[EL] ELB News and Commentary 2/10/21

[Rick Hasen]

“Georgia Prosecutors Open Criminal Investigation of Trump Call”<https://electionlawblog.org/?p=120813>
Posted on February 10, 2021 7:17 am<https://electionlawblog.org/?p=120813> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2021/02/10/us/politics/trump-georgia-investigation.html?referringSource=articleShare>:

Prosecutors in Fulton County have initiated a criminal investigation into former President Donald J. Trump’s attempts to overturn Georgia’s election results, including a phone call he made to Secretary of State Brad Raffensperger in which Mr. Trump pressured him to “find” enough votes to help him reverse his loss.

On Wednesday, Fani Willis, the recently elected Democratic prosecutor in Fulton County, sent a letter to numerous officials in state government, including Mr. Raffensperger, requesting that they preserve documents related to Mr. Trump’s call, according to a state official with knowledge of the letter. The letter explicitly stated that the request was part of a criminal investigation, said the official, who insisted on anonymity to discuss internal matters.

The inquiry makes Georgia the second state after New York where Mr. Trump faces a criminal investigation. And it comes in a jurisdiction where potential jurors are unlikely to be hospitable to the former president; Fulton County encompasses most of Atlanta and overwhelmingly supported<https://results.enr.clarityelections.com/GA/Fulton/105430/web.264614/#/summary> President Biden in the November election.

The Fulton County investigation comes on the heels of a decision Monday<https://www.nytimes.com/2021/02/08/us/politics/trump-georgia-election-investigation.html?action=click&module=RelatedLinks&pgtype=Article> by Mr. Raffensperger’s office to open an administrative inquiry.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Top GOP lawmaker in Michigan falsely claims Capitol riot was ‘staged,’ dismisses Trump supporters’ role”<https://electionlawblog.org/?p=120811>
Posted on February 10, 2021 7:14 am<https://electionlawblog.org/?p=120811> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo<https://www.washingtonpost.com/politics/2021/02/09/mike-shirkey-capitol-riot/>:

Michigan’s Republican Senate majority leader told members of his party that the storming of the U.S. Capitol was “all staged” and not perpetrated by Trump supporters in a moment captured on video that drew calls for his resignation Tuesday from Democrats.

State Sen. Mike Shirkey’s false claims about the Capitol attack — contradicted by reporting, video and statements from the rioters themselves — circulated as Republicans remain divided over basic realities of the 2020 election and former president Donald Trump’s role in the lead-up to the Jan. 6 insurrection, underscoring the continued promotion of debunked theories by prominent members of the GOP. Newly elected Rep. Marjorie Taylor Greene (R-Ga.) on Tuesday also suggested that Trump supporters were not to blame<https://www.washingtonpost.com/politics/2021/02/09/marjorie-taylor-greene-trump-supporters-insurrection/?itid=lk_inline_manual_4>, testing her party’s willingness to condemn falsehoods and echoing her past claims that mass shootings were “false flag” events orchestrated by supporters of gun-control laws…

Shirkey apologized Tuesday in a statement for “insensitive comments” and said he regretted his choice of words after the Detroit Metro Times<https://www.metrotimes.com/news-hits/archives/2021/02/09/sen-shirkey-baselessly-claims-us-capitol-riot-was-staged-by-trump-haters-recording-shows> and other news outlets<https://www.freep.com/story/news/local/michigan/detroit/2021/02/09/mike-shirkey-insurrection-hoax-trump/4455506001/> reported on the lawmaker’s claims during a Feb. 3 meeting<https://www.youtube.com/watch?v=d2j92O7TFRo%2Bhttps%253A%252F%252F> with a handful of fellow Republicans.

“I said some things in a videoed conversation that are not fitting for the role I am privileged to serve,” Shirkey’s statement said. “I own that. I have many flaws. Being passionate coupled with an occasional lapse in restraint of tongue are at least two of them.”
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Dozens of states see new voter suppression proposals”<https://electionlawblog.org/?p=120809>
Posted on February 10, 2021 7:01 am<https://electionlawblog.org/?p=120809> by Rick Hasen<https://electionlawblog.org/?author=3>

Axios:<https://www.axios.com/state-voter-suppression-proposals-5ee31df3-8e98-4bf5-8910-7bc6db704f15.html?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosam&stream=top>

There are at least 165 proposals under consideration in 33 states so far this year to restrict future voting access by limiting mail-in ballots, implementing new voter ID requirements and slashing registration options.

