The effort by President Trump to up end American democracy and establish himself as America’s Mussolini took the form of a lawsuit filed on December 8, 2020 by the Attorney General of the State of Texas. The Attorney General, currently under indictment for bribery (a federal crime) and likely looking for a pardon from Trump, claimed that “the election in four swing states—Georgia, Michigan, Pennsylvania and Wisconsin—suffered from ‘unconstitutional irregularities.’”[1]
This suit is based on the baseless voter-fraud claims rooted in Trump’s incessant lying—known by officials in both parties as mendacious, deliberate untruths. The untruths behind the case are widely understood. Even Trump’s Attorney General William Barr has publicly concluded that no significant fraud took place in the election. Just claiming there is fraud doesn’t establish its presence. Just believing fraud took place isn’t proof it took place. Evidence constituting proof is required. Nevertheless, “the attorneys general of 17 states—including Florida, South Carolina, Tennessee, Indiana, Utah, Arizona and the Dakotas”[2]—have also signed onto this bizarre legal action.
On December 9, Trump increased pressure on the Supreme Court to give him a favorable ruling by persuading 106—ultimately 126 including House Minority Leader Kevin McCarthy—of the 196-member Republican caucus in the House of Representatives to sign an amicus brief in his favor. The suit asked the court to essentially nullify the 10.4 million votes for Biden in the four swing states charged in the suit—two of which are led by Republican governors—as remedy for the claims made in the complaint. The suit asked that the electors from these states be blocked from voting and that the state legislatures support alternate electors.
In response, 20 states, Guam and the Virgin Islands filed counter amicus briefs urging the court to reject the Texas suit. The four states targeted by the Texas suit excoriated it in their submissions to the Supreme Court. “Texas’ effort to get the court to pick the next president has no basis in law and fact,” Pennsylvania Attorney General Josh Shapiro said in a court filing that labeled the case a bid to construct “a surreal alternate reality.” He added that the court “should not abide this seditious abuse of the judicial process and should send a clear and unmistakable signal that such abuse must never be replicated.”[3] In his December 11 New York Times column, David Leonhardt cites David French of The Dispatch (a conservative publication), “If [the plaintiffs] get their way in court, they would break the country.” “They won’t,” comments Leonhardt.[4]
The Post in its editorial that day said,
Latching onto Texas vs. Pennsylvania, the last-ditch lawsuit from Republican state attorneys general, the Trump team admitted that it cannot show fraud but argued that the Supreme Court should block the electoral college from finalizing its votes anyway. Judges will reject this wild argument too.[5]
The Texas suit is a corrupt, wrongful, unpatriotic action that seriously damages the standing of the United States in the world community. It is deeply contrary to the best interests of America’s people. Amidst many bad things and no good things, as Dave Leonhardt points out, it encourages substantial potential violence:
- Dozens of Trump supporters, some armed, went to the home of Jocelyn Benson, Michigan’s Democratic secretary of state, and began shouting obscenities.
- On Twitter, Trump supporters have posted photographs of the home of Ann Jacobs, a Wisconsin official, and mentioned her children.
- In Phoenix, about 100 Trump supporters, some armed, protested at the building where officials were counting votes.
- In Vermont, officials received a voice message threatening them with ‘execution by firing squad’.
- Seth Bluestein, a Philadelphia official, received anti-Semitic and violent threats after Pam Bondi, a Trump ally publicly mentioned him.
- A Georgia poll worker went into hiding after a viral video falsely claimed he had discarded ballots.
- Brad Raffensperger, Georgia’s Republican secretary of state, and his wife received death threats, including by text message, and caravans have circled their house.
- Gabriel Sterling, another Georgia official, received a message wishing him a happy birthday and saying it would be his last.[6]
And remember the planned abduction and killing of Michigan’s governor a few months back—a plan that seemed amusing to Trump. Recently Trump came to Georgia to campaign for the two Republican Senate candidates. While on the way, he phoned Governor Kemp, a former ally, but one no longer. He directed the governor to call a special session of the state legislature to discuss the replacement of Georgia electors pledged under the certified popular vote, with a slate selected by the Republican dominated state legislature. Governor Kent refused, saying that he was not permitted to do so under either state or federal law. He went from ally to whipping boy as far as his relations with Trump were concerned.
