A Bit More About the 2020 Election

The Georgia SOS Brad Raffensperger WSJ Oped: “I Can’t Keep Trump Off the Ballot” is partially behind a paywall. Nonetheless, the excerpt focuses on the right of the people to decide.  At some point, this doesn't wash.  

We are starting to get more and more discussions about the reach of the 14A, sec. 3 provision that disqualifies people who take part in an insurrection who previously sworn to uphold the Constitution. This includes some litigation that I think generally looks premature.  

The contours of a provision mostly applied after the Civil War are open to debate.  I am sympathetic to those who want to be careful and it would have been ideal if Congress passes (passed) a bill to help clarify how to enforce it.  But, like citizenship, it is a fact with or without that.  

At some point, there is a class of people disqualified. The people do not have a right to vote for such candidates.  That is what he should have done.  He should have noted the application is unclear at the current point and there is not enough evidence for removal.  Granting I only see part of the op-ed, at some point "democracy" (including protecting us from dangerous candidates) does not involve "deciding" at the polls.  

I said basically this in a blog comment, adding that twice threatened the integrity of the election (2016/2020) and did so in ways that broke the law.  I added that he committed "insurrection," which led a lawyer who has no knowledge of any expert degree on this question to sneer at me like I was citing some patently stupid thing.  He could, with nothing cited, talk about how there is a "decent' (fairly good) argument the provision only applied to the Civil War. A patently false statement.  

A range of people, including experts and the House of Representatives (his impeachment count), provide the details. One person who accepts Trump comes within the provision blogs and I have mixed reactions to his comments.  He is a conservative-leaning law professor who has written books on 19th-century constitutional law.  A recent comment:

Here is one way to think about the next presidential election. Donald Trump's misconduct that culminated in January 6th put him in a constitutional penalty box. To leave that box, Congress and the Supreme Court must say that he deserves another chance to be President. Trump passed the first test when the Senate acquitted him in February 2021. The Court will soon decide the Section Three challenges to his eligibility. If Trump passes that test, then and only then will he be able to make his case to the voters. (You could add that juries are a third constitutional gatekeeper. A conviction does not prevent Trump from running, but may in practice make his candidacy impossible.)

This is a misleading comment. He was not "acquitted" on the facts. 57 senators, including seven Republicans, voted to convict. Some number of the rest challenged the proceedings because there was a trial after Trump left office.  Mitch McConnell, the Republican Minority Leader, said he was still liable for his crimes.  Just passed the buck.  Now he's not a big fan of trials. 

Meanwhile, there is news that the Georgia special jury recommended Sen. Lindsey Graham and the two Georgian senators at the time (whom the current Democrats defeated to get Democratic control)  be indicted as part of the 2020 election conspiracy.  The government chose not to do so, which I don't second guess, especially given possible defenses.

What does annoy me -- after all this time people wrong on the Internet still annoy me -- is the level Prof. Anthony Michael Kreis (who as a whole I respect) took the argument that it was just plain stupid (he laid it on thick, including his expertise on the issues) to even think Graham could be charged.  He would eat his hat if Graham was indicted.

Well, this doesn't count, so he didn't have to do so.  But, this suggests that there very well some grounds for Graham to be charged. He is not totally immune.  Kreis did not admit any fault.  He noted it would have been bad as a matter of prosecutorial discretion to charge him.  He assumed stuff about the jury (they saw evidence he did not see, no matter the "public" evidence).  Mr. "I'm above the fray, sorry if this upsets you, just trying to be an honest broker here" is sanctimoniously going further than the evidence.

Again, it is not that I disagree with his opinion that it would have been ill-advised to indict him (the jurors themselves were divided).  It is some aspects of his argument, including firmly talking about lack of evidence, when he simply does not know all the evidence jurors privately examined over the months of time they were involved in this effort.  

I shouldn't go crazy about this, but again, I'm sorry, it stresses me out.  It's my nature to be annoyed by bad arguments, especially when people do not temper their tone.  I don't claim to be a special polite and careful snowflake.  But, sometimes people are unnecessarily adamant in ways that are better toned down a tad.  

The special jury found that Sen. Graham was not simply doing his job. As one comment on Twitter (yeah) noted, Graham's job was to tell the Georgian SOS (remember he is a senator from South Carolina) that it was the "Republican" thing to do to help Trump out.  I don't know if he crossed some legal line, but it underlines that this is not just about Trump.

Republicans helped the effort, in and out of Congress, even if some did have their moments.  And, they keep on getting away with it.  

==

As I was adding final touches to this, the news was out that a federal judge rejected Mark Meadows' attempt to remove his case to federal court.  

I appreciate this decision, which will likely be appealed, because I think the overall effort was to put forth a public face that he was just doing his job.  Legal minds can debate all you want about technicalities but removal will send that public message and to me, it is a problematic one.  

Meadows is trying to convince us he is different, he is not one of the crazies but was just reasonably doing his job. No, you weren't.