Thursday, March 31, 2022

JANUARY 6 PROCESS FOR ELECTORAL VOTE COUNT

OFFICE OF THE VICE PRESIDENT

Information Memorandum

TO: VICE PRESIDENT PENCE

FROM: GREGORY JACOB, COUNSEL TO THE VICE PRESIDENT

Gregory.F.Jacob@ovp.eop.gov

SUBJECT: JANUARY 6 PROCESS FOR ELECTORAL VOTE COUNT

DATE: DECEMBER 8, 2020

The counting of the votes of the Electoral College will occur on January 6, 2021, in a Joint

Session of Congress that will be held in the House chamber. The process for counting

electoral votes is prescribed by the Twelfth Amendment to the United States Constitution

and––to the extent that it is constitutional––by the Electoral Count Act of 1887.

As President of the Senate, it is clear that the sitting Vice President plays a prominent role

in the counting of electoral votes, including resolving objections to those votes. There is

disagreement, however, whether the text of the Twelfth Amendment privileges the Vice

President to play a decisive role in resolving objections to electoral votes on their merits, or

whether (pursuant to the Electoral Count Act) the role of the Vice President in resolving

dispute is largely ministerial. Absent an assertion of constitutional privilege by the Vice

President, the parliamentarian will follow the process that is prescribed by the Electoral

Count Act, which is described in the second section below.

The Twelfth Amendment

The Twelfth Amendment provides: “The President of the Senate shall, in the presence of

the Senate and House of Representatives, open all the certificates and the votes shall then

be counted.” U.S. CONST. Amend. XII. Identical text appeared in the original

Constitution, and was carried forward into the Twelfth Amendment when the Jeffersonians

amended the Electoral College process in 1803-04 in response to Aaron Burr’s contest to

the results of the election of 1800. The constitutional text that governs the counting of

electoral votes has thus remained the same since the Founding.

When the Electoral College votes, each State’s electors “seal up” the certificates

containing their votes in envelopes, and send them by registered mail to the President of

the Senate and to specified additional individuals. 3 U.S.C. §§ 9-11. It is undisputed that

the Constitution mandates that on January 6, it is the job of the Vice President to “open all

certificates.” Scholars disagree, however, whether the text of the Constitution also dictates

that it is the job of the Vice President to count the electoral votes, as the Twelfth

Amendment switches to the passive voice, and further fails to clearly identify a specified

actor, when stating that “the votes shall then be counted.”

Prior to 1887, there was no statute that purported to govern the counting of electoral votes, and the Vice President and Congress had only the text of the Constitution to rely on. A letter that was appended to the Constitution by the Framers when it was sent to the States for ratification makes it clear that they envisioned the President of the Senate would both open the electoral vote certificates and personally count the votes. The very first Senate accordingly elected a temporary President of the Senate (there being no sitting Vice President at that time) who filled the role of the Vice President in both opening and counting the electoral votes in the presence of the Senate and the House. Thereafter, a practice developed that is followed to this day whereby the House and the Senate each appoint two “tellers” who sit at the clerk’s desk in the House chamber and who assist the Vice President with verifying and counting the electoral votes.

The text of the Constitution is silent as to any process for raising and resolving objections to electoral votes, and until the passage of the Electoral Count Act of 1887, no firm protocol was established for resolving disputes over the validity of electoral votes. Some scholars argue that under the text of the Twelfth Amendment, it is the sole responsibility of the Vice President to count electoral votes, and that it is accordingly also the Vice President’s sole responsibility to determine whether or not disputed electoral votes should be counted. There is some historical evidence that Adams and Jefferson both resolved issues over the validity of electoral votes in their own favor, and in 1857 the President of the Senate (a role filled by Senator John Crittenden, as the Vice Presidency was then vacant) personally overruled an objection to the counting of Wisconsin’s electoral votes, and asserted that it was his responsibility to make the validity determination in the first instance, while suggesting that the House and Senate might thereafter jointly overrule him. In a handful of other instances, on the other hand, the House and the Senate played a more active role in resolving objections to electoral votes, and the overall record of historical practice on the point is accordingly muddy.

