The Constitution prevailed.

January 7, 2025

On Monday, January 6, 2025, Congress sat in a joint session to observe the counting of electoral votes cast on December 17, 2024, by duly appointed state electors. The counting of the ballots took about thirty minutes. It culminated in an announcement by Vice President Kamala Harris that Donald Trump had secured a majority of the electoral ballots cast. In accordance with the Constitution and the Electoral Reform Count Act, Harris’s declaration established Trump as the president-elect

Despite nearly universal headlines declaring that Congress had “certified” the electoral vote, Congress did no such thing. Members of Congress sat as constitutionally appointed observers to the counting of the electoral ballots. When the counting was done and the total was announced, Trump had been elected as president in accordance with the Constitution.

Article II of the Constitution provides

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President . . . .

The fiction that Congress “certifies” the winner of the election gave Republicans a toehold in 2021 to argue that Congress has an oversight role in deciding who won the election. We need to root out incorrect use of the term “certify” to eliminate any hint that Congress decides who is elected president.

The people elect the president (through their electors). Congress has no substantive role in deciding who is elected president unless no candidate receives a majority of electoral votes (in which case the House holds a “contingent election”).

Significantly, no Democrat objected to any electoral ballot. The Constitution does not grant Congress authority to object to ballots cast by electors. Nonetheless, the Electoral Count Reform Act (and its predecessors) created a mechanism for Congress to object to electoral ballots. In 2022, the grounds for objection were narrowed to the following:

“(I) The electors of the State were not lawfully certified [or]

“(II) The vote of one or more electors has not been regularly given.

Given the narrow grounds for objection, there was no legitimate basis for objecting to electoral ballots on the ground that Trump was disqualified under Section 3 of the 14^th Amendment because he “engaged in insurrection.”

As the Supreme Court made clear in Trump v. Anderson, Congress has the exclusive authority to disqualify Trump under the 14^th Amendment if it so chooses. But it cannot do so by objecting to electoral ballots lawfully certified by the states pursuant to the Constitution.

Still, Democrats could have lodged “protest” objections as they did in the past. The fact that no Democrat did so today is a testament to the discipline of the Democratic Party.

Lodging “protest” objections would have legitimized the organized effort to overturn the Constitution on January 6, 2021. Democrats refused to give oxygen to the lie that the 2021 attempted coup was a mere exercise of Congress’s non-existent oversight role in “certifying” the election.

The discipline exercised by Democrats was appropriate and necessary. As I write, Trump and MAGA are engaged in an Orwellian effort to turn the January 6 insurrection into fairy-tale patriotic effort to “stop the (alleged) steal” of the 2020 election by Joe Biden. Of course, there was no fraud in the 2020 election by Democrats. None.

On Monday, Speaker Mike Johnson repeatedly refused to answer questions from journalists about why the House has failed to mount a plaque commissioned by Congress honoring the law enforcement officers who defended the Capitol on January 6, 2021. See NBC News, Congress blew the deadline for a plaque honoring Jan. 6 officers by over a year.

The GOP’s refusal to honor law enforcement officers is reprehensible. But in the Trump fairy tale, law enforcement officers are the “bad guys” who prevented the mob from stopping the count of electoral ballots in 2021.

And, of course, Trump has promised to pardon January 6 insurrectionists on his first day in office—January 20, 2025. Even conservative media outlets are expressing preemptive outrage over the pardons. See WSJ, Trump’s Pardon Promise for Jan. 6 Rioters. The WSJ Editorial Board writes,

Other active cases include accusations of ramming the police line, punching cops, and walloping riot shields with a baseball bat.

This was the brutal reality of the Capitol riot that many want to forget.

Pardoning such crimes would contradict Mr. Trump’s support for law and order, and it would send an awful message about his view of the acceptability of political violence done on his behalf. That’s what Jan. 6 was, make no mistake.

We must steel ourselves for the fact that Trump will pardon some or all of the January 6 insurrectionists. But we are entering the stage of the Trump presidency where our attitude should be, “Let him do it. Let him feel the consequences of unrealistic, unlawful, illogical promises.”

Whatever Trump does, he will be roundly condemned. If he fails to pardon all January 6 insurrectionists, he will be faulted by the most extreme among the defendants—who are leaders in the extremist right. If he pardons insurrectionists who beat police officers and have pending cases for other crimes—like meth distribution—he will be condemned by some on the right.

