Latest / The Chuck ToddCast / Interview Only w/ Molly Roberts - The Blueprint For How To Steal An Election

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Interview Only w/ Molly Roberts - The Blueprint For How To Steal An Election · The Chuck ToddCast

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  Speaker 1: slash chuck. Well, one of the questions I get a
• 2:06
  Speaker 1: lot is from family, friends, concerned listeners, and it is,
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  Speaker 1: can the midterms be fixed? Can they be rigged? Fixed
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  Speaker 1: not like a corrected, fixed like rigged. Can they be stolen?
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  Speaker 1: And as many of you know, I always, I call
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  Speaker 1: myself vigilant, but not an alarmist on these things. I
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  Speaker 1: think there are certain aspirational things that politicians say that
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  Speaker 1: can't be implemented. But then there is the– there are
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  Speaker 1: mechanisms that I think when I say you got to
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  Speaker 1: be vigilant is you got to pay attention when you
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  Speaker 1: see people messing around with those mechanisms. Well, Molly Roberts,
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  Speaker 1: who's my guest today, is the senior editor at Lawfare.
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  Speaker 1: Those of you may be familiar with Lawfare and its founder,
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  Speaker 1: Ben Wittes. They do some terrific work. Doing what it
• 3:02
  Speaker 1: just is, sort of the politicizing of the rule of law.
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  Speaker 1: I mean, if there's a North Star, I think, and Molly,
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  Speaker 1: if you want to chime in here and correct me,
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  Speaker 1: there is a North Star to Lawfare's editorial focus. I
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  Speaker 1: think it is that where the rule of law and
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  Speaker 1: politics intersect? Is that the fairest way to describe lawfare?
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  Speaker 2: Yeah, I mean, I think, you know, when lawfare started,
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  Speaker 2: it was really national security focused.
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  Speaker 3: And you wouldn't have had someone like me writing.
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  Speaker 2: For it, probably, because I don't have a background in
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  Speaker 2: national security, anything. But how lawfare has really changed in
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  Speaker 2: recent-ish years is that it's become clear that democracy and
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  Speaker 2: rule of law is a national security issue in a way.
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  Speaker 3: And so the stuff that I write about, which... you know,
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  Speaker 3: recently has.
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  Speaker 2: Had to do with elections, but also has had to
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  Speaker 2: do with politicization of the Justice Department, is motivated by
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  Speaker 2: that idea that it's just as important to national security
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  Speaker 2: for the laws to actually mean something as it is for,
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  Speaker 2: you know, I don't know, us to have an AUMF
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  Speaker 2: when we're engaging in a foreign conflict.
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  Speaker 1: So let's talk about how you went about this. And I,
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  Speaker 1: you know, I felt I felt like you went about
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  Speaker 1: it the way I would, which is like, if someone
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  Speaker 1: were trying to do it, how would it be done?
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  Speaker 1: Is that fair to say? Is that the prism you used?
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  Speaker 2: Yeah. I mean, you know, I've been looking at what
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  Speaker 2: the administration is doing on elections across a variety of vectors.
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  Speaker 2: So everything from this executive order having to do with
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  Speaker 2: mail-in voting.
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  Speaker 3: That's before the Supreme Court. Now the administration has just
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  Speaker 3: appealed a judge's injunction to the Supreme Court to the
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  Speaker 3: question of can you lawfully deploy troops or federal agents
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  Speaker 3: at polling places. But Recently, I started tracking this kind
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  Speaker 3: of more technical, more specific question of, regardless of what
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  Speaker 3: actually happens when votes are cast, is there something kind of,
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  Speaker 3: I don't know, sneaky might be the word, that could
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  Speaker 3: happen in Congress that might remind you a little bit
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  Speaker 3: of President Trump saying, do the right thing, Mike Pence,
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  Speaker 3: on January 6th?
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  Speaker 1: So this is, to me, the important, you know, and I've,
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  Speaker 1: like I said, at my little mini intro there when
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  Speaker 1: I brought you in, I'm not somebody that looks around
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  Speaker 1: every corner and thinks that there's another conspiracy to steal
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  Speaker 1: the election. But I do think the vulnerabilities in our
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  Speaker 1: system are always most exposed when the results aren't decisive.
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  Speaker 1: The 2000 election is a terrific example of this. We basically,
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  Speaker 1: you got to a point where it wasn't gonna be
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  Speaker 1: decided by ballot boxes, it was gonna be decided in courtrooms.
