Constitutional Republic

April 18, 2021April 18, 2021

Defending the Constitution From the ‘Living Constitutionalists’

Commentary by Rob Natelson

“Originalism” means applying the Constitution as the Founders understood it. Originalism is just a modern name for how English and American judges and lawyers have read most legal documents for at least 500 years (pdf).

By respecting the understanding behind a document, originalism keeps the document alive.

By contrast, there’s no simple definition of “living constitutionalism” because “living constitutionalists” differ greatly among themselves. They’re united by dislike of many of the Constitution’s rules and standards, and they all want to adjust the Constitution to serve their political goals. But beyond that, their unity ends: They sometimes have different goals, and they propose different ways of justifying constitutional manipulation.

“Living constitutionalism” is a misnomer, because when we abandon a document’s rules and standards, the document dies. In practice, “living constitutionalism” converts our Constitution into a parchment loin cloth to cover political pudenda.

Among the inconsistencies of living constitutionalists are claims that the Constitution is both “too rigid” and “too vague.” One who thinks it’s too rigid is David A. Strauss, a law professor on President Joe Biden’s Supreme Court commission. He wants constitutional law to evolve much as the common law evolves. Such “common law constitutionalists” underappreciate the fact that our decision to adopt a written Constitution was a clear rejection of the British-style “evolving” constitution.

By contrast, William Brennan, a living constitutionalist who afflicted the Supreme Court from 1956 to 1990, thought much of the Constitution was so vague as to be virtually meaningless. He referred to constitutional provisions as “luminous and obscure.” He wanted judges to replace the shimmering fog with structures of their own making.

The “too vague” and “too rigid” accusations are not only inconsistent with each other. They also are incorrect.

Let’s apply a dash of common sense to a serving of history. The Constitution’s framers weren’t the kind of people who write overly rigid or meaningless terms. They included Oliver Ellsworth of Connecticut, John Dickinson of Delaware, and John Rutledge of South Carolina, each the leading attorney in his respective state. Eight framers had been educated in London’s Inns of Court, the schools for training English barristers. The framers included other celebrated lawyers as well, such as James Wilson of Pennsylvania and Alexander Hamilton of New York. Even most of the non-lawyers, such as James Madison and Nathaniel Gorham, had been immersed in legal subjects throughout their careers. The framers had composed written legal documents in business, in law practice, in the state legislatures, and in Congress.

They were, moreover, deeply familiar with the 600-plus-year Anglo-American tradition of composing constitutional-style documents.

They drafted the Constitution as a legal document should be drafted: tuning each provision to the level of rigidity or flexibility necessary to its purpose.

As a result, some constitutional phrases are rigid—but properly so. For example:

The president “shall hold his Office during the Term of four Years.”
“No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Few of us would want to live under the “living constitutionalist” versions, which might read:

“The president shall hold [insert politically correct pronoun here] office as long as the judges, balancing all factors, decide it promotes good social policy,” and
“A person may be convicted of treason if the judges find the evidence persuasive after they have balanced its reliability and quantity with the needs of social justice.”

But when rigidity wasn’t appropriate, the framers could write terms flexible enough to satisfy any living constitutionalist. For example:

“Each House shall keep a Journal … and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy,” and
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” (Italics added)

And as explained below, the Constitution also has many provisions that are neither particularly rigid nor overly flexible.

One reason some people think the Constitution is too vague or too rigid is that they don’t understand what many of its clauses actually mean.

For 25 years I’ve been working to cure that by writing a series of research articles exploring sections of the Constitution. My research has demonstrated that many charges of rigidity or vagueness are wrong.

For example, some law professors used to laugh at how “rigid” the Coinage Clause is. The Coinage Clause (Article I, Section 8, Clause 5) grants Congress power “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.” The scoffers assumed that “To coin Money” meant only to strike metallic coin. They said that in modern society this is impractical: We need paper and electronic money as well.

But if they’d read the clause carefully, they might have noticed that interpreting “coin” as only metal made no sense. When the Constitution says “regulate the Value … of foreign Coin,” it means setting foreign exchange rates. If “Coin” meant only metal, then Congress could set exchange rates for foreign metal tokens but not for foreign paper money. Surely the Founders didn’t intend such an absurd result.

And they didn’t. As I documented in a 2008 article (pdf) published by one of the Harvard journals, the Founders understood the Constitution’s word “coin” to include money in any medium, including paper. The scoffers were flat wrong: The Coinage Clause wasn’t rigid at all!

I also have disproved the once-common charge that the Constitution permits only male presidents, and other scholars have rebutted (pdf) the charge that its original meaning permits segregation of schools.

