THURSDAY, JANUARY 27, 2022
After that, the illness: Lawrence Lessig gets off to a very good start in his new essay at Slate.
Not long ago, he could have been a contender! Lessig is a professor at Harvard Law School. In the fall of 2015, he was briefly a candidate for the Democratic presidential nomination—and a quixotic hopeful at that!
His essay gets off to a very good start. Headline included, here's the way he begins:
Many Trump Electors Facing Criminal Referrals Were Just Following Precedent
Though the facts behind the story have been known for more than nine months, many are now obsessed with what the presidential electors committed to Donald Trump did in December 2020, in seven key states. Their acts, many insist, were “fraudulent,” or “forgeries.” They establish, as Democratic California Rep. Pete Aguilar put it, a “dangerous precedent.”
But the “dangerous precedent” from that election is not what many of these electors did. The “dangerous precedent” is the potential it reveals.
The Trump electors in those seven states were acting on the basis of a well-known precedent, in the face of an even better-known feature of our Constitution. The 2020 election was not close. But under our law, any candidate challenging the results of a presidential election must take steps very much like what these electors did.
Especially for a Harvard professor, we'd call that a darn good start.
Lessig seems to be rolling his eyes at the claim that these people engaged in "forgeries." Along the way, he calls attention to the following facts:
Professor Lessig's stated facts:
1) Everyone knew what those (would-be) electors did. We knew this in real time.
2) Only now, some thirteen months later, are certain people obsessively insisting that they engaged in "forgeries."
3) There was in fact a type of precedent for what those (would-be) electors did. That's stated right there in the headline!
4) According to Lessig, anyone challenging a presidential election has to do something like what those people did.
Friends and neighbors, duh! Let's recall where matters stood:
In the wake of the 2020 election, the crazoid law firm of Giuliani, Powell & Trump were claiming that Trump had actually won those seven states.
It has become amazingly clear that there was no real evidence in support of those claims. It has also become amazingly clear that Giuliani, Powell & Trump seem to be totally out of their minds. That said, millions of regular people did (and do) believe their unfounded / inaccurate claims.
Presumably, many of those (would-be) electors believed that Trump had actually won their states. They were seeking to challenge the official outcomes in their respective states.
Unfounded though their claims may have been, they had every right to challenge the official outcomes in their states—and according to Lessig, you pretty much have to do something like what they did if you're trying to do such a thing.
Listen up! People have an obvious right to challenge election outcomes. And when it comes to the question of "forgeries," it's hard to see how the (would-be) electors were trying to deceive someone by the act of filing their statements.
Criminal forgery normally involves the attempt to deceive someone in order to gain something of value. No one at the National Archives, and no one in the United States Congress, was going to think that the statements those (would-be) electors signed were the actual, official statement about who had won their states.
They hadn't forged the signatures of their governors, or of their secretaries of state. Exactly no one was going to think that those were the official records of who had won those states.
No one was going to be deceived. The electors were simply lodging a claim. They were very dumb to believe such claims, but then, what else is new?
It's very, very hard to see how there was some attempt to deceive when these people were dumb enough to think that Trump won their states. The fact that they believed something dumb doesn't mean that they were committing a crime. If believing things that are dumb was some sort of criminal act, then everyone who watches the Maddow Show would be on their way to the pokey.
Those people believed something dumb, and they signed statements to that effect. Their statements had no power to deceive anyone, as a criminal forgery will do.
At this site, we have no idea why you'd want to call those statements "forgeries"—except, in fact, we actually do know.
At this time of tribal war, our attempts at politics are devolving into something the experts describe as "the criminalization of everything."
Crazy people like Michael Flynn want to get Hillary Clinton locked up. We liberals respond by trying to get a wide range of Others locked up.
We want to see Donald Trump locked up. We want to lock up Mat Gaetz. We want to lock up would-be electors. Rachel screams and howls and wails every night, and we're too dumb to see how stupid this whole mental breakdown is.
Watching cable in the past five years, we've noticed an unfortunate fact. Our thousand-and-one former federal prosecutors have inordinate skill at the task of dreaming up various ways to get other people locked up.
They can mic and match an array of laws and come up with crimes every time. As proof of that cultural tendency, you should read the Lessig piece to the end, where he ends up saying this:
LESSIG: What the Trump electors did in 2020 was, in every case, close to this, though in critical cases, something much worse. Two states were quite clear about the contingency of their votes —New Mexico and Pennsylvania. But five states prepared documents that made it seem like Trump had in fact prevailed in their state. Those claims were obviously false. Filing false claims with the government can be a crime. So yes, what those electors did should be criticized, and perhaps prosecuted. They should have done as their fellow electors in New Mexico and Pennsylvania had done — and certified a slate of votes contingent upon their candidate being declared the winner in their state. That certification, then, would have to wait—either for some state authority to declare its candidate the winner or for Congress to determine that that slate actually represents the candidate whose votes should be counted.
What the heck, this creepy guy says. Maybe we should just lock them all up, though only in five of the seven states!
In five of the states, the would-be electors didn't include the minor disclaimer they did in the other two states. Does "lack of disclaimer" break federal law? On cable TV, such things can be easily done!
It's a mental and a moral sickness to want to lock everyone up. On a national basis, it's a road to national perdition.
Rachel Maddow is almost as nuts as Giuliani, Powell & Trump and Powell. On balance, our tribe is morally and intellectually ill.
We're morally ill, and we're visibly failing. And no, those statements don't stack up as "forgeries."
They had to do it, Lessig says. Also, we may have to lock them all up!
Full disclosure: "We must not be enemies," Lincoln said.
A month later, Lincoln was killed.