I have no illusions that Trump's pardoning of January 6 insurrectionists will inflict permanent political injury—at least not standing alone. But after the pardons will come politically motivated prosecutions of perceived enemies—like Liz Cheney. And then botched attempts to deport millions of people that will inevitably split families and violate due process rights. And then there will be the withdrawal from the Paris Climate accords and the abandonment of Ukraine. And then the inevitable enforcement of the Comstock Act by red state governors to deny women access to contraception. And then, and then, and then . . . .

If Trump keeps his promises—starting with the pardons of insurrectionists—the ensuing outrage will point the way to Democratic victories in 2026 and 2028. It will be painful to watch—just like the electoral vote count on Monday—but it will be part of a clarifying process for all Americans.

Stay strong, keep our eyes on the horizon, and remain unified! On January 6, 2025, we moved one day closer to taking back Congress and the presidency—and banishing Trump forever.

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Trump continues his attempts to evade accountability

NY hush money sentencing developments.

On Monday, Judge Merchan denied Trump's motion to stay the sentencing hearing on the 34 guilty verdicts rendered by a New York jury in the so-called hush money case. The sentencing hearing is set for Friday, January 10. After a sentence is imposed—which will be an unconditional release—Judge Merchan will enter a judgment of conviction on the guilty verdicts and Trump will officially become a “convicted felon.”

See Memo in Opp to Defendant's Request for Stay. (DA Bragg notes that Trump opposed a delay in sentencing previously because “delayed sentencing results in lack of a judgment, which prevents an appeal.” See Memo at 9.)

It seems likely that an appellate court will grant a stay of the sentencing hearing. If Trump is rebuffed by the NY state appellate courts, he will certainly seek relief in the US Supreme Court—which has shown unholy deference to the first president to attempt a coup.

We must prepare ourselves to be frustrated again as the justice system fails to defend democracy because Trump succeeded in packing the Supreme Court with justices willing to put partisan ideology before fealty to the Constitution.

Trump opposes release of Jack Smith special counsel’s report.

The Department of Justice has advised Trump that it intends to release Jack Smith’s special counsel report. Such a release is authorized by regulations governing special counsel activities. See 28 CFR Ch. VI, Section 600, which provides in relevant part:

At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. [¶¶]

The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.

It is customary for special counsel reports to be released. Remember that time—eleven months ago—when special counsel Robert Hur released a report during the presidential campaign that volunteered Hur’s subjective opinions describing President Biden as a memory-challenged, feeble old man? See Justice.gov, Report of Special Counsel Robert Hur | 2024-02-05.

Trump's attorneys are opposing the release of Jack Smith’s report. See Trump’s attorneys have reviewed draft of Smith’s final special counsel report and want it blocked from public release | CNN Politics.

Trump contends that the release of Jack Smith’s report would be “prejudicial.” Hmm. Does Trump mean “prejudicial” like releasing a damaging assessment of an opponent during a presidential campaign or “prejudicial” as in “It will demonstrate my guilt”?

The Trump attorneys who sent the letter are slated to assume senior positions in the Department of Justice. They claim that the release of the report would be “unlawful”—a statement that could be interpreted as a threat by Trump's current lawyers that they will use their future positions in the DOJ to pursue Merrick Garland criminally if he releases the report.

Such a threat—or even the appearance of such a threat—raises serious ethical considerations that should provoke prompt investigations by the federal and state authorities with jurisdiction over the law licenses of Trump's attorneys.

However, Judge Aileen Cannon will likely extinguish the heat and light surrounding the report's release. Two of Trump's co-defendants in the national security documents case in Florida have filed a motion to enjoin the release of the report. See Defendant’s Emergency Motion for Stay of Release of Report.

To be clear, Judge Cannon has no jurisdiction over the Florida criminal case. She dismissed the case against Trump, and the case against the other defendants is on appeal. So there is no active case before Judge Cannon—and no basis for her to act. But that won’t stop her. Given Judge Cannon’s reprehensible, extra-judicial rulings in favor of Trump, we should expect that she will prevent the release of the report—the law be damned.

We should not be in this situation of litigating the release of the report mere days before Trump takes office—and four years after he incited insurrection on live television. Jack Smith is blameless. He moved with dispatch—but when he was handed the case, Trump had been given a two-year head start.

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Opportunities for reader engagement

Last minute phone-bank in Virginia’s special election on January 7

A reader sent a brief note asking for help with phone-banks in Virginia’s special elections on January 7. Two seats in the state legislature are at stake. Electing Kannan Srinivasan and JJ Singh will help keep Virginia’s State Senate and House of Delegates blue!

Because of predicted snow, turnout will be key on January 7. See the link below to help with election-day calling urging people to vote!

Use this link to sign up: https://mobilize.us/s/CDPojH. The phone banks will run all day—but the earlier you sign up, the better! Thanks!