The living-Constitution crowd leveled the opposite accusation against the Necessary and Proper Clause (Article I, Section 18, Clause 18). They claimed it was so open-ended they branded it the Elastic Clause.

The Necessary and Proper Clause grants Congress power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

“What in the world does ‘necessary and proper’ mean?” the scoffers asked. “And what about these powers ‘in the Government of the United States’? Is that a drafting mistake? The Constitution grants powers to government departments and officers, but not to ‘the Government of the United States.’” Some living constitutionalists even claimed it refers to federal authority not otherwise mentioned in the Constitution.

Most constitutional commentators have had little experience practicing law. But I had, and to me the Necessary and Proper Clause looked like a phrase I’d seen in agency and trust documents. I suspected “necessary and proper” was a common term in 18th century documents and had a specific meaning.

Investigation proved my hunch correct. During the Founding Era, “necessary and proper” and variants of that phrase were exceedingly common in legal documents. In this context, “necessary” was a technical term for “incidental,” and “proper” meant “in compliance with fiduciary duty.” I don’t have space here to explain all of these legal expressions, but I can assure you they’re not “vague.”

The Necessary and Proper Clause authorized Congress to undertake a limited number of subordinate activities the Constitution doesn’t list explicitly. My investigation also showed that the Supreme Court had misapplied the Clause in some very important cases.

I also found—contrary to what the scoffers were saying—that the part of the clause referring to powers granted to “the Government of the United States” wasn’t a drafting error or a reference to mysterious extra-constitutional authority. The Constitution explicitly grants some powers to the federal government as an entity. This last point became clear from examining colonial documents familiar to the framers but unknown to most commentators.

My Necessary and Proper Clause findings were published in a book published by Cambridge University Press and in other outlets (pdf).

Over the past quarter century, I have examined many other parts of the Constitution previously pronounced rigid, vague, or meaningless. I have found that all have fairly well-defined meanings. Moreover, most are flexible enough to accommodate modern political activity consistent with the Constitution’s underlying principles of freedom, federalism, and limited government. Admittedly, they’re inconsistent with the goals of many of the “living constitutionalists”—regimentation, centralization, and cultural destruction.

Of course, altered conditions occasionally do require constitutional change. To respond, we can use the amendment process. We don’t need to kill the Constitution on the pretense of letting it live.

Robert G. Natelson practiced law for 11 years, then served as a law professor for 25. Among other subjects, he taught constitutional law, constitutional history, First Amendment, and advanced constitutional law. In 2010, he returned to the private sector. He is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and author of “The Original Constitution: What It Actually Said and Meant.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Source: Defending the Constitution From the ‘Living Constitutionalists’

January 31, 2021

1776 Commission Director: Abolishing the Commission Won’t ‘Get Rid of These Principles’

Dr. Matthew Spalding, a professor of constitutional government and Dean of the Van Andel Graduate School of Government at Hillsdale College was interviewed by The Epoch Times’ program American Thought Leaders. He was the executive director of the 1776 Commission, created by executive order by former President Donald Trump.

The host of the program, Jan Jekielek, asked him some key questions highly relevant to the current intense political zeitgeist, allowing Spalding to cast lucidity on the partially forgotten, at least for the younger generations, ideals of 1776.

The new Biden administration has abolished the 1776 commission, a history-centered, patriotic education program that calls for remembrance of and upholding the nation’s founding principles.

Spalding spoke about the clashing points that juxtapose the New York Times’ controversial “1619 Project” and the United States’ founding history, along with the ideological and theological ramifications.

Spalding noted that current popular educational trends are unfair to students because they don’t reflect the true picture of the founding of America. The Declaration of Independence and the Constitution are regarded as “dusty old documents” rather than honored documents that hold in them powerful truths that led to the founding of the first nation with the assertion that all men are created equal and are endowed by their creator with unalienable rights.

Epoch Times Photo — A replica of the U.S. Constitution. (WikiImages/Pixabay)

He asserted that America has not always lived up to the principles that the founders believed in, but should not be judged due to its deficiencies.

One of the most obvious deficiencies is the subject of slavery.

When questioned about the irony of some of the founders owning slaves and at the same talking about abolishing slavery, he acknowledged the legitimacy of the criticism, but that it’s important to see how overcoming slavery and realization of these flaws were part of history. It shouldn’t invalidate the greatness and nobility of the founding principles, something that he said should still be loved and inspire patriotism.

“Slavery clearly existed. They were arguing about it at the time, Jefferson held slaves at the same time he wrote a condemnation of the slave trade in the draft of the Declaration of Independence. George Washington owned slaves. But by the time he writes his final will, he frees them, those that are in his estate, because he has come to detest slavery,” said Spalding.

