Lawrence Lessig gets off to a very good start!

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.


24 comments:


  1. Oh, dear.

    Here, dear Bob, this is what your goebbelsian cult does over and over, has done 69 million times in the last 5 years:

    It's over... The walls are closing in... A bombshell... Beginning of the end... Turning point...

    There's nothing new in this recent dembottery, dear Bob...

    As for "They were very dumb to believe such claims", over 50% of the US voters believe such claims, according to some polls. Of course they're all dumb, and you and your liberal comrades are the only smart ones here -- yeah, sure. Just as smart as the dembots on the video...

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    Replies
    1. Oh you're talking about the idea that the election was stolen. Release the Kraken!

      Yes, more "both sides do it" drivel.

      Delete

    2. We were talking about the self-evident fact it wasn't a fair election.

      If it isn't self-evident to you, dear dembot, here's one random item for you: Hunter Biden story is Russian disinfo, dozens of former intel officials say.

      Where the whole establishment machine, including spooks and federales, get involved in a ratfucking campaign for the establishment candidate for el presidente, that, we're sorry to say, is the way of a banana republic.

      It's also, in our opinion, a sufficient evidence to suspect massive electoral fraud.

      So, yes, stolen. Everyone knows it.

      But that's all in the past; the train's left the station. Ironically, your cult's dembots keep bringing it up, as with this ludicrous "forgeries" drivel. Tsk. Oh, well.

      Delete
    3. While the polls our resident evil slob pretends to site are dubious, he does underline that a lot of people voted for Trump. Some probably believe Trump won, some are people of low morals who believe they can lie for the greater glory of God or something like that. Some where brought up on advertising and don’t understand why they don’t get all the great stuff they seen on TV.
      So it’s a problem. Leaving it alone because people on the left is a damn stupid solution, but the only one Pastor Bob can manage.

      Delete
    4. Mao,
      You gonna cancel culture the election because it hurt your feelings?

      Delete
  2. Somerby is well aware that these lists were forgeries and were submitted illegally. Lessig says so.

    You don't contest an election by pretending that you won and refusing to concede in the face of evidence that you lost.

    Similarly, you don't win an argument about whether fake elector lists are forgeries by refusing to admit that there was a fraud perpetrated by sending such lists to the National Archives under the state seals, representing them as official elector lists.

    Somerby makes the same error as Trump and his die-hard supporters who refuse to admit that they lost -- except Somerby refuses to admit that these forgeries were a crime intended to deceive and defraud, in service of a larger plot to overturn the election and stay in power.

    Somerby's big lie is the same as Trump's big lie. I suppose now the question is whether Somerby actually believes these were not forgeries or is just saying that (e.g. lying) to gain some political advantage, propagandize, earn rubles, whatever his motive happens to be.

    Somerby looked hard and found someone who sort of agreed with his position, until you read down the page, where Somerby's position was explicitly NOT supported. Nevertheless Somerby presents Lessig as if he legitimized Somerby's complaints -- he does not. That is another kind of deception. But that's what you do when you have no leg to stand on.

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    Replies
    1. Alright going to have to give you some credit here... Lessig writes:

      "So yes, what those electors did should be criticized, and perhaps prosecuted."

      He also writes:

      "But while that process was working its way through the courts, under the Hawaii precedent, the Biden electors from Georgia, in this hypothetical, should plainly have met on Dec. 14, cast their ballots for Biden, and then sent those certificates to the archivist. In that event, nothing about the second slate of electors would have been forged or fraudulent."

      Anyway, as this is obviously a complicated matter it does not serve this well for anyone to try to portray this in a simple manner. "Forgery forgery forgery" is not the kind of analytical take that promotes reasonable discussion. But that's today's politics for you.

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    2. Read what Litman said.

      These signatures are attesting that they are the duly constituted official electors. That makes them fraudulent. They are not saying they are contesting anything.

      Delete
  3. Somerby has been arguing that Donald Trump is not guilty if he believes his big lie, and the same for the electors who put their names on fake elector lists. Rawstory examines this:

    "The question of criminal intent underlying Donald Trump's efforts to overturn the 2020 election was analyzed in a new column by former Deputy Attorney General Harry Litman.

    "Many experts doubt the ultimate ability of the criminal justice system to convict Donald Trump because it’s possible he really believed he’d won the election," Litman wrote in the Los Angeles Times. "If he is so much of a sociopath that he believes his own Big Lie (or, to state it with the sort of constitutional precision utterly foreign to him, there is a reasonable doubt whether he has that belief), could he wriggle out of culpability? He can’t — or he shouldn’t. Intent in a criminal case depends on the defendant’s state of mind about a specific criminal act, not an overall state of affairs. That’s 'hornbook law' — so basic it doesn’t require citation for law students."

