THERE WAS A MEMO!
The tale is a combination of “King Lear,” “Dr. Strangelove” and “A Confederacy of Dunces.”
TCinLA
Sep 21 19
“Peril,” the new book from Bob Woodward and Robert Costa (which just landed on the front porch here at Le Chateau du Chat) is the gift that keeps on giving.
Their story of the attempts Trump made to overthrow the government and remain in office are both terrifying and laugh-provoking. The tale is a combination of “King Lear,” “Dr. Strangelove” and “A Confederacy of Dunces.”
Other people are also taking note of this memo from former Chapman University law professor John Chapman - where he lays out the “roadmap” to the January 6 coup, had Mike Pence not discovered at the last minute what those things hanging between his legs are:
This is what was proposed:
1. VP Pence, presiding over the joint session (or Senate President Pro Tempore Grassley if Pence recuses himself), begins to open the envelopes and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically, is required).
2. When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other states. This would be the first break with the procedure set out in the Act.
3. At t he end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means “the total number of electors appointed” - the language of the 12th Amendment - is 454.Ths reading of the 12th Amendment has also been advanced by Harvard Law Professor L:awrence Tribe. A “majority of the electors appointed” would then be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.
4. Howls, of course, from the Democrats, who then claim, contrary to Tribe’s prior position, that 270 are required. Then Pence says fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where “the votes shall be taken by the states, the representation from each state having one vote...” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.
5. One last piece. Assuming the Electoral Count Act process is followed, and after getting the objections to the Arizona slates, the two houses break to their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean a prior legislature was determining the rules of the present one - a constitutional no-no (as Tribe has forcefully argued). So someone - Ted Cruz, Rand Paul, etc. - should demand normal rules (which includes the filibuster). That would create a stalemate that would allow the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.
6. The main thing here is that Pence should do this without asking for permission - either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who conceded in 2001 that the President of the Senate might be in charge of counting the votes) and others who would press a suit would have their past position - that these are non-justiciable political questions - thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the vice President as the ultimate arbiter. We should take all of our actions with that in mind.
Fortunately, the fact is that the Constitution DOES NOT assign this power to the Vice President. Also, the “alternative electors” from the seven states were self-appointed Republican supporters of Trump, none of whose delegations had been “deemed validly appointed” by any of the state legislatures.
Since far right wingers are incapable of original thought, Eastman’s reliance on Professor Tribe’s argument deserves to be commented on by Professor Tribe, who has done so:
“Ludicrous but scary as hell. Think 2024. Those guys mean business - even though their “law” is totally fake.”
The important sentence there is “Think 2024.” The changes in voting rules in the crucial Republican swing states that have been or are being put in place give the Republican-controlled state legislatures the power to overturn the popular vote result in the state, allowing them to “validly appoint electors” who would vote against the expressed will of the people in the popular vote. Provide a Republican majority in the House in 2022, and in 2024, they can find a way to try and run this, regardless of Vice President Harris being there rather than Pence.
The plan was perfectly, exquisitely Trumpian:
1.Pence should lie.
2. Then he should leverage his lie in order to take the election out of the hands of American voters through the exercise of an authority he doesn’t have under the Constitution.
The plan was first proposed to Pence on January 4 in a meeting where Eastman was present with Trump, while Trump attempted to convince Pence he had the authority to stop the certification of the election. According to Woodward and Costa, he said, "You really need to listen to John. He's a respected constitutional scholar. Hear him out."
Eastman already got himself in trouble, speaking at the Stop The Steal rally on January 6, with the result that he is no longer Dean of the Chapman University Law School, having “retired” at the request of the school in lieu of being forcefully separated from all his benefits from his time there.
He’s not a newcomer to Far Right Crazy World, where the sky is green and the grass is blue. He’s a long-time resident. Bill Kristol points out that, even though he’s been dropped at Chapman, he is still the chair of the Federalist Society’s “Federalism & Separation of Powers Practice Group.” But of course he would be a member of the traitorous Federalist Society. All lawyers, when they take their oath to join the bar, swear that they will “defend the U.S. Constitution, in all ways, at all times.” Federalist Society lawyers take that oath with the fingers of one hand crossed behind their back. Despite his removal as dean, Eastman still heads the Claremont Institute’s Center for Constitutional Jurisprudence
Eastman co-authored with Stephen Balch an article titled “How States Could Constitutionally Assume Abandoned Responsibilities of the National Government.” Balch is, if possible, even more extreme than Eastman. A former professor at Texas Tech and organizer of the National Association of Scholars, he wrote after the election: “... an audacity is now called for, a willingness to stretch institutional bonds to a degree that genuinely alarms our conniving subverters...” and made clear that there should be no restraint on actions to overturn the election, writing, “So damn the COVID, the president must now lead his followers into America’s streets and squares. They must especially flock to the capitol complexes of all the critical states and register indignant protest..”
They begin the article by introducing a legal “doctrine” of their own design called “protective resumption.” What they mean by this is “a resumption of the states’ reserved police powers in the face of abdication by the federal government of its own primary responsibilities.” They take quarantines and mask orders as a useful precedent for an even greater expansion of state police powers, asking “what such robust assertions of police powers could achieve, constitutionally and politically, if put to different and more legitimate ends.”
Helpfully, the authors make an explicit nod to the white nationalist “Great Replacement theory,” asserting that the Biden administration has “thrown open” the southern border as “part and parcel of a larger project to transform our civic order through demographic change.”
Embracing the audacity and divisiveness of their scheme as virtues, they write, “As in the case of any deliberately thrown gauntlet, the bolder these policies, the better.” Specifically, they think the governors of border states should declare the federal government has abandoned enforcement of the border and put their own national guard units in place, then dare the federal government to come remove them. These units would be backed up by the civilian paramilitary “militias” the Right has organized, writing,”... where they would demonstrate and provide cheer and comforts to the police and guardsmen. Demonstrations would also be mounted in major cities, making this a high intensity, media saturating, citizen-involved campaign.”
Make no mistake, what they are calling for is a Second Civil War. They want it. And no one in Conservative World is pushing back against this kind of thinking. If anything, the “usual suspects” are all in with this insanity.
While trying to understand what Trump was thinking about anything ever is next to impossible - since it’s so obvious that it’s not an activity that he engages in with sufficient practice to do it - what’s in “Peril” pretty much makes it clear that he woke up on the morning of January 6 believing that he would, in fact, be reinstated as president, that day. After Pence had told him the night before that he did not have the power to do what Trump wanted, and made El Blobbo del Mar A Lardo mad enough to come up with a 6-year old’s solution - “If you won’t do this, I won’t be your friend any more” - Trump green-lit the coup at the rally where he thought that he and his mob might pressure both the Vice President and congressional Republicans into going along.
The violent attack on the Capitol that followed was both part of Trump’s conspiracy to hold onto power, and an outburst of anger when he failed to hector Pence into going along with this crazy scheme.
Fortunately, like most other Trump ventures, it was a spectacular failure.
But remember: Trump is in the process of creating and reshaping a GOP that just might go along with this in 2024. All it takes is a GOP majority in the House after next year’s mid-term election.
I feel like my old friend, the late Hollywood Legend, who saw the Nazis for what they were, and “became a crank” on the subject of waking up to the existential threat they were.
Like Professor Tribe says: “These guys mean business.”
