What Liz Cheney doesn't get about the Constitution
In her Wall Street Journal article titled "The Jan. 6 Committee Won't Be Intimidated," Congresswoman Liz Cheney advises us that the January 6 Select Committee upon which she sits is all about defending the Constitution.
Rep. Cheney, first of all, sets everyone straight on the procedure for finalizing the electoral vote count in the Senate, and for challenging it. She correctly observes that neither the Constitution's Twelfth Amendment nor the Electoral Count Act of 1887 provides for the vice president rejecting at his own discretion the electoral vote tabulation submitted by the states. She, however, gives scant mention to the Electoral Count Act, which directs the vice president to entertain objections to the state electoral counts, the objections requiring deliberation by both Houses if in writing and signed by a senator and a representative. Its constitutionality was challenged, unsuccessfully, by Republican congressman Louis Gohmert and others, but it is a provision that Democrats have invoked after every Republican presidential election victory of the twenty-first century.
Cheney fiercely maintains that the state electoral tabulations received in the Senate are inviolate and cannot be challenged. Again, that is not the law in light of the Electoral Count Act. Plenary authority over presidential elections in each state, on the other hand, is vested in the state Legislature by Article II, Section 1, paragraph 2 of the Constitution. It provides, "Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress[.]" The state Legislature itself sets the rules for the presidential election in the state for which it legislates, subject only to the prohibitions against racial and sexual discrimination in the Fifteenth and Nineteenth Amendments and the voting age established by the Twenty-Sixth Amendment.
The "Electors Clause" was utterly subverted and cast aside in the 2020 election, as governors and secretaries of state changed the election rules or consented to such changes at the demand of Democrats. The public health crisis justification for unregulated mail-in ballots and ballot-harvesting was a rubric, abandoned after the election when congressional Democrats sought to make the innovations permanent.
Rep. Cheney, her loathing of Donald Trump forever incandescent, says he "falsely claimed that the election was stolen from him because of widespread fraud." But "there was no evidence of fraud on a scale that could have changed [the outcome]" (emphasis supplied).
Of course, had Representative Cheney said merely that there was no proof of fraud sufficient to swing the election, it might have been possible to call her assertion debatable. Whether a thesis is proven is one thing and whether there is any evidence supporting it another.
It is unnecessary here to rehearse the extensive evidence of irregularities in the 2020 election, chronicled for a year now in articles and books, and still the subject of official investigations in certain of the states. Cheney does not reply to the authors who claim to advance proof that the result was altered by fraud. She knows well enough that to steal an American presidential election, there need not be fraud on a national level, but only in the handful of "battleground" states that will decide a close election.
Ms. Cheney goes on to assert that all her fellow Republicans know that the election was fine but are too cowardly to say it (presumably fearing Trump's vengeance). She then almost immediately proves that the intimidation goes the other way: public officials and counsel representing them have reason to fear suggesting, even in court papers, that there was anything amiss in the 2020 election.
Cheney positively crows that Rudolph Giuliani has had his professional license suspended, essentially for representing his client, President Trump, in his legal challenge to the election. Indeed, from the beginning, Democrats were relentless in trying to discourage law firms with the capacity to handle so momentous an exertion as representing Trump. The firm's clients would learn that it was racist if it did not withdraw its representation of him.
Does punishing attorneys for advocating their client's position not offend the Constitution in some sense (e.g., the First Amendment's Free Speech Clause, Fourteenth Amendment Due Process Clause)? What about trying to prevent members of Congress from seeking re-election because they questioned the legitimacy of the election on the basis of Section Three of the Fourteenth Amendment, barring former members of Congress who had joined the Confederacy from again holding office in the United States? And what of dragging anyone associated with President Trump before the January 6 Committee, upon pain of contempt, and demanding production of his correspondence and records? Is there nothing amiss in the Committee investigating members of Congress because they either spoke to the president on or around January 6 or challenged the legitimacy of the election?
Rep. Cheney assures us that the Committee is "focused on facts, not rhetoric, and ... will present those facts without exaggeration." There are certain facts, however, of which she is already convinced, before the staged ritual of the hearings. "Our hearings will show that [Trump's] falsehoods [denying the legitimacy of the election] provoked the violence on January 6."
Does that mean that they have Trump on film exhorting people to commit violence in the Capitol, in contrast to the widely available footage in which he urges peaceful protest, the kind in which most of the demonstrators engaged? Or are Ms. Cheney and her new Democrat friends dispensing with the Supreme Court's protected speech standard in Brandenburg v. Ohio (1969) — speech is protected unless it actually urges imminent violence? Does she think that to question publicly the fairness of the 2020 election is a crime? Is that her idea of shouting "fire" in a crowded theater?
If the Committee is focused on the facts, then it will surely investigate whether Trump offered National Guard protection in advance of January 6 and Speaker Pelosi and D.C. mayor Bowser declined. It will no doubt determine whether there was FBI infiltration of the demonstration accompanied by instigation and entrapment. It will find out whether the Capitol Police murdered two demonstrators and arbitrarily used chemical spray on others. It will discover whether that same gallant police force let demonstrators into the Capitol, effectively giving them permission.
The proceedings of the January 6 Committee will extend the campaign of prosecution and prolonged incarceration that the Justice Department has conducted for a year against anyone inside or on the grounds of the Capitol that fateful day. Is this plan of inquisition and punishment actually in the service of the Constitution, as Representative Cheney insists? Or does it resemble more a political persecution, directed against Trump-supporters, including the many who intended only "peaceably to assemble and petition the government for a redress of grievances"?
A proceeding by Congress or the Justice Department tending to impinge upon the liberty of American citizens cannot be a defense of the Constitution. For liberty is among the "unalienable rights" enumerated in the Declaration of Independence, and the Constitution was made to "adorn" and "preserve" the meaning of that earlier document, as Lincoln famously said.