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"We're a Republic"

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Samuel C. Winchester | June 21, 2022                           Blog Archive: [link]

If you haven’t yet realized that the House Select Committee looking into the riot at the Capitol is nothing more than political theater how much more do you need to see? Maybe you didn’t get it after they narrowed their focus to only investigating the violence on January 6, 2021 and not any of the other political violence that caused billions of dollars in damage in 2020. Perhaps it still didn’t sink in after Democrats bullied the minority and prevented them from adding the members to the committee that they wanted, those who would challenge the charade and expose it. If you still didn’t get the picture after they hired an ABC Disney producer to stage manage their show and sell it to the public like TV dinners, it should be clear to you now after the first few public hearings. 


The most insidious thing about the January 6 Committee hearings is the talking point that it is not a trial and therefore doesn’t demand due process. What makes this so deceitful is that it attempts to justify shutting out any opposition while holding trial in the court of public opinion. They can say literally anything without any pushback whatsoever, and they have. The media only amplifies the story the committee is telling, and then they all point to public opinion polls to apply pressure on the DOJ to prosecute the former president.


It would be legal malpractice for the Attorney General to charge President Trump with anything based on these hearings. President Trump has been unrepresented throughout this entire performance and completely shutout of the process. His side of the story has gone untold. However, in a criminal case not only would Present Trump get a voice and a legal defense, he would have access to all discovery and his lawyers would have the opportunity to cross-examine witnesses. A conviction would be a very high bar for prosecutors.

For example, take the two witnesses that testified to the committee in the 3rd hearing. The bias and intelligential dishonesty was on full display when Greg Jacob and Judge John Michael Luttig testified. This hearing was all about Vice President Pence and his role as president of the Senate during the certification of electoral votes on January 6th. The witnesses argued that the role of the Vice President is merely 'ceremonial', and outside of counting votes there are no other responsibilities. 


This entire hearing was full of specious arguments that played on the emotions and ignorance of their viewers simultaneously. The testimony of these witnesses would have been easily disputed if there was any knowledgeable opposition on the committee. In one of the most dishonest moments of this hearing Greg Jacob asks if Vice President Pence could have unilaterally rejected electors to remain in power why couldn't Vice President Gore had done the same?


This is pure sophistry. The word 'unilaterally' was used a number of times in the hearing in regards to what President Trump was asking Vice President Pence to do, but no one has ever suggested that Vice President Pence had the authority to reject electors arbitrarily or unilaterally.   


Another phrase that was referred to quite a bit was, "disputed electors". When they talked about 'disputed electors' they were not talking about electors of concern, or electors from states in question. This was a technical term. Electors don’t become officially “disputed” until a member of the House and Senate object to them in writing. Once electors become disputed the Vice President and President of the Senate can play a role in settling the dispute. Once electors become disputed the two bodies break for debate, and then must vote to end debate by accepting or rejecting the disputed electors. If it is 50/50 in the Senate the Vice President could be the tie breaking vote to count the electors or reject them. 


The reason Vice President Gore did not have the power to reject Florida's electoral votes and make himself president is because the Vice President has no such power 'unilaterally'. Vice President Gore had many members of the House of Representatives object to Florida's electoral votes in 2001. Ironically, several members of the January 6 Committee objected. Although, not a single member of the Senate objected to Florida. Therefore, Florida's electors were never disputed.


It had been over 100 years since a Senator joined a member of the House to object to counting a state’s electors when Vice President Gore certified the 2000 election, however it has happened twice since then. It happened in 2005 when Democratic Senator Barbara Boxer join members of the House to object to Ohio's electoral votes. It also happened in 2021 when Republican Senator Ted Cruz joined members of the House to object to Arizona. 


This is what stopped the counting of the electors, not the riot. Arizona was the second state to be certified and the counting stopped once Arizona was disputed. The riot stated as Congress had starting debating the disputed electors. Had the riot not happened more electors would have certainly been disputed by a variety of Representatives and Senators. The idea that Pence was asked to act unilaterally is ridiculous.  


Democrats on the committee know this. The witnesses know this, but they also know the viewers at home don't know this. That is why they used the cheap line about Vice President Gore. Again, these tactics would have been easily refuted if the committee had an opposition, and they would certainly be refuted in a criminal case. The best evidence that the role of the Vice President is more than ceremonial is the fact that Democrats are currently attempting to change the law with a new electoral count act. They seek to limit the authority of the Vice President in this role going forward.  


The process for disputing electors has been law for 135 years. It was not framed by the founders, but was created in 1887 after a long electoral controversy the 1876 presidential election a decade earlier. After losing the popular vote by more than 200,000 votes, Rutherford B Hayes was selected to be president by the decision of a single American in an electoral margin of 185 to 184. 


In another amusing moment during the hearings last week Greg Jacob said that Vice President Pence couldn’t imagine the Founding Fathers would have entrusted the selection of the president to one man after winning their independence from King George. It was dramatic, but again, the founders did not come up with this law. Not only did Rutherford B Hays become president by one vote a decade before the 1887 law, George W Bush became president 120 years later by the decision of one SCOTUS Justice in a 5-4 ruling. I can't imagine the Founding Fathers would have been okay with that either. Had a Senator joined a member of the House to object to Florida’s electoral votes that year Vice President Gore would have had a strong case for rejecting them if Congress could not settle the dispute. This doesn't mean that Gore would have been able to award Florida's electoral votes to himself, but rejecting them would have prevented either candidate from reaching the necessary 270 electoral votes. This would have sent the decision to the House of Representatives who would have picked the new president by a single vote per delegation.     

This is all absolutely legal. It may seem unfair to the people screaming that we are, "losing our democracy"! Although, if you believe the United States is a democracy it makes perfect sense that you would find this process unfair. It would explain why the process may be foreign to you, because the United States is not a democracy. We're a republic! 

Samuel C. Winchester


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