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  Speaker 1: it is very possible that if we are looking at
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  Speaker 1: a House majority that is under five in either direction,
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  Speaker 1: but there is power that the House has up until
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  Speaker 1: January 2nd, 2027. January 3rd is the day that the
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  Speaker 1: new Congress is supposed to be sworn in. And that's
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  Speaker 1: the You know, that's our period of vulnerability. If you
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  Speaker 1: talk to experts about America, when we're the most vulnerable,
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  Speaker 1: we're the most vulnerable during a presidential transition, when there
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  Speaker 1: isn't clarity of who's in charge and things like that. Well,
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  Speaker 1: you could arguably say the same thing about the midterms, right?
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  Speaker 1: That our vulnerable period is in between election day and
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  Speaker 1: the swearing into the new Congress, right?
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  Speaker 3: Yeah, absolutely. I think that's true on two fronts. One
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  Speaker 3: of the fronts is certification, right?
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  Speaker 2: So after the election, the first you have the truly
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  Speaker 2: local officials going and they're canvassing and they're making sure
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  Speaker 2: there are no irregularities and they're resolving any apparent discrepancies.
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  Speaker 2: And then they're certifying the election. Then that goes to
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  Speaker 2: the states and then they do the same thing. And
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  Speaker 2: of course, what we saw in 2020 and we saw.
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  Speaker 3: In 2024 was.
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  Speaker 2: Was some weirdnesses on the local level where local officials
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  Speaker 2: said they didn't want to certify the elections that often
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  Speaker 2: came from an election denialist kind of big lie.
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  Speaker 3: Sort of place.
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  Speaker 2: But it didn't work out in the end because for
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  Speaker 2: you to successfully, as a local official, not certify an
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  Speaker 2: election and for that to go all the way up
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  Speaker 2: to what credentials end up getting turned into Congress, you
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  Speaker 2: really need compliance up and down all of the food
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  Speaker 2: chain and from the courts.
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  Speaker 1: There's a lot of people that have got to participate
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  Speaker 1: in that conspiracy. It's not just one or two people. Right. Yeah, exactly.
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  Speaker 3: Exactly.
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  Speaker 2: And again, it's not just, you know, it's certainly not
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  Speaker 2: just the local officials. And then even when you get
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  Speaker 2: to the state level, you have to have, you know,
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  Speaker 2: the fifth official who's in charge ultimately of the certification there,
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  Speaker 2: the governor, the secretary of state, some local board, you.
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  Speaker 3: Have to have them on board.
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  Speaker 2: Then you also have to have nobody who's willing to
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  Speaker 2: challenge it in court or a court that says, yeah,
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  Speaker 2: this is fine, go ahead. And legally, that's just not
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  Speaker 2: something courts, it seems, are going to stand for. There's
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  Speaker 2: a lot of A lot of doctrine, federal due process
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  Speaker 2: doctrine around the idea that if the state law says
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  Speaker 2: this is how the elections work, there's a duty to certify.
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  Speaker 2: You could put someone in place to certify if someone
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  Speaker 2: else refuses.
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  Speaker 3: But it's a vulnerable period. And that's why a lot
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  Speaker 3: of people who.
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  Speaker 2: do research on this, the Brennan Centers, particularly good resources
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  Speaker 2: on certification, but why they said after 2020, hey, states,
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  Speaker 2: you might really want to lock down this process. You
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  Speaker 2: might want to tighten up the timelines and you might
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  Speaker 2: want to make clear who has what duties and what
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  Speaker 2: happens if someone is trying not to comply with those duties.
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  Speaker 2: The good news is a lot of states have done that.
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  Speaker 2: So things are looking better on that score than they
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  Speaker 2: have in previous elections. But then the second front, Let's
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  Speaker 2: stay with the first front.
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  Speaker 1: Let's stay with the states because I have a couple
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  Speaker 1: of questions on specific states before we get to your
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  Speaker 1: second part. There's no doubt in the presidential battleground states
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  Speaker 1: that it feels as if those are hard to manipulate.
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  Speaker 1: There's been enough essentially purging of election deniers at the
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  Speaker 1: secretary of state level, things like that. But what about
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  Speaker 1: in these midterm states? Take the state of Texas. If
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  Speaker 1: we have a super close election, is the certification process
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  Speaker 1: in Texas bulletproof or not?
