If one can put aside the 2020 election narratives coming from President Trump and those with an unrelenting visceral hatred of the former President, you would know that most of his post-election efforts to win reelection were legal — perhaps a bit aggressive – but legal just the same.
All those challenges, recounts and court cases were standard operating procedures in close elections. The fact that Trump folks pursued all that – and did not come out very well in the final analysis – does not mean it was illegal or unconstitutional.
Even calling on state legislators to throw out the elected electors and replace them with a slate selected by the legislature is constitutional and legal. It may be an affront to our sense of fair play – but legal. It should be based on evidence that the elected electors were not properly elected. It happened in the past – the Compromise of 1877.
But no state legislature advanced an alternative slate of electors based on voting irregularities. In fact, they all certified the electors chosen by the voters. Since it is the Electoral College that picks our presidents, once those electors voted, Biden became the constitutional president-elect. That is because the electors are not bound by the popular voter — whether it was a true account or stolen. Once empaneled, the electors can pick any born American citizen attaining the age of 35 as President. They could have picked me, and it would be perfect legal and constitutional.
It is important to dwell on that point because that is when the election is … over. Now there is one more ceremonial hurdle. The vote of the electors must be certified by the Congress. It is theoretically possible for Congress to reject the vote of the electors. Perfectly legal. Not a good idea, however – and it has never been done. There are often a few members of Congress to vote against certification — but never nearly enough to actually stop the certification process.
And there is nothing illegal for Trump to ask the Congress not to certify. It is also perfectly legal for citizens to peacefully protest in an effort to have the Congress not certify or delay certification.
It is NOT legal to riot and disrupt the proceedings, however. It is not legal for the presiding Vice President to summarily end the certification process. It is not legal to incite people to riot. That is an issue that is currently being investigated.
Contrary to the fearmongering from the left, the Constitution worked very well, indeed. Democracy was never imperiled — but showed enormous durability in a moment of heated political contention. The only impact on the constitutional process of seating the next president was that the certification was delayed a few hours. That was it. There was never a threat to the Republic. That is not to say that all the stakeholders acted properly and legally. Those issues will be resolved in a number of court cases.
What about those so-called alternative slates of electors?
But the issue that stands out the most for me is that effort to present an “alternative slate of electors” in half a dozen states. The fact that this charade was orchestrated by a group of lawyers is mind-boggling.
It is perfectly legal to create a group of alternative electors for a given state. And you can even take them to your state legislature and ask them to replace the elected electors. If you cannot get the legislature to agree, you are done … finished … fini.
What these bozos did was skip the state legislature step and send them directly to the Senate and the Archives suggesting that these were the legitimate electors – or should be considered the legitimate electors.
It is yet to be determined if they committed a crime sufficiently serious to warrant prosecution. And the culpability will vary on an individual basis. Two of the documents indicated that it lists alternative electors to be considered only IF they are needed. I suspect that is enough of a qualifier to get those listed on the two petitions off the hook.
The “alternative” electors listed on other documents have a bigger problem. And those who organized the activity — AND submitted the documents to the Senate and the Archives have a lot of “splaining to do” – probably in a court-of-law. They are at the greatest risk of legal liability.
Those on the left are eager to send all those involved to the gallows. That is not likely to happen. I doubt any of those whose names appeared on the documents will face serious legal consequences. They will claim that they were acting on the advice of counsel. It was not their intent to break any laws.
The most vulnerable individuals are Rudy Guiliani, Sydney Powell, Michael Flynn, and John Eastman. If the media reports are correct, they were the masterminds behind the plan – and played the major role in implementing it.
It was at that contentious White House meeting that Flynn proposed using the military to seize voting machines. As President, Trump could have issued such an order, but he rejected out-of-hand. The meeting was said to have gotten very heated with expletives being tossed back and forth. Vice President Pence and White House lawyers vociferously opposed both the military seizure and alternative electors plans as “idiotic.” They were correct.
Apparently, Special Counsel Jack Smith is looking into this matter — in addition to the Capitol Hill riot and the White House documents issue. In terms of the fake electors, methinks some folks will get indicted – but I am not convinced this issue will result in jail time for any of those involved.
The problem with the alternative slate scheme was that the organizers of this gambit should have known (1) that they were not following the legal or constitutional process and (2) the chance of the scheme working was zero. If stupidity was illegal, they would all get indicted.
So, there ‘tis.