged radicalization of the Republican Party to the rise of Newt Gingrich and the Republican Revolution in the early 1990s. It’s true that the GOP went seriously off the rails during that period and the craziness has been picking up speed ever since. But in reality, the conservative movement has been radical from its beginnings, starting with the anti-communist crusade after World War II all the way through Goldwater to Reagan, Gingrich and now Trump. Now it has finally shed all trappings of a sophisticated political ideology, culminating in this surreal parody of a presidency in 2019. The conservative “three legged stool” of small government, traditional values and global military leadership has completely disintegrated.

But one aspect of that earlier conservative movement has continued to chug along with its long-term project to transform the U.S. into an undemocratic, quasi-authoritarian plutocracy. That would be the group of far-right lawyers who started the Federalist Society, with the goal of packing the judiciary with true believers, along with a certain group of Reagan-era legal wunderkinds who came to believe that the GOP could dominate the presidency for decades to come. They developed the theory of the “unitary executive,” originally advanced by Reagan’s odious attorney general Ed Meese ( recently awarded the Presidential Medal of Freedom) which holds that massive, unaccountable power is vested in the president of the United States.

Attorney General William Barr was one of those lawyers, along with White House counsel Pat Cipollone, former appeals court judge Michael Luttig and others who encouraged Barr to take the job, particularly after his famous memo declaring that what any normal person would see as obstruction of justice doesn’t apply to the president. (In a nutshell, Barr agrees with former President Richard Nixon, who said, “If the president does it, it’s not illegal.”)

Barr is described as supremely confident in his beliefs, which is to say that his overweening arrogance is not an act put on someone who is overcompensating to hide insecurity. He believes in this theory and when it became obvious that former Attorney General Jeff Sessions was not long for the job, Barr and his legal cabal appear to have seen the clueless and corrupt Donald Trump as a perfect instrument to test their theory, and perhaps set legal precedents that would enable future right-wing presidents to use the full power of the presidency to dominate American politics without regard to democratic norms or congressional checks and balances. Indeed, they had been setting the stage for such a man for decades.

It’s also obviously the case that Barr, and perhaps his Reaganite cronies as well, are suffering from the malady known as Fox News Brain Rot, the symptoms of which are an extreme susceptibility to absurd right-wing conspiracy theories and an inability to believe anything that contradicts them. (Barr once said that there was more evidence for the bogus Uranium One charges than the Russian interference in the 2016 election, which confirms the diagnosis.)

That is the toxic combination of views has the Attorney General of the United States running all over the world seeking evidence to back up a ridiculous conspiracy theory in which Ukraine, the “deep state,” the Intelligence agencies of Italy, the U.K. and Australia, Hillary Clinton and the Democratic National Committee all conspired to frame Russia and Donald Trump in the 2016 election. They call this an investigation into the “origins” of the Russia investigation, which is also being handled by the Department of Justice’s inspector general and special counsel John Durham, appointed by Barr.

Barr’s personal intervention is outside the boundaries of the normal procedures, but that is yet another example of his “unitary executive” theory: He works for the president and the president has the power to assign him to any task, including being an international man of mystery. So far, Barr appears to be coming up goose eggs with the foreign intelligence services. The Wall Street Journal reported that he is “sparking discord in several foreign capitals, going outside usual channels to seek help from allies in reviewing the origins of a U.S. counterintelligence investigation begun during the 2016 presidential campaign.”

On Thursday night the Times set the political world aflame with a report that Durham has officially opened a criminal investigation into the matter. No one is sure what basis there is for this, but reports over the past week or so suggest Durham’s team is focusing intently on the people Donald Trump often rails against in his public statements, including former FBI agent Peter Strzok and possibly high-level intelligence community personnel such as former CIA chief John Brennan and former director of national intelligence James Clapper.

The timing of the story is obviously designed to counter the very bad news coming out of the House impeachment investigation in the House on a daily basis. This isn’t surprising. We’ve been expecting that Senate Judiciary Committee chair Lindsey Graham, R-S.C., would hold parallel hearings into the origins of the Russia investigation, as promised. Graham is now balking because the Senate rules would require that he allow Democratic participation. (The fact that the Senate Intelligence Committee has released two substantial reports on the 2016 election, making clear that they came to the same conclusions as the FBI and the intelligence community regarding Russian interference on Trump’s behalf, also complicates matters for him.)