Following the hotly disputed election of 1876, in which the validity of several States’ electoral votes was strongly contested, thus provoking a significant constitutional crisis, Congress passed the Electoral Count Act of 1887 to govern the future counting of electoral votes and the resolution of electoral vote disputes. A number of scholars have argued that the Electoral Count Act’s dispute resolution mechanism is unconstitutional because it relegates the Vice President, as President of the Senate, to a purely ministerial role in resolving such disputes. Each of the last three times that a Republican President was elected, however––in 2000, 2004, and 2016––Democrats have raised objections to the counting of electoral votes, and in each instance the process that the Electoral Count Act prescribes for resolving electoral vote disputes was followed. Indeed, it appears that the only time the Electoral Count Act’s prescribed process for resolving disputes was not been followed since its enactment was in 1961, when Vice President Nixon magnanimously resolved against himself a dispute over three competing slates of electors that had been submitted by the State of Hawaii. Because there are only a few instances of historical practice under the Electoral Count Act, however, the question of its constitutionality remains muddy, and scholars continue to this day to debate the constitutionally appropriate role of the Vice President in resolving objections to electoral votes.

Modern Practice and the Electoral Count Act

Although the Constitution states that the President of the Senate shall open the envelopes containing the electoral vote certificates in the presence of the Senate and the House, in practice on January 6 the already-opened certificates will be brought into the House chamber in boxes and laid upon the clerk’s desk. The Vice President will then enter the chamber and proceed to the dais, where the Speaker of the House will be seated. The tellers that have been appointed by the House and the Senate will take their seats immediately below the Vice President and the Speaker, and the Vice President will preside, standing, over the counting of the votes.

In alphabetical order, each State’s electoral vote certificate will be handed to the Vice President, who will verify the certificate’s regularity and then hand it to one of the tellers. The teller will also verify the certificate’s regularity, and then announce that state’s electoral votes. At that point, members of the House or Senate may rise to State any objections to the counting of that State’s electoral votes. As of the date of this memorandum, it does not appear that any State will have submitted a competing slate of electors (this could occur, for example, if one slate of electors was submitted by a State’s Secretary of State, and another slate was submitted by the State’s legislature). This memorandum accordingly describes the process that is prescribed for resolving objections to counting a State’s votes, rather than the process for choosing between competing slates of electors.

The Electoral Count Act states that objections cannot be considered unless they are in writing, and are signed by both a member of the House and a Senator. 3 U.S.C. § 15. In both 2000 and 2016, Vice Presidents Gore and Biden applied the Electoral Count Act to overrule all of the objections that were raised to counting the electoral votes, because no Senator had signed the objections. The process was as follows. First, a member of the House would rise and state an objection to counting a State’s votes. Second, the Vice President would inquire whether the objection was in writing and was signed by a Senator. Upon confirmation by the House member that no Senator had signed the objection, the Vice President would overrule it. The Electoral Count Act prohibits any debate during the Joint Session, so the Vice President would also overrule any attempt to debate an invalid objection. 3 U.S.C. § 18.

In 2004, on the other hand, Senator Barbara Boxer signed the written objection of a House member, thus satisfying the requirements for a valid objection established by the Electoral Count Act. At that point, the Electoral Count Act dictates that the House and Senate must separate into their respective chambers to debate the objection, with speeches limited to five minutes, and total debate on the objection limited to two hours. Id. § 17.

The Electoral Count Act prescribes the standard that the House and Senate are supposed to apply in resolving a dispute after they divide, as well as the effect of their determinations. The Act states that so long as a State’s disputed electoral votes “have been regularly given by electors whose appointment” was lawfully certified by the State’s Executive, the electoral votes shall not be rejected. Id. § 15. For this reason, challenges to the electoral votes typically allege that the disputed votes were not “regularly given,” a phrase laden with ambiguity. Following up to two hours of debate, the House and the Senate may “concurrently…reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.” Id § 15. Thus––presuming that the dispute resolution process prescribed by the Electoral Count Act is Constitutional––the House and the Senate must both agree to sustain an objection for a State’s electoral votes not be counted.