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  Speaker 2: You know, I don't want to tell you that anything
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  Speaker 2: is bulletproof. I don't want to be that person who
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  Speaker 2: said that something was bulletproof. And I don't know the
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  Speaker 2: exact process. weaknesses in every individual state. I think I
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  Speaker 2: would just emphasize the idea that you need everybody on
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  Speaker 2: board in 2020. You saw, obviously, a Republican official, Brad
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  Speaker 2: Raffensperger in Georgia, not be on board. So you need
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  Speaker 2: not only those people on board, but again, you need
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  Speaker 2: also the courts and you need that to be the
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  Speaker 2: case as you escalate through the courts. To me, What
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  Speaker 2: I would worry about a lot more than a court
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  Speaker 2: ultimately allowing a wrongful certification to go through would be
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  Speaker 2: a certification delay. It would be the idea that if
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  Speaker 2: you have enough people on board, you can kind of
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  Speaker 2: push this litigation process on and on and on. And
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  Speaker 2: if you push it on past January 3rd, that's where
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  Speaker 2: you get to that second front I was mentioning.
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  Speaker 1: So, you know, that's interesting. You know, one of my
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  Speaker 1: what ifs about the 2000 election is over certification. And
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  Speaker 1: in this case, Florida certified before the count was done.
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  Speaker 1: If Florida, you know, it goes back to why I
• 10:43
  Speaker 1: always said every election counts. Back then, Florida elected its
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  Speaker 1: secretary of state. Two years earlier, had there been a
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  Speaker 1: Democrat in that office, which actually due to a series
• 10:53
  Speaker 1: of bizarre circumstances, there should have been. It's just, you know,
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  Speaker 1: sort of a happenstance of Republican primary politics back in
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  Speaker 1: the day. and it doesn't get certified, well, then the
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  Speaker 1: Supreme Court has no, there's nothing to send to the
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  Speaker 1: Supreme Court. And it stays a Florida issue. And if anything,
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  Speaker 1: you may not even have, to certify or not certify,
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  Speaker 1: depending on what you want from the courts, you want
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  Speaker 1: state courts involved or federal courts involved, that is also
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  Speaker 1: a strategy, correct? Correct.
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  Speaker 2: Yeah, no, no, no.
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  Speaker 3: And that's that's definitely an interesting point.
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  Speaker 2: I mean, again, delay can be useful in some cases
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  Speaker 2: and in some cases delay would be.
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  Speaker 3: Mandated if you don't it depending on state law.
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  Speaker 1: Right. So certifying faster, maybe before provisional ballots get counted
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  Speaker 1: and things like that. Also, I mean, either way, certification
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  Speaker 1: is a. is a fulcrum. Yes. Right.
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  Speaker 3: Certification is a fulcrum a hundred percent.
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  Speaker 2: And kind of the key area of vulnerability that I've
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  Speaker 2: been looking at is this question of when the house
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  Speaker 2: is an organization, when.
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  Speaker 1: It doesn't exist.
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  Speaker 2: Yeah. Yeah. So, okay.
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  Speaker 3: But you're right about certification being a fulcrum.
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  Speaker 2: And I do, I do want to say that sometimes
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  Speaker 2: state law, yeah, explicitly makes sure that someone isn't seated
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  Speaker 2: until certification has happened. And so like a good example
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  Speaker 2: of that would be the Al Franken race for a
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  Speaker 2: long time. Nobody was seated because no official certificate had
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  Speaker 2: been signed. And the law there said you can't sign
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  Speaker 2: the certificate while it's being litigated. So as long as
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  Speaker 2: you had litigation happening, you wouldn't get a certification.
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  Speaker 3: But you can make an.
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  Speaker 2: Argument for why you might want a certification while it's
• 12:28
  Speaker 2: being litigated.
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  Speaker 3: And, you know, that I can get to that now.
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  Speaker 2: We can get to January 3rd and sort of what
• 12:34
  Speaker 2: happens on that very strange day.
• 12:38
  Speaker 1: Well, I want to go to that because there's different
• 12:41
  Speaker 1: rules that govern house races than these other races. Because
• 12:45
  Speaker 1: what people are always surprised to learn, if they don't
• 12:48
  Speaker 1: know it already, is that the House of Representatives is
• 12:51
  Speaker 1: the ultimate arbiter of House elections.
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  Speaker 3: Yes, exactly.
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  Speaker 1: And that's what makes a very narrow majority, I think, vulnerable,
• 13:02
  Speaker 1: if it's a flip, to shenanigans.
• 13:05
  Speaker 2: Yeah.
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  Speaker 3: So there's this kind of strange situation in the House specifically.
