The Trump Prosecution is an Attack on the Electoral College

            Donald Trump was very unhappy about losing his 2020 re-election bid. He complained, uttered falsehoods, and unsuccessfully tried to game the Electoral College to make him the winner. But he lost. He left office, and that should have been the end of it. The people had spoken.

            On November 15, 2022, one week after the mid-term election, when the Democrats did better than expected, Donald Trump announced that he would seek the 2024 Republican nomination for president. Three days later, Attorney General Merrick Garland appointed Jack Smith to be a Special Prosecutor investigating Trump's mishandling of classified documents at his Mar-A-Lago estate and his actions related to his attempts to remain in office after losing the 2020 election.

            On June 8, 2023, Trump became the first former president ever to be indicted when he was charged with 37 federal counts of mishandling classified documents. On August 1, he was indicted on four more federal counts related to his alleged attempt to overturn the 2020 election. The purpose of these unprecedented indictments is both to try to prevent Trump from becoming the Republican nominee (which has backfired spectacularly) and, more worryingly, to destroy the Electoral College.

            When President Biden spoke at Mother Emanuel Baptist Church in Charleston, South Carolina, just before the third anniversary of the January 6 attack on the Capitol, he said, "It was on that day that we nearly lost America." If the winner taking office in a peaceful transition of power is synonymous with America, then we did lose America in 2001 when George W. Bush was inaugurated instead of Al Gore.[1] [Click on the number 1 to read footnote below.]

            Here's what then Vice-President Biden said about Al Gore at a fundraiser in 2013, "This man [Gore] was elected president of the United States of America, but for the good of the nation, when the bad decision, in my view, was made, he did the right thing for the nation." Why was that the right thing for the nation?

            In the first case, Biden is criticizing the loser for fighting all the way through the Electoral College. In the second case, he praises the winner for accepting a "bad" Supreme Court decision and letting the loser occupy the White House without taking his fight to the Electoral College. The reason is that the Democratic Party wants to substitute the federal courts for the Electoral College without having to amend the Constitution.

            The presidential election belongs to the American people. When the loser "wins" the election, voters don't get the outcome they intended. Al Gore didn't have to accept the "bad decision." He could and should have fought for his victory all the way through the Electoral College, which is the body that elects the president, even if he ultimately lost. However, Gore threw in the towel without trying everything possible to vindicate the will of the voters, and it is this failure that Biden calls "the right thing for the nation."

            Many Americans do not understand how presidents are chosen. When they enter the voting booth, their ballot is cast, not for the presidential candidate whose name is on the ballot, but for a slate of electors who promise to vote for that candidate if they win the election. The electors meet in their state capitals in December and cast two ballots, one for president and a second for vice president. The president is elected, as the nation learned on January 6, 2021, when the ballots from the 50 states plus the District of Columbia are opened by the vice president presiding over a joint session of Congress in the Capitol and then tallied by the clerk. It is at this joint session that members of the House and Senate are permitted to object to the counting of any ballots, and then a vote is taken on whether or not to sustain the objection. In 2021, 147 members of Congress objected to counting some of the electoral votes that came from the states. It wasn't just Trump. This is all perfectly legal, with ample historical precedent.

            In this age of information and misinformation, the effect of the Electoral College is subject to intense debate. Does it favor the big states or the small states? Incontestibly, it forces winning candidates to have support all over the United States. One debated feature of the Electoral College is that, with the sole exception of Maine and Nebraska, it creates a winner-take-all system. The winner-take-all feature is controversial because the votes of the loser in every state go to the winner when the state's electors are counted. That is why presidential margins in the Electoral College are so much bigger than the difference in popular vote.

                        The most important function of the Electoral College, which is rarely mentioned in debates about how it operates, is that it keeps the selection of the president in the hands of the states and out of the hands of the federal government itself. It is part of what's called the system of checks and balances.

            The American system of self-government is predicated on the idea that the people are sovereign and should control the state. Checks and balances are designed to prevent any one branch of government from becoming too powerful, from becoming dictatorial. The Electoral College is supposed to give the power to pick the president to ordinary people outside the federal government. Electors are not allowed to hold any office under the federal government, neither an elected position nor a job.

            By making the electors state-chosen officials who perform their duties within their states beyond the reach of federal law and who are not federal officials, the framers of the Constitution were expressing their clear intention to give the states, and not the federal government itself, the power to choose the president.

            Now, let's return to then-Vice President Biden's statement that Al Gore did the right thing in 2000 by accepting the "bad" decision of the Supreme Court, which is a federal body, instead of asking the Electoral College, which is made up of state bodies, to vindicate the will of the voters.