So Graham has been reduced to introducing a meaningless resolution saying that the House is being unfair, obviously hoping to appease Trump and keep his homegrown followers happy. According to the Daily Beast, it’s not working. In fact, TrumpWorld wants Graham to call House Intelligence Committee chair Adam Schiff to testify before Graham’s Senate committee, which would be a serious violation of congressional norms. He seems reluctant for the moment, but who knows what he’ll be willing to do as time goes on?

So for the moment the task of bringing the Fox News alternate-universe conspiracy theory to the mainstream falls to Barr and Durham. They have both reportedly been to Ukraine in recent weeks, presumably searching for that elusive “DNC server” that Trump constantly babbles about. Maybe they will manage to delight the Trump base by trying to prosecute some FBI and CIA personnel. Barr seems willing to push the boundaries beyond anything we could have imagined, so that’s not as outrageous as it sounds.

The only remedy for this is for Congress to reassert its own prerogatives and impeach the president and, if necessary, his henchmen. If they fail to hold him accountable for the vast abuse of power and corruption of his office, the precedents will be set and the “unitary executive” will become the working model for all Republican presidents, just as Barr intends. The next one will no doubt be more efficient at using it than Donald Trump.

My Salon column this morning:

Last week President Trump sent the Department of Justice into a tailspin by publicly insisting that he planned to defy the Supreme Court ruling which found that the government’s rationale in the census citizenship question case was so “contrived” that not even Chief Justice John Roberts could stomach it. Lawyers at Justice had already acquiesced to the ruling, as expected, when Trump started blathering about how they had several ways to get the question on the census anyway, including simply issuing an executive order.

When the press asked him about it on July 5, Trump said this:

We’re thinking about doing that, we have four or five ways we can do it, it’s one of the ways we’re thinking about doing it very seriously. We can start the printing (of the census forms) now and maybe do an addendum after we get a positive decision, so we’re working on a lot of things, including an executive order.

Not long after that, the government lawyers who originally worked on the case suddenly dropped out. This was presumably because they could not ethically go back to the court and make a different argument than the one they’d originally made, particularly since they had insisted that the case had to be fast-tracked in order to make a drop-dead deadline that was clearly no longer operative. The judge in the case refused to allow the change, however, saying that the government had failed to provide a proper reason. At this point, the legal case was a train wreck but Barr and Trump nonetheless kept insisting they would get this done by hook or by crook.

Barr gave an interview to the Associated Press early in the week in which he declared that he agreed with Trump that the Supreme Court decision was wrong and that he thought there was “an opportunity potentially to cure the lack of clarity that was the problem and we might as well take a shot at doing that.”

“Take a shot” didn’t sound very optimistic, and for good reason. Ending up back in front of the chief justice and telling him that, hey, they had only been kidding about fast-tracking the case before and that their new rationale was the honest truth this time, they promise, seemed like a shaky strategy that not even Barr would relish pursuing. So most legal observers believed the administration would pursue an executive order, print the forms and face the constitutional confrontation that was bound to follow.

After all, Trump doesn’t understand anything about the Constitution, while Barr and his “unitary executive” cronies see Trump as an instrument to enshrine their monarchical philosophy. Perhaps this would be the case that would put the judiciary on notice that it too is a secondary branch with has very limited power to second-guess the executive, just like the Congress.

The rationale for doing this was vividly expressed by the conservative former federal judge Michael Luttig, who was quoted in the Washington Post pushing for the president to just do it:

The way forward is thus both obvious and urgent: President Trump, Attorney General William P. Barr, Commerce Secretary Wilbur Ross and [Secretary of State Mike] Pompeo ought to have a meeting when the president returns from the Group of 20 summit, and decide if such questions are necessary and, if so, why. If yes, then Barr should commit the conclusions to writing and prepare an executive order for the president’s signature directing the commerce secretary to add any such questions, and be prepared to defend the questions on the grounds discussed in the meeting. Nothing more is required.