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  Speaker 2: So a lot of people who are worried about a
• 13:14
  Speaker 2: January 6th on January 3rd, which is the key date here.
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  Speaker 3: That's the date where the House and the Senate turn over.
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  Speaker 1: The Constitution. Yeah, by the way.
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  Speaker 3: Yes, the 20th Amendment.
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  Speaker 1: That is in the, that is not a, you know,
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  Speaker 1: it's not something they can, that they can't delay, I believe, right?
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  Speaker 1: January 3rd.
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  Speaker 3: Yep, 20th Amendment says January 3rd.
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  Speaker 2: Yeah, exactly.
• 13:32
  Speaker 3: January 3rd at noon. That is the key date and
• 13:35
  Speaker 3: the key time.
• 13:36
  Speaker 2: So a lot of people have said, I'm worried that
• 13:40
  Speaker 2: if the Republicans lose the elections, Mike Johnson and the
• 13:44
  Speaker 2: current Republican majority are going to refuse to seat the
• 13:47
  Speaker 2: Democratic winners. And that's actually, as scary as it sounds,
• 13:52
  Speaker 2: sort of nonsense based on how the House works. Because
• 13:55
  Speaker 2: at January 3rd, at noon, The old house dissolves. The
• 14:00
  Speaker 2: house isn't a continuing body. And that might sound like
• 14:03
  Speaker 2: something out of science fiction. It's actually a parliamentary practice thing, right?
• 14:06
  Speaker 2: Its entire membership turns over from one election to the next,
• 14:10
  Speaker 2: unlike the Senate. And so there's this strange liminal period
• 14:13
  Speaker 2: of time during which functionally, formally, there is no house.
• 14:17
  Speaker 2: Mike Johnson isn't the speaker. Hakeem Jeffries isn't the minority leader.
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  Speaker 2: There is no Republican majority, regardless of who won the
• 14:24
  Speaker 2: most seats.
• 14:24
  Speaker 1: A friend of mine who is an expert at this
• 14:26
  Speaker 1: stuff says you start literally with a blank piece of paper.
• 14:29
  Speaker 1: And the House can organize itself any way it wants
• 14:31
  Speaker 1: to organize itself. Like it has this it's a uniquely
• 14:35
  Speaker 1: it's a unique period where you can create different rules
• 14:39
  Speaker 1: and how the House works and you could create different
• 14:41
  Speaker 1: committees and conferences. In some ways, it's a blank canvas.
• 14:46
  Speaker 3: Yeah, it's all happening by custom.
• 14:48
  Speaker 2: By custom, they're operating according to parliamentary procedure and according
• 14:52
  Speaker 2: to the old rules package.
• 14:53
  Speaker 3: But again, that is by custom.
• 14:55
  Speaker 2: An election law lawyer I spoke to, Ned Foley at
• 14:59
  Speaker 2: Ohio State University, called this period the barrier between law
• 15:03
  Speaker 2: and non-law. And it is, and it's weird, and it's concerning,
• 15:06
  Speaker 2: and it's particularly concerning because the You know, you might
• 15:11
  Speaker 2: think now, oh, I'm reassured.
• 15:13
  Speaker 3: There's no Speaker Mike Johnson. There's no current Republican majority.
• 15:16
  Speaker 2: But there's no anything except there is this one individual,
• 15:21
  Speaker 2: the clerk of the House, whose authority does carry over
• 15:26
  Speaker 2: from one session to the next. He's not a member
• 15:29
  Speaker 2: of Congress. Right.
• 15:32
  Speaker 3: A lot of people have worried.
• 15:33
  Speaker 2: About this particular possibility of the quote unquote rogue clerk
• 15:37
  Speaker 2: who during this key period of organization is responsible for
• 15:42
  Speaker 2: making up the role of members who vote for speaker.
• 15:45
  Speaker 2: Then once they voted for speaker, you have a speaker.
• 15:48
  Speaker 2: The speaker starts swearing in the house.
• 15:49
  Speaker 3: You have a house. But during this key period, it's
• 15:53
  Speaker 3: the clerk who's sort of sitting there in the chair
• 15:56
  Speaker 3: running things with a lot of authority for someone who's
• 15:59
  Speaker 3: not even an elected official.