    Litman, a professor at UCLA School of Law, examined Trump's "infamous shakedown telephone call" with Georgia Secretary of State Brad Raffensperger which is being investigated by Fulton County District Attorney Fani Willis.

    "If a jury believes he believes it, will they let his strong-arming slide? Trump’s claim that he won Georgia is wholly implausible — it runs against not just the weight of the evidence but the entirety of the evidence. But a jury need not decide he was lying to convict him of election fraud in Georgia," he explained. "If Willis’ case comes to trial, the jury would be instructed that the intent requirement is fulfilled if Trump wanted Raffensperger to tamper with the vote count, which is a felony. Even if the then-president was certain he was justified, he is no less guilty."

    ...

    "Litman explained the same defense would also fail for the 59 Trump supporters who signed fraudulent electoral college certificates.

    "What about state of mind here? Did those who signed the documents lack criminal intent because they “really believe” they were legitimate electors? It doesn’t matter. Even if each of the elector charlatans was possessed of the firmest of convictions that Trump had won their state, their attestation that they were 'duly' qualified is still false," he explained. "Their culpability for creating a false document with the intent of committing fraud would be unchanged by their subscription to the Big Lie."

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  4. "Rachel Maddow is almost as nuts as Giuliani, Powell & Trump and Powell. On balance, our tribe is morally and intellectually ill."

    S goes down the rabbit hole.

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  5. When we get to the end, Lessing concedes that in five cases laws may have indeed been broken. What Bob leaves out is that the White House almost certainly instructed these people and their wack job lawyers to do this BEFORE the election, insisting that the results would be illegitimate if he lost, perhaps even if he didn’t win in a flattering enough fashion.,just as in 2016.
    Does this matter from a legal standpoint? I doubt anyone can say. The Trump White House’s attacks on basic decency has pushed us into lots of rancid new ground. But Lessing’s conclusion makes Bob accusation that liberals are out for petty revenge appear stupid, as if we needed him to tell us.

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  6. I realize that this site is very particular in scrutinizing the truthfulness of the information appearing on the Rachel Maddow program. They should note that it seemed clear that in addressing the false electoral ballot delegates that she has distinguished between the five vs two fake claims. As to their intentions, I suppose we'll have to rely on the January 6 investigation to shed some light.

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  7. Meanwhile, at the Roy Moore defamation trial:

    “Three women who said Roy Moore asked them for dates as teens — when he was in his early 30s — testified Thursday morning in Leigh Corfman’s defamation lawsuit against the former chief justice of the Alabama Supreme Court,” AL.com reports.

    “Two of the women said they went on multiple dates with Moore in about the same period that Corfman alleges she was sexually molested by Moore while one said her mother did not permit her to accept an invitation for a date.”

    One of the women, who provided evidence that Moore attended her high-school graduation at her invitation, said she was a “little shocked and saddened” and “disheartened” that Moore denied knowing her."

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  8. They were just following precedent, yet they should be criticized and perhaps prosecuted.

    Sure. Makes sense. Right. No contradiction there. Huh uh. Nope.

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    Replies
    1. Not "just" following precedent. But reactions to the fact that precedent exists should be smart, not dumb: any case against possible conspirators will have to go beyond the fact that the Trump electors submitted a certificate, to establish an illegal intent.

      Delete
    2. Read what Litman said about this situation. You do not need to establish an overall intent if there was a specific intent -- i.e., if the electors knew they were not the official electors but signed the list anyway.

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    3. That actually ignores the issue raised by Lessig. Proving what the electors knew or believed (despite what they would inevitably claim in self-defense) probably requires evidence of surrounding facts. Lessig's point was that any legitimate challenge to the election would also have required the filing of a certificate of electors that contradicted that filed for the "winner." The additional evidence is required to prove that doing so in this case was not made with legal intent.

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    4. There is an established legal process that precedes the official "duly elected and qualified” ballot certification. There's no such thing as sending a provisional ballot. What bullshit are you trying to peddle?

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    5. If Lessig is wrong and you are right, I'll actually be quite happy. We'll see.

      Delete
  9. "But what the heck, this creepy guy says...."
    Suddenly Lessig becomes a creepy guy, because he doesn't adhere to Bobby's fictitious storyline. You are an abject failure, BS.

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  10. Yes, many of the others should be locked up. Why? Because they have committed crimes.

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  11. Here's the definition of the word creepy: some blogger who aligns his sympathies with Mat Gaetz. And before that Roy Moore. Any kind words for Jeffrey Epstein and you'll hit the trifecta, BS.

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