Some conservatives assumed that when the case inevitably found its way back to the Supreme Court, Roberts would be fine with that. Common sense suggests otherwise: Roberts would have perceived this action for the slap in the face it certainly would be. He would likely have ruled against them again, opening the door for the president to defy the high court the same way he is currently defying Congress. If congressional leaders refuse to fulfill their duty of impeaching a lawless president, there’s every chance Trump and his team would get away with it.

That’s a scenario Barr would be quite happy to see unfold, but it looks as though they decided to save it for another day. There are plenty of cases coming down the pike that might serve that purpose. As it turns out, the administration has other fish to fry at the moment.

As Salon’s Sophia Tesfaye reported on Thursday, the president and his men blinked on this one and decided not to push the issue on the census, instead opting for a Band-Aid executive order that will gather the citizenship information by other means. That approach was always available (as opponents of the census question constantly pointed out) but at this point the administration loses nothing don’t lose much by going back to it. One of the main purposes of the citizenship question was to intimidate non-citizens into refusing to fill out the forms, leaving urban areas with lots of people uncounted. That goal has likely been achieved. If this administration is largely incompetent, it excels at scaring immigrants.

But there’s more to it than that. As we have now learned from the documents retrieved from the computer of late Republican operative Thomas Hofeller, the whole point of this exercise was to exclude a large number of non-citizens from the census count used to determine the number and location of congressional districts in each state. That would give GOP-controlled state legislatures a chance to draw districts that would help Republicans gain more seats.

On Thursday, Trump said straight out that “some states may want to draw districts based on voter-eligible population,” so they aren’t even trying to hide this anymore. But Barr said something even more troubling at the end of his remarks. This isn’t just about redistricting:

That information will be useful for countless purposes, as the President explained in his remarks today. For example, there is a current dispute over whether illegal aliens can be included for apportionment purposes. Depending on the resolution of that dispute, this data may possibly prove relevant. We will be studying the issue.

That “dispute” refers to a case just filed in Alabama in which the state argues that including undocumented immigrants when apportioning congressional seats deprives Alabama of its “rightful share of political representation,” on the premise that it’s losing out to states with more non-citizens. Barr obviously sees this as the better vehicle to accomplish his goal: Fewer districts with likely Democratic majorities.

So the administration’s decision to back off the census question may look like a surrender, but it wasn’t the end of this drama by a long shot. It’s only the beginning.

Bill Barr, unitary executive extremist

by digby

Grover Norquist always said that Republicans only need a president who can hold a pen, meaning that it didn’t matter whether he or she was a “real conservative” as long as they could get elected and sign rightwing legislation, specifically tax cuts, issue orders to dismantle the “administrative state,” and pack the courts with extremist judges. Right-wing ideologues have long pressed for an authoritarian strongman definition of the presidency which they call the “unitary executive.” Their dream has been delivered by the incompetent boob Donald Trump.

The GOP Congress delivered on the tax cuts and functionaries in the Executive Branch are working feverishly to destroy the regulations that keep us healthy and safe. Bill Barr has taken on the job of perversely ensuring that this erratic, bizarre presidency solidifies unaccountable presidential power.

The long-term goals of the conservative movement are being realized. No wonder they all back Trump unquestioningly.

Here’s a piece of a long Politico profile of Bill Barr that will send chills down your spine:

Now that Barr has provided him with political cover from Mueller’s report, Trump is lavishing him with praise. Days after Barr released a four-page summary of the report’s conclusions that Mueller himself found problematic, Trump told his friend and Fox News host Sean Hannity that Barr was a “great gentleman” and a “great man.” In a tweet on Monday, Trump gloated that while Barr is “highly respected,” Democrats now pretend not to remember their onetime hero Bob Mueller.

Other Republicans are just as exuberant about Barr, who they believe embodies the ruthless competence of previous Republican administrations that has often been sorely lacking in the current one. After his combative news conference moments before the release of the Mueller report, one GOP operative wished aloud that Trump would drop Vice President Mike Pence from the ticket in 2020 and add Barr instead. Other prominent Republicans speak of him in almost adulatory terms. “Barr is the closest thing we have to [former Vice President Dick] Cheney,” said Chuck Cooper, a conservative litigator and Barr ally who, like the attorney general, has led the Justice Department’s Office of Legal Counsel. “He’s a man. He has a very strong sense of purpose and confidence.”