He stated further that slavery didn’t grow out of the founding itself.

“The principle [of equality and freedom] had been established. So they can then carry it out at the appropriate time. They made compromises, but we have to understand that they were compromises, compromises in light of the Declaration of Independence. That’s the only way to understand it. Because otherwise, you must condemn the whole thing. And I think that’s just not good history. And that’s not fair to them,” he said.

Spalding asserted the necessity to understand something in order to love it, and in contrast to other regimes, the love is not to be imposed on the people.

“You can love this country, despite its flaws, because it has done so much to advance that cause. And that’s what makes it a great and wonderful, successful nation,” he said.

Spalding then turned to the subject of education, and important topics that are not taught properly anymore, such as civics.

“What is a genuine education? And what the report is especially concerned about is what is education about civics? What does one need to know to be a good citizen?

“In America, to be a citizen means you actually need to know something about American history, how American government works, the debates over what the declaration means, alternatives, great figures in history, those kinds of things. And that’s not the way civics is taught much anymore. And we think a recovery of that would be a large step in the right direction.”

Spalding then highlighted a controversial view of progressives, who ironically over-empower government and interpret “truth” rather than give people the capability to govern themselves.

“The intellectual point they make is that ‘the idea that there are truths isn’t true. They’re only historical truths or truths that progress with time.’

“Instead, what they turn to, at least the early progressives turned to science, expertise, or the idea of bureaucrats, people that have been specially trained to run things, whether that’s in the economy, in the academy, or say in government. And this is how they reshaped and rethought government to that they have themselves into this administrative state.

“It’s no longer about the fundamental ends of government. It’s about the process. And so yes, they very much introduced in its place, in the place of a Constitution granted on the principles as understood by the founders. Having unmoored it from the principles, they now kind of re-invented this new way of thinking about how to run things.

“And I think that’s something that has stuck in American history in politics, and we continue to have a kind of a troublesome problem in our politics is the fights over bureaucracy, the so-called fourth branch of government.”

On the topic of religious liberty, Spalding asserted that it was a “core right” and that it is intrinsically related to civil liberty. He added that securing rights should “garner the most respect and protection” over the increasing dominance of government.

The removal of the 1776 report from the White House webpage, Spalding believes, is due to the incompatibility of the founding principles with some of the policies that the new administration is attempting to empower or instill, such as identity politics and critical race theory.

He believes the removal gave the report, which is available in other institutions, more prominence.

“I think by abolishing the commission and removing the report, they actually drew more attention to it. Thank you very much,” he said.

Spalding was asked about the future of the 1776 commission.

“The commission, in some form, will carry on.”

“You could abolish the commission, but you can’t erase history, you can’t get rid of these principles. That’s what we’re dedicated to. And that’s what we will continue teaching and working to defend,” Spalding said at the conclusion of the interview.

Source: 1776 Commission Director: Abolishing the Commission Won’t ‘Get Rid of These Principles’

January 19, 2021January 19, 2021

Trump’s 1776 Commission Calls for National Unity Around America’s Founding Values

President Donald Trump’s advisory 1776 Commission on Monday released a public report, fulfilling its task to revisit the nation’s founding history in an effort to reunite the Americans around its founders’ principles.
Americans today are “deeply divided” about the meaning of their country, its history, and how it should be governed, according to the commission, which was created in the final year of Trump’s first term, amid an increasingly popular trend of portraying the American story as one that based on racism and oppression.
“Neither America nor any other nation has perfectly lived up to the universal truths of equality, liberty, justice and government by consent,” the report reads, following an re-examination of the principles and ideals enshrined in the Declaration of Independence and the Constitution. “But no nation before America ever dared state those truths as the formal basis for its politics, and none has strived harder, or done more, to achieve them.”
The authors dedicated a large portion of the report exploring challenges to American’s founding principles. Some of these are historical, such as slavery, which is fundamentally incompatible with the idea that “all men are created equal.” Others are more contemporary, such as progressivism, which holds that the Constitution should constantly evolve to secure evolving rights; fascist and communist movements seeking a totalitarian government with no respect for individual rights; and modern identity politics in favor of a system of explicit group privilege in the name of “social justice.”
“The arguments, tactics, and names of these movements have changed, and the magnitude of the challenge has varied, yet they are all united by adherence to the same falsehood—that people do not have equal worth and equal rights,” the report states.
The report warns of the dangers of modern political movements departing from America’s founding principles, noting that many of the historical movements were successful because they help up those principles, rather than breaking from them.
“Great reforms—like abolition, women’s suffrage, anti-Communism, the Civil Rights Movement, and the Pro-Life Movement—have often come forward that improve our dedication to the principles of the Declaration of Independence under the Constitution,” the authors wrote.
The report calls for a “national renewal” of education to teach the future American citizens the founding principles and the character necessary to live out those principles. A patriotic education, according to the authors, doesn’t mean ignoring the faults in the nation’s past, but rather viewing the history in a clear and wholesome manner, with reverence and love.
American colleges and universities are doing the exact opposite, the report warns, noting that they’ve become “hotbeds of anti-Americanism, libel, and censorship,” with the intention to “manipulate opinions more than educate minds.”
The authors specifically called out historian Howard Zinn and the Pulitzer Prize-winning 1619 Project for preventing students from seeing the humanity, goodness, and benevolence in America’s historical figures. Instead, they present their young readers with a distorted version of American history.
“Historical revisionism that tramples honest scholarship and historical truth, shames Americans by highlighting only the sins of their ancestors, and teaches claims of systemic racism that can only be eliminated by more discrimination, is an ideology intended to manipulate opinions more than educate minds,” the report reads.
The renewal of American unity will depend on every American willing to stand up against tyranny in their everyday life, the author said.
“Above all, we must stand up to the petty tyrants in every sphere who demand that we speak only of America’s sins while denying her greatness,” the report states. “At home, in school, at the workplace, and in the world, it is the people—and only the people—who have the power to stand up for America and defend our way of life.”
View this document on Scribd

