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Notes -
If Trump thinks the election has been stolen, then the electors aren't fake (from Trump's point of view, obviously).
This sounds about the same as the Smith indictment, and is far from open-shut for the same reasons. (mens rea, essentially)
It's the same principle as - you think your wife conspired with a corrupt family court to take your children, so you forge documentation to get a school to turn them over to you, breaking a court order. Maybe you're right. But there are processes for addressing that, and if you ignore those (or in trump's case try them but perform terribly and don't prevail), you don't have a right to lie and manipulate other processes.
This is a fundamental way modern governance works. The process prevents conflict by giving both individuals and the state a - usually fair - 'final authority' to appeal to, instead of using violence, coercion, or deception. Even if it's sometimes wrong, it's better to have a single source of truth to prevent conflict - whether that's individual conflict over who owns what or who deserves what, or political conflict over who has power. It's known who wins and how that's decided, according to the process and the court, the monopoly on violence enforces it, so nobody bothers to even fight. If you're wrongfully convicted, your supporters don't suicide bomb the cops/accusers and start a blood feud, they collect evidence and appeal. If someone screws you on a deal, you sue based on the contract both parties signed. If you lose an election and are upset, you file a lawsuit.
It could be argued this is a fundamental pillar holding up modern life. I'm not entirely sure - certainly a neoreactionary government would have less of this at the top-level, but that isn't ours. And if the election wasn't stolen (and I'm very unconvinced by arguments that it was), then Trump's actions is not good for democracy.
This is exactly what the neoreactionary critique gets at, though. In this scenario, the process is your king; your final authority. And because those processes are carried out by people, ultimately those people are your kings.
In short, this way of thinking creates and sustains an oligarchic form of government. Don’t like the process? Don’t like who runs it? Then appeal. By what means? A process. Who runs that process? You’ve already guessed.
Honestly, I agree with you that this is probably the best way of doing things a lot of the time, as opposed to direct personal power or mob democracy. But this flaw is inherent and IMO when the bureaucracy gets too powerful and too uniform then this form of government starts to curdle.
You're allowed to change the people who run the process.
(How? By a process...)
But still. You can indeed change the people in charge and they can indeed change the processes of government. Even if in theory you can get into a closed loop where the people in power use their power to stay in power, that is not currently the case in reality. Although Trump did give it the old college try.
That’s exactly the point under discussion, no? The allegation from trump’s side is that this has already happened, and that following standard procedure for resolving disputed elections is therefore meaningless because the entire bureaucracy is controlled by the enemy.
Personally, though, I was thinking of the Civil Service, who I very definitely can’t vote out of office. From where I’m standing Britain has been in that closed loop for at least 20 years now.
I assure you that politicians very much do have the power to shut down departments, fire civil servants, etc. And if none of the options on your ballot paper are promising to do that, you can stand for election yourself.
The obstacle you face is not that the civil service is all-powerful. It's that your fellow citizens disagree with you.
https://www.civilservant.org.uk/information-dismissal.html
Politicians may not fire or hire civil servants in the UK. They may request for them to be moved, but they will get a new civil servant in a similar mould. They can rearrange departments but those departments will, again, be staffed by the Civil Service and I do not believe that the government can formally choose which civil servants are appointed.
These tools might be enough if the civil service contained a significant amount of different opinions, but in practice they are wholly insufficient. Given that the legal system also leans hard left, I can’t see any future for conservatism in the UK without completely reworking the Civil Service, the human rights apparatus, etc. What my fellow citizens think does not affect government policy, only government rhetoric.
The government makes the rules. If they want to fire civil servants, they can give themselves the power to do it.
In theory, yes. In practice, I can't recommend highly enough that you watch Yes, Minister. There was a post about it here not too long ago. It's utterly brilliant. You will laugh a lot. You will have a joyous time watching it. It will be the highlight of your year.
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Do you really, honestly think that could happen? Without the civil service pulling every dirty trick in the book? Without all sorts of scandals bubbling up out of the woodwork? Without strikes? Without rebellions in the Lords? Without legal challenges?