• 16:02
  Speaker 1: So let me paint a scenario that is, I think,
• 16:04
  Speaker 1: more viable now because of the court ruling. The state
• 16:08
  Speaker 1: of Missouri has been told it cannot use these new
• 16:12
  Speaker 1: congressional districts. Its state Supreme Court ruled last week. They
• 16:17
  Speaker 1: held primaries based on the new congressional lines. And now
• 16:21
  Speaker 1: they're told they have to hold the general election based
• 16:23
  Speaker 1: on the old congressional lines. I think the likelihood that
• 16:27
  Speaker 1: the entire election, the primary season gets thrown out. What
• 16:31
  Speaker 1: they do here, I think they're still having to, I
• 16:33
  Speaker 1: think voter disenfranchisement lawsuits are going to get filed as
• 16:37
  Speaker 1: they should. This is wrong, right? Now, the state messed up,
• 16:43
  Speaker 1: maybe purposely, right? They tried to jam the courts.
• 16:46
  Speaker 2: No, no, no, no.
• 16:46
  Speaker 1: We're going to hold the primaries even though we don't
• 16:48
  Speaker 1: have the ruling for sure yet, but we're going to
• 16:50
  Speaker 1: hold the primaries assuming we're going to get the ruling
• 16:52
  Speaker 1: we want. Well, they didn't. So now we're in this
• 16:55
  Speaker 1: weird situation. And I think the likelihood of a revote
• 16:59
  Speaker 1: is high and it's possible the revote is in after November.
• 17:03
  Speaker 1: Maybe it doesn't take place until January. Suddenly we have
• 17:09
  Speaker 1: a scenario where there are, there's an entire state's delegation.
• 17:13
  Speaker 1: I believe Missouri's at eight, if I'm not mistaken, I
• 17:15
  Speaker 1: think it's eight congressional districts. Um, probably would be a
• 17:19
  Speaker 1: seven one under the old map, uh, maybe a six two. And, um,
• 17:25
  Speaker 1: If that is the difference between a party getting 218
• 17:28
  Speaker 1: and not 218, then suddenly we're in a no man's
• 17:32
  Speaker 1: land situation. So what could happen in December in the
• 17:38
  Speaker 1: lame duck, right, that could possibly sort of change the numerator, frankly,
• 17:45
  Speaker 1: in the House come January 3rd?
• 17:48
  Speaker 3: What could happen in December?
• 17:50
  Speaker 2: I mean, I think what you have to worry about
• 17:51
  Speaker 2: with a situation like that is the question of what
• 17:54
  Speaker 2: the clerk is obligated to do on January 3rd if
• 17:58
  Speaker 2: you don't have a certified election in Missouri in any
• 18:02
  Speaker 2: of these districts, right? So the clerk, there's a statute
• 18:06
  Speaker 2: that governs what the clerk does. And the clerk has
• 18:09
  Speaker 2: to put on the role, according to the statute, essentially
• 18:13
  Speaker 2: the people who are certified voters in accordance with state law.
• 18:18
  Speaker 2: But he's arguably, when you read the statute, obligated to
• 18:24
  Speaker 2: leave vacant any seats where there is no certified winner.
• 18:28
  Speaker 3: So if you get to the situation where you don't.
• 18:30
  Speaker 2: Have the certified winners on January 3rd, then the clerk
• 18:35
  Speaker 2: theoretically shouldn't seat anyone.
• 18:39
  Speaker 3: And then you get to weird math, right?
• 18:40
  Speaker 2: Because you have to figure out who's voting for Speaker
• 18:42
  Speaker 2: and who gets to win the vote for Speaker. And
• 18:45
  Speaker 2: the way that it works is that you have to
• 18:48
  Speaker 2: have a majority of the people voting, either yes or no.
• 18:52
  Speaker 2: It's not that you have to have a majority of
• 18:55
  Speaker 2: the 335 people who should be voting. Sorry, 435 people
• 18:59
  Speaker 2: who should be voting if you actually had everybody certified
• 19:03
  Speaker 2: and nothing in dispute.
• 19:04
  Speaker 1: So.
• 19:06
  Speaker 2: Vacant seats make it essentially so that for the chamber
• 19:11
  Speaker 2: to flip, you'd have to like 2X the number of,
• 19:16
  Speaker 2: say you're a road clerk, right? So say you're a
• 19:18
  Speaker 2: road clerk and an election yields a, 2-20, 2-15 split
• 19:23
  Speaker 2: in favor of the Democrats. If you're just replacing the
• 19:25
  Speaker 2: Democrats on the roll with Republicans for the purposes of
• 19:27
  Speaker 2: the speaker vote, you get 2-18, 2-17. The Republicans are
• 19:31
  Speaker 2: in the majority. They can elect their speaker. But if
• 19:33
  Speaker 2: you just remove those three Democrats, you leave three seats
• 19:36
  Speaker 2: vacant and you have a 2-17, 2-15 split. And the
• 19:41
  Speaker 2: Democrats are still in the majority of that split. So
• 19:43
  Speaker 2: you haven't accomplished anything. You'd need to leave six seats
• 19:45
  Speaker 2: vacant to be able to change the balance.
