Leibowitz: The Assault on the Capitol Building and its Aftermath

The causes of the assault on the Capitol Building go back a few years—but the key drivers began on Nov. 7, when the press called the 2020 election for Joe Biden. The results in Pennsylvania, Michigan and Wisconsin (all three states won by Trump in 2016) convinced the media that Biden would capture the 270 electoral votes needed to win. Then Georgia turned blue, bringing Biden over 300 electoral votes. President Trump refused to accept the result. He asserted that fraud must have been involved in order for him to have lost. The Trump base agreed. 

Over the next five weeks, until the actual Electoral College vote on Dec. 14, numerous lawsuits were filed. They were all rejected. 

Why were they rejected? Because they all proceeded from the assumption that Trump’s election loss was only explained by fraud. While his base was convinced, fraud was not the only possible explanation. Joe Biden got more votes than President Trump, and he carried states with more electoral votes than the president. Were votes manufactured that were not actually cast? No. Were votes cast that should not have counted? That is less certain—but there was no real demonstration of that. The states concerned (Wisconsin, Michigan, Pennsylvania, Georgia, Arizona, Nevada) had different rules and issues. The results in no state were explained by the new rules, many of which were driven by the pandemic. 

More fundamentally, the legitimacy of votes in a presidential election is not Congress’ to decide. However, the last stop in the election process was the counting of the electoral votes on Jan. 6 in Congress, a usually ceremonial function called for by the Constitution’s 20th Amendment. The Trump effort shifted to an attempt to turn opening and counting the votes in Congress to starting a congressional investigation whether the votes were legitimately cast under the laws of 51 different jurisdictions. Congress long ago established by legislation that it would not disturb state-certified election results if they were certified by the date six days before the electoral votes were cast. All the states and the District of Columbia (except Wisconsin) met the deadline. Wisconsin’s Supreme Court resolved all the issues about the election on Dec. 14, 2020, the date the Electoral College voted. So, there was nothing to investigate.

The president nevertheless tried to flip the vote in Georgia last weekend. He called Georgia’s Secretary of State, Brad Raffensperger, and asked him to find 11,780 votes to turn the election. He may have made calls to other states—all to no avail. 

Congress lacks the statutory power to overturn state-certified elections, but President Trump claimed that Congress had the authority. He also claimed that Vice President Mike Pence, as president of the Senate, could refuse to count electoral votes that he considered to have been improperly cast. That is what led to the president’s focus on Jan. 6 as the last date to overturn the election; this motivated the base. 

The commitment of the president to contest the election up to Jan. 6 directly led to the loss of two Republican Senate seats in Georgia, due to the discouragement of voting in a “rigged” election on Jan. 5. Thus, the Senate will be organized under Democratic leadership. All the Committee Chairmen will be Democrats and all tie votes will be settled by the vote of Vice President Kamala Harris. 

On the morning of Jan. 6, the president “lit the flame” of violence (in the words of Liz Cheney, a Republican Representative from Wyoming and the daughter of former Vice President Dick Cheney) in a speech to tens of thousands of supporters near the White House—he urged them to march to the Capitol. 

Was the speech the spark that directly caused the assault on the Capitol? That issue will be debated incessantly. Many members of Congress, including several Republican legislators, support that view. Others are not so sure. There was, however, clearly a powder keg in Washington and the fuse was lit.

What are the likely consequences? As a matter of immediate consequence, there are increasing calls to remove the president from office. Impeachment by the House of Representatives is likely. But conviction by the Senate is very unlikely. Under the 25th Amendment to the Constitution, a written declaration by the vice president and a majority of the Cabinet that the president is “unable to discharge the powers and duties of his office” could transfer the president’s authority to the vice president. This step is very unlikely as well. Alternatively, there are increasing calls for the president to resign before Jan. 20. That also seems unlikely to happen.  

Two of the 15 Cabinet secretaries resigned last week, taking them off the list possible signatories to the 25th Amendment declaration. All the Cabinet Departments have either confirmed or acting secretaries, including Treasury Secretary Steven Mnuchin and Commerce Secretary Wilbur Ross. Other members of the Cabinet, such as U.S. Trade Representative Robert Lighthizer, Budget Director Russ Vought and White House Chief of Staff Mark Meadows are not on the 25th Amendment list. While the 25th Amendment has been invoked six times since its adoption in 1967, the declaration of inability to serve has never been used. 

While speculation runs rampant, it seems that the president is likely to be in office until noon on Jan. 20. He has said he will not attend the inauguration of Joe Biden and Kamala Harris—however, Vice President Mike Pence has said he will attend.

One important question is whether President Trump will take controversial actions over the next 10 days, further roiling such issues as China tariffs, immigration policy, and others. The events of last Wednesday seem to make major controversial actions less likely but not unthinkable. Especially controversial actions could increase the pressure on Congress to take action to remove the president, but that again is simply speculation. 

One thing is certain: Trump’s term as president will end at noon Eastern time on Jan. 20. 

After the inauguration, the new president, Congress and other arms of government will have large agenda to get through. Differences between parties, and branches of government, will continue. The question is—sobered by the deadly siege of last Wednesday—will the nation’s leaders have the ability to settle differences over issues that somehow look less important than they did a week ago. Our democratic institutions were dealt a blow last week—decisions to come will strengthen or weaken those institutions. 

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