Source: Trump’s 1776 Commission Calls for National Unity Around America’s Founding Values

January 6, 2021

Raffensperger Being Referred to Secret Service for Investigation Under the Espionage Act – The GOP Times

After the audio of a phone call between President Trump and Brad Raffensperger was leaked to the media, the Georgia Secretary of State may be in serious trouble.

The one hour long phone call included White House Chief of Staff Mark Meadows, and several attorneys from both the Trump administration and Georgia. President Trump and his team spent the majority of the conversation discussing several serious allegations of fraud and irregularities in Georgia’s election, while Raffensperger and his allies tried to deny or ignore any evidence brought up in the call.

President Trump also insisted throughout the call that he won the state, and threatened vague legal consequences if actions were not taken to investigate the claims.

It has been alleged by multiple sources that Raffesperger’s team leaked the call to the left-wing news outlet Washington Post.

Within 24 hours of the call, the Washington post published a hit piece about the phone call, using edited and out-of-context clips to slander the president.

Since then, it has been announced by Georgia Republican Chairman David Shafer that President Trump and his team have filed two lawsuits against Georgia Secretary of State Brad Raffensperger.

“President [Donald Trump] has filed two lawsuits – federal and state – against [Georgia Secretary of State Brad Raffensperger]. The telephone conference call [Raffensperger] secretly recorded was a ‘confidential settlement discussion’ of that litigation, which is still pending,” Shafer’s first tweet read.

“The audio published by [The Washington Post] is heavily edited and omits the stipulation that all discussions were for the purpose of settling litigation and confidential under federal and state law,” Shafer’s second tweet said.

It seems that Raffensperger is in serious trouble.

The Gateway Pundit asks the important question about the Georgia Secretary of State: “Why is he so determined to defend the massive fraud in his state?”

Jack Posobiec reported on January 3 that the White House was “planning to refer Brad Raffensperger WaPo leak to Secret Service for investigation under national security grounds of the Espionage Act.”

Source: Raffensperger Being Referred to Secret Service for Investigation Under the Espionage Act – The GOP Times

January 6, 2021

Pence: Constitution ‘Constrains Me’ From Rejecting Electoral Votes

Vice President Mike Pence speaks during a White House Coronavirus Task Force press briefing in the James S. Brady Briefing Room of the White House on Nov. 19, 2020. (Brendan Smialowski/AFP via Getty Images)

Vice President Mike Pence on Wednesday said that he doesn’t believe he has the “unilateral authority” to decide between competing slates of electors.

“It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not,” Pence said in a statement released just before a joint session of Congress began.

As president of the Senate, Pence is presiding over the session. The purpose of the session is to count electoral votes.

Under the Electoral College system, voters choose electors. Those electors then vote, almost always for the candidate that received the most ballots in their state. Congress meets in the January after an election to tally the votes.

Typically a rote affair, this session has taken on heightened significance after seven states sent two certificates to Washington, one for Democratic presidential nominee Joe Biden and one for President Donald Trump. Biden won the states but Trump has said he was cheated.