To Democrats, Barr is merely shilling for Trump, putting politics ahead of the law — “waging a media campaign on behalf of President Trump,” as House Judiciary Chairman Jerry Nadler put it. To them, he is an expression of the corruption of the Republican party under Trump, one among many conservatives who might have had second thoughts about the president but now follow in lockstep. That’s a theme they will press in two Congressional hearings this week, beginning with a Wednesday session before the Senate Judiciary Committee.

But people who know Barr and have tracked his career for years say the story is more complicated. Trump and Barr barely have a personal relationship, according to White House aides. Barr may have donated $2,700 to Trump in the 2016 general election, but only after he threw $55,000 to Jeb Bush in the primaries. They say that it’s not Donald Trump whom Barr is fighting for, but a vision of the presidency.

Advocates for the “unitary executive”
Barr’s first interaction with the Trump White House came in the spring of 2017 when he met with Pence to talk about representing him in the Mueller probe. Barr waved off the offer, instead recommending a handful of friends to do the job. About a year later, when the president’s children were unhappy with Trump’s legal representation, Barr got another phone call — and turned down another offer, this one to join the president’s personal legal team.

In late 2018, when the White House was on the hunt for a new attorney general, Barr might as well have been on speed dial. He is a longtime friend of White House counsel Pat Cipollone, who worked for him at the Department of Justice in the 1990s and who pressed him to take the job. Again, Barr begged off, urging the White House to consider his friend J. Michael Luttig, a former federal appeals court judge — or former Arizona Sen. Jon Kyl — or his Kirkland & Ellis partner Mark Filip.

Ultimately, his friends managed to talk him into it. “We had discussions over a period of time, and I encouraged him to take it,” said George Terwilliger, a conservative attorney and longtime friend of Barr’s.

Barr’s social and professional circle was critical in drawing him into Trump’s orbit. Barr pals, including Terwilliger, Cooper, Luttig and former Virginia Attorney General Richard Cullen are part of a group of elite conservative litigators who were once wunderkinds in the the Reagan and George H.W. Bush administrations. They grew up together and have fought countless political battles alongside one another.

The Trump era has been no different. Cullen represents Pence in the Russia probe. Cooper represents former Attorney General Jeff Sessions. And Luttig was the runner-up for the attorney general post when Trump tapped Barr in December, according to multiple sources.

They are united by a firm belief in a theory of robust presidential power dusted off by Reagan Attorney General Edwin Meese. Known among legal scholars as the theory of the “unitary executive,” they argue that the Constitution grants presidents broad control of the executive branch, including — to take a salient Trump-era example — the power to fire an FBI director for any reason at all.

Barr made his first imprint in this battle as head of the Justice Department’s Office of Legal Counsel in the George H.W. Bush administration, when he authored a controversial memo giving the FBI the right to seize fugitives abroad without the consent of the foreign government in question. As deputy attorney general, he told George H.W. Bush he had the power to send U.S. military forces into Iraq without congressional authorization

Conservative heroes from Robert Bork to the late Justice Antonin Scalia have been advocates of this theory. Bork carried out President Richard M. Nixon’s directive, in the midst of the Watergate scandal, to fire independent special prosecutor Archibald Cox because he determined the president had the right to do so. Scalia, in a 1988 dissenting opinion, argued that the president had the power to fire any executive branch official, including an independent counsel.

“A lot of The Federalist Society heroes are people who participated in or were advocates for the unitary executive,” said University of California law professor John Yoo, himself a proponent of the theory, which became a flash point in the George W. Bush administration after Yoo penned memos advising Bush that the Constitution grants the president virtually unlimited authority to use force abroad and justifies the warrantless wiretapping of American citizens.

