Live! Hearings! Live!

      3 Comments on Live! Hearings! Live!

So, I’ve been thinking about this quite a lot, and there are a few things that I think I want the “January 6 hearings” to answer, or at least address. There are presumably questions I don’t know I have yet, that it’s the job of the Committee to both provoke and address, and there’s also a lot of stuff that presumably other people want to know that I don’t care about or feel that I already know. But I think I can break it down to five basic topics:

  • What actually happened on that day and the days before it? Specifically, how many of the thousands of people involved were there to engage in legitimate (if perhaps criminal) protest, and how many were there to overthrow the government? And, if any, how many were there to instigate a riot that they could exploit for any other reason?
  • What could have been done by the various security/enforcement/oversight groups to prevent the legitimate protest from becoming violent and destructive, and when, and was anything deliberately not done that ought to have been done in order to aid the goal of overthrow?
  • The evidence appears to indicate that there was a criminal conspiracy before January 6th; were there any government officials or elected legislators who were involved in that conspiracy? What evidence is there of that involvement?
  • Given that what happened once can happen again and worse, how should the Congress revise its ritual or legal “certification” of the election? How can future such events be prevented or defused?
  • How can any losing candidate’s supporters be convinced that the election’s winner is legitimate, at the Presidential level or any other? What is the best role for the Congress in legitimizing election outcomes? What is the correct role for losing candidates and their supporters in a representative democracy?

I don’t expect to get answers to all of that stuff, but I can hope.

Tolerabimus quod tolerare debemus,

3 thoughts on “Live! Hearings! Live!

  1. Chris Cobb

    This is a good list! Given what’s been reported on the hearings so far, it seems clear that questions 1-3 are going to be thoroughly addressed. Not sure that question 4 is going to be a focus now, but that’s a hope.

    Question 5, Part A is, I fear, unanswerable in the general case. As long as people are willing to believe lies, then the power of persuasion is always going to be bounded by people’s readiness to deny the truth. Parts B and C are more answerable, but I’ll be surprised if they are addressed now. With respect to the “correct role for losing candidates and their supporters in a representative democracy,” I think we already have an answer to that question: they should follow what had been the norms of behavior for most of U.S. history. The question, I think, is how to provide appropriate legal reinforcement for those norms when they are violated. Given Constitutional protections for freedom of speech, legal restrictions on the ability of losing candidates to deny the reality or the integrity of certified election results must necessarily be indirect (absent an extremely unlikely consensus between Congress and the Courts that this is an area for reasonable First-Amendment carve-outs). I’d suggest that use of false claims about election results in political fundraising be made liable to prosecution for fraud. I’d be inclined to consider other penalties like removal of candidates convicted of such fraud from ballots, although I have concerns that such legal provisions might be too open to abuse.

    Do you have ideas about how your fourth and fifth questions might be addressed?

    1. Vardibidian Post author

      I have some thoughts, but they aren’t necessarily good ones. For the fourth question, I would like to see the ritual role of the Congress in the Electoral College separated from the legal role–assuming, as I do, that we will continue to have an Electoral College, I would (a) like to change the law to make it clear that electors must follow the state certification, except in very specific and narrow circumstances (such as the President-elect dying or similar); (2) clarify that the Congress and certainly the sitting Vice-President do not have the right to “challenge” the results of the states, except under very specific and narrow circumstances (such as formal disagreement between state’s executive and legislative branches that cannot be solved by that state’s judiciary); and (iii) then have the ritual ‘counting’ of the ballot be entirely ritual and unrelated to any such challenges, which would have to be solved in advance (with an appropriate timeline). I doubt the committee will spend any time on those matters in the hearings, but may actually address them in the report that they have been preparing.

      For the fifth question… OK, part A seems to me to involve improving and bolstering the standards by which elections are held, and I see two prominent ways to do that: provide real federal voting rights (with a method and resources for preventing states from shenanigans) and provide real federal vote-counting standards (again, with resources). Would that be enough? No. But it would help.

      The second part I have really very little idea about–there clearly is such a role, and I think it’s an appropriate matter for political discussion, but it isn’t obvious what that role should be. But, you know, Congress needs to decide that role and do it, right?

      And finally, and perhaps most importantly, is the thing that the committee actually did address, with specific reference to Washington and Lincoln, and I think did so very well. I’d like to see that discussion made more general, but it was a good start. I’m interested in your ideas of prosecutable fraud, for one thing.


      1. Chris Cobb

        From the reporting I’ve seen today, it’s possible that no new laws may be needed to render Trump’s fund-raising off of false claims about election fraud liable to prosecution, as several legal analysts indicated that the information shared in this morning’s hearings should be sufficient to get Trump indicted for wire fraud in addition to other crimes already identified. How to make enforcement more vigorous may be the operative question, then.


Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.