When I wrote You can live with President Biden, I took great consolation from the likelihood that the Republicans would probably hold the Senate. I wouldn’t have believed anyone who told me that the Republicans would lose both Georgia Senate seats and their Senate majority and that it wouldn’t be the worst thing that happened the first week in January. It wasn’t, so we’ll leave the election until next time.
We all spent Wednesday watching in horror the worst thing that happened this week and perhaps since September 11, 2001. As the U.S. House of Representatives and Senate met in Joint Session to perform their Constitutional duty of counting the electoral votes certified by the states to elect the next President, a huge mob forcibly broke into the United States Capitol Building to threaten the Congress to overturn the election.
The mob was part of thousands of supporters who came to Washington to protest what President Trump had persuaded them was a stolen election. The protest was to occur at the Capitol and coincide with the scheduled Joint Session of Congress to count the electoral votes. Before they went to the Capitol the thousands of rioters were at a rally on the Ellipse across from the White House where perhaps 100,000 supporters had turned out to hear a planned speech by President Trump.
The President in his harangue insisted that the election had been stolen from him. He berated Vice President Pence who had expressed sympathy for the contest over the election but made clear that his Constitutional and statutory function was ministerial. Trump and some of his followers had advanced the completely unfounded theory that the Vice President who would preside over the Joint Session had the authority to declare certified electoral votes from a state to be invalid. Only the members of both Houses have the authority to object to a certified return from a state. Even before the election, I described the procedure at the Joint Session in After the Ball is Over 3: A Plague of Lawyers:
“There are detailed statutory procedures for the session. The only one I discuss here is the process of objecting to any of the votes received. Any objection must be made in a writing signed by at least one Senator and one Representative. Each house must meet separately to decide on any objection. Only if both Houses agree, does an objection prevent the vote from being cast and counted. An alternative is not substituted. The vote is simply not counted. It is still an open question whether the majority of electors necessary to elect a President is a majority of all electoral votes or just the votes counted.”
In addition to his despicable treatment of Pence, the President called the election results “this egregious assault on our democracy.” As the Joint Session began, Trump urged his supporters to “walk down to the Capitol …. We are going to cheer on our brave senators and congressmen and women,” he told the crowd, “and we are probably not going to be cheering so much for some of them — because you will never take back our country with weakness.”
As the crowd began marching towards the Capitol, the Joint Session had suspended to permit each legislative body to meet separately to debate and vote on an objection to the certified Arizona electoral vote results. The mob blew by a small force of Capitol Police and rampaged through the building to pressure the Senators and Congressmen to overturn the election and send some disputed results back to state legislatures to change the results. They vandalized the property and injured Capitol Police officers. One injured officer has since died.
Both sessions were interrupted. Congressmen huddled in the House Chamber as armed Capitol Police crouched inside near the rear doors with drawn pistols and the invaders broke windows and attempted to ram the doors open. Ultimately the Senators and Congressmen were forced to flee their chambers under guard via tunnels to places of safety in nearby office buildings. Photos of the chaos included photos of the rioters sitting in the Speaker’s chair on the House rostrum and at her desk in her office.
Additional police departments and the FBI were called in. The National Guard was called up although it did not go to the Capitol itself. Police finally cleared the Capitol after several hours. Leadership of both parties in both houses agreed that the sessions should continue the same day and they finally resumed about 8 PM.
Originally there were six signed objections submitted for the states of Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. Under the established procedure the Vice President would call the roll of states in alphabetical order, the return would be read and announced. If a proper objection were made, the houses would go in to separate session to debate for up to two hours and then vote on the objection. The Joint Session would then resume. Only if both chambers voted to sustain an objection, would it be allowed. The roll call would continue until another objection, when the procedure would be repeated until all states had been called. The process was expected to take well into the night even before the interruption.
All parties knew that there were not enough votes to sustain any of the objections in either chamber. The objectors insisted on procedure the procedure, however. They were Republicans who were plainly playing to the Trump supporters in their home states and, in some cases, perhaps, to attract them in a future Presidential campaign.
When the sessions resumed at 8 PM, debate and voting on the Arizona objection resumed and was completed. All returned to the Joint Session to report denial of the objection. As the roll call continued there was much applause when Senators, as a direct expression of disapproval of the intervening assault on the Capitol, withdrew their support for the objections to the electoral returns from Georgia, Michigan, Nevada and, later, Wisconsin. Without a senatorial co-sponsor those objections by House members did not need to be considered. Only Senator Josh Hawley (R-MO) insisted on hearing the objection to the Pennsylvania certified return. Finally, the call of the states in the Joint Session was completed and Vice President Pence announced the election of Joe Biden as President at about 4 AM.
January 6 was a horrifying, stressful, long and exhausting day for all of the participants in the process and millions of Americans who watched, some even to the dénouement at 4 in the morning. The pictures of violent invaders in some of our most sacred spaces chilled to the bone. This attack was not the worst since the British burned the building in 1814. Robert E. Lee never got close enough but Puerto Rican nationalists shot the House Chamber up while it was in session in 1954, wounding five Congressmen. Wednesday was a trauma that will be burned into our collective consciousness like 9/11 or December 7.
As it did after those earlier national traumas, the United States pulled itself together and pressed on. The Joint Session, usually merely ceremonial, went forward and was completed. The terrorists did not win. It is a tribute to our occasionally creaky, timeworn Constitutional processes that our divided nation endures.