“When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted.” Id § 15. This process will be repeated separately for each State to which any objections are validly raised, until the counting of the electoral votes of all 50 States and the District of Columbia has been completed.

1 If an objection is sustained by the House and the Senate, and a State’s electoral votes are thus disqualified, the whole number of electors that is required to attain the President (270) typically is not recalculated, although there is some mixed historical practice on this question.

2 If no candidate has obtained 270 electoral votes at the conclusion of the counting process, then it falls to the House of Representatives to select the President, with each State delegation having one vote, and an absolute majority of 26 votes being required to attain the Presidency. The Vice President would be selected by the Senate.

Wednesday, March 30, 2022

The Clearest Evidence Yet of Donald Trump’s Criminal Intent on Jan. 6

The Clearest Evidence Yet of Donald Trump’s Criminal Intent on Jan. 6

BY DENNIS AFTERGUT

MARCH 29, 20224:10 PM

On Tuesday, Bob Woodward and Robert Costa reported in the Washington Post that the House select committee investigating Jan. 6 has the White House presidential phone log, and it shows a seven-hour gap in the record of his communications that fateful day.

The gap’s importance is difficult to exaggerate. The evidence of former President Donald Trump’s criminal intent with regard to his efforts to overturn the 2020 election is building, day by day, so relentlessly that at this point, a failure to prosecute becomes tantamount to a negation of the rule of law’s first principle—that no person “stand[s] above the law.”

Why is the gap so significant? If, as some analysts have hypothesized, Trump is so detached from the factual world that he actually believed his own Big Lie that the 2020 election was marred by fraud, that would make conviction for trying to steal the election difficult. Under this analysis, he would not have thought he was acting “wrongfully,” a necessary element for conviction on the charges to which he is most vulnerable.

Bottom of Form

Hiding one’s calls and conduct on Jan. 6, 2021, as it appears Trump did, rebuts his potential defense that he thought he was acting righteously. People who believe that their behavior is law-abiding do not cover it up in this way.

Let’s look at the facts and the law the way any Justice Department prosecutor—including Attorney General Merrick Garland—ordinarily would.

The seven-hour gap ran from 11:17 a.m. to 6:54 p.m. During the gap period, we know from reporting about a call that the then-president mistakenly made to Sen. Mike Lee—trying to reach Sen. Tommy Tuberville. Lee handed his phone to Tuberville, with whom Trump spoke for five to 10 minutes. During that call, Capitol police instructed them to evacuate the Senate chambers because insurrectionists had breached the Capitol.

We also know of a phone conversation he had with House Minority Leader Kevin McCarthy and of another with Vice President Mike Pence during the gap period. Pence continued to rebuff Trump’s pressure not to allow the certification of Joe Biden’s Electoral College victory.

None of these calls appears on the logs.

In addition, Rudy Giuliani, John Eastman, and Steve Bannon were reportedly huddled on Jan. 6 in a de facto “command center” at the five-star Willard Hotel in D.C. Trump spoke to them before the log gap, and it strains credulity to believe he did not talk with them again during the many hours when calls were not recorded. Any prosecutor would subpoena the phone company records listing those individuals’ calls that day and the numbers to and from which those calls were made.

Now let’s look at the law. I’m a former federal prosecutor, and one of my favorite jury instructions, when the evidence against a white-collar criminal supported it, covered consciousness of guilt: “If you believe that [the defendant sought to conceal evidence], then you may consider this conduct, along with all the other evidence, in deciding whether … [he/she] thought [he/she] was guilty of the crime charged and was trying to avoid punishment.”

Using alternate means of communication over five or six hours, including others’ phones or potentially “burner phones,” to avoid calls being logged would justify such an instruction.