Trump and some Republicans argue that Pence has the “exclusive authority” to reject electoral votes for Biden and choose the ones for Trump. A lawsuit asking a court to support that view was rejected by a district judge. An appeal was dismissed, though the plaintiffs earlier Wednesday asked the Supreme Court to intervene.

trump boards plane — President Donald Trump boards Air Force One while departing from Palm Beach International Airport in West Palm Beach, Fla., on Dec. 31, 2020. (Andrew Caballero-Reynolds/AFP via Getty Images)

Trump has repeatedly called on Pence to act. If Pence “comes through for us, we will win the Presidency,” Trump asserted in a tweet early Wednesday. He also said his vice president could send electoral results back to state legislatures.

Pence, though, described his role as presiding officer as “largely ceremonial.”

But he noted that members of Congress can act by objecting to electoral votes. Over 100 Republicans plan to do so. They will contest at least three states, with the hope that a senator supports challenges to another three or four. Objections require signatures from a senator and a representative. They trigger a two-hour debate and a vote; a simple majority of each chamber would uphold an objection.

“Given the voting irregularities that took place in our November elections and the disregard of state election statutes by some officials, I welcome the efforts of Senate and House members who have stepped forward to use their authority under the law to raise objections and present evidence,” Pence said.

He said he’d make sure that objections that meet the requirements “are given proper consideration” and criticized people who have described objections as improper or undemocratic, accusing them of ignoring “more than 130 years of history” and pointing out that Democrats raised objections in Congress the last three times a Republican candidate for president prevailed.

Source: Pence: Constitution ‘Constrains Me’ From Rejecting Electoral Votes

January 5, 2021

Trump: Pence ‘Has the Power to Reject Fraudulently Chosen Electors’

President Donald Trump asserted on Tuesday that Vice President Mike Pence has the power to reject electors that were fraudulently chosen, echoing statements made by his legal team in recent days ahead of Jan. 6’s Joint Session of Congress.

“The Vice President has the power to reject fraudulently chosen electors,” Trump wrote on Tuesday in a tweet.

Republicans have been increasingly putting pressure on Pence, who serves as the president of the Senate and will oversee the certification of the Electoral College vote. At least a dozen Republican senators and dozens of House representatives have pledged to object to states’ electoral votes, which then is slated to trigger an hourslong debate before a simple-majority vote is held on whether to certify a state’s electoral votes.

“I know we all have got our doubts about the last election,” Pence told a crowd of supporters in Georgia on Monday, adding that “I want to assure you that I share the concerns of millions of Americans about voting irregularities. I promise you, come this Wednesday, we will have our day in Congress.”

Hours after Pence spoke, Trump told Georgia voters: “I hope Mike Pence comes through for us, I have to tell you.”

“I hope that our great vice president, our great vice president, comes through for us. He’s a great guy,” Trump said, without elaborating. “Of course, if he doesn’t come through, I won’t like him as much.”

But there have been questions about what power Pence actually has, as many legal experts have stipulated that the vice president mainly serves in a ceremonial capacity.

For the past several weeks since the Nov. 3 election, Trump and his team have alleged there was voter fraud, irregularities, and unconstitutional changes to regulations around mail-in balloting in key states. On Dec. 14, when the Electoral College voted, Republican-backed slates of electors also cast their votes for Trump and Pence in a bid to keep Trump’s legal challenges open.

Vice President Mike Pence speaks during a visit to Rock Springs Church to campaign for GOP Senate candidates, in Milner, Ga., on Jan. 4, 2021. (Megan Varner/Getty Images)

The Joint Session of Congress opens starting at 1 p.m. on Wednesday. In prior sessions, vice presidents opened up certificates reflecting the electoral vote tallies that were sent by states before handing them to “tellers,” who are individuals appointed by both chambers of Congress to read out the ballots and verify. The tellers then read the ballots in alphabetical order, starting with Alabama.

A challenge to a state’s electoral votes needs to be submitted in writing and requires a senator and a representative. On Monday, Rep. Mo Brooks (R-Ala.), the lawmaker leading the effort in the House, announced he signed an objection to “tainted” electoral votes in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin—states where Trump’s campaign has filed lawsuits or held hearings in front of legislature members.

There has been growing pressure on Pence to take action during the Joint Session, with Rep. Louie Gohmert (R-Texas) and other Republicans filing a lawsuit against him in a bid to strike down a key provision of the 1887 Electoral Count Act, among other requests. That lawsuit was dismissed over the past weekend by a Texas court. And White House adviser Peter Navarro also asserted that Pence can delay the Joint Session process and provide a 10-day audit of the election results.

Pence spokesman Marc Short dismissed the claim.

“Peter Navarro is many things,“ he told the Wall Street Journal on Tuesday. “He is not a constitutional scholar.”