            A decade later, President Biden is vilifying Trump for refusing to accept the judgments of state and federal courts and continuing to try to win with the electors. In the end, Trump did vacate the Oval Office, and, even at his most inflammatory, he never claimed that the Electoral College was not the proper body to pick the president. Insurrection is levying war against the United States. Trump was trying to replicate George W. Bush's' theft of the 2000 election. Instead of the Brooks Brother's riot of Republican Congressional staffers converging on the Palm Beach County Board of Elections to interfere in the recount, Trump exhorted his assembled followers to "fight like hell." Trump wanted Vice-President Pence to follow Richard Nixon's lead who, in 1960, did not count Hawaii's slate of electors that had been certified by the December deadline,[2] so he could get the election in front of the Supreme Court and win the same way George W. Bush did in 2000.  The most that can be said about January 6, 2021, is that it was a riot. Calling it an insurrection, like teaching to the test, shows the political intent to use the courts to keep Trump's name off the ballot. He can't really be kept from running because it is the electors in every state who are the candidates, and Trump can always field an "independent" slate that he can endorse. So, keeping him off the primary ballot to deny him delegates to the Republican convention is the limit of what is possible until and if he becomes the Republican nominee.

            And if trying to keep Trump's name off the ballot isn't enough, the idea that a county prosecutor, like Fani Willis in Georgia, could indict Trump on conspiracy charges based on Georgia's racketeering statute for consultations during his term as president boggles the mind. There are over 3,000 county prosecutors in the United States. The reason no president has ever before been indicted for criminal conduct while in office is because any president can be removed by impeachment and conviction in Congress, and it doesn't even have to be for a criminal offense - "high crimes and misdemeanors," or anything at all. The framers of the Constitution weren't fools. They knew people could be unfit for perfectly legal reasons, like illness. They also knew that if presidents could be indicted while in office, they wouldn't be a co-equal branch of the government (executive, legislative, judicial), and there would never again be a functioning government. In exchange for Congress being able to remove the president for any reason at all, the chief executive is functionally immune from normal criminal prosecution. Also, after a person has been elected president, what are the chances of finding twelve jurors who can be impartial enough to try her or him? That's why the Constitution gives the job of disciplining the president to Congress alone.

            According to a September 2022 survey by the University of Pennsylvania's Annenberg Public Policy Center, less than half of Americans can name all three branches of government, and one-quarter can't name any. Biden is trying to create a "Fog of Law " analogous to the Fog of War by publicly labeling January 6 an insurrection so people in the future will equate pursuing one's election through the complicated state-selected Electoral College to be prima facie proof of malfeasance, while making the Supreme Court, the most federal of federal bodies, appointed by the president and confirmed by the Senate, the final arbiter of presidential elections, just what the Constitution did not intend. The presidency can't be a co-equal branch of the federal government if it is filled by either the federal courts or by Congress.

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Contact: Joshua Leinsdorf





[1] Gore won the election with a 538,948 national vote margin. In Florida, the United States Supreme Court stopped the recount allegedly because there was no statewide uniform standard. This sounds good until one considers that Florida had used 11 different voting systems in its 67 counties that returned undervote rates of ballots without a choice for president from a high of 12.4% in Gadsden County to a low of 0.24% in Seminole. So there was already no uniform standard for counting votes in the first instance. Another clue that Gore won is that Bush's victory made his the first all-Republican administration in 48 years, since Eisenhower's landslide 1952 victory. Does anyone think the closely divided nation intended to elect it's first all Republican administration in almost half a century with a president who lost the popular vote? Exit polls showed Gore carrying Florida by 2%. While Gore's recount focused on undervotes, ballots that had no vote recorded for president, no one bothered to look at the 120,000 overvotes, where ballots had more than one choice for president. 100,000 of those overvotes were people who voted for Bush or Gore and then  also wrote-in Bush's or Gore's name. The machine tally voided those votes as two votes for president, but if the count hadn't been stopped, they would have been counted and everyone would have seen that 60,000 of those double votes were for Gore and 40,000 for Bush, giving Gore his 20,000 vote margin in Florida. That's why Bush went to the Supreme Court to get it to stop the count.  Another indication that Gore won is that the only official who could order a complete recount was the Governor, Jeb Bush, George W.'s brother, and he declined to do so.



[2] How Kennedy Won Hawaii's Three Electoral Votes in 1960, even though Nixon's Electors Were Certified As Winners by the Lieutenant Governor