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including on Election Day itself, that early returns on Election Night
Congressman Chip Roy, a Texas Republican and member of the House Freedom Caucus, said: “The case itself represents a dangerous violation of federalism.”
Term federalism?
Congress overwhelmingly voted to override Trump’s veto, by a margin of 322 to 87 in the House and by 81 to 13 in the Senate. Unwilling to stand up to Trump in support of the NDAA, Kevin McCarthy announced that he was following a principle most of us had never heard him mention before:
Justice Scalia would begin to explain what truly protects American freedom: the “structural provisions of our Constitution, principally the separation of powers and federalism.” He would explain that no bill of rights, standing alone, is sufficient to ensure liberty:
I believe that Donald Trump’s decision to attack the lawfully certified Electoral College results and to ignore the rulings of our courts was an assault on the structural constitutional safeguards that keep us free.
The simple conclusion: Congress does not have the authority to
undo an election by refusing to count state-certified electoral votes. Period.
the Electoral Count Act of 1887 made clear that Congress was obligated to accept as “conclusive” each governor’s official certification of the election outcome in their respective state. Congress had received only one official certified electoral slate from each state; those certifications were conclusive.1
Many judges had been very clear about how unfounded Trump’s fraud allegations
were.
Key
“[C]alling an
election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
One possibility Ignatius reported was that Trump might attempt to stay in power by using violence on January 6 as an excuse to invoke the Insurrection Act. Trump could then, Ignatius reported, take steps like the ones retired General Mike Flynn detailed in his December 17 Newsmax interview, including deploying the military to rerun the election in swing states.
As former secretaries of defense, we hold a common view of the solemn obligations of the U.S. armed forces and the Defense Department. Each of us swore an oath to support and defend the Constitution against all enemies, foreign and domestic. We did not swear it to an individual or a party. American elections and the peaceful transfers of power that result are the hallmarks of our democracy. With one singular and tragic exception that cost the lives of more Americans than all of our other wars combined, the United States has had an unbroken record of such transitions since 1789, including in
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The letter then quoted the same Defense Department statement that had, a week or so earlier, apparently prompted Donald Trump to threaten to fire the secretary of
the Army and the Army chief of staff:
Civilian and military officials who direct or carry out such measures would be accountable, including potentially facing criminal penalties, for the grave consequences of their actions on our republic.
The former secretaries reminded the acting secretary of defense by name of his solemn duty to ensure a full, cooperative, and transparent transition of presidential power:
They must also refrain from any political actions that undermine the results of the election or hinder the success of
“Defend the republic, daughter.” “I will, Dad,” I said. “Always.”
All our basic rights and freedoms flow from a fidelity to
the Constitution and the rule of law. This principle is not only fundamentally American but a central tenet of conservatism. Under our system, voters determine the President, and this self-governance cannot sustain itself if the whims of Congress replace the will of the people. I would urge members to consider the precedent that it would set. Efforts to reject the votes of the Electoral College and sow doubt about Joe Biden’s victory strike at the foundation of our republic. It is difficult to conceive of a more anti-democratic and anti-conservative act than a federal intervention to overturn
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Paul Ryan
And Tommy Raskin—the beloved son of Maryland Congressman Jamie and his wife, Sarah—had died by suicide on December 31, 2020.
forma task, but I wanted to acknowledge the unimaginable losses
expect to pass through this world but once. If, therefore, there can be any kindness I can show or any good thing I can do my fellow being; let me do it now. Let me not defer or neglect it, for I shall not pass this way
again.
The rest of the Department of Justice senior leadership said they would resign if Clark took over from Rosen. So did Trump’s White House Counsel. Facing the prospect of widespread resignations at the Justice Department, in the White House Counsel’s office, and perhaps elsewhere in his administration, Trump ultimately backed down and abandoned the Clark appointment.
To his credit, Raffensperger calmly resisted every effort Trump made, explaining point by point why Trump was wrong—even when Trump suggested that
Raffensperger and his counsel were risking criminal liability.
Kevin McCarthy announced he would be voting to object. I was certain that Kevin did not believe
the objections were constitutional, nor that they could be justified by any genuine fraud in the election. His chief counsel clearly did not think so. But this had never really been about principle for Kevin.
