Heroes and Threats to American Democracy (September 2021)
This is the month of Labor Day and of 9/11. Labor Day commemorates the long and ongoing struggles for worker’s rights, including the 8-hour day, the minimum wage, worker health and safety, the right to strike, the end to child labor, among many other advancements. 9/11 commemorates a time when our nation’s capital and the tallest buildings in its largest city and financial hub were attacked, and of our nation’s unity in responding to those attacks and to those who inspired them.
Phil Scott is the Republican Governor of the very blue state of Vermont. At a time when citizen’s voting rights are under attack in states like Texas, Georgia and Florida, Governor Scott signed legislation ensuring that all Vermonters registered to vote will receive mail in ballots. Vermont voters will have the opportunity to fix or cure their ballot defects if it is submitted incorrectly. https://www.axios.com/voting-rights-republican-vermont-governor-156ddbff-b0e3-4f75-98f6-ab66ea0eb98d.html
At a time of great divisiveness among some communities about whether to wear masks and get vaccinated to prevent the spread of Covid, the state of Vermont under Governor Scott’s leadership has led the nation in Covid vaccinations and other public health measures to slow the spread of the disease and the deaths of its citizens. https://www.nytimes.com/live/2021/06/14/world/covid-vaccine-coronavirus-mask Vermont as a result has had low death rates, low infection rates and a thriving local economy. By way of comparison with another small, rural, homogeneously white state, “South Dakota reached the highest levels of infection seen by any state during the pandemic. At its peak, the state was reporting more than 160 new cases per 100,000 residents. Vermont, in comparison, never climbed above 30 cases per 100,000. Unsurprisingly, these states experienced stunningly different outcomes. Adjusted for population, nearly six times as many people died in South Dakota from Covid-19 as in Vermont (230 per 100,000 in South Dakota compared to just 40 per 100,000 in Vermont). In real numbers, while about 250 Vermont residents died from the disease, more than 2,000 South Dakotans died.” https://www.washingtonpost.com/opinions/2021/07/13/vermont-south-dakota-covid-19-lessons/
House Minority Leader Kevin McCarthy (R) of Bakersfield, California embodies the disunity of our nation’s politics in confronting the serious challenges facing our nation and the attack on our very democracy. Last January 6, 2021, a Trump inspired mob invaded the US Capitol, attacked the US Capitol Police, and sought to overthrow the counting of the Electoral College votes for the next President of the United States. This was the first violent take-over of the US Capitol since the British troops during the War of !812. The Capitol assailants came “prepared for war”. https://www.bbc.com/news/world-us-canada-56174168 Minority Leader Kevin McCarthy has tried to block the Congressional investigations of these events, first in the formation of a bi-partisan investigatory commission, then in the formation and investigations of the House Select Committee. Most recently, he has threatened reprisals against American telecommunications companies if they comply with House Committee requests and subpoenas for the records of communications from the Trump administration with those planning the events of January 6 and with those members of Congress who may have played critical roles in the insurrectionist events of January 6. Not only does he not want to investigate the events of January 6 in threatening our democracy, he wants to sweep them under the rug and pretend they never happened. https://www.politico.com/news/2021/08/31/mccarthy-january-6-threaten-phone-records-requests-508166
By way of stark comparison, former President Bush has warned of the growing dangers of violent right-wing, domestic extremism as exemplified in the events of January 6 and the need to confront them as a united nation just as we did in the aftermath of the 9/11 attacks. https://www.axios.com/bush-violent-extremism-homegrown-abroad-sept-11-4cc3c18e-19f5-4cfa-9b19-4ef313616873.html “We have seen growing evidence that the dangers to our country can come not only across borders, but from violence that gathers within. There is little cultural overlap between violent extremists abroad and violent extremists at home. But in their disdain for pluralism, in their disregard for human life, in their determination to defile national symbols, they are children of the same foul spirit. And it is our continuing duty to confront them.” https://www.cnn.com/2021/09/11/politics/transcript-george-w-bush-speech-09-11-2021/index.html
Conservative attorney John Eastman developed a plan for President Trump under which Vice President Pence would overturn the results of the Presidential election on January 6 during the ceremonial counting of the Electoral College ballots; the plan would be executed in conjunction with the Trump rally and the insurrection at the Capitol that followed it to pressure members of Congress and the Vice President. https://newrepublic.com/article/163764/john-eastman-coup-memo-pence Eastman spoke at the Trump rally that preceded the Capitol takeover urging Pence to take action to unseat the electors chosen by their state’s voters. https://lawandcrime.com/u-s-capitol-siege/now-retired-law-professor-john-eastman-says-his-words-at-trumps-save-america-rally-did-not-incite-u-s-capitol-siege/ The Eastman plan was for Vice President Pence to overturn Trump’s losses in all the swing states and then throw the election into the House of Representatives where each state would have one vote and Republicans would control 26 state delegations. See https://www.cnn.com/2021/09/21/politics/read-eastman-full-memo-pence-overturn-election/index.html and https://www.washingtonpost.com/outlook/2021/09/23/eastman-memo-jan-6-trump/ Trump pressed Pence relentlessly to implement the Eastman plans as did the Capitol insurrectionists, but ultimately to no avail.
Earlier Eastman sought to intervene in the Texas v. Pennsylvania, et al litigation in the US Supreme Court asking the Court to invalidate Trump’s electoral defeats in Pennsylvania, Michigan, Georgia, and Wisconsin – a case where the nine justices unanimously held there was no standing. Prior to that he argued that Vice President Harris, born in Oakland CA, was not a natural born citizen because her parents were immigrants who at the time of her birth had not become naturalized US citizens – a thoroughly debunked and factually inaccurate new birther theory. https://www.cato.org/blog/john-eastman-birthright-citizenship-kamala-harris-mexican-repatriation-citizenship-children
We are at a consequential moment for the survival of our nation’s democracy. https://www.washingtonpost.com/opinions/2021/09/23/robert-kagan-constitutional-crisis/ As lawyers let us remember that our democracy entails the resolution of our differences of opinion by seeking and speaking truth in public discourse and judicial forums, by competitive free and fair elections and by a thoroughgoing respect for their outcomes. It is a time for steadfast courage in the defense of our democratic institutions and in support of time honored constitutional principles.