Importantly, such a subterfuge would also circumvent a legal obligation, adding to the evidence of corrupt intent. Under the Presidential Record Act, the president has a duty to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s … official or ceremonial duties are adequately documented.” On Jan. 6, Trump did not.

In apparent response to the Washington Post story, Trump has denied using a “burner phone” of the kind that his allies bought with untraceable cash and used that day. Tellingly, however, there is no report that Trump denied using others’ phones.

On CNN on Tuesday, Bob Woodward told John King that he got to know Trump very well during his many hours interviewing him during the 2020 campaign, and that Trump is a phone “addict.” Woodward said that the notion Trump stopped using the phone during the multi-hour gap period was as unlikely as “the sun not rising” tomorrow.

The Post’s report about the length of the gap in White House records adds significantly to the already overwhelming evidence of Trump’s criminal intent. Indeed, just on Monday, in a 44-page opinion, a federal court found it “more likely than not” that Trump and John Eastman “corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” and with deceitful intent conspired to defraud the United States.

For his part, Judge David O. Carter explicitly addressed the matter of Trump’s likely knowledge of wrongdoing, writing “this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.”

Pointedly, Carter concluded, “If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution.”

In 1973, Richard Nixon’s investigators learned of an 18.5-minute “gap” in White House tape recordings during the Watergate cover-up. Trump’s gap in his phone logs is more than 400 minutes. The numerical comparison, however, is the least of it. Nixon was covering up a “third-rate burglary” of Democratic Party headquarters at D.C.’s Watergate complex. Trump looks to have been covering up an attempted coup d’état.

To be sure, what took Nixon down was actual White House tapes. If Garland is waiting for that kind of smoking gun, he is sending an unmistakable signal that Trump, even in apparently conspiring to end American democracy, is above the law.

What Trump Is Hiding

Seven hours and 37 minutes of missing phone records on January 6 suggest consciousness of guilt.

By David Frum

About the author: David Frum is a staff writer at The Atlantic and the author of Trumpocalypse: Restoring American Democracy (2020). In 2001 and 2002, he was a speechwriter for President George W. Bush.

At noon on January 6, 2021, then-President Donald Trump spoke to supporters at a rally near the White House. Journalists often quote his incendiary language from the speech: “Fight like hell”; “We will not take it anymore.” But Trump also laid out a precise plan of action for the crowd:

If Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the No. 1, or certainly one of the top, constitutional lawyers in our country. He has the absolute right to do it …
States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President [Mike] Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.

Trump told the crowd how they could force Pence to act on Trump’s plan.

After this, we’re going to walk down—and I’ll be there with you—we’re going to walk down, we’re going to walk down.
Anyone you want, but I think right here, we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and -women, and we’re probably not going to be cheering so much for some of them.
Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.

Trump promised the crowd that if they did as he urged—if they marched on Congress, if they showed strength—they could force a change of the election result.

About 45 minutes before Trump delivered this speech, he made his last call for nearly eight hours on the White House phone system. From 11:17 a.m. until almost 7 p.m., Trump made all of his phone calls on a nongovernment phone.

We know the president spoke by phone during that gap. As the crowd came crashing toward the office of the Republican House leader Kevin McCarthy, McCarthy called the president to demand he stop the violence. Trump instead excused it. “Well, Kevin, I guess these people are more upset about the election than you are.” Witnesses reported seeing the president on the phone many other times during the day.

As president, Trump often avoided using official lines. He used multiple phones of his own. He borrowed phones from other people.

Trump did not grab phones at random. He thought tactically about which phone to use. When the Stormy Daniels story broke, in 2018, Trump tried to place a call to Melania Trump on one of his own phones. She recognized the number and refused to answer the call. So Trump borrowed a phone from a Secret Service agent whose number would not be recognized. The first lady picked up.

Trump’s phone choices were powerfully intentional. What was he intending on January 6? The answer is obvious: concealment. But concealment of what?

