Lawmakers must act to protect future elections, too
Sometimes in the art of political stagecraft, an entire debate can shift on a single statement. Former Nixon aide John Dean comes to mind. His declaration during the Watergate hearings of “a cancer growing on the presidency” stands out as a pivotal moment that helped grease President Richard Nixon’s slide from office to early retirement.
A similarly pivotal moment seemed to show itself on the third day of Jan. 6 committee hearings, when J. Michael Luttig, a retired federal judge with solid conservative Republican credentials, declared that “Donald Trump and his allies and supporters are a clear and present danger to American democracy.”
He is not a man to be easily dismissed as Trump often does as some sort of a woke, knee-jerk, Trump-hating, lefty-progressive liberal. Luttig, appointed by President George H.W. Bush, earned a reputation as one of the country’s most prominent and conservative judges. Often mentioned as a possible Supreme Court nominee himself, he sent more than 40 clerks into Supreme Court clerkships, 33 of whom worked for conservatives Justices Antonin Scalia and Clarence Thomas.
Yet, he has earned respect across party lines. That’s important at a time when the Jan. 6 committee itself struggles against perceptions of partisan unfairness.
Luttig brought a respect for the larger stakes at issue. Had Vice President Mike Pence carried out Trump’s demand to refuse to count electoral votes won by Democrat Joe Biden in the 2020 election, he pointed out, the nation would have plunged into “what I believe would have been tantamount to a revolution within a constitutional crisis in America,” Luttig said.
There was an earlier constitutional crisis: the disputed presidential election of 1876. After several states submitted competing slates of electors, a divided Congress was unable to resolve the deadlock for weeks. The result was the Compromise of 1877. Among its consequences was the federal government pulling troops out of the South and ending Reconstruction. That was part of the deal that awarded the presidency to Republican Rutherford B. Hayes, who narrowly lost the popular vote, over Democrat Samuel J. Tilden, in exchange for the troop withdrawal.
This hits home with me as a descendant of Black American slaves. Black Republicans, loyal to the party of Abraham Lincoln, felt betrayed by the compromise. Their rights, including the right to vote, were withdrawn too, as “Jim Crow” laws took effect, establishing slavery by another name.
Elections have consequences, and so do backroom deals made in place of elections. Luttig has been advising Republican senators on proposals to update and clarify the Electoral Count Act, an effort that comes not a moment too soon. Passed 10 years after Hayes-Tilden, the act established a formal counting procedure. But it is so vaguely worded that Trump adviser John Eastman apparently thought Pence could use it to invalidate Biden’s victory.
“While the Republicans are transfixed by their own political predicaments, and the Democrats by theirs,” Luttig wrote in February, “the right course is for both parties to set aside partisan interests and reform the Electoral Count Act, which ought not to be a partisan undertaking.”
Right. The long-term credibility of our elections is at stake. Candidates sympathetic to Trump’s claims are running for election-related offices across the country. Are they setting up more fights?
The very future of our democracy hangs in the balance. It is not enough for Congress and the rest of us to hold Trump, among others, accountable for the last election. We need to protect future elections, too.