Coming Election Challenge Is Not Treason (but How Biden Allies Might Counter Is What Got Us Into This Mess to Begin With)

Coming Election Challenge Is Not Treason (but How Biden Allies Might Counter Is What Got Us Into This Mess to Begin With)
AP Photo/Jacquelyn Martin

CNN’s Washington Correspondent Jake Tapper is the latest in a growing list of lefty journalists and legislators, and some Biden allies on the right, to breathlessly declare that the election challenge in Congress — led by House GOP members, bolstered by Senators Ted Cruz (R-TX) and Josh Hawley (R-MO), and supported by Vice President Mike Pence — is a treasonous coup.

As Constitutional scholar and attorney Turley writes:

Both the media and Democratic members have advanced this narrative despite Democratic members repeatedly raising such challenges in the past. In the few acknowledgments of that history, Democrats seem to be advancing a simple and familiar defense: Trump. Once again, open hypocrisy is negated by Trumpunity. After all, they cannot be anti-Democratic because they are Democrats. That conclusory position was evident in the spin this week on CNN by former California Sen. Barbara Boxer who led such a challenge to the 2004 election results.

Of course, it’s not extraconstitutional and therefore not seditious or treasonous (and it gets increasingly funnier that people who supported the ridiculous Russia collusion hoax paid for by Hillary Clinton would call something guaranteed by law a coup, but I digress).

But here’s what is extraconstitutional: what Biden allies on both sides of the political aisle, at least according to Politico, might do to counter their imagined “coup.”

The law that guides the proceedings, the Electoral Count Act — passed in 1887 to address the disastrous election of 1876 — is vaguely written and full of gaps that have perplexed constitutional scholars for a century. Now, Trump and his allies are working to exploit those gaps to try to muscle their way to a second term.

There’s little doubt that Biden will be certified as president by the end of the day on Jan. 6 or in the wee hours of Jan. 7, but Trump’s allies could cast a cloud over the process — grinding it to a halt, attempting to force votes on alternate slates of Trump-supporting electors and raising untold objections to the proceedings that could disrupt the traditionally ceremonial event.

But the lack of clarity also creates enormous opportunities for those who wish to limit or prevent the daylong spectacle that Trump’s allies are promising. That could include both Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell, who has been working to tamp down GOP support for challenges in recent days — drawing Trump’s fury.

“This is actually a point at which Congress could do a great deal to curb some of the more dilatory moves that some people might try to take,” said Scott Anderson, a governance studies fellow at the Brookings Institution and senior editor of Lawfare. “There’s lots of spaces to fill in, in terms of how they intend to interpret and apply the Electoral Count Act.”

In fact, while Congress has voluntarily submitted to the rules laid out in that 1887 law, there is a raging constitutional debate about whether lawmakers can deviate from it or ignore it altogether. And aides in both chambers say the rules are likely to change at least in some form for a simple reason: social distancing amid the pandemic.

In short, according to this report, they plan on using the same pandemic excuse that led to the constitutional challenges that got us into all this mess in the first place.

So, when you hear the left and their righty allies complaining about treason or sedition because Ted Cruz wants a Commission to study the thousands of affidavits alleging fraud, remember: they’re the ones that changed the rules and ignored the law that led us to where we are now. And at some point, their wounded inner children that just hate Trump and his winning and MAGA-ing so, so much are going to cry wolf one too many times.

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