Driving the news: As former President Donald Trump’s impeachment trial begins over his role in the deadly Jan. 6 insurrection that sought to overturn President Biden’s victory — fueled by baseless allegations of voter fraud — lawmakers in states with GOP majorities are pushing new ballot obstacles based on similar baseless allegations.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Last-Minute Tweaks to Voting Machine Standards Raise Cyber Fears”<https://electionlawblog.org/?p=120807>
Posted on February 10, 2021 6:58 am<https://electionlawblog.org/?p=120807> by Rick Hasen<https://electionlawblog.org/?author=3>

USLW:<https://www.bloomberglaw.com/bloomberglawnews/exp/eyJjdHh0IjoiTFdOVyIsImlkIjoiMDAwMDAxNzctODhjNi1kNjIzLWExNzctOGZkN2EzN2YwMDAwIiwic2lnIjoia2o1Y21RdUhQd2RSSER3NWJicFFpY3E1bG1nPSIsInRpbWUiOiIxNjEyOTU4NTA2IiwidXVpZCI6IkJxRC9JV2J1K0htOG9SQ0VkeVg5SHc9PXBpRDE4US82TmVSb0tmelBBVFBTMVE9PSIsInYiOiIxIn0=?bwid=00000177-88c6-d623-a177-8fd7a37f0000&cti=LSCH&emc=blwnw_nl%3A6&item=read-button&qid=7056607%C2%AEion=digest&source=newsletter&uc=1320041183&usertype=External>

Last-minute changes to proposed federal standards for new voting machines could expose the equipment to cyberattacks, according to some members of Congress and security professionals.

The Election Assistance Commission, slated to authorize new voting system guidelines on Feb. 10, amended key sections of a 328-page document less than two weeks before the decision. The amended language of the Voluntary Voting System Guidelines 2.0 would allow next generation voting machines to include components capable of wireless communications, as long as they’re disabled. The changes were made even though the EAC’s technical advisory committee recommended an outright wireless ban.

Cybersecurity experts, some of the EAC’s own advisers and members of Congress are calling for the agency’s four commissioners to vote on a version of the document finalized in July 2020 which included the prohibition on wireless capability. In a letter reviewed by Bloomberg, a bipartisan coalition of more than 20 members of Congress led by Representative Bill Foster told the EAC’s Chairman Ben Hovland that the current version would “diminish confidence in both the federal voting system certification program and the security of our election systems.”

“We cannot sanction the use of online networking capabilities when they carry the very real and increased risk of cyber-attacks, at scale, on our voting machines,” reads the letter….

Meanwhile, others are asking the EAC to explain why changes to a document 15 years in the making were made less than two weeks before the scheduled vote.

“The issue here is the EAC made changes to some of the most commented-on sections of the standard without clearly explaining who made the change, why the change was made and that’s inviting a lot of questions,” said Matt Masterson a former EAC commissioner, referring to some of the 50,000 public comments submitted to the EAC in 2020.

Masterson said there’s no reason to believe the late amendments were born out of malfeasance. “There is an opportunity here for further transparency by the commission which I hope they provide,” said Masterson, former election security lead at the Cybersecurity & Infrastructure Security Agency, part of the Department of Homeland Security.
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Posted in election administration<https://electionlawblog.org/?cat=18>, Election Assistance Commission<https://electionlawblog.org/?cat=34>, voting technology<https://electionlawblog.org/?cat=40>


“How Long Can Democracy Survive QAnon and Its Allies?”<https://electionlawblog.org/?p=120805>
Posted on February 10, 2021 6:52 am<https://electionlawblog.org/?p=120805> by Rick Hasen<https://electionlawblog.org/?author=3>

Tom Edsall <https://www.nytimes.com/2021/02/10/opinion/democracy-qanon.html> NYT column:

Has a bloc of voters emerged that is not only alien to the American system of governance but toxic to it?

“The central weakness of our political system now is the Republican Party,” Daniel Ziblatt<https://scholar.harvard.edu/dziblatt/home>, a political scientist at Harvard, said in an interview<https://www.vox.com/policy-and-politics/22151075/trump-republican-party-american-democracy-daniel-ziblatt> with Vox on Jan. 13, a week after the storming of the Capitol.