Regardless, if the necessary requirement to get conservative policies passed is ‘lead a rebellion to replace the existing bureaucracy’ then that sounds exactly like an oligarchy to me. The King technically has the power to overthrow the PM tomorrow but if there’s no realistic prospect of exerting that power then you don’t really have it. Same with the government. The set of powers it has in reality is far, far smaller than the ones it’s supposed to have.
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How would we confirm that unless we see it actually happen?
I disagree with your assertion, and point to the numerous and well-documented instances of the civil service and other centers of unaccountable power wielding massively disproportionate influence in ways I consider malign. Illegal Undercover ops to discredit elected officials and cripple their ability to govern are actually kind of a problem in a purported democracy. End-runs around the concept of a free press are likewise a problem for similar reasons.
But in the end, this comes down to opinions. you are arguing that the system is basically fine. Other people are arguing that it's broken. You can engage with their concerns, and perhaps persuade them, or trust the system and simply handwave them, in the hopes that their critiques are unfounded. The later is, obviously, the correct answer at least some of the time, for some claims. Time will tell if this is one of those times.
You mean like when Margaret Thatcher abolished the Civil Service Department?
Or if that's too far in the past, how about the Department for International Development, abolished in 2020.
I swear, some of you people want there to be a shadowy cabal in charge of everything.
Thanks for these examples, I didn’t see this reply before.
As far as I can see, the departments were abolished but the functions were reallocated. This would be enough to prevent a few civil servants from unduly influencing policy but I don’t think it’s enough to prevent a unified civil service from continuing their preferred policy. Note the continued presence of Stonewall in civil service departments despite the government explicitly forbidding it, or the way that ex-Tavistock personnel seem to be cropping up again in their new gender treatment facilities.
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... Both of those examples are in the United Kingdom, and the DID was merged into the Foreign Office without many firings. The CSD reforms did cashier out 140k people from the civil service before breaking the department into new groups, and some functions were privatized, so I'll give you that one, but it was also almost forty years ago and lead to massive efforts to specifically try to prevent that exact sort of thing from ever happening again.
In theory, the UK doesn't really have a 'higher pleading' in the way the United States has the Constitution, so there's nothing explicitly preventing a future PM from changing the law and stripping a new department out. But in practice the last attempt for a significantly less robust rollback ended Poorly. Which isn't strong evidence -- there's a lot of failure in the Johnson government! And yet.
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I thought that's what we voted on in 2016, but instead the people in charge of the process didn't play fair, and instead hamstrung the duly elected executive at every opportunity. The uniparty did not play fair.
Instead the 2016 election remains Trump's greatest crime. He defied the uniparty and must be punished for doing so. I have yet to see anything that contradicts this interpretation, and so it remains the lens through which I view these developments.
Might there be other explanations for Trump's failure than the forces of Mordor using dark plots to defeat our lone hero? Maybe Trump was an ineffective executive with a lot more bluster than execution, who was too stubborn to not commit crimes that didn't benefit him at all?
This is a necessary condition to explain what we've seen, but not sufficient.
Given that we know Trump was spied on by the Obama administration, and that every lever of power came together to fortify the election against him, I don't think it can be honest to pretend that it's all just him, and what he's done.
Trump delenda est may as well be the motto of the uniparty wherever it holds power. Pretending otherwise is make-believe.
I enjoy talking to & listening to all sides of the political spectrum, because it gives perspective. Ken White just claimed that if Trump said what he said to witnesses on his current cases as a private apolitical defendant, he'd be in jail for contempt already, and he's getting special treatment anyway. It's funny how the side that's getting preferential treatment is always the other side.