Enter Bill Barr. Before he agreed to take the attorney general job, he drew on the unitary executive theory in the 18-page memo he sent to Deputy Attorney General Rod Rosenstein last June — a document his critics say amounted to a veiled application for his current job. In that memo, Barr argued that obstruction of justice is limited to things like witness tampering and destroying evidence and that the president has “complete authority to start or stop a law enforcement proceeding.” The implication: Trump was acting on firm constitutional ground when he fired FBI director James Comey, regardless of his motivation, and that doing so was not an effort to obstruct justice. Neither were Trump’s subsequent, but thwarted, moves to fire Mueller himself.

Described by his friends as supremely confident in his views, Barr said at his confirmation hearing that he had circulated the memo widely “so that other lawyers would have the benefit of my views.”

“Supremely confident” doesn’t even begin to describe it. There is a touch of megalomania in Barr, a mirror of what a president like Trump would look like if he weren’t a simple demagogue. If they get away with this, there may be no going back.

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Cruz’s death count

by digby

Cruz should use this  New York Times article in an ad in Iowa and South Carolina. I’ll bet he could coax some of those Trumpies who cheer madly every time he pantomimes the summary execution of Bowe Bergdahl over to his side if they knew what a bloodthirsty advocate of the death penalty he was:

The memos of Supreme Court clerks evaluating death row petitions usually consist of a brief review of the facts and then a dispassionate legal analysis as to whether the court should hear the case.

Not so for Ted Cruz.

Mr. Cruz, the most ardent death penalty advocate of Chief Justice William H. Rehnquist’s clerks in the 1996 term, became known at the court for his signature writing style. Nearly two decades later, his colleagues recall how Mr. Cruz, who frequently spoke of how his mentor’s father had been killed by a carjacker, often dwelled on the lurid details of murders that other clerks tended to summarize in order to quickly move to the legal merits of the case.

“That I think was a special interest of his,” said Renée Lerner, then a clerk for Justice Anthony M. Kennedy, who said she was impressed with how deeply Mr. Cruz delved into the facts and history of a murder case. “It was unusual for a Supreme Court clerk to do that.”

Other clerks, however, had a less admiring view of his interest. In interviews with nearly two dozen of Mr. Cruz’s former colleagues on the court, many of the clerks working in the chambers of liberal justices, but also several from conservative chambers, depicted Mr. Cruz as “obsessed” with capital punishment. Some thought his recounting of the crimes — “dime store novel” was how one described his style — seemed more appropriate for a prosecutor persuading a jury than for a law clerk addressing the country’s nine foremost judges.

Melissa Hart, who clerked for one of the liberal justices, John Paul Stevens, said Mr. Cruz’s memos on death penalty appeals basically boiled down to “frivolous, meritless, deny,” and added that his writing approach “made a lot of people really angry.”

In Mr. Cruz’s time as a Supreme Court clerk, a coveted step in a legal career that he had meticulously plotted out, he showed his now familiar capacity to infuriate colleagues. He also worked hard to please his powerful boss, delved into the nuances of constitutional law for long, grueling hours and sought to smooth over harsh feelings at clerk happy hours.

But when he left, he was most remembered by his fellow clerks for his fervor for capital punishment cases, a cause that would define his legal career and help him break into politics.

“I believe in the death penalty,” Mr. Cruz wrote in his book “A Time for Truth.” As he saw it, it was his duty to include all the details and “describe the brutal nature of the crime.”

“Liberal clerks would typically omit the facts; it was harder to jump on the moral high horse in defense of a depraved killer,” he wrote.

I’m going to guess he also just liked to wallow in the lurid details. It’s a common right wing characteristic.

He really is creepy. He was he protege of hardcore wingnut federal judge Michael Luttig, once considered a shoo-in for the Supreme Court and now a Boeing executive (no kidding.)

Mr. Cruz became devoted to Mr. Luttig, whom Mr. Cruz has described as “like a father to me.” During his clerkship, he presented his boss with a caricature of him and other clerks pulling a stagecoach driven by the judge. According to someone who saw the illustration, there was a graveyard behind them with headstones representing the number of people executed in their jurisdiction that year.

Ew. I guess I can see why the establishment would recoil. But they’re the ones who created the atmosphere that bred this monster. What did they think would happen?

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