• 19:48
  Speaker 3: So- what.
• 19:50
  Speaker 2: You're saying about Missouri, I mean, it totally depends on
• 19:52
  Speaker 2: the numbers, but it could theoretically flip the control. Right.
• 19:56
  Speaker 1: And that we don't know.
• 19:57
  Speaker 2: Right. Right. Right.
• 19:58
  Speaker 3: We just don't know.
• 19:59
  Speaker 2: And so. I think that there is a good argument
• 20:03
  Speaker 2: that as a matter of positive law, the clerk would
• 20:05
  Speaker 2: be obligated to leave those seats that you're describing vacant.
• 20:09
  Speaker 3: But that's that's the kind of a disaster, right?
• 20:12
  Speaker 2: Because what if it does flip it and then the
• 20:16
  Speaker 2: they elect a speaker? And so what should that speaker do?
• 20:21
  Speaker 2: I mean, you know, the speaker probably should.
• 20:24
  Speaker 3: Not see anyone.
• 20:27
  Speaker 1: This episode of the Chuck Todd cast is brought to
• 20:29
  Speaker 1: you by Chapter. Now, almost everything you hear about Medicare
• 20:33
  Speaker 1: is somebody quietly trying to steer you somewhere. And you're
• 20:38
  Speaker 1: skeptical of that, as you should be. I get it.
• 20:41
  Speaker 1: I mean, there's a federal lawsuit going on right now
• 20:44
  Speaker 1: over exactly this. Companies that branded themselves as unbiased while
• 20:48
  Speaker 1: allegedly pointing people toward whatever would pay them the most
• 20:53
  Speaker 1: as some sort of broker. So if your default is
• 20:55
  Speaker 1: to distrust everyone in this space, honestly, I get it.
• 20:58
  Speaker 1: I'm a bit distrustful these days myself. That's the whole
• 21:01
  Speaker 1: reason I want to tell you about Chapter. They're independent
• 21:04
  Speaker 1: Medicare advisors whose entire model is that their advisors are
• 21:08
  Speaker 1: not paid to push any one plan. They're just trying
• 21:12
  Speaker 1: to help. Yes, there's compensation that goes with it, but
• 21:15
  Speaker 1: it's across the board is what they're trying to do.
• 21:18
  Speaker 1: At the end of the day, they're advocating for you.
• 21:19
  Speaker 1: They're not the insurance companies themselves. They're an actual person
• 21:23
  Speaker 1: who actually goes through your doctors, your prescriptions, your needs,
• 21:28
  Speaker 1: and then compares them to every single plan available to
• 21:31
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• 21:33
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• 21:36
  Speaker 1: the part that sets chapter apart. They don't disappear once
• 21:40
  Speaker 1: you've been in They will keep advocating for you. They're
• 21:44
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• 21:46
  Speaker 1: I need help. You're like customer service. You know, the plan,
• 21:49
  Speaker 1: you know, help me navigate this again. So you ever
• 21:51
  Speaker 1: get hit with a wrongful medical bill, they'll help you
• 21:55
  Speaker 1: fight it. They want to stay an advocate for you
• 21:58
  Speaker 1: even after you've done this. So look, I get it.
• 22:02
  Speaker 1: I think there's all sorts of space. You see a
• 22:05
  Speaker 1: lot of people are throwing themselves in this healthcare space.
• 22:08
  Speaker 1: What I like about these chapter folks, I've spent time
• 22:11
  Speaker 1: with them. This is a very transparent organization. It is
• 22:15
  Speaker 1: Medicare and all of its affiliated stuff can be very confusing.
• 22:20
  Speaker 1: The whole point of this is to make this easier
• 22:23
  Speaker 1: and less confusing. Okay, so look, take the skepticism you
• 22:27
  Speaker 1: already have in all of this, point it at your
• 22:29
  Speaker 1: own plan for 20 minutes. It's free. There's no pressure.