Texas Congressman Chip Roy. Chip was firmly opposed, on constitutional grounds, to the effort to object to electoral votes...
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Chip Roy demanded a recorded vote. He was right to do so. If members were going to object to electoral votes on the grounds that elections in certain states had been tainted by fraud and irregularities—or on the grounds that certain states had administered
the 2020 elections in a way that violated the US Constitution—how could members of Congress from those states simultaneously agree to recognize the legitimacy of their own elections and seat themselves? If there was systemic
When Chip texted me just before 5:30 to alert me he was going to call for a recorded vote, I told him it was the right thing to do. I also told him I understood there was “more bad stuff going on at DOJ” right now. We learned later that evening that Jeff Rosen had survived the White House meeting and had not been fired.
Having just lost a lawfully certified election, Trump was attempting to seize power unconstitutionally.
Note
What Trump’s team was describing on this call was illegal. It was destructive. And they all knew by then that the stolen-election allegations were “complete nonsense” and “BS,” as Attorney General Barr and other Justice Department officials had repeatedly said. Yet here they were, trying it anyway.
Nobody knew the rules of the House better than Wick and Jason, but the answers were not comforting. They explained
that because the electoral-vote count takes place in a joint session, the proceedings that day would not be governed by the rules of the House. No debate would be allowed. In the event the vice president abandoned his constitutional duty, the only real recourse would be to move to adjourn.
HOUSE REPUBLICANS CONVENED IN PERSON in the auditorium of the US Capitol Visitor Center for one final meeting the day before the January 6 joint session. The purpose of the meeting was to discuss electoral-vote objections. Mike Johnson spoke first, in support of objections. Chip Roy followed, in opposition. We spent more than an hour discussing the legal, constitutional, and political issues surrounding objections. Although it was a courteous debate, some members believed that the fact we were having the debate at all was the problem, since there was no basis for these objections in either the
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For Mike Johnson’s presentation, he read from a letter he planned to issue later that day: “We will vote to sustain objections to slates of electors submitted by states we believe
You snake!
When Chip Roy responded, his message was direct and to the point. First, he said, we have no constitutional authority to reject electoral votes. We have one certified slate of electors from each state. The 12th Amendment is clear: Under these circumstances, we count. The framers did not intend Congress to select the president.
Second, even if you believed Congress did have this constitutional power, the claims about election fraud are false. Chip then detailed a number of assertions being made that were patently untrue. He warned that if Republicans were to go down this path, we would be ensuring that Democrats will do the same in every presidential election from here forward.
Debbie Lesko of Arizona had an even more direct question about the thousands of people coming to Washington the next day: She asked that leadership come up with
That night, Eric Trump, the president’s son, appeared on Sean Hannity’s show on Fox News. He said there would be consequences for any member who did not do what his father wanted, threatening that “any senator or any congressman… that does not fight tomorrow… their political career is over.” I received a text from a senior Republican House member who had just watched the interview: “Eric Trump is on Hannity threatening/promising primaries for anyone who does not object. Where is our leadership? Is this what our party has become? I’m beyond disgusted.”
Nut job
By any measure, the presidential election in 2000 had been far closer than the 2020 contest. President George W. Bush’s victory in 2000 had ultimately come down to just over 500 votes in Florida, with a razor-thin Electoral College margin of 271 to 266. By contrast, Donald Trump lost in 2020 by more than 70 electoral votes. His nationwide popular-vote deficit of seven million represented a 5 percent gap—not even close. Trump would have needed tens of thousands more votes across at least three different states
the “Keeper of the Mace.”
A little over four feet long, the mace is made of 13 ebony rods (representing the 13 original states) wrapped by two interwoven
bands—an ancient Roman design meant to symbolize the
The remarks I had written for that day, but never got the chance to deliver, said this: Madam Speaker, I rise in opposition to the objection. Let me begin by noting how disappointed I am at having to rise today to address this issue. I wanted the election to turn out differently. But I’m bound by a solemn oath, given before God, to preserve, protect, and defend the Constitution. I cannot comply with that oath only when it is convenient politically. Our
