TWJ Exclusive: The Viral Memo Changing the Trump Legal Strategy
Members of President Donald Trump’s legal teamJacquelyn Martin / AP Photo
Members of President Donald Trump’s legal team, including former Mayor of New York Rudy Giuliani, Sidney Powell, and Jenna Ellis, speaking, attend a news conference at the Republican National Committee headquarters on Nov. 19, 2020, in Washington. (Jacquelyn Martin / AP Photo)
By William J. Olson and Patrick M. McSweeney
Published November 22, 2020 at 4:28pm
The Western Journal is presenting this memorandum, written by two prominent conservative legal scholars, essentially verbatim, with only enough editing to format it for the Op-Ed section of our website. Because of the importance of the subject matter and its potential to impact the results of the 2020 presidential election, we felt it was even more important than usual to allow these newsworthy authors their own voice, with as light a touch from our editorial staff as possible. — Ed. note
THE CONSTITUTIONAL DUTY OF STATE LEGISLATURES IN A CONTESTED PRESIDENTIAL ELECTION
William J. Olson, William J. Olson, P.C., Vienna, Virginia
Patrick M. McSweeney, McSweeney, Cynkar & Kachouroff, Powhatan, Virginia
The American People deserve lawful presidential elections: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 10 (1964).
During the 2020 Presidential Election, many of the so-called swing states, including Arizona, saw unprecedented — and unlawful — erosions of procedural safeguards as well as administrative irregularities on Election Day. People deserve an honest accounting of who won. Many Americans voted via a process – absentee ballots, including mail in ballots – that the bipartisan Jimmy Carter-James Baker commission identified as “the largest source of potential voter fraud” in the wake of the contested 2000 election. BUILDING CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL ELECTION REFORM, at 46 (Sept. 2005).
With respect to identifying and remediating fraudulent or mistaken results, it is now or never, whatever can be done must be done.
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Examining the Assumptions of Andrew McCarthy
This analysis was inspired, indeed provoked, by an article written by Andrew McCarthy appearing in the historically Never-Trump National Review. Andrew C. McCarthy, “No, State Legislatures May Not Reverse the Result of the Election,” National Review (Nov. 21, 2020). Mr. McCarthy completely mischaracterizes the issue, establishing a straw man for him to set on fire.
He says: “The idea would be to appeal to Republican-controlled legislatures in states where presumptive president-elect Joe Biden won the popular vote — Pennsylvania, Michigan, Georgia, and Arizona — and persuade them to appoint slates of Republican electors who would cast each state’s Electoral College votes for Trump rather than Biden.” Well, if Biden actually was the presumptive president-elect, and if Biden had won the popular vote, Mr. McCarthy’s analysis would make sense. But he is assuming facts not in evidence.
Suppose that the Trump Campaign follows up on the “Opening Statement” that was outlined by Rudy Giuliani, Sidney Powell, and Jenna Ellis on November 19, with a case-in-chief which demonstrates the presence of rampant fraud — with votes being tabulated at overseas computers, with software designed to elect favored candidates, with stacks of ballots marked only for Biden and no down-ballot races, etc. What then is a state legislator to do, particularly if the hard evidence of pervasive electoral fraud comes in after the vote is “certified” in accordance with election laws that presuppose that only a brief time is required to detect and remove fraud, and the number of votes directly challenged is not outcome determinative?
Mr. McCarthy objects to the “president’s team … taking its case public in order to pressure Republican state legislators.” Mr. McCarthy would prefer if President Trump conceded and simply rode off into the sunset. Would he do that if as a candidate he thought that he had lost in a dishonest vote? Taking the case to the public makes all the sense in the world — after all, the President is the one official who represents all the People. And, a prima facie case has been made that there was substantial computerized election fraud.
For every legal argument Mr. McCarthy makes, there is a stronger argument on the other side. He would ignore the language of Article I, Section 2 which vests in state legislatures the authority to determine the Manner of electing electors. Mr. McCarthy would have even those state legislators who become fully persuaded that the count was fraudulent to sit back and see the person that their constituents actually elected be de-throned by CNN and National Review. Legislators who want to carefully examine the election process, and take action if significant election fraud is found, would be simply giving effect to the vote of the People, not denying it. They should not, as Mr. McCarthy would want them to do, avert their eyes to the Big Steal.
The U.S. Constitution vests the total authority to select electors in state legislators, not Governors, Secretaries of State, or pundits. Mr. McCarthy would believe that laws enacted by states can diminish that authority. But they cannot. And if the counting of the votes from the November 3 election demonstrates foreign meddling, then state legislatures absolutely will be required to carry out the mission assigned them by Alexander Hamilton in Federalist 68 by exercising their authority, as the Constitution states, to “appoint” electors. Inspired by Mr. McCarthy, and in a desire to defend the process established by the Framers, this paper was written.
