A Week of Years

I was thinking about a bunch of  random things when I realized Little Miss will turn seven at the end of this month, which means FIL is gone, on the secular calendar, 7 years today. He missed meeting his great-granddaughter by 17 days. That always bothered me, and sometimes, when I write about "Little Miss," the phrase has a slightly sad twist to it: he missed meeting her by just a little miss.

Seven is a week's worth of years. So much has happened in that span of time, yet FIL's departure seemed to have happened only yesterday. There's a whole bunch of stuff I am relieved that he missed, and he's probably relieved that he missed it...if he's still thinking about this place. I'm certain he would be thrilled with how the boys are now. And that weird laugh he had would be heard often in response to Little Miss and Young Sir. That Little Miss is a budding scientist/engineer would launch him over the moon. 

John and Rudy. Great couple.

What would launch him over a different moon is the investigation into Feckless Former's attempted coup. Yes, it was an attempted coup. As the investigation digs into the events leading up to January 6, 2021, a name emerged most people hadn't haven't before: John Eastman. This is a guy we need to know more about, but Americans of all parties need to know about the memo he wrote and provided to the Feckless White House. According to multiple sources, including CNN, The New York Times, and The Washington Post, the memo was obtained by Bob Woodard and Robert Costa. I am reprinting it in its entirety because it is not to be believed that a lawyer provided this to the White House and Department of Justice as a roadmap for overturning the presidential election:

PRIVILEGED AND CONFIDENTIAL

January 6 scenario 

7 states have transmitted dual slates of electors to the President of the Senate.

The 12th Amendment merely provides that “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.” There is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch. 

The Electoral Count Act, which is likely unconstitutional, provides: 

If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.

This is the piece that we believe is unconstitutional. It allows the two houses, “acting separately,” to decide the question, whereas the 12th Amendment provides only for a joint session. And if there is disagreement, under the Act the slate certified by the “executive” of the state is to be counted, regardless of the evidence that exists regarding the election, and regardless of whether there was ever fair review of what happened in the election, by judges and/or state legislatures. 

So here’s the scenario we propose:

1.  VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if Pence recuses himself), begins to open 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 the 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. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore 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 now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by 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, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that 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 creates a stalemate that would give 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 in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit 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. 

But wait, there's more. According to the Woodward/Costa book, PERIL  Eastman met with VP Pence and his chief counsel, Gregory Jacob

Mr. Eastman recalled getting in touch with Mr. Pence’s legal counsel Mr. Jacob the next day about whether Mr. Pence could delay the certification.

“I think Jacob was looking for a way for he and Pence to be convinced to take the action that we were requesting, and so I think he continued to meet with me and push back on the arguments and hear my counters, what have you, to try and see whether they could reconcile themselves to what the president had asked,” Mr. Eastman said.

When do we get to use the word, TREASON?

One would think I have had enough of the bull-oney.

Yes. More than enough. 

However, we came very close to a coup. Waaaaaay too close. 

Now, I know a lot of you called me alarmist and other fun, yet similar, names back when I was hocking about this two years ago, but the bottom line is that I was spot on in calling the lead up to the election and the actions subsequent to November 3rd, 2020 groundwork for a coup d'etat. 

Doesn't really much matter to me what one's politics are so long as they are pro-democracy. Hell, my dad was a Republican. The party ain't the point. My biggest worry right now is that come the next election, a large swath of the US population won't remember what democracy is about and will attempt to put the Orange Tide back in the White House.  

As I write, I know there is a damn good chance Feckless Former is going to try to block the memo and other documents from being entered in evidence in the investigation. I can only trust the Federal Court system to do its job and allow the investigation to proceed. This may be optimistic thinking, but I really want to be right on this one. 

Meanwhile, we remain standing at the very edge of a precipice and as such, we have choices: we can be lemmings and hurl ourselves over the ledge, or we  can stand up, turn around, and take this country back in another, more voter-oriented direction that would require the rollback of voter suppression laws. 

And that's a whole 'nother issue by itself. 

The Wifely Person's Tip o'the Week

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Thank you, Martin Jan Månsson!