Trump’s actions that day were not secret. They all happened in full public view. He incited a crowd to attack Congress in order to overturn by violence his election defeat. He refused to act to protect Congress and the Constitution when the attack began, and for a long time afterward. When he finally did act, he did so ineffectively: a tweet at 2:38 p.m. faintly suggesting that the crowd be more peaceful, another at 3:13 saying so more emphatically—all following a tweet at 2:24 p.m. once again condemning Pence for not indulging the fantasy that his vice president could overturn the election for him.

Trump did not order the National Guard to the Capitol until past 3:30. He did not release a video statement against the violence until past 4 p.m.

Trump encouraged the violence and welcomed it in real time. The whole world saw that.

But the world does not know everything about January 6—not yet, anyway—and Trump’s phone behavior may suggest the answer to the most important remaining questions:

Did Trump in any way authorize the attack in advance?
Did Trump in any way communicate or coordinate with the attackers as the attack unfolded?

Trump’s phone choices sought to conceal the answers to those questions. Why? One of the pivotal moments during the Watergate scandal of 1972 was the revelation that President Richard Nixon’s secretary had erased 18 and a half crucial minutes of a tape recorded three days after the break-in. The erasure suggested consciousness of guilt by the president, and helped end his presidency.

Trump’s 7.5-hour gap likewise suggests consciousness of something. And it sure smells like guilt.

JEFF ZIMMERMANN MURAL - "UP AHEAD" AT THE NEW ART LOFT

Heather Cox Richardson

March 29, 2022

Heather Cox Richardson

8 hr ago

558

208

Yesterday, a decision by Judge David Carter said that Trump had likely committed a federal crime when he was part of a conspiracy to obstruct Congress’s count of the votes of the Electoral College on January 6, 2021. Today, a Trump spokesperson called yesterday’s decision “absurd and baseless.”

But the investigation into the events of January 6 is producing more and more evidence about the attempt to overturn the results of the 2020 election, and it is neither absurd nor baseless.

Today, journalists Bob Woodward and Robert Costa broke a story about the internal White House records turned over to the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Those records show previously unreported brief calls on the morning of January 6 between then-president Trump and unofficial advisor Stephen Bannon and between Trump and his personal lawyer Rudy Giuliani. They also show a ten-minute phone call with Representative Jim Jordan (R-OH), who was, as Woodward and Costa note, “a key figure in pushing fellow [Republican] lawmakers to object to the certification of Biden’s election.”

Trump also talked for 26 minutes with senior advisor Stephen Miller, who had publicly pushed the idea that alternative electors from contested states would replace the official electors who cast ballots for Biden. Trump then talked, cryptically, “to an unidentified person.”

And that was the last call identified before a seven hour and 37 minute gap in Trump’s phone logs. This blackout includes the crucial hours in which the Capitol was under attack. There is no record of any calls to or from Trump for 457 minutes, from 11:17 am to 6:54 pm.

Since there have already been reports of a number of phone calls during that time, including calls to Senator Mike Lee (R-UT) and House Minority Leader Kevin McCarthy (R-CA), the committee is now investigating whether Trump hid his calls or communicated through the phones of his aides, or perhaps through unsecure “burner” phones, cheap prepaid mobile phones that are untraceable and are thrown out when no longer needed. Trump tried to kill this idea by saying in a statement: “I have no idea what a burner phone is, to the best of my knowledge I have never even heard the term.”

But former national security advisor John Bolton contradicted that, saying he personally heard Trump using the term “burner phones” in several discussions and had discussed with him how burner phones helped people keep phone calls secret. In November 2021, Hunter Walker of Rolling Stone reported that the organizers of the January 6 events used burner phones to communicate with the White House and the Trump family, including Eric Trump, his wife Lara Trump, and chief of staff Mark Meadows.

The news of this gap in the record is significant because Trump and his allies have maintained that they were challenging the election results because they honestly believed the results were false, and that they believed they were operating within the law.

If so, why the seven-hour blackout?