“Mostly Peaceful” Protests. In spite of our successful navigation of this latest crisis, we are damaged. The sharp, approximately even, political and cultural division of our country continues. We now have, not only different facts from different news sources, but different ideas about what constitutes a riot and the proper response to one. One of President-Elect Biden’s first statements was a complaint that the rioting at the Capitol Wednesday was not met with as large and firm a response as the riots arising out of BLM protests last summer. Yet Biden and other Democrats were silent last summer when initially peaceful protests against perceived systemic racism in cities around the country last summer exploded into violent riots. Stores were looted, police injured and police cruisers set ablaze in New York City. A police station was seized and an entire neighborhood occupied for weeks in Seattle. Repeated attempts were made to set fire to a U.S. Courthouse in Portland OR. A fire was set inside St. John’s “Church of the Presidents on Lafayette Square in Washington, DC. In those instances expressions of outrage at the violence and destruction came largely from the right.
The riots had this in common. Large numbers of peaceful demonstrators, protesting perceived injustices, in one case, perceived systemic racism, in the other, a perception of an election stolen by fraudulent mail balloting and relaxation of election rules by institutions other than state legislatures, were infiltrated by extremists who converted the events into violent riots. The bulk of the 100,000 or so Trump supporters at the protest did not participate in the attack on the Capitol. I’m sorry but that does not render the protest “mostly peaceful” any more than the violent protests last summer.
The same rules should apply to all. Peaceful protests should be protected. They must be stopped when they turn violent and the perpetrators arrested and prosecuted. The peaceful protesters should identify, call out and get away from the violent ones. Above all, the violence must be treated the same no matter who starts it. The acceptability of violence should not vary, depending on whether one supports the cause to which the violence is supposedly directed.
In the case of Wednesday’s rioting, it was pretty clear early on the violence was not a spontaneous escalation of the excitement of the protest. It was planned ahead of time. Groups of rioters suddenly entering the complex layout of the Capitol building knew the weak spots to enter and where to go in the enormous building. Photos have shown identified leaders of QUnon, Proud Boys and an extreme gun rights group participating in the assault. Cursory investigation has disclosed masses of social media posts planning the attack including maps of the building.
Security at the Capitol. One obvious question arises: how was this attack so easily carried out? The Homeland Security Department designates some events with a heightened potential for attracting terrorism as “National Special Security Events.” These include things like State of the Union Addresses, Presidential Inaugurations and things like the Super Bowl and World Series. The security for such events is coordinated by Homeland Security, the Secret Service and FBI. It is difficult to imagine a more fraught confluence of events than the Joint Session to conduct a noisily contested electoral vote count and an expectedly rowdy rally of Trump supporters from all over the country, assembled to protest and influence that very Joint Session. Yet it seems whoever is responsible for such designations was sound asleep on the job.
The Capitol Police have a budget of nearly half a Billion dollars, more than that of the Detroit Police Department, with a jurisdiction over less than a square mile, including the Capitol, office buildings and the Library of Congress. They seem to have made no preparations to treat the day differently than any other. Entrances and halls were woefully undermanned. Capitol Police did a fine job of securing and protecting Senators and Congressmen. Beyond that, there seems to have been no plan except to avoid violence. The Chief has been forced to resign but a deep investigation is necessary. There is, after all, a Presidential Inauguration to be conducted on those premises in less than two weeks.
Only 82 people were arrested Wednesday and most of them were only charged with violations of the curfew imposed after 6 o’clock. There needs to be some serious prosecution of a lot of the rioters, especially the leaders who are largely known. There is a lot of security film available and the FBI is very good at identifying people with such evidence. There cannot be a better example of the value of much maligned facial recognition technology.
Several people died during the incident and a Capitol Police officer died later, apparently of injuries from a struggle with protestors. A woman who was participating in the attack was shot by a police officer. The details are under investigation. Anyone who participates in a crime which results in a death which was foreseeable is liable to prosecution for Involuntary Manslaughter. The leaders should be so charged, if possible. 18 U.S. Code § 1112 provides an eight-year maximum sentence for Involuntary Manslaughter.
Election Results. We have now been through two election in which large segments of the losing group have refused to accept the legitimacy of the results, relying on fanciful theories of Russian Collusion the last time and now massive unproven election fraud. In the latest instance President Trump asserts that he won by a “landslide,” although he got five million fewer votes than his opponent. His bald assertion, unsupported by any reality, should be no surprise to anyone who remembers his loud claims in 2016 that the election was “rigged” before he was surprised, along with everyone else, by his own victory. Undermining confidence in our elections is dangerous, no matter which side does it and on what theory.
President Trump’s fiery speech to the protesters was only his latest attack on the election results. Since the attack was already planned, it might be hard to claim that he incited it, but he certainly fired up a lot of his supporters, making them vulnerable to the planners and leaders.
18 U.S. Code § 2383 – Rebellion or insurrection
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
The 25th Amendment. Many Democrats have urged Vice President Pence and the Cabinet to invoke the 25thAmendment to remove the President immediately rather than permit him to remain another two weeks. That is an absurd example of the partisan ranting passing lately for thinking. The Amendment is not the equivalent of a vote of “No Confidence” by which parliamentary governments remove a Prime Minister who has displeased them. The relevant provision applies only in case of an actual disability, rendering the President “unable to discharge the powers and duties of his office.”
The proper remedy would be impeachment. I’m not sure it’s a good idea to keep Trump as the center of discussion even after he’s gone. However, an impeachment, once started could continue after Trump left office. A conviction could not be obtained in time to remove him from office but he would be barred from running again. That might be a pleasant outcome but the prospect of months more argument about Donald Trump is not an appealing one.