Source: Trump: Pence ‘Has the Power to Reject Fraudulently Chosen Electors’

January 3, 2021

6-Person Team Briefed Hundreds of State Senators on Election Irregularities

A six-person team that included Rudy Giuliani and Peter Navarro on Saturday briefed hundreds of state lawmakers on evidence of election irregularities.

The Zoom meeting included hundreds of legislators across Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, Navarro, the White House director of trade and manufacturing policy, said during an appearance on Fox News.

“These legislators, they’re hot, they’re angry, they want action,” Navarro said. “We gave them the receipts. We explained exactly how the Democrat Party, as a matter of strategy, stole this election from Donald J. Trump.”

According to Got Freedom?, a nonprofit election integrity watchdog, the meeting included an address by President Donald Trump. Nearly 300 legislators heard from the president, Navarro, and Trump’s lawyer, Giuliani.

John Eastman and John Lott were also part of the briefing. Eastman represented Texas in the now-dismissed interstate challenge to the outcome of the election. Lott, a senior adviser for research and statistics for the Department of Justice, authored a recently released report on election theft.

Legislators were briefed on evidence of alleged voter, ballot, and election fraud, which can be viewed on a webpage hosted by Got Freedom?

“This information should serve as an important resource for state legislators as they make calls for state legislatures to meet to investigate the election and consider decertifying their state election results,” Phill Kline, who heads the Thomas More Foundation’s Amistad Project and who hosted the call on behalf of of the group, said in a statement.

“The integrity of our elections is far too important to treat cavalierly, and elected officials deserve to have all relevant information at their disposal as they consider whether to accept the reported results of the 2020 elections, especially in states where the process was influenced by private interests,” he added.

Navarro released a report on Dec. 21 that summarized and categorized evidence of election theft. In the Jan. 2 interview, he said he will be releasing another report on Monday. Navarro said Saturday the report “shows beyond a shadow of a doubt this election was stolen.”

Trump’s legal team and a handful of third parties are litigating challenges to the election in court in six battleground states. Dozens of U.S. Senators and House members have committed to lodging objections to electoral slates from those states when Congress counts the Electoral College votes on Jan. 6.

Democrats have criticized the efforts and say the election ran smoothly, apart from a small number of voter fraud cases.

Navarro also suggested that a special counsel may be appointed to investigate if fraud had occurred.

“I would not be surprised to see a special counsel on this,” Navarro said.

Trump’s legal team testified before several panels and committees from state legislatures, including in Michigan, Arizona, and Georgia. The team argued that the mounting evidence of election theft and malfeasance necessitated that the legislatures assert their constitutional right to appoint presidential electors. None of the legislatures have so far followed the team’s advice.

Trump has called on his supporters to descend on Washington when Congress counts the electoral votes on Jan. 6. Some of the senators who committed to objecting to the Electoral College votes that day said they will do so unless Congress appoints a special commission to conduct a 10-day emergency audit of the election. Individual state legislatures would then vet the findings and have the opportunity to convene and vote on a new set of electors.

Source: 6-Person Team Briefed Hundreds of State Senators on Election Irregularities

December 30, 2020

Sidney Powell: ‘Every Republican’ Should Stand Up for Trump If ‘RNC Hopes to Survive’

Sidney Powell speaking during a press conference at the Republican National Committee headquarters in Washington on Nov. 19, 2020. (Mandel Ngan/AFP via Getty Images)

Attorney Sidney Powell, who filed third-party lawsuits on behalf of President Donald Trump, said that Republicans in Congress should back Trump’s election challenge if the Republican Party hopes to survive.

“[Trump] won more than 305 electoral votes & the popular vote as well. You won in the greatest landslide in history,” Powell wrote on Twitter, suggesting that if election fraud was dealt with properly in the courts or in state legislatures, the president would have at least 305 Electoral College votes.

“If the [Republican National Committee] hopes to survive, every Republican should stand up for you now,” she said, adding that “a multi-billion-[dollar] donor told me there’s no point donating at all when [the] election is rigged.”

Later, the former federal prosecutor said that the upcoming Georgia runoff election for seats held by Sens. Kelly Loeffler (R-Ga) and David Perdue (R-Ga.) could be tainted as well.

“Maybe they already won outright. Maybe someone else won? How do you have a runoff from a failed and fraudulent first election? Get the first one right first,” Powell, a lawyer who successfully represented retired Army Lt. Gen Michael Flynn, asked on Twitter.

It comes as President Trump recently criticized GOP members of the Senate and House for not taking up his $2,000 stimulus check proposal, saying Senate Majority Leader Mitch McConnell (R-Ky.) and his allies have a “death wish.”