Marc Elias interviews Ben Wikler, candidate for Chair of the Democratic National Committee

Ben Wikler is running to be Chair of the Democratic National Committee. See this terrific interview of Ben Wikler by Marc Elias of Democracy Docket: Ben Wikler's Vision for the Democratic Party.

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Concluding Thoughts

I am combining Concluding Thoughts and Daily Dose of Perspective today with an image that touches on several crosscurrents of this moment in history. They relate to the poster below, which was issued in commemoration of the opening of the Department of Education in 1980 under President Jimmy Carter.

Copyright US Postal Service (which issued a stamp with the image and quotation).

The image is by Josef Albers, one of the most influential teachers of art in the US in the 20^th Century. The image is part of his “Homage to the Square” series, an extensive study of color and light. The text on the poster says, “Learning never ends.” The poster is signed by Shirley Hufstedler, who served as the first Secretary of Education from 1979 to 1981.

The poster in this image was Shirley Hufstedler’s personal copy. I purchased it at a charity auction on the promise that Shirley would sign it.

I mentioned several weeks ago that my close friend and former law partner Seth Hufstedler passed away at 102. Shirley Hufstedler was Seth’s wife. For several years, Shirley, Seth, and I were partners in the same law firm, although I knew Shirley my entire professional career. Shirley passed away in 2016.

On Monday, my wife Jill and I went to our storage locker to drop off Christmas decorations. Jill reminded me that we had the poster signed by Shirley. It hung for many years in my wife’s office when she was a professor of education at LMU in Los Angeles. The poster went into storage after Jill retired. We are now giving it to one of our daughters, who was just admitted to the bar and will be practicing in education law.

Shirley Hufstedler was a trailblazer. She was the first woman (or among the first) in nearly everything she did: attending Stanford Law School, serving as an editor on the Stanford Law Review, becoming the only woman in the 119-judge Los Angeles court system, serving as the first female judge on the 9^th Circuit Court of Appeals, and serving as the first Secretary of Education, appointed by Jimmy Carter.

Jimmy Carter intended to nominate Shirley as the first woman on the US Supreme Court. (I have seen Carter’s handwritten note to Shirley stating his intention to do so.) Carter lost, and Shirley returned to the private practice of law.

During her career, Shirley served as a leader in many capacities, including serving on the governing boards of Cal Tech, Stanford, Harvard, West Point, the American Bar Association, and the California Bar Association—to name only a few.

Shirley told the story of her first day on the job as Secretary of Education. She was ushered into an office that contained a desk, a chair, and a phone. She had no staff, no office supplies, and (I believe) no convenient restroom for women.

But she persevered and built the Department of Education from the ground up.

As a sign of her broad worldview and commitment to education, she commissioned the poster pictured above. The image is subtle—which is the point. Josef Albers was born in Germany and began his career as a schoolteacher. The message that “Learning never ends” describes Shirley’s lifelong intellectual curiosity. She wanted to pass on that commitment to lifelong learning to others.

Shirley Hufstedler was eminently qualified to found and lead the Department of Education. She was placed in that position of trust by President Jimmy Carter, whose state funeral will take place on January 9, 2025.

Eleven days after Jimmy Carter’s funeral, a man who has promised to dismantle the Department of Education will be sworn in as president. He will nominate a woman to lead the Department of Education whose main qualification consists of promoting fake wrestling matches in an organization plagued by claims of sex abuse. The nominee, Linda McMahon, has been sued for allegedly enabling the sexual exploitation of children in the wrestling industry. (She denies the allegations.)

Linda McMahon’s primary connection to education is that she falsely claimed to have earned a degree in education. She did not earn such a degree and now claims to have been “confused” about whether she did. See Newsweek, Linda McMahon Lying About Education Degree 'Disqualifying': Attorney.

I doubt Ms. McMahon would authorize a similar poster extolling the virtues of lifelong learning. Or use a work from a German émigré who created a multi-year study of light and color entitled “Homage to the Square.”

In the span of forty-five years, we have traversed the landscape from Jimmy Carter and Shirley Hufstedler to Donald Trump and Linda McMahon. But here is a hopeful thought: Neither Trump nor McMahon have a clue how important the Department of Education is in the lives of millions of schoolchildren and their families. But they are about to find out—a real-life demonstration of the adage that “Learning Never Ends.”

Ronald Reagan tried to dismantle the Department of Education—but failed. In three short years, Shirley Hufstedler and Jimmy Carter gave the department deep roots that survived the efforts of stronger men than Trump to dismantle the Department of Education. I believe it has a good chance of surviving this latest adversity.

Talk to you tomorrow!