Updated: Mar 3
Perhaps one of the most politically contentious issues of the past year is one that is not strictly “political” at all. When it comes to the 2020 election results and their aftermath, there are real legal answers to the questions raised. We may not know those answers, but they exist. President Trump and his team tried one method of obtaining those answers. Congress is now trying another, albeit a rather more oblique one. However, these methods leave something to be desired: Congress, by its very nature a political body, cannot avoid coloring what ought to be a principally legal matter as an entirely (or nearly entirely) political one.
The legal errors, omissions of fact, and, in many cases, outright untruths that have propagated from both sides in the wake of January 6th have been legion. None has been more egregious, however, than the persistent account that President Trump’s attorney, John Eastman, advised then-Vice President Pence unilaterally to decertify electors from disputed states in an effort to “overturn” the election results. Dr. Eastman has repeatedly corrected this allegation, observing that he advised Pence to return electors in disputed states to the legislatures of those states to decide for themselves which of their states’ electors were legitimate.
Whether one finds it plausible that the states would have returned results any different from those that were ultimately counted is perhaps an important political question, but it has no bearing on the legal matter. However, that point has largely been lost, with such publications as CNN, the Washington Post, Politico, and countless others insisting (with a good deal more heat than light, at times) that the event was unmistakably and obviously an attempted overthrow of the American political system.
Anyone who cares to can verify for themselves exactly what Eastman advised the President and Vice President, as the memoranda have been publicly available for two months, now. One may regard the actions proposed as a political “Hail Mary,” an unrealistic pipe dream, or even a case of poor sportsmanship. (Of course, one is free not to think so, as well.) But it ought to be perfectly clear that what was on the table was an attempt to produce a legal solution to a legal problem. Claims of an attempted coup are, to say the least, extremely tendentious. Article II, Section 1 of the United States Constitution is extremely clear that the manner and means of appointment of state electors is a power explicitly delegated to the state legislatures and to them alone. However, the fact that this seldom-referenced document is, was, and continues to be the law of the land seems to have escaped some of the ranking members of the House, who have taken it upon themselves to investigate the “attempted coup” this advice apparently represents.
When Committee members casually throw around language like “attempted coup,” “attack on our democracy,” or accuse people of “a powerful push to overturn the legitimate results of the 2020 election,” one might have grounds to question their impartiality. And when they openly threaten criminal charges against those involved, it can come as no surprise when those accused assert their Constitutionally protected right against self-incrimination. That’s exactly what Dr. Eastman’s attorneys have done, in a letter sent to the Committee last Wednesday.
Charles Burnham, Eastman’s attorney, objects to the Committee’s subpoena for, inter alia, flatly ignoring House rules, basic notions of due process, and even the very resolution that authorized the Committee in the first place. More significantly, the letter points out that the Committee’s testimony is being conducted behind closed doors and that witnesses are prohibited from discussing their own testimony. While the House does allow for committees to take sealed testimony, it does so only when there is good reason to believe the testimony would jeopardize national security or inhibit law enforcement. (If the committee genuinely believes the matters discussed in the testimony it demands pose a serious threat to national security or the legitimate enforcement of the law, there is more than a whiff of melodrama to it.) However, because of the Constitution’s speech and debate clause, the committee members are exempted from this gag rule. They can say whatever they want about the testimony, allowing them to “disclose slanted versions of the testimony with impunity.” This is, in my opinion, exactly what they’ve done.
And so, despite the wishes of the Committee, Dr. Eastman will not be testifying, which is hardly a great surprise. This comes as yet another blow, after Steve Bannon, Jeffrey Clark, and myriad others have refused for a variety of reasons. The members of the committee can make as much noise as they like about this “defiance,” as indeed they have. Ultimately, however, they can do little but recommend the Department of Justice prosecute those who have run afoul of the Committee’s wishes. Unlike Congress, however, the DOJ usually has to consider things like laws and proper procedure before it prosecutes.
Ultimately, this whole muddy situation results from a failure of the duly empowered legal bodies to deal with challenges as soon as they were brought. If President Trump’s claims were illegitimate, some court among the literally hundreds to hear them owed it to the American people to say so. No matter how deeply one may believe that the objections raised were baseless, sentiment alone cannot decide a legal dispute. The only proper means to resolve a legal dispute are legal means. Instead, what the American people received was near-universal abdication by judges who refused to hear the evidence and instead dismissed matters on procedural grounds in a misguided attempt to avoid making political rulings, despite the fact that both action and inaction carried weighty political implications.
So, rather than being heard in a court of the law, the American people and Congress were left to hear the matter in the court of public opinion. The courts were the proper venue in January, as they are now. Rather than a decisive answer – one way or another – to what was at its root a legal question, we are left with what amounts to a permanent gag order and semi-official verdict of treason against anyone that Congress and a sizable bloc of the public regard as having been on the side of “the enemy.” If anything is detrimental to the health of a republic, it is the effort to substitute political will for the rule of law. If Congress will insist on flinging accusations, let it look to its own actions, as well.