“Unless Republicans have a death wish, and it is also the right thing to do, they must approve the $2,000 payments ASAP. $600 IS NOT ENOUGH!” Trump wrote on Twitter. McConnell blocked an attempt to pass the $2,000 CASH Act after Senate Democratic Leader Chuck Schumer (D-N.Y.) made a request for unanimous consent.

Several Republican senators expressed their support for the bill.

Now, Democrats in Congress are highlighting McConnell’s move in light of the Georga Senate runoff elections.

“Mitch McConnell, Kelly Loeffler & David Perdue are standing between your family and a $2,000 survival check Georgia,” Rep. Ayanna Pressley (D-Mass.) wrote in a tweet on Tuesday, saying Georgians should vote for Raphael Warnock and Jon Ossoff, both Democrats. Loeffler and Perdue have said they support the $2,000 stimulus payments.

McConnell later Tuesday introduced a bill that combines the $2,000 payments with a repeal of Section 230 of the Communications Decency Act—although Democrats have said the bill is designed to fail.

Sen. Dick Durbin (D-Ill.) told CNN on Tuesday that McConnell is attempting “throw a few poison pills in there” to discourage senators from voting on the package this week.

“Let me throw in a reform of the internet while we’re at it here. Let’s do some work here and investigate the last election. For goodness sakes, stop looking for poison pills, Sen. McConnell, pass this right now. America needs it,” he said.

Source: Sidney Powell: ‘Every Republican’ Should Stand Up for Trump If ‘RNC Hopes to Survive’

December 30, 2020

Trump Team Wants to Present ‘Specific Evidence’ on Jan. 6: Campaign Adviser Jason Miller

President Donald Trump’s campaign adviser said the team is aiming to present evidence during a potential congressional debate on Jan. 6 if lawmakers in the House and Senate object to states’ Electoral College votes.

As of Wednesday, it appears that at least one member of the Senate, Sen. Josh Hawley (R-Mo.), and a number of House lawmakers will object to the electoral votes during the Joint Session of Congress. Hawley announced he would object to the electoral vote, pointing to previous Democratic efforts to do so during the 2004 and 2016 presidential elections. After the objection, an hours-long debate will occur.

Miller said that evidence could be presented in Congress, which would differ from what the Trump campaign presented in courts over the past several weeks.

“We will have a chance in front of the American people, next week to present these cases, all these evidences of fraud,” Miller told Newsmax, pointing to a lawsuit filed by Rep. Louie Gohmert (R-Texas) against Vice President Mike Pence earlier this week to prevent him from confirming Joe Biden’s electoral victory. Miller told the outlet that the 1887 Electoral Count Act allows the vice president, who is the president of the Senate, to preside over the Joint Session of Congress.

Then, Miller told Newsmax that he hopes at least one senator and representative join together to object to the Electoral College vote, allowing for two hours of debate.

The U.S. Capitol Building is seen past the Washington Monument as the sun sets in Washington on Dec. 26, 2020. (Samuel Corum/Getty Images)

Should that happen, Miller said President Donald Trump’s team is seeking to present alleged evidence of voter fraud or irregularities in the Nov. 3 election, including law changes regarding mail-in ballots in Wisconsin, “suitcases of ballots” in Georgia being wheeled out late at night on Nov. 3 in Atlanta’s State Farm Center, and being blocked in Arizona and Michigan from inspecting voting systems, alleging that ballots were counted several times.

“These are the specific types of evidence we want to present to the American people on the national stage and not allow local politicians to sweep it under the rug,” Miller said.

Weeks ago, Trump’s team led by Rudy Giuliani presented a surveillance video from the State Farm Center that showed suitcase-like boxes being wheeled from under a table. It came after election officials allegedly told other workers and poll observers that counting was done for the night.

The Georgia GOP said they received conflicting and incorrect answers and statements from Fulton County officials about what happened on Election Night, and officials later acknowledged that vote-counting went on until the early-morning hours. State election officials, in response to the video, said nothing unusual occurred with the ballot boxes and vote-tabulation process in Fulton County.

Elaborating on Wisconsin, he said, “Article II of the Constitution makes it very clear, the state legislatures, and state legislatures alone, set up the voting systems for each state, the codes and the way they are conducted.” He said, “And what we have here is we have over 20,000 ballots that were cast without actually having an application on file, the mail ballots. Wisconsin’s very clear, very specific you got to have an application on file.”

Source: Trump Team Wants to Present ‘Specific Evidence’ on Jan. 6: Campaign Adviser Jason Miller

December 29, 2020

Power of Vice President to Count or Reject Electoral Votes Disputed

News Analysis

At 1 p.m. local time on Jan. 6, members of Congress will gather in the chamber of the House of Representatives to observe the formal certification of Electoral College votes for president of the United States.

