It’s been no secret that leaders of the effort to overturn the 2020 election were grasping at straws as the clock was running out — or, rather, grasping at them even harder than before.
We can now add one more bad argument to the list — courtesy of none other than a lawmaker Republicans tried to appoint to the House’s Jan. 6 committee.
Rep. Jim Jordan (R-Ohio) on Wednesday confirmed that a Jan. 5 text message to Meadows disclosed as coming from a GOP member of Congress came from him. (The reason he did so is that he and allies have argued the text was “doctored,” because it truncated what he wrote and added a period where one didn’t appear. Jordan also said he was not speaking in his own words but rather forwarding an argument from a former Bush administration official.)
The text effectively argued that Pence could and should unilaterally reject certain states’ electors that day, but it did so in a rather remarkable way.
“On January 6, 2021, Vice President Mike Pence, as President of the Senate, should call out all the electoral votes that he believes are unconstitutional as no electoral votes at all,” said the text in the portion disclosed by Rep. Adam B. Schiff (D-Calif.).
The rest of the text read:
— in accordance with guidance from founding father Alexander Hamilton and judicial precedence. ‘No legislative act,’ wrote Alexander Hamilton in Federalist No. 78, ‘contrary to the Constitution, can be valid.’ The court in Hubbard v. Lowe reinforced this truth: ‘That an unconstitutional statute is not a law at all is a proposition no longer open to discussion.’ 226 F. 135, 137 (SDNY 1915), appeal dismissed, 242 U.S. 654 (1916).
It’s not clear what disclosing the fuller legal analysis changes about what Jordan sent, even as it probably would’ve been better to just share the whole thing. (“The Select Committee is responsible for and regrets the error,” the Jan. 6 committee said Wednesday.)
What is clear is that the congressman was offering an argument that Pence should assist in a highly unorthodox plot to overturn the election.
But also don’t lose sight of that fuller legal analysis, which is something.
The case Jordan was forwarding was from Joseph Schmitz, a former Defense Department inspector general in the George W. Bush administration. And it sounds high-minded — as if this plot to get Pence to help overturn the election were even something Alexander Hamilton could get behind.
The first big problem, of course, is that there was no legitimate reason to argue that election results were unconstitutional, given the courts repeatedly rejected claims of fraud and malfeasance. Others argued — to no avail — that the Electoral Count Act, which guides the process for counting electoral votes, was itself unconstitutional because it violated the 12th Amendment. (The text, though, describes the electoral votes as unconstitutional, not that law.)
But even if Pence believed either the results or the Electoral Count Act were unconstitutional, in his heart of hearts, was Hamilton arguing people like him should take action against such things?
The Hamilton quote cited comes from Federalist No. 78. You’ll note the title of the paper: “The Judiciary Department.” This was not about lawmakers or executive-branch members ignoring laws they deemed to be unconstitutional; it was about the need to have a judiciary that can review such laws for their adherence to the Constitution. The judicial branch indeed weighed in on many of these claims, and almost universally decided against Trump’s side.
What’s more, the express purpose of judicial review was to avoid the people’s representatives trampling on their rights. Right after the quote above, Federalist No. 78 elaborates: “To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves ...” Logic might suggest that would include disregarding the people’s votes in the name of reinstalling yourself in power, without judicial review validating that position.
Hamilton also wrote in Federalist No. 78 that this judicial review was “the proper and peculiar province of the courts” and that it “belongs to them to ascertain [a constitution’s] meaning, as well as the meaning of any particular act proceeding from the legislative body.” And he wrote that, “If it be said that the legislative body are themselves the constitutional judges of their own powers ... it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution.” In other words, Hamilton seemed to take a pretty dim view of legislators — and really anybody but the courts — acting as judges of constitutionality.
The Schmitz argument, as relayed by Jordan, goes on to cite a court decision supposedly backing up the scheme. It refers to 1915’s Hubbard v. Lowe, which states, “That an unconstitutional statute is not a law at all is a proposition no longer open to discussion.” One might read the text and think this was a Supreme Court precedent, but in fact it’s not! This quote comes from the district court for the Southern District of New York — in a case involving the Cotton Futures Act. (Relying upon a district court judge to undergird your case for overturning an American election is certainly a strategy.)
And even if this were Supreme Court precedent, it makes a rather anodyne point that basically says: “There is such thing as an unconstitutional law that can be overturned” — again, with the method for doing so being the courts.
It’s noteworthy in all of this that Jordan is distancing himself from the argument, at least somewhat. As Pence-plot architect John Eastman has strained to do, he’s pitching this as merely sharing information. “Mr. Jordan forwarded the text to Mr. Meadows, and Mr. Meadows certainly knew it was a forward,” Jordan’s office said.
But as with Eastman, this was someone delivering a rather desperate, legally dubious and democracy-imperiling idea to people who were clearly desperate to pursue such things. It also, crucially, shows a guy Republicans tried to put on the Jan. 6 committee promoting precisely the scheme the Capitol rioters tried to force Congress to pursue. Based upon this — and combining it with the conversations Jordan had with Trump on Jan. 6 — there’s little doubt Jordan’s own actions would’ve been a focus of the committee he was picked to serve on.
And as with its predecessors, the idea he promoted didn’t even make much sense.