At Trump’s behest, Rudy Giuliani pursued a voter fraud case in the federal court in Pennsylvania, calling for the disenfranchisement of millions of Pennsylvania voters while offering no evidence of fraud. The case was emphatically lost at the trial court and circuit court levels, with conservative Republican judges of the Third Circuit writing the opinion. The case was appealed to the Supreme Court. On Monday, December 7, the Court handed down its decision. It was a one line per curium decision, a unanimous, 9-0 rejection and all plaintiff requests were denied.
The Supreme Court delivered its opinion in the case of Texas vs. Pennsylvania on December 11, 2020 just a few days later:
The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its election. All other pending motions are dismissed as moot.
Statement of Justice Alito with which Justice Thomas joins: In my view, we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. See Arizona v. California 589 U.S.—February 24, 2020. (Thomas; J. dissenting). I would therefore grant the motion to file a bill of complaint, but would not grant other relief, and I express no view on any other issue.[7]
The dissent by Alito and Thomas was procedural in nature. On the substance they made clear that they stood with the majority. So, on the substance of the case the vote was 9-0 here as well. President Nixon had been rejected once by a 9-0 vote of the Supreme Court, President Trump has accomplished it twice, a new record—and in one week.
The plaintiffs in Texas v. Pennsylvania included 18 of the 26 sitting Republican state attorneys general and the associated amicus brief was signed by 126 of the 196 Republican House members, including House Minority Leader, Kevin McCarthy. This legal action, correctly described by the Pennsylvania attorney general is indeed a “seditious abuse of the legal process.” It has absolutely no basis in fact. There is no evidence of any significant fraud or impropriety associated with this election as some 80 judges (Republican and Democrat), the Supreme Court justices (twice) and sitting Attorney General William Barr have affirmed. Biden was elected in a free and fair election. Trump’s baseless claims of fraud and impropriety are establishing the principle that it’s acceptable to try to overturn an election result with lies and conspiracy theories by legal or even extra-legal means. Anyone in office who contributes to a direct assault on American democracy in support of a corrupt and malicious would-be dictator is in violation of his or her constitutional oath and, therefore, should be banned from public positions that require an oath to the Constitution to assume office.
Some Republicans have been rightly appalled by such actions. “The act itself by the 126 members of the House of Representatives, is an affront to our country,” said Michael Steel, the former Chairman of the Republican National Committee. “It’s an offense to the Constitution and it leaves an indelible stain that will be hard for those 126 members to wipe off their skin for a long time to come.”[8]
The President of Freedom House, Michael Abramowitz stated, “From a global perspective this certainly looks like many of the cases we’ve seen around the world where an incumbent tries to hold on to power…there’s no question that people around the world are now looking to America and it’s really important for Americans of all parties to stand up for the rule of law and democracy.”[9]
Former New Jersey Governor and long an important figure in the Republican Party Christine Todd Whitman said, “I have been comparing it to Jonestown. They’ve all drunk the Kool Aid. It just hasn’t killed them yet.”[10]
“Since Election Night, a lot of people have been confusing voters by spinning Kenyan Birther type, ‘Chavez rigged the election from the grave’ conspiracy theories, but every American who cares about the rule of law should take comfort that the Supreme Court—including all three of President Trump’s picks—closed the book on this nonsense.” Sen. Ben Sasse (R. Neb.) said in a statement.[11]
“House Republicans have faced what amounts to a choice for or against democracy: whether to sign on to Texas Attorney General Ken Paxton’s delusional lawsuit to overturn the presidential election. A large majority failed that test.”[12] Senator Mitt Romney’s (R-Utah) comment on the Texas suit was, “The idea of supplanting the vote of the people with partisan legislators, is so completely out of our national character that it’s simply mad.”[13]
