by Neil H. Buchanan
It appears that I will be part of an odd footnote to an odd footnote to history. As Professor Dorf described in yesterday's column here, one of Donald Trump's legion of Giuliani-like lawyers apparently wrote a memo shortly before the January 6 insurrection, detailing a legal strategy that (in Trumpists' minds, anyway) would have allowed them to keep Trump in office after January 20.
The one and only citation in that memo was to a September 20, 2020 Verdict column that I co-authored with Professors Dorf and Laurence Tribe, meaning that our names are embedded in a seditious legal fiction that will surely end up in the national archives. Yay us? Posterity will never forget!
Professor Dorf has already explained the lowlights and eviscerated the pathetic legal analysis that Trump's hack (and now-former law professor) cooked up, so there is no need to get back into that here. Instead, I want to explain the one thing that the memo's author managed to get right about our column (in which we debunked a myth about the Twelfth Amendment), even though his citation to it was purely for the purpose of saying, "Hey guys, as a bonus, we can poke Larry Tribe with a sharp stick!"
After exploring why everyone seems to misunderstand the Twelfth Amendment, I will broaden the discussion to note in wonderment the sheer volume of previously unexplored constitutional gaps that have been exposed by the Trump/Republican radicalization of the past several years. We now find ourselves drenched in increasingly insane constitutional and legal absurdities.
But first, that memo. The core strategy therein (to keep Trump in office) was not at all new. Indeed, when Mike, Larry, and I published our piece at the end of September, we did so in large part to respond to a version of this strategy that Republicans had already openly discussed, as reported in a piece by Barton Gellman in The Atlantic. They had concocted the ever-so-brilliant idea that they could use the Twelfth Amendment to throw the election into the House of Representatives, where Trump would win by virtue (if that is the word for it) of the fact that such an election would be on a one-vote-per-state basis, with Republicans' congressional majorities in 26 states guaranteeing Trump's second term (the second of many, surely).
Therefore, as we explained, Trump's Republicans had decided that the Electoral College was not undemocratic enough for their tastes. They might lose there, but they could not lose in a House-based process. (Prior to Election Day, there were reasons to hope that the Democrats might win back enough House seats to flip that disadvantage. It was not to be.) How did they plan to take the election out of the hands of the electors?
The Twelfth Amendment does indeed include a procedure by which the selection of the president would be determined in the House, but our column explained that there was a popular misunderstanding about what would have to happen to get us there. We described a scenario (which Joe Biden ended up outperforming, by winning Georgia and Arizona) in which the final electoral vote count was 288 to 250, advantage Biden.
We then imagined that Trump would prevail upon the Republican-dominated state legislature in Pennsylvania to create chaos by choosing a rogue slate of Trump-committed electors purporting to represent the Keystone State. Supposedly, that would cause Pennsylvania's electoral votes not to be counted at all (because of "uncertainty" about the rightful slate), leaving Biden with a 268 to 250 advantage.
The essential takeaway from our column was simply that Biden would still win, because the clear text of the Twelfth Amendment says that the winner is the person who receives the votes of the majority of the electors "appointed." Trump's supporters thought that getting Biden under 270 (the level that would be the required majority if all 538 electors had been appointed) would trigger the House procedure, but knocking out Pennsylvania's 20 electors would also reduce the denominator to 518. Biden would thus still win a majority, because 268 continues to be greater than 250.
In our column, we did not explore other scenarios involving rogue electors, simply because we wanted to rest on what should be the blindingly obvious point that the Twelfth Amendment's House-selects-the-president scenario would not work for Trump, so long as Biden had a majority of the appointed electors. In my sole-authored followup column the next day, however, I expanded on some alternative hypotheticals:
Let me be clear here. Trump is saying that he can forum-shop (moving the election to the House) simply by getting motivated state legislatures that are dominated by Republicans to knock out their own electoral votes, if those votes would have gone to Biden. And if Republicans running the legislative branches in Michigan and Wisconsin did the same thing, the total of 22 electoral votes in those two states would suddenly disappear from Biden's total, moving the vote to 250 for Trump and 246 for Biden.I am not, therefore, saying that there are no circumstances under which the numbers could work for Trump, if enough Republicans are able to twist enough rules in enough states. Even there, however, the point is that it is the Electoral College that would have elected Trump, not the House. In a two-person race, the only way the Twelfth Amendment could move the decision to the House is in the case of a tie.
And that is the strategy that the newly revealed two-page memo from Trump's hack lawyer describes. He claims that Republicans could have gotten seven states' electors disqualified, which would have handed the election -- through a 232-222 vote in the Electoral College, not the House -- to Trump. Or, to put it differently, the Twelfth Amendment is not what Trumpists were hoping to use to steal Biden's win. What made a theft possible is the absurdly vague provisions in the Electoral Count Act that Josh Hawley and Ted Cruz would have used to complete the Republicans' nefarious plan.