• 22:33
  Speaker 1: And then call chapter today at 980-734-4255. I mean, we
• 22:44
  Speaker 1: sort of had a test run of this in Pennsylvania,
• 22:46
  Speaker 1: I want to say, the last couple of cycles. Their
• 22:48
  Speaker 1: state house assembly, I forget what they call it there
• 22:51
  Speaker 1: in their commonwealth, was really close. I think somebody, I
• 22:56
  Speaker 1: want to say that like somebody died after election before
• 23:00
  Speaker 1: swearing in. And it literally changed the number. But as
• 23:03
  Speaker 1: soon as the special election was going to get held,
• 23:05
  Speaker 1: it was going to change it back. So then it
• 23:07
  Speaker 1: was sort of like who was going to be in
• 23:09
  Speaker 1: the majority for a brief period of time was one
• 23:11
  Speaker 1: party than the other. And I can't remember what they
• 23:14
  Speaker 1: ended up doing. I mean, I think they just held
• 23:16
  Speaker 1: multiple leadership elections in a couple of cases. So we've
• 23:20
  Speaker 1: seen this in state legislatures and they essentially have functioned OK.
• 23:27
  Speaker 2: Right.
• 23:27
  Speaker 1: There hasn't been a an attempt to sort of Outright theft,
• 23:32
  Speaker 1: I don't think. Right.
• 23:33
  Speaker 3: Right. I mean, like what you should do is you
• 23:36
  Speaker 3: should leave those seats vacant.
• 23:38
  Speaker 2: The strangeness would be if you leave them vacant and
• 23:42
  Speaker 2: then ultimately the election happens, the certifications come in and
• 23:47
  Speaker 2: the certifications show that. The actual winners flip the control
• 23:52
  Speaker 2: of the chamber. And then you have the question of, OK,
• 23:55
  Speaker 2: so at that point, is the House obligated to seat
• 23:59
  Speaker 2: those people if they properly left them vacant? A speaker
• 24:02
  Speaker 2: could seat the wrong people and it's possible the courts
• 24:05
  Speaker 2: wouldn't intervene. Look.
• 24:06
  Speaker 1: No, I mean, and there's precedent for that. There's a famous,
• 24:10
  Speaker 1: infamous dispute called the Bloody Eighth, Indiana's eighth congressional district.
• 24:14
  Speaker 1: This is a dispute, I think it was the 86 midterms,
• 24:18
  Speaker 1: maybe it was 84. And it took two years to litigate.
• 24:21
  Speaker 1: I can't remember, 84, 86. But essentially, the recount showed
• 24:27
  Speaker 1: the Republican winning and the Democratic majority sat the Democrat anyway.
• 24:31
  Speaker 1: And everybody's like, well, how can that be? The House
• 24:34
  Speaker 1: is the ultimate certifier of elections, correct?
• 24:38
  Speaker 2: Yeah, exactly.
• 24:38
  Speaker 3: And that's exactly what happened on the bloody eighth.
• 24:41
  Speaker 2: The Frank McCloskey, the incumbent Democrat, was challenged by Rick McIntyre, Republican.
• 24:48
  Speaker 3: And initially, so.
• 24:50
  Speaker 2: McIntyre was certified by the secretary of state. And then
• 24:53
  Speaker 2: McCloskey wanted to block McIntyre from assuming office, the House decided, OK,
• 24:58
  Speaker 2: we're going to keep the seat vacant while the administration
• 25:00
  Speaker 2: committee evaluates this election.
• 25:02
  Speaker 3: But the House.
• 25:03
  Speaker 2: Administration committee, because the Democrats were in the majority, had
• 25:08
  Speaker 2: a Democratic majority.
• 25:09
  Speaker 3: It was 2-1.
• 25:10
  Speaker 2: And they basically, the Republicans said, the recount that you
• 25:14
  Speaker 2: guys are doing isn't in conformity with Indiana law.
• 25:18
  Speaker 3: And you're counting nonconforming absentee ballots. And it didn't matter.
• 25:21
  Speaker 2: The majority of the task force prevailed over the minority.
• 25:24
  Speaker 2: And the Democrat, who wasn't the one who was certified,
• 25:27
  Speaker 2: was seated. And I mean, I think that really what
• 25:30
  Speaker 2: that shows.
• 25:31
  Speaker 1: That incident is so important because I could argue it
• 25:36
  Speaker 1: created Newt Gingrich. That Newt Gingrich's political power came from
• 25:42
  Speaker 1: that moment where he was trying to galvanize a Republican
• 25:46
  Speaker 1: Party that did not want to be a that kind
• 25:49
  Speaker 1: of party. And he galvanized him to become that kind
• 25:52
  Speaker 1: of party.