A Prima Facie Case for Election Fraud Has been Made Out
Although the principals involved apply to all states, we focus one state — Arizona. As of November 21, 2020, the website of the Arizona Secretary of State shows the following razor thin difference in the reported vote for President and Vice President:
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Biden 1,672,143 49.39 percent
Trump 1,661,686 49.08 percent
Difference 10,457 0.31 percent
This 10,000 vote spread is so small that it easily could be the result of the type of retail election irregularities that occur, such as persons voting twice, voting by dead persons, voting by illegal aliens, voting by persons not living in the state, etc. But the reported margin could also be the result of a relatively new types of computer-based election fraud.
At a 96 minute press conference on November 19, 2020, Trump campaign counsel Rudy Giuliani, Sidney Powell, and Jenna Ellis presented what they described as their “Opening Statement,” in the Trump Campaign’s effort to demonstrate various types of election fraud. That Opening Statement outlined details of election fraud that has occurred in Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. Election fraud in New Mexico and Virginia was also briefly addressed. That press conference was covered by Fox and Newsmax (and by The Western Journal — Ed. note), but largely ignored by the other networks. The consensus mainstream media terms used to describe charges of election fraud continue to be “baseless” and “unproven.”
There is good reason to believe that significant election fraud occurred, and the source of this alleged fraud was not just the “run-of-the-mill” Big City Democrat election fraud. The briefing by the Trump attorneys asserts there is significant evidence that this election fraud that been aided and abetted by three particularly disturbing sources: (i) the Deep State and elements of the Intelligence Community [footnote 1]; (ii) foreign governments; and even (iii) some Republican office holders who benefited from the election systems that have been put in place.
Nonetheless, the Trump Campaign has made a prima facie case of fraud based on statistical abnormalities and several key affidavits explaining systemic election fraud. (As one illustration, the Appendix to this Memorandum sets out an analysis of the Georgia and Pennsylvania vote dumps which appears to demonstrate a pattern of voter dumps that can only be explained as election fraud.) As such information is presented in a more systematic manner, it will be increasingly difficult for anyone to say that there is no evidence of fraud.
Importantly, upwards of 70 percent of the Trump base — which constitutes the great bulk of the Republican Party — believe that there was widespread election fraud [footnote 2]. Politico, “Poll: 70 percent of Republicans don’t think the election was free and fair,” (Nov. 9, 2020). And, even more significantly, they believe that unless this fraud is exposed and the voice of the lawful voters is honored, this will be the end of free and fair elections in the nation, and thus, the literal end of our nation’s status as a “Constitutional Republic.”
These lawful voters expect that election officials and state legislators will do their duty to ensure that the lawful votes of the people as cast are honored — not diluted or debased by systemic fraud.
The Constitutional Responsibility of State Legislatures with Respect to the Electoral College
The “Electors” Clause of the U.S. Constitution specifies that the President is selected by electors chosen in the states, and that electors are selected as state legislatures direct:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress… [Article II, Section 1, clause 2 (emphasis added).]
This clause specifies both the function of electors and the governmental body responsible for determining how they are selected. The reasons for the creation of an independent body of electors to be entrusted with the duty to select a President and Vice President are clearly explained in the Federalist Papers (these essays were written and disseminated to explain the need for the U.S. Constitution). The process of electing the President through a vote of electors was designed to guard against domestic political corruption. And it was to guard against what the Framers thought was the “chief” danger to the nation — the threat posed by foreign governments might seek to influence the selection of our President. Thus, it appears that the threats perceived in the 18th Century are not that different from the threats recognized in the 21st Century.
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. [Federalist No. 68 (Alexander Hamilton).]
As to how presidential electors are selected by states, the U.S. Constitution vests that authority exclusively in state legislatures. The offices of President and Vice President were created by the U.S. Constitution, and when a state legislature exercises this power to determine the manner in which electors are chosen, that power is governed solely by the federal Constitution. See Leser v. Garnett, 258 U.S. 130, 137 (1922) (function of state legislature in carrying out a federal function derived from the U.S. Constitution “transcends any limitations sought to be imposed by the people of a State”). No state constitution, state law, or state court can alter or constrain that grant of power. In one century-old case, the U.S. Supreme Court applied the electors clause, recognizing the exclusive authority of the state legislatures to act for the people with respect to selection of electors.
The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state at large, or in districts, as are members of congress, which was the case formerly in many states; and it is [no] doubt competent for the legislature to authorize the governor, or the supreme court of the state, or any other agent of its will, to appoint these electors. This power is conferred upon the legislatures of the states by the constitution of the United States, and cannot be taken from them or modified by their state constitutions … Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated. [McPherson v. Blacker, 146 U.S. 1, 34–35 (1892) (emphasis added).]