July 18, 2022
On Saturday, Maggie Haberman and Luke Broadwater of the New York Times reported that yet another right-wing lawyer was urging former president Trump to overturn the election in late 2020. William J. Olson, who now represents MyPillow chief executive Mike Lindell, a conspiracy theorist and key Trump ally, wrote to Trump on December 28. In his letter, he referred to a call between himself and Trump on the afternoon of Christmas Day and to a call between Trump and Mark Martin, the former chief justice for the state of North Carolina, who Olson said backed the filing of a lawsuit to withhold the certified votes from Georgia, Michigan, Pennsylvania, and Wisconsin because those states had changed their election procedures during the pandemic.
The case, Texas v. Pennsylvania, argued that those four states, whose voters had chosen Biden and whose electoral votes would give Biden the presidency, had violated the novel “independent state legislature doctrine,” which says state legislatures alone have the right to determine election procedures. This doctrine defies history by saying that when the Framers of the Constitution said that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators,” they literally just meant the legislatures, without any check by the state constitutions or courts. This would enable a legislature to override the will of the people entirely, but, its adherents insist, that was the Framers’ plan.
In fact, the Framers were so leery of state legislatures’ oversight of elections that James Madison insisted on giving Congress the power to overrule them. Since the Civil War, until very recently, the word “legislatures” has been interpreted to mean the state government, so that a state’s legislature cannot, for example, act in ways that the state courts find violate the state constitution. But since the 2000 Bush v. Gore case, in which the Supreme Court overruled the Florida Supreme Court to stop a recount of the votes in four Florida counties when Chief Justice William Rehnquist suggested limits to the power of state judges, those interested in reducing the power of the voters in favor of the state legislatures have focused on honing this argument.
In his December letter, Olson maintained that the election had been stolen from Trump, and he insisted that “the very existence of our Constitutional Republic is slipping away.” Olson’s plan, which he called “Preserving Constitutional Order,” called for Trump to fire the acting attorney general, Jeffrey A. Rosen, who had replaced William Barr when he resigned on December 23. Then, the document suggests, Trump could use “the powers of the Presidency…to ensure that the People receive a fair election count…. The media will call this martial law, but…that is ‘fake news,’” Olson wrote.
In other words, Olson called for Trump to dissolve the federal judiciary and for the president “armed with all of the executive power vested in the office of the presidency…to act decisively to ‘preserve, protect, and defend’ the U.S. Constitution from threats, whether they be domestic, foreign, or both.”
This was noble language for an effort pushed by fringe theorists and rejected by state and federal courts, as well as by the Supreme Court, more than 60 times. But this new piece of evidence suggests just how deep the antidemocratic impulse in this country currently runs.
Now, of course, Trump’s allies appear to be concerned that the information turned up by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol shows them in a less noble light. Today Representative Ronny Jackson (R-TX), formerly Trump’s White House physician and the man mentioned by the Oath Keepers on January 6, today tweeted: “I’ve said it before and I’ll say it again: the WITCH HUNT Committee of unselects needs to be DISSOLVED!” On January 6, a group text message among the Oath Keepers said of Jackson: “Needs protection. If anyone inside cover him. He has critical data to protect.”
Yesterday, Asawin Suebsaeng and Adam Rawnsley of Rolling Stone reported that Trump says he wants to run again to avoid criminal indictments. They say the former president has spoken to at least four associates “about how when you are the president of the United States, it is tough for politically motivated prosecutors to ‘get to you.’... He says when [not if] he is president again, a new Republican administration will put a stop to the [Justice Department] investigation that he views as the Biden administration working to hit him with criminal charges—or even put him and his people in prison.”
Today, Fulton County, Georgia, district attorney Fani Willis subpoenaed Trump ally Representative Jody Hice (R-GA) for testimony before the special grand jury in the investigation into the attempt to overturn the Georgia 2020 election results and declare that Trump had won the state’s electors. As a federal official, Hice has filed to move his case to federal court, where he will challenge it.
It’s important to remember that Republicans who were willing to sign on to Trump’s attempt to overturn our democracy are attempting to enforce minority rule on the majority in the U.S. It is no accident that in the election of 1860, there was only one state whose legislature chose electors directly: the state of South Carolina. And as soon as those legislators realized that Abraham Lincoln had won the election, they promptly called for secession from the United States.
The extremism of today’s Republican Party shows most clearly in the party’s stance after the Supreme Court—itself packed with extremists by former president Trump and then–Senate majority leader Mitch McConnell—overturned the 1973 Roe v. Wade decision.
The overturning of settled law itself was radical. That it tries to strip away a constitutional right for the first time in our history is radical. And the way it is playing out demonstrates just how radical the current Republican Party is. The recent case in Ohio in which a 10-year-old rape victim could not obtain an abortion, horrific as it was, only started the firestorm, as Republican lawmakers first denied the case was real—it was—and then called for prosecuting the Indiana doctor who performed the procedure, which she did entirely legally.
Some lawmakers went on to say they wanted legislation that would have prohibited the child from traveling across state lines to get medical treatment.
Since then, we have seen exactly what the 62% of Americans who supported Roe v. Wade said would happen: women are unable to get medical care after miscarriages, leaving them in pain, or with developing infections, or with dangerous blood loss. And yet, on Friday, by a 4-to-1 margin, delegates to the Republican Party convention in Idaho rejected an amendment to their platform that would have permitted an abortion to save the life of the mother. The platform considers any fertilized egg a person from the moment of fertilization, even before implantation, and criminalizes abortion from that moment on as murder. The delegates did agree to exempt miscarriage from criminalization.
In an echo of the past, they also declared that “Idaho has the sovereign authority to defy the federal judiciary should they once again propose the fiction that abortion is a federal constitutional right.”
For their part, Mothers Against Greg Abbott, a political action committee of Democrats, Independents, and moderate Republicans, has recorded a viral video suggesting that there is significant pushback from those who recognize the extremism of today’s Republican Party, embodied by those like the Texas governor.
“They say nothing changes in Texas politics until it does,” the video begins. Women call out the state’s failed electric grid, the removal of Black and Brown history from the classroom, the permitless and open carry laws that put guns on the streets, the $10,000 bounty for turning in anyone who helps a woman obtain an abortion, the investigation of parents who seek gender-affirming care for transgender children as child abusers, the banning of books by Black and LGBTQ authors, and the deaths of loved ones after lawmakers lifted mask mandates during the worst pandemic in 100 years. “We want real change for Texas, now,” they say, “and we’re ready to fight.” “We live in suburbs, in big cities, and on farms and ranches,” they warn. “We are the Mothers Against Greg Abbott. Let’s make Texas a safe place where all families can thrive again.”