“The American Republican Party looks like a European far-right party,” Ziblatt continued. “But the big difference between the U.S. and a lot of these European countries is that the U.S. only has two parties and one of them is like a European far-right party. If the G.O.P. only controlled 20 percent of the legislature, like you see in a lot of European countries, this would be far less problematic — but they basically control half of it.”

A central question, then, is how distant from the rest of the American electorate the voters who align themselves with the radical wing of the Republican Party are….

Several political scholars and strategists argue that the fault lies in our political system, that the unique way America has combined its government structure with the mechanics of its elections serves to exacerbate conflict in a deeply polarized country. These scholars have produced a variety of proposals, many involving the creation of multi-member congressional districts<https://ballotpedia.org/Multi-member_district> and the encouragement of proportional representation<https://www.fairvote.org/how_proportional_representation_elections_work> to replace the current single district, winner-take-all system<http://archive.fairvote.org/?page=765>.

Lee Drutman<https://www.newamerica.org/our-people/lee-drutman/>, author of “The Two-Party Doom Loop<https://global.oup.com/academic/product/breaking-the-two-party-doom-loop-9780190913854?cc=us&lang=en>: The Case for Multi-Party Democracy in America” and a senior fellow at New America<https://www.newamerica.org/>, is a leading proponent of proportional representation….


Gretchen Helmke<https://www.gretchenhelmke.com/>, a political scientist at the University of Rochester, wrote that Bright Line Watch<file:///C:/Users/Thomas%20Edsall/AppData/Local/Microsoft/Windows/INetCache/Content.Outlook/0LJNAB4W/Bright%20Line%20Watch%20--%20a%20group%20of%20political%20scientists%20which%20conducts%20surveys%20of%20experts%20and%20the%20general%20public%20--%20found:> — a group of political scientists that conducts surveys of experts and the general public — found that there was

quite strong support among political scientists for the proposal to repeal the 1967 law mandating single member districts for the House so that states have the option to use multi-member districts on the condition that they adopt a nonwinner-take-all election model. Of the more than 500 expert respondents, 73 percent either moderately or strongly supported the proposal.
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Posted in alternative voting systems<https://electionlawblog.org/?cat=63>, political polarization<https://electionlawblog.org/?cat=68>


Top Recent Downloads in Election Law on SSRN<https://electionlawblog.org/?p=120803>
Posted on February 10, 2021 6:48 am<https://electionlawblog.org/?p=120803> by Rick Hasen<https://electionlawblog.org/?author=3>

Here<http://papers.ssrn.com/sol3/topten/topTenResults.cfm?groupingId=991929&netorjrnl=jrnl>:
1.
A Simple Test for the Extent of Vote Fraud with Absentee Ballots in the 2020 Presidential Election: Georgia and Pennsylvania Data<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3756988>‘<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=16317>
John R. Lott<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=16317>
Crime Prevention Research Center
Date Posted: 29 Dec 2020
Last Revised: 11 Jan 2021
52,807
2.
The Effect of Social Media on Elections: Evidence from the United States<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3719998>
Thomas Fujiwara<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2035517>, Karsten Müller<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2493485> and Carlo Schwarz<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2816807>
Princeton University, Princeton University and Bocconi University – Department of Economics
Date Posted: 11 Dec 2020
Last Revised: 13 Dec 2020
442
3.
Does Voter Fraud Pay? Texas Lt. Gov. Dan Patrick’s $1 Million Voter Fraud Offer<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3740653>
Michael Conklin<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=4081786>
Angelo State University
Date Posted: 30 Dec 2020
Last Revised: 31 Dec 2020
149
4.
Racial Transition<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3702718>
Yuvraj Joshi<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1143444>
Yale University, Law School
Date Posted: 16 Dec 2020
Last Revised: 19 Jan 2021
140
5.
Why Do Vote-by-Mail Elections Boost Voter Turnout?<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3722705>
Yuki Atsusaka<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=4254212>, Andrew Menger<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=4461392> and Robert M. Stein<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=107500>
Rice University, School of Social Sciences, Department of Political Science, affiliation not provided to SSRN and Political Science
Date Posted: 11 Dec 2020
Last Revised: 13 Dec 2020
124
6.
Rage Against the Voting Machine: Dominion’s Defamation Lawsuit Against Sidney Powell<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3773641>
Michael Conklin<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=4081786>
Angelo State University
Date Posted: 27 Jan 2021
Last Revised: 28 Jan 2021
124
7.
Federalism, Democracy, and the 2020 Election<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3744530>
David Landau<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1623096>, Hannah Jacobs Wiseman<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1331806> and Samuel R. Wiseman<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1606911>
Florida State University – College of Law, Penn State Law – University Park and Florida State University College of Law
Date Posted: 11 Dec 2020
Last Revised: 22 Jan 2021
102
8.
Freedom Through Foot Voting<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3771423>
Ilya Somin<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=333339>
George Mason University – Antonin Scalia Law School, Faculty
Date Posted: 22 Jan 2021
Last Revised: 24 Jan 2021
93
9.
The Illiberalization of American Election Law: A Study in Democratic Deconsolidation<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3774330>
James A. Gardner<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=40126>
University at Buffalo Law School
Date Posted: 28 Jan 2021
Last Revised: 30 Jan 2021
93
10.
Rucho Is Right – But for the Wrong Reasons<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3715561>
Louis Michael Seidman<https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=39424>
Georgetown University Law Center
Date Posted: 11 Dec 2020
Last Revised: 13 Dec 2020
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Hal Krent on Being Cited in Trump’s Impeachment Brief: “It’s Nice to Be Quoted…Sometimes”<https://electionlawblog.org/?p=120801>
Posted on February 9, 2021 5:08 pm<https://electionlawblog.org/?p=120801> by Rick Hasen<https://electionlawblog.org/?author=3>