While it’s usually a formality, nothing has been usual so far about this year’s election amid numerous allegations of voter fraud in key swing states.

The situation is complicated by a lack of clarity on the legal and constitutional guardrails for the process. The joint session of Congress may well result in gridlock, in which a clear winner of the race isn’t announced at all.

Based on current election results, former Vice President Joe Biden has received 306 electoral votes to Trump’s 232 votes. Meanwhile, Republicans in seven states where Biden claimed victory have sent their own sets of electoral votes to Washington, and some members of the House have indicated that they will object to Biden electors in some states. Any objection would require support from one House member and one senator to be considered, and at least one senator has has left open the possibility he would join the effort.

So what will happen?

The counting of votes is primarily governed by the 12th Amendment of the Constitution and the amended Electoral Count Act.

The Constitution simply states that electors of each state have to meet, make a list of their votes, “which they shall sign and certify,” and send those to the president of the Senate, meaning Vice President Mike Pence.

“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,” the 1804 amendment says.

The Electoral Count Act of 1887, currently known as 3 U.S. Code Section 15, establishes a procedure for how the votes are counted, how to raise objections, and how to resolve disputes. First, it says that the vice president indeed presides over the proceedings. Then, it says the House and Senate leaders each designate two tellers. The VP opens the envelopes with the vote certificates and hands them to the tellers for counting. The tellers then read them out loud, count them, and hand them back to the VP to announce the results.

Then, in rather convoluted language, the law says that Congress members can object. At least one objection from each chamber is needed to trigger a separate vote by both House and Senate on the objections. If both chambers agree, the objected voters are rejected. That’s virtually out of the question given the Democrats’ majority in the House.

If two sets of electors are presented for counting, the House and Senate need to separately vote on which set is legitimate and which should be rejected. If each chamber votes differently, the set certified by the state’s governor should count. That would hand the victory to Biden.

The problem is, there’s a voluminous body of legal analysis arguing that the Electoral Count Act is unconstitutional. Congress has no business granting itself the authority to decide which slate of electors is the correct one and which votes should be rejected. Nor does Congress have the power to designate state governors as the final arbiters, a lineup of legislators and legal scholars have argued.

There are two arguments for who has the constitutional power to decide which electors to choose.

Some jurists say it’s the VP who has the sole discretion to decide which votes to count. The argument is that the framers intended for the VP to be the sole authority over the counting of the votes because the unanimous resolution attached to the Constitution said that the Senate should appoint its President “for the sole Purpose of receiving, opening, and counting the Votes for President.”

Moreover, before the adoption of the Electoral Count Act, it was always the VP counting the votes, sometimes despite major objections from Congress. Thomas Jefferson did so as the VP in the 1800 election, counting Georgia’s constitutionally deficient votes and de facto securing his own presidency.

Arizona state lawmakers and GOP electors, together with Rep. Louie Gohmert, have filed a federal suit asking for the court to clarify the law to the effect that the Electoral Count Act is unconstitutional and the VP’s power is paramount.

Not everybody agrees, though.

University of Virginia professsor John Harrison, an expert on constitutional history, says the VP doesn’t have “any constitutional power to make decisions” over which votes to count.

He argued that the law is deficient to the effect that “Congress doesn’t have the power to make the announcement [of its decisions regarding the vote count] conclusive.” But that doesn’t mean it can’t prescribe any rules at all.

“The Constitution does call for counting the votes with both houses present, so I think that setting up procedures for a count is within Congress’s power,” he told The Epoch Times via email.

The second argument is that the Constitution grants the authority to determine how electors are picked to state legislatures. As such, any disputes over which votes should be counted should be resolved by state legislatures.

The problem is, state legislatures aren’t in session and they can’t assemble in a special session without a call from the governors, who have refused to do so. Meanwhile, the legislatures have usually delegated the power to certify electors to the Governors and Secretaries of State, undermining their own authority on the matter.

The conservative Amistad Project of the Thomas More Society has filed a federal lawsuit arguing that the power of the legislatures is both “exclusive and non-delegable,” and thus any state and federal statutes to the contrary are unconstitutional and void.

That would not only knock down some provisions of the Electoral Count Act, but also render electoral votes that haven’t been certified post-election by state legislatures illegitimate.

Regardless of what the courts will say, the core question is what will take place in the House chambers on Jan. 6? Will Pence refuse to follow the Electoral Count Act? Will some of the tellers dissent? If things go wrong for the Democrats, will House Speaker Nancy Pelosi (D-Calif.) try to end the session prematurely?

There’s no way to tell. Pence hasn’t let his intentions be known.

Source: Power of Vice President to Count or Reject Electoral Votes Disputed