Phil has ably related the outrageous things that former president Donald Trump had to say over the weekend and the perils they portend going forward. For now, I just want to address one theme of Trump’s diatribes, voiced at the rally in Texas and in a subsequent written statement embedded in Phil’s post: the loopy claim that Congress’s ongoing consideration of proposals to tighten up the Electoral Count Act (ECA) implicitly proves that Vice President Pence did have legal authority to reject state-certified electoral votes at the January 6 joint session of Congress, as Trump maintained at the time (and continues to insist).
Some of us at NR (Dan, in particular, and our editors collectively) have made persuasive cases for updating the ECA, which was enacted in 1887 by a Congress mindful of the scandalous 1876 presidential election. (See my column from January 3, 2021, discussing that election, in which Rutherford B. Hayes was declared the winner over Samuel Tilden, and the relevance of that controversy to Trump’s then-brewing “Stop the Steal” gambit, which was largely responsible for triggering the Capitol riot three days later.)
I have been less of an enthusiast regarding ECA reform than most of my NR colleagues, as I explained at this American Enterprise Institute panel late last spring. To be clear, I agree that a few tweaks could bring some welcome additional clarity to the ECA. On the other hand, though, the statute has worked reasonably well for 130 years. I do not believe there is any doubt that it vested the vice president with nothing more than the ministerial function of formally presiding (as president of the Senate) over the joint federal congressional session at which, in accordance with federal law, the state-certified electoral votes are counted. I have thus been wary about efforts to further clarify what I see as already clear enough. I am not concerned about people who, in good faith, want to be emphatic about avoiding a repetition of January 6; I worry about people who want to undermine the Constitution’s electoral system (e.g., by cashiering the Electoral College) and could exploit the opportunity of amending the ECA to make mischief.
Regardless of who among us has the better of this discussion, it is merely about tactics. No credible legal analyst believes that the ECA and the Constitution give the vice president the authority Trump claims they do. As our John McCormack explained in an important and comprehensive report, John Eastman (the constitutional scholar and Trump lawyer who drafted memos about the theory) asserts that they were just for “internal discussion” purposes — i.e., that the “crazy” theory was not “viable” as a strategy. In his own essay for The Claremont Review of Books, Eastman takes pains to distinguish the theories set forth in the memos from the advice he says he actually gave to Trump.
Nevertheless, in his weekend outburst, the former president asserts that by “desperately trying to pass legislation” to amend the ECA, “the Democrats and RINO Republicans” are, in effect, admitting “that Mike Pence did have the right to change the outcome, and now they want to take that right away.” Trump thus concludes that “unfortunately, [Pence] didn’t exercise that power, he could have overturned the Election!”
This is sheer nonsense.
A well-settled doctrine of law instructs that “subsequent remedial measures” are not admissible to prove that the occurrence the remedial measures seek to avoid would otherwise have happened or have been permissible. One of the best known iterations of this doctrine was long ago codified in Rule 407 of the Federal Rules of Evidence.
It is a commonsense good governance rule, particularly for a litigious society: If there are beneficial actions that could be taken to avoid some potential wrong, or to prevent a recurrence of a wrong, we don’t want policy-makers to shrink from taking them. But they might demur if they feared that their proposal of a good-faith remedy would be distorted into an admission that the wrong was actually permissible at the time it happened. The idea is that one who proposes a suspenders requirement just to be on the safe side should not be taken to be admitting that having everyone wear a belt wasn’t good enough.
Proponents of amending the ECA to state more emphatically that the vice president has no authority to discount votes are not conceding that, absent such an amendment, the vice president has this authority. They are saying that, since a former president and his loyalists took this indefensible position in connection with what is now an infamous event, we should be as clear as we can be that this scheme is invalid — we should do things we are in a position to do, even if they are just gestures, to prevent a future January 6 debacle.
Again, I have qualms about this approach, in part because it lends itself to exactly the kind of distortion that Trump is peddling. As a prosecutor, I spent many years listening to defense lawyers ingeniously contend that, if you looked at it from just the right angle, wrong is right, black is white, day is night, and so on. It has informed my jaded view that, no matter how perfect we try to make the rules, those motivated to break them will always conjure up creative ways to claim the rules were ambiguous.
Maybe I’m right, maybe I’m wrong. In either event, the people in favor of bolstering the ECA are in no way acknowledging that Pence had the power Trump claims he had. It is quite clear that he did not. That is why Pence, having taken an oath to uphold the law, withstood the pressure and rebuffed Trump’s overtures.
Content created by Andrew C. McCarthy
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