Trump Cannot Win Wednesday but He Will Leave Us Immeasurably Scarred
What should be a simple ceremonial process of counting Electoral College votes in Congress Wednesday will obviously be anything but simple this time around. Jan. 6 will go down in history books as the exclamation point on the past four years of chaos and corruption. But will any of it really matter? The answer is both yes and no.
It’s hard to know what to expect as we inch toward Wednesday’s pivotal moment, but two things are certain: Outgoing Vice President Mike Pence will read the EC votes and President-elect Joe Biden will ultimately be declared the rightful winner. But what’s also certain is that by day’s end, this nation will be immeasurably scarred.
The process of recording Electoral College votes in the congressional joint session is very specific and defined by the U.S. Constitution. Pence’s job is to open envelopes that arrive ritually in mahogany boxes. There will be one envelope for each state with contents identifying certified electoral votes as formally determined in December. Alphabetically, Pence will unseal the certifications for every state and “tellers” representing both chambers and both parties will read aloud the certification and record the votes.
Objections can be submitted in writing at that point and will be debated if signed by a member of both chambers. When that happens, which has been a historical rarity, the chambers split off to debate the objection grounds for up to two hours. The only way electoral votes can be rejected is if both chambers vote by simple majority to do so. While outgoing President Donald Trump has lined up a number of allies who plan to object on his behalf, he very likely lacks the majority in the Senate and will definitely fail to find sufficient support in the House.
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If the objections fail, and they will, there is no other legal path but to accept and record the certified electoral votes, which favor Biden, 306-232.
That is what the Constitution dictates. That’s it.
In his call to overturn the election and pressure Pence to somehow invalidate the results, Trump is either woefully unaware of constitutional law or is actively leading a seditious coup effort in spite of it. The reality is, again, probably both.
— Brendan Gutenschwager (@BGOnTheScene) January 5, 2021
All elected representatives take an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” If Pence does anything but what the Constitution allows for in the counting process, he is in violation of his oath — if he does so under pressure from the president, Trump is also in violation.
Without just cause, attempting to subvert the will of the people in an election is an act of sedition, which is a separate federal law issue defined by 18 U.S.C. § 2384, which states:
“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”
Voters and subsequently the Electoral College — not the sitting president or any other individual or group — determine the results of an election. Trump and his allies have repeatedly failed in courts of law to present any evidence of election fraud — in fact, the election integrity was upheld by former Attorney General Bill Barr and by election officials in every state.
Things should have settled when legal challenges failed to produce a different outcome, yet Trump has far from settled, instead opting to strongarm his way into a second term with intimidation and extortion. His call to Georgia election officials Saturday provided evidence that he is actively soliciting election fraud. His call to supporters to come out Wednesday for a “wild day” in the streets is a thinly veiled incitement of violence and physical threat. Both are components of coup and sedition.
Far-right extremist and militia groups have taken to the Parler platform to discuss violent strategies for the Washington D.C. protest rally — some calling for a coordinated charge into the Capitol building where the electoral votes will be counted. Proud Boys members have posted a plan to ditch their black and yellow uniforms in order to mix in with counter-protesters and create disturbances from within. Enrique Tarrio, the PB leader of sorts, was arrested in D.C. Monday in possession of two high-capacity magazines, which is illegal in the district.
Proud Boys leader Enrique Tarrio claims that the PB’s will wear all black instead of the usual Black/Gold.
“We will be incognito and we will spread across downtown DC in smaller teams.” pic.twitter.com/aVwRTOckud
— Tomas Morales (@TomasMorales_iv) December 29, 2020
— Parlertakes?? (@parlertakes) January 5, 2021
While these groups often use a public-facing persona of concerned citizens standing up for First Amendment rights with a “peaceful” show of force, arrest records over their years in action prove they do not stick to peaceful tactics. It’s been widely documented that violence often erupts when they are present, and while, yes, violence is spurred by counter-protesters as well, it’s often the Trump-supporting right wing carrying firearms. The climate outside the Capitol building will be one of aggression and immense tension fueled by Trump — that on its face is a threat, an attempt to intimidate people inside and outside who disagree with the president’s crazed assertions and play for a seat he did not rightly win. The scenario constructed by the president is one of active and intentional sedition.
Yes, Joe Biden’s win will ultimately be affirmed by the Congress, but our country will bear witness to a coup. In these final moments of Trump’s term, our institutions will be tested and we will soon know if this experiment has the spine it needs to survive a would-be dictator. Beyond possible violence in the streets Wednesday, and that possibility cannot be understated, there’s legitimate fear that Trump is setting precedent for future corruption. He’s doing everything in his power to burn down our house on the way out, and that wound will fester for years to come.