You're like the leftist radical who notices some poor people can't pay their bills and announce CAPTIALISM DELENDA EST because a BAD THING IS HAPPENING. There have always been, and will always be, bad things happening. Yet that doesn't make today unique, nor does it mean that bad things are the only thing that is happening. Mild foul play is the everywhere in politics, and the system functions regardless. I believe this refers to obamagate / crossfire hurricane. Wikipedia claims there's no evidence Obama had anything to do with that personally - which, you know, eh, maybe that's true, maybe it isn't. But I think we can agree that this had little material impact on trump's election chances - if we're asking if the FBI's discretion helped or hurt trump, it's as close to help as hurt, given Comey's announcing he was re-opening the clinton emails investigation two weeks before the election. Why isn't that evidence the FBI hated Clinton? And this is all peanuts compared to something like Bush v Gore, where you can credibly say the supreme court decided the election. In favor of the, uh, republican. I think this line of thought undermines the claim that trump is being uniquely and unprecedentedly persecuted.
You need to apply some epistemic learned helplessness here. Observe from afar the buffeting winds of the hurricane that is political discourse - all sorts of ideas forming and crashing into each other. Accountants and cardiologists come to strong conclusions about corruption and malicious intent based on complicated inferences in fields like law, economics, foreign policy, and sociology. Does CarRepairGuy #MAGA2020 or TeacherMomOfThree #StopAsianHate really understand the latest legal controversy where the other side is undermining america because they hate us? Do you really understand all the subtle technical differences between the usual adaptation of an old process (elections) to the circumstances of the times, and active manipulation? Does - not republican media, exactly, but the distributed consensus of millions of trump partisans on the internet that you're informed by - really have good incentives or mechanisms of finding the truth? How likely is it that 'every lever of power' really 'fortified the election' in a way that mattered?
I went meta there because - there's so much stuff within claims of election fortification it'd take way too long to get into all of it, and it's years ago.
Why do people continue to think that this is a worthwhile point? Comey actually explained this and has been extremely vocal about his dislike for Trump.
I think this is the third or fourth time I've had to post this quote on the Motte.
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Well, because they did that against their will. They were attempting to keep the fact that classified emails were comingled with child porn on Clinton's top aid's husbands laptop, but the local FBI field office shared some of their intel with the NYPD who eventually got word to Guiliani who was then shopping an "FBI coverup of Clinton emails" story which Comey got wind of and instead got ahead of while simultaneously massively downplaying what had happened.
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The dark plots by the forces of Mordor unquestionably happened, so it behooves us to address them rather than imagine hypothetical scenarios where they did not. This does not change when Trump is, in fact, an ineffective executive with more bluster than execution. It doesn't change even if he did in fact commit crimes.
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Yes it is. The deep state is in power and will forever be in power unless someone can fire 3/4 of the federal government which is impossible due to lawfare. The bureaucracy is a self-sustaining cancer at this point.
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I don't believe this is true. Even if you think fraud has occurred, you can't just appoint electors based on what you think the result would have been. There's a process that has to be followed.
Even if Trump believes that the process has been corrupted, it's still illegal for him to solicit a public official to subvert the process.
By analogy, let's say I buy a lottery ticket but then someone steals it from me. The lottery gets drawn, and I am convinced I had the winning numbers. The lottery won't pay me out based on my insistence that I would have had the winning numbers if they hadn't been stolen. I am not then allowed to rob the lottery office to rectify the theft I suffered - even if I am correct that I had the numbers.
Now, perhaps I am misunderstanding the law in some important way here - I am not a lawyer, and much less a Georgia lawyer. But my understanding here is that the effort to solicit a public official in a plan to appoint electors who could not be lawfully appointed is straightforwardly illegal.
The electors aren't fake either way. They are proposed alternative electors, which is how past elector disputes have been done. There was never any conspiracy to present them as the primary electors.
The irregular Georgia electors submitted a "Certificate of Vote" to Pence's office where they claimed to be the primary electors, as did the irregular electors in Arizona, Michigan and Nevada. The irregular electors in Michigan are being prosecuted locally for falsifying an official document. It looks like most of the irregular electors in Georgia have rolled and are going to testify against Trump.
The irregular electors in New Mexico and Pennsylvania worded their certificates to be contingent on their later being determined to be the real electors, which keeps them out of legal trouble, but means the certificates are less useful for the Eastman/Chesebro scheme to have Pence overturn the election on Jan 6th.