The following is a guest post from Chicago-Kent law prof (and former dean) Harold Krent<https://www.kentlaw.iit.edu/faculty/harold-krent>:

Many have derided academics for writing only for each other.  But, others of us also hope that, in some small way, our research and writing can make a difference in society as a whole.  For law professors, that impact can arise from influencing the arguments of attorneys, the opinions of judges, and the direction of law reform.

            Thus, I felt some gratitude when friends alerted me on February 8th that the Trump impeachment team had cited my prior work with some detail in its brief defending the former President.  And, unlike with some of the other academics they cited, the brief did not misquote me.   Although not misquoted, the brief failed to disclose that my prior writing concludes that the Senate in these circumstances retains the power to convict the former President.

To be sure, I previously wrote, in contrast to the prevailing wisdom, that Congress’s impeachment power was not continuous.  The language in the Constitution seems to limit impeachment to those holding an “office;” the Framers consciously cut back on the scope of the impeachment power used by the British Parliament; and surrounding constitutional provisions reflect a deep concern over preventing Congress from punishing anyone not currently holding an office.  The Bill of Attainder Clause in particular prevents Congress from in any way punishing individuals.  That prohibition, in other words, must be reconciled with the impeachment power.  Although the constitutional language is far from dispositive and the record of why the language was chosen is sparse, I concluded that impeachments could only be directed at those officers holding office.

Indeed, all watching the debates will readily discern that something is different about this second impeachment in that Chief Justice Roberts has declined to preside over the trial, signaling that his duties are only triggered when a President is in office.  And, although not relied upon by the Trump impeachment team, Congress itself in the 1958 Former Presidents Act vested pensions and perquisites in all Presidents “whose service in such office shall have terminated other than by removal pursuant to section 4 of article II of the Constitution of the United States of America.“  Congress in so doing evidently intended to withhold pensions only from those who are disqualified  before serving out their term.  Congress apparently did not contemplate that Presidents could be impeached after “serving out their term.”  Thus, reading the Constitution to impose a temporal limit on Congress’s impeachment power as the Trump team argued is far from frivolous.