And through it all we should remember that nothing is more important than our democracy and that Trump is not worth having even as chief federal dog catcher. During the greatest public health crisis in history of our republic, a crisis that should be Job One for our president, our president is only by his own electoral situation. In a 46-minute video rant the week after Thanksgiving, the Mad King, as he has been correctly called in the recent past, “dismissed the coronavirus as an ‘excuse’ to send out mail-in ballots.”[14]
Let all patriots who love this country, who adhere to its principles consult our Founders for guidance and remember that:
“We hold these truths to be self-evident, that all men [and women] are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed….” — Thomas Jefferson, 1776
“The original and equal rights of man, as the foundation of free government had long been understood…” – James Madison, 1830
“We are a government of laws, not of men….” – John Adams, 1780
“…the jaws of power are always open to devour, and her arm is always stretched out if possible to destroy, the freedom of thinking, speaking and writing.” – John Adams, 1765
“The liberties of our country, the freedom of our civil Constitution are worth defending at all hazards. And it is our duty to defend them against all attacks.” – Samuel Adams, 1771
“If there is a principle that ought not to be questioned within the United States, it is, that every nation has a right to abolish an old government and establish a new one. This principle is not only recorded in every public archive, written in every American heart and sealed with the blood of a host of American martyrs; but is the only lawful tenure by which the United States hold their existence as a nation.” – James Madison, 1793
“We should be unfaithful to ourselves, if we should ever lose sight of the danger to our liberties, if anything particular extraneous should infect the purity of our free, fair, virtuous and independent elections.” – John Adams, 1797
“Rebellion to tyrants is obedience to God.” – Benjamin Franklin, 1776
John Jay
[1] David Leonhardt, “The U.S. Gets Closer to Vaccines. And Dozens of Republicans Join the Campaign to Overturn the Election,” New York Times, December 11, 2020, https://www.nytimes.com/2020/12/11/briefing/pfizer-trump-lawsuit-star-wars-your-morning-briefing.html.
[2] Ibid.
[3] Will Smith, “Pennsylvania, Georgia, Michigan and Wisconsin Strongly Condemned the Texas Case to Overturn the Election Results, Press Stories, December 11, 2020, https://presstories.com/2020/12/11/pennsylvania-georgia-michigan-and-wisconsin-strongly-condemned-the-texas-case-to-overturn-the-election-results/.
[4] Leonhardt. “U.S. Gets Closer.”
[5] Editorial, “Trump and his GOP Enablers Are Slandering American Democracy,” Washington Post, December 11, 2020, https://www.washingtonpost.com/opinions/trump-and-his-gop-enablers-are-slandering-american-democracy/2020/12/10/f8466170-3b30-11eb-bc68-96af0daae728_story.html.
[6] Leonhardt, “The US Gets Closer.”
[7] Texas v. Pennsylvania, et al., https://www.supremecourt.gov/orders/courtorders/121120zr_p860.pdf.
[8] Jim Rutenberg and Nick Corasanti, “In Rejecting Texas Lawsuit, Supreme Court Deliver a Rebuke to the G.O.P.,” New York Times, December 13, 2020, https://www.nytimes.com/2020/12/13/us/politics/in-rejecting-texas-lawsuit-supreme-court-delivers-a-rebuke-to-gop.html.
[9] Jim Rutenberg and Nick Corasanti, “‘An Indelible Stain’: How the G.O.P. Tried to Topple a Pillar of Democracy,” New York Times, December 12, 2020, https://www.nytimes.com/2020/12/12/us/politics/trump-lawsuits-electoral-college.html.
[10] Ibid.
[11] Mili Godio, “GOP Senator Reacts to SCOTUS Decision on ‘Nonsense’ Election Reversal Bid, Newsweek, December 12, 2020, https://www.newsweek.com/gop-senator-sasse-reacts-scotus-decision-nonsense-election-reversal-bid-1554333.
[12] “Republicans Faced a Simple Choice: For or against Democracy,” editorial. Washington Post, December 13, 2020, https://www.washingtonpost.com/opinions/republicans-faced-a-simple-choice-for-or-against-democracy/2020/12/11/e2e9a610-3bef-11eb-98c4-25dc9f4987e8_story.html.
[13] Ibid.
[14] Amy Davidson Sorkin, “Getting Through,” New Yorker, December 14, 2020, https://www.newyorker.com/contributors/amy-davidson-sorkin.