The lawyer's memo, then, in the end merely amounts to saying this: "Buchanan/Dorf/Tribe say that Biden would still win if we only f*ck with Pennsylvania. But we can f*ck with as many states as we need to f*ck with, until we f*ckin' win." And if they had been able to put it all together in time (which was apparently why they were hoping that Mike Pence would at least delay a final decision, to allow them to whip the relevant states' Republicans into shape), they would have been right. Trump would have won -- in the Electoral College. Which, again, is hugely counter-majoritarian in its own right.
Again, the odd thing about all of this is that the Twelfth Amendment is so, so clear. By its own terms, it is simply irrelevant in all instances except tie votes. Even so, people across the political spectrum have somehow absorbed the idea that Trump's throw-it-to-the-House idea was a viable plan. On the political left, this was viewed with regret, but the validity of the idea itself was never challenged. In the supposedly objective news divisions, and even among those opinionators who (to put it mildly) are not motivated by fealty to Trump, it was accepted without question that the Twelfth Amendment means something that it simply does not mean. Over the last year, I have stopped keeping track of how many times a Jake Tapper or a Chris Hayes has casually accepted that premise in the course of making some other point.
A related recent example comes from the NeverTrump right, where Philip Rotner on The Bulwark wrote earlier this week about the newly revealed Trumpist coup memo. Although Rotner draws some nice quotes from Professor Tribe to knock down a number of Trumpist claims (the memo's claims are "jaw-droppingly stupid," said Tribe), the focus was on the question of whether Pence would be able to hand the election to Trump if he (Pence) were willing to lie brazenly enough. Rotner nonetheless muddles the key point.
The Twelfth Amendment simply doesn’t permit a vice president to gavel in a president if no candidate wins a majority of the electoral votes. Instead, it sets out a somewhat convoluted process in which the decision is thrown to the House of Representatives, not to the vice president.
But the "somewhat convoluted process" is actually (as we wrote in the column that the memo cites) not at all convoluted. Is there a tie in the Electoral College? If yes, go to the House. If no, game over.
I am emphasizing (some might say "wallowing in") the obviousness of this point because the confusion in public discussions about this obscure constitutional provision is an especially egregious example of much of the quite uninformed autopilot non-thinking that passes for knowledgeable commentary in the U.S.
This example is unique in that the naked words in the Constitution are neither ambiguous nor complicated. Even though certain liberal legal scholars vigorously critique originalism and textualism, we are not affirmatively anti-textual. The Twelfth Amendment is as clear as, say, the requirement that the president be at least 35 years old. (For this example, there is no meaningful distinction between textualism and originalism.)
As I noted above and in the title of this column, however, the last few years have given us more examples than anyone could ever have expected of situations in which the text is not so much unclear as it is incomplete. We learned, to our dismay, that nothing in the Constitution requires that the Department of Justice be insulated from politics. We learned, also to great disappointment and surprise, that the Senate's advice and consent role in confirming Supreme Court justices is maddeningly unspecified. Nothing even requires the Senate to take a vote, as the current Attorney General learned all too personally.
We also learned that an obscure memo from a previous administration could stop (or provide cover for?) a special prosecutor to do nothing about the manifest presidential crimes that he and his colleagues had documented -- and not because the Constitution says anything remotely resembling the claim that a president cannot be prosecuted while in office.
After Trump's second impeachment, we learned that a so-called technicality in the Constitution gave Republicans cover to acquit their Dear Leader without considering the substance of his high crimes and misdemeanors. And this was true even though the plain language of the Constitution clearly permitted him to be convicted after leaving office. (He could have been impeached after becoming a private citizen, too, had the House not acted quickly enough.)
We have never had to think about the possibility that the Constitution quite clearly gives states the ability to choose electors through non-democratic means. Even setting aside the baseless argument that legislatures have the power to act alone (without the involvement of states' executives or judiciaries, as required by their own constitutions), those of us who looked at the relevant provisions in the Constitution had no choice but to conclude that a Republican-led state government can constitutionally choose presidential electors without regard to its citizens' preferences (at least if they enact their plan before Election Day).
Limiting myself to one final example, we learned that people are willing to imagine text that does not exist in the Pardon Clause, turning an unmodified statement that the president has power to pardon crimes against the United States into a supposedly absolute and unreviewable dictatorial superpower. This was especially odd, because the same people who said that the pardon power is total were simultaneously saying that it is limited to crimes already committed and that it excludes presidential self-pardons.
Whew! We never had to think about any these questions before now, because even the most craven politicians had not yet figured out how to abuse language and the lack thereof in the service of lawlessness. Now we know just how open-ended and incomplete the constitutional text can be. So even though the Twelfth Amendment scam is in a different category of crazy, it all adds up to a situation in which we are being drowned by a torrent of weaknesses in our constitutional democracy. It is amazing that it took so long for these problems to emerge. Now that they have, modern Republicans will shamelessly exploit them, and anything else that they can find.