Nonetheless, I concluded previously that the Senate retained its power to convict when the impeachment process commenced before the President leaves office.   The House Managers’ concern that Congress must have some way to react to a President who goes off the rails in the final weeks of office is alleviated if the power to impeach continues as long as it starts when the President still is “in office.”  In the two historical examples in which the Senate considered and voted on whether it retained jurisdiction to convict an officer who no longer served, the impeachment process had already started, in one case a Senator accused of conspiring with the British was impeached by the House and expelled by the Senate before the Senate proceeded to consider whether to convict, and in the other a Secretary of War had resigned in the face of an impeachment inquiry into his fraudulent activities.  Indeed, it is not uncommon for tribunals to retain jurisdiction over parties despite subsequent events – here, removal from office – that, had they arisen previously, would have deprived the Tribunal of jurisdiction.  To provide one example, Chief Justice Marshall stated in Mollan v. Torrance, 9 Wheat. 537, 539 (1824), that “[i]t is quite clear, that the jurisdiction of the Court depends on the state of things at the time of the action brought, and that after vesting, it cannot be ousted by subsequent events.”  Thus, concluding that the Senate retains the power to convict and remove an officer as long as the House triggered the impeachment process while the officer still served in office reflects historical practice, preserves in Congress the power to continue what it started in response to a runaway President, and at the same time, avoids the otherwise jarring result that Congress could exercise a vindictive power to impeach a President twenty years after leaving office.  In short, although the impeachment process should have temporal limits, Congress should be able to finish what it started, and the officer’s resignation, expulsion, or expiration of his or her term should not defeat its jurisdiction.

Some legal academics started their careers as litigators.  And, with my litigation cap on, the fact that the Trump brief cited so extensively from academics who embrace the power of the Senate to continue the trial is telling.  Although the Impeachment process is not about winning legal arguments, the constitutional language, the historical examples, and consideration of the constitutional structure all support the House Managers’ position.  Nonetheless, it was still nice to be noticed.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“60% of President Donald Trump’s post-election tweets sought to undermine legitimacy of presidential race”<https://electionlawblog.org/?p=120799>
Posted on February 9, 2021 10:16 am<https://electionlawblog.org/?p=120799> by Rick Hasen<https://electionlawblog.org/?author=3>

Issue One:<https://www.issueone.org/60-of-president-donald-trumps-post-election-tweets-sought-to-undermine-legitimacy-of-presidential-race/>

Despite record turnout in the 2020 election, the American people’s confidence in our institutions and political system is at a dangerously low level. Against this backdrop, new research from Issue One<https://www.issueone.org/> reveals the extent to which then-President Donald Trump used his Twitter account to undermine the legitimacy of the 2020 election and sow doubts about our democratic processes.

In a new analysis designed to chronicle the spread of dangerous lies and conspiracy theories that eroded voters’ confidence in free and fair elections in 2020, Issue One found that 60% of Trump’s 1,500-plus tweets between the day after Election Day and January 8, when Twitter permanently suspended his account, were messages that sought to challenge the results of the 2020 election — an average of about 14 tweets per day.

“For months before the election and then weeks afterward, then-President Donald Trump systematically utilized his Twitter account to broadcast hundreds of falsehoods about the election with the goal of manufacturing a crisis of confidence and overturning the results of the 2020 presidential election,” said Issue One Founder and CEO Nick Penniman.

Penniman continued: “Social media companies must do more to combat disinformation online, particularly when it comes to America’s elections. Moreover, a healthy democracy requires a commitment to norms that bolster the electorate’s faith in elections, including a willingness to accept electoral defeats and an inclination to participate in peaceful transfers of power.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Georgia investigation opened into Trump’s call to overturn election”<https://electionlawblog.org/?p=120797>
Posted on February 9, 2021 9:53 am<https://electionlawblog.org/?p=120797> by Rick Hasen<https://electionlawblog.org/?author=3>

AJC:<https://www.ajc.com/politics/georgia-investigation-opened-into-trumps-call-to-overturn-election/GQ3WSOLP7VENRG4PVCCRAPMOBI/>

Georgia election officials opened an investigation Monday into Donald Trump’s phone call<https://www.ajc.com/politics/politics-blog/trump-demands-georgia-elections-official-overturn-his-defeat-in-hourlong-call/6MRGK445JNAGHBL2HXLZ3FIVZU/> to Secretary of State Brad Raffensperger urging him to “find” enough votes to reverse the outcome of the presidential contest in the state.

The investigation will review Trump’s Jan. 2 call when he pressured Raffensperger to overturn the election, said Walter Jones, a spokesman for the secretary of state’s office.

Raffensperger, a Republican, has repeatedly said there was no widespread fraud that could have changed the results of the election, which Joe Biden won by less than 12,000 votes in Georgia. He told Trump the “data you have is wrong” as he resisted the president’s false claims that he had won in Georgia.