Aha! The whole time I was writing about the Georgia charges, I was thinking “this wouldn’t have been a criminal charge if they’d covered their asses better.” It’s good to know some of the other groups agreed.
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Others disagree -- there was an arguably legal path to this, and it has happened in the past. Obviously much depends on the particulars, but criminalizing the advancement of legal theories which may or may not apply in a given case seems like a bad idea. (not to mention conflicting pretty badly with the first amendment)
But you are allowed to write a letter to the head of the state lotto suggesting that they should give you the money -- you can even go to the press and say that's what they should do!
If this is true, then everyone who issued tweets encouraging faithless electors in 2016 is also straightforwardly guilty.
Do members of the electoral college swear an oath of office to uphold the constitution? Does Georgia have a law requiring electors to cast their votes according to the election results? These are serious questions, I sincerely don't know.
If they do, and a person called an elector from Georgia and asked them to violate the law by being a faithless elector, then yes it does appear that such a person would be straightforwardly guilty.
No - among other places, this is discussed in Baude essay on Section 3, because it creates an interesting lacuna (a presidential elector who engages in an insurrection is not disqualified from future office, but an oath-taking officer who engages in an insurrection is disqualified from being a presidential elector).
No - see here (although that is the status now, not as of 2020). According to that map, the only states where being a faithless elector is a crime (and thus the only ones where secondary liability for advocating a crime could conceivably trigger) are both Carolinas, New Mexico and Oklahoma. The more normal approach is to declare the faithless elector's vote void and to allow the other electors for that state to replace them.
In addition, a rando tweeting into the aether would be protected by the 1st amendment in a way that a high government official making a personal phone call to an individual elector backed up by detailed (false) arguments of why the election was fraudulent and vague threats of criminal prosecution for covering up the fraud would not be - the law distinguishes between non-serious and serious crime-encouraging speech.
Not sure whether things were much different in 2016, but I do seem to recall some electors not from any of those states being penalized -- it's irrelevant though.
Regardless of which states attach penalties, electors in most (all?) states do in fact swear an oath to vote according to the results in their state -- the debatable part would be whether they can be considered "public officials" -- which I'd argue against, but "parts of this indictment are based on debatable legal theories" does not seem to be holding anybody up in this business!
Anyways, if you acknowledge that certain states would consider faithless electorism to be some kind of crime, even one would be enough -- this was very much a nationwide, organized, and well funded advocacy exercise: https://en.wikipedia.org/wiki/Faithless_electors_in_the_2016_United_States_presidential_election#Public_outreach_to_electors
A conspiracy, if you will! So while random twitterati might squeak by on whatever's left of the 1A, I think your assertion that (say) The Hamilton Electors would be in a different position here than Trump and his cohorts is unsupported.
(I'd say it's actually somewhat worse in that their justification was not "We think Trump committed fraud" but rather "We don't like Trump and want to subvert the will of the voters", and also that they actually succeeded in flipping some electors! At least a few were fined as I recall.)
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Thank you!
I find it a bit bemusing when people pose these questions with the implication that if someone in a somewhat-similar-but-somewhat-different situation wasn't charged with the same crime, there must be some kind of corruption or double standard. Most the time it's just that details are different and details matter.
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Biden swore to uphold the Constitution, but created the "Covid" eviction moratorium, which was unconstitutional. If he asks someone to violate the law by preventing a landlord from getting rid of a tenant, is he straightforwardly guilty?
Under OCGA 16-4-7? I wouldn't think so, no. I don't believe that a landlord failing to evict a tenant would constitute a felony.
Was there some other statute you were thinking of? If so you'll need to point me to it.
He'd hypothetically (or maybe not so hypothetically) be telling the government to fine or arrest landlords who do evict their tenants.
Who exactly is "the government" in this context?
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On the tweeting for faithless electors that gets a lot of Logan Act vibes. Where if that was a crime then everyone is guilty whoever once tweeted about geopolitics
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