The missing logs might not, in the end, obscure any phone calls made in that time, though, not only because witnesses can fill in some of the holes, but also because last summer, the January 6 Committee instructed 35 telecom and social media companies to preserve records of calls. When news broke today of the missing records, Crooked Media editor in chief Brian Beutler recalled McCarthy’s threat to punish telecom companies that cooperate with the January 6 Committee.

The ten-minute phone call with Jordan suggests that the 139 members of the House of Representatives who objected to the counting of the certified ballots were perhaps not simply making a protest vote, but rather were part of a larger organized Republican effort to steal the election. That story dovetails with yesterday’s story by Michael Kranish in the Washington Post about Senator Ted Cruz (R-TX), who worked hard to keep Trump in power despite the will of the American voters, intending to lay the groundwork for his own presidential bid in 2024.

Cruz and John Eastman, the author of the Eastman memo outlining a strategy for then–vice president Mike Pence to throw the election to Trump, have been friends for close to 30 years, since they clerked together for then–U.S. Appeals Court judge J. Michael Luttig. While Eastman presented a plan by which Pence could refuse to count Biden’s electors, Cruz wrote a plan for congress members to object to the results in six critical states that Biden won, establishing a 10-day “audit” that would have enabled Republican-dominated state legislatures to overturn the election results in their states. Ten other senators backed Cruz’s plan, offering a path to create enough chaos to keep Trump in power.

Luttig told Kranish that Cruz was central to the events of January 6. Contesting the states’ electoral votes required one senator and one representative for each state. Then–Senate majority leader Mitch McConnell (R-KY) made an effort to keep his caucus from working with representatives who planned to challenge the count. But junior senator Josh Hawley (R-MO) broke ranks and said he would join the challenges. Not to be outflanked by Hawley on the right, Cruz immediately stepped aboard the train and brought 10 senators with him. “Once Ted Cruz promised to object,” Luttig said, “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.”

Along with Representative Paul Gosar (R-AZ), Cruz was the first to challenge an electoral ballot: that of Arizona.

Cruz’s plan was similar to a plan White House advisor Peter Navarro explained in fall 2021 called the “Green Bay Sweep.” According to Navarro, that plan was to block the counting of electoral votes until public pressure forced Republican-dominated state legislatures to overturn the election results and give the presidency to Trump. (It is worth noting that Navarro’s plan absolves Trump of responsibility for the Capitol violence, and seems to have been deployed in part for that reason.)

Cruz’s spokesperson said the senator “does not know Peter Navarro, has never had a conversation with him, and knew nothing about any plans he claims to have devised.”

Navarro has his own problems. Yesterday, the January 6 committee moved to hold him and another Trump aide, Dan Scavino, in criminal contempt of Congress, sending the resolution to the full House for a vote. Navarro has ignored the committee’s subpoena, saying—falsely—that Trump had asserted executive privilege over his testimony and so he could not testify, despite the fact he had written extensively about his participation in the attempt to overturn the election. Scavino, Trump’s director of social media, has also ignored the committee’s subpoena.

A budget proposal from the Department of Justice yesterday revealed that it wants 131 more lawyers to handle January 6 cases. In the request, Deputy Attorney General Lisa Monaco said, "Regardless of whatever resources we see or get, let's be very, very clear: we are going to hold those perpetrators accountable, no matter where the facts lead us,... no matter what level.”

Today, on a right-wing news show, Trump appeared to try to change the subject and regain control over the political trends when he called for Russian president Vladimir Putin to release dirt on the Biden family, since “he’s not exactly a fan of our country.” Russian state TV featured a Russian government official calling for “regime change” in the United States, asking the people of the U.S. to replace President Biden with Trump “to again help our partner Trump to become President.”

—

Notes:

https://www.washingtonpost.com/politics/2022/03/29/trump-white-house-logs/

https://www.usatoday.com/story/news/politics/2022/03/28/justice-department-prosecutors-jan-6-cases/7195328001/