“The secretary of state’s office investigates complaints it receives. The investigations are fact-finding and administrative in nature. Any further legal efforts will be left to the attorney general,” Jones said.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“January 6 Was Just One Day in a Sustained Campaign”<https://electionlawblog.org/?p=120793>
Posted on February 9, 2021 4:06 am<https://electionlawblog.org/?p=120793> by Richard Pildes<https://electionlawblog.org/?author=7>

The Atlantic published this essay<https://www.theatlantic.com/ideas/archive/2021/02/january-6-impeachment-context/617967/> of mine on the impeachment trial. Here are some excerpts:

A risk exists that the Senate impeachment trial will focus too narrowly on the events of January 6, which culminated in the attack on the Capitol. As horrific as that day was, the broader picture cannot be allowed to slip from view: Donald Trump’s sustained, relentless efforts to propagate the myth that the election was stolen, including his attempts to recruit state and federal officials to embrace that myth and take action based on it….
For at least four reasons, this broader focus is important. First, if the trial centers on whether Trump incited the attack on the Capitol, the process is likely to get mired in hairsplitting debates, such as parsing his language at the rally to argue over whether he was urging peaceful protest or an actual attack, or what he meant by the word “fight.”

But in contrast to possible uncertainty about the express or implied meaning of his words on January 6, there can be no question that Trump used the bully pulpit of the presidency day after day to try to delegitimize the election—even for nearly a month after the Electoral College had voted. The entire country is fully aware of his relentless assertions about voting machines being rigged, ballots mysteriously showing up, dead people voting, and the like. Nor is there any dispute about the numerous concrete steps he took to persuade state and federal officials to act on his assertions, or even about exactly what he said to at least some of them. At a minimum, the public already has access to the recorded phone call between Trump and Georgia’s secretary of state, and to Trump’s many efforts<https://www.nytimes.com/2021/01/05/us/politics/pence-trump-election.html> to pressure Vice President Mike Pence to refuse the votes from some states. Similar efforts to pressure other state officials have been reported,<https://www.nbcnews.com/politics/donald-trump/earlier-call-trump-pressured-georgia-elections-investigator-find-evidence-fraud-n1253639> but less publicly documented, and the trial could help further bring them to light….

Third, the other purpose of the trial, in addition to accountability, is to determine whether Donald Trump should be barred from future public office. In the weeks following November 3, many questions arose about whether he was willfully lying about the election, or had become so convinced of what he was saying (egged on by figures like Rudy Giuliani) that he had deluded himself into actually believing that the election was stolen. For purposes of criminal law, this distinction can matter; some laws require that the defendant “knowingly” violated the law. But for purposes of impeachment, this distinction does not matter, because the purposes of impeachment<https://www.theatlantic.com/ideas/archive/2019/10/what-does-high-crimes-and-misdemeanors-actually-mean/600343/> are very different from those of criminal prosecution.

Of course if Donald Trump was repeatedly lying to steal an election he knew he had lost, that would be impeachable. But even if he was “merely” massively deluded in believing that the election was stolen, and pressed numerous state and federal officials to act on the basis of his delusion, that would still make him extraordinarily dangerous in any future public office. And since the trial’s second major purpose is to determine whether, if convicted, disqualification is appropriate, a focus on the longer arc of his sustained false narrative—regardless of whether he intentionally deceived the country or believed everything he said—is particularly apt. Some might ask whether sustained delusion, and taking actions based on it, is a “high crime and misdemeanor” within the meaning of the impeachment clause. But federal officials have been impeached for being drunk when performing public duties. A delusion of this scale, on such a consequential issue, is far more dang
The horrifying events of January 6 will live forever in American history. Donald Trump’s role in them will rightly be part of his trial. But the unprecedented attack on the Capitol was the culmination of a much larger campaign to subvert the legitimacy of the election. Whether that campaign is best understood as “The Big Lie” or “The Big Delusion,” it is what must be most forcefully condemned, for the health of American government and American democracy going forward.
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“Anthony Brindisi concedes in NY-22 congressional race”<https://electionlawblog.org/?p=120791>
Posted on February 8, 2021 12:35 pm<https://electionlawblog.org/?p=120791> by Rick Hasen<https://electionlawblog.org/?author=3>

News.<https://www.localsyr.com/battle-for-the-22nd/anthony-brindisi-concedes-in-ny-22-congressional-race/>

This dispute illustrated how poor New York election administration is. It’s past time to fix it.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>



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UC Irvine School of Law
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