• 25:53
  Speaker 3: Yeah.
• 25:54
  Speaker 1: Yeah.
• 25:54
  Speaker 2: And Republicans tried to get it overturned in federal court
• 25:56
  Speaker 2: and the court. I think Scalia wrote the opinion on
• 26:00
  Speaker 2: this was before he was on the on the Supreme Court.
• 26:02
  Speaker 3: But he wrote the opinion as a federal judge.
• 26:04
  Speaker 2: And he said that the claims weren't justiciable because it
• 26:07
  Speaker 2: was a political question. And so that's the issue you
• 26:09
  Speaker 2: get into at the point where you have.
• 26:12
  Speaker 3: A speaker and a majority.
• 26:14
  Speaker 2: The courts are going to say this is, I mean,
• 26:16
  Speaker 2: are almost certainly going to say this is a political question.
• 26:20
  Speaker 3: The House is the judge of the returns of its
• 26:21
  Speaker 3: own members. We're not going to do anything.
• 26:24
  Speaker 2: The kind of tricky part and sort of an interesting
• 26:27
  Speaker 2: argument in the rogue clerk theory area is if the
• 26:31
  Speaker 2: clerk is, you know, doing something nefarious. Will the court
• 26:37
  Speaker 2: still say it's a political question? Or, because he's not
• 26:40
  Speaker 2: a member of the House, and because of that moment
• 26:42
  Speaker 2: the House doesn't exist, and because there's a statute, might
• 26:45
  Speaker 2: they be willing to intervene to tell him that he
• 26:48
  Speaker 2: has to comply with what's his ministerial duty to put
• 26:52
  Speaker 2: the correct person on the roll? I think that that's
• 26:55
  Speaker 2: kind of a live argument, and I couldn't tell you.
• 26:58
  Speaker 2: My guess is that It would depend on.
• 27:00
  Speaker 3: The judge, right? Kind of what they wanted to do.
• 27:03
  Speaker 2: But I think a judge could write a decent opinion
• 27:05
  Speaker 2: in either direction on the question of what they have
• 27:08
  Speaker 2: to do, depending on whether there's only one set of credentials,
• 27:12
  Speaker 2: how clear state law is on what credentials are valid,
• 27:15
  Speaker 2: whether there's a dueling set, whether there's a certification delay.
• 27:18
  Speaker 2: I think courts possibly would intervene at that weird time
• 27:22
  Speaker 2: during organization with regard to what.
• 27:24
  Speaker 3: The clerk did.
• 27:25
  Speaker 2: But at the moment that you get the speaker, you
• 27:29
  Speaker 2: get the majority, courts are almost certainly going to bow out.
• 27:32
  Speaker 3: There's one possible caveat. There is a case, Powell versus McCormick,
• 27:38
  Speaker 3: in which the Supreme Court ruled that the House did
• 27:43
  Speaker 3: have to. So basically, it was a qualifications case. It
• 27:47
  Speaker 3: wasn't a certification case. So it's a little different.
• 27:52
  Speaker 2: But essentially, the Supreme Court ruled that the House couldn't
• 27:55
  Speaker 2: exclude a properly credentialed member elect. So, you know, the
• 28:00
  Speaker 2: understanding there would be.
• 28:01
  Speaker 1: Was this the Grialva case where they kept they kept delaying?
• 28:06
  Speaker 1: It was a special election. They kept delaying the swearing
• 28:10
  Speaker 1: in of a member.
• 28:12
  Speaker 3: This is this.
• 28:12
  Speaker 2: Is the House voting not to seat a New York representative.
• 28:17
  Speaker 3: Adam Clayton Powell was his name.
• 28:19
  Speaker 1: This goes way back.
• 28:22
  Speaker 2: He was accused of misappropriating federal funds so they didn't
• 28:25
  Speaker 2: want to seat him. And what the court said was, well,
• 28:27
  Speaker 2: you can expel him for his misconduct by a two
• 28:30
  Speaker 2: thirds vote, but you can't just exclude him by a
• 28:33
  Speaker 2: simple majority vote from membership in the first place if
• 28:36
  Speaker 2: he's duly elected.
• 28:37
  Speaker 3: And so I think some people would.
• 28:39
  Speaker 2: Argue that if the House tried to exclude someone with
• 28:42
  Speaker 2: the proper credentials and the qualifications, the certificate, then the
• 28:47
  Speaker 2: courts would intervene. But I think you could also argue
• 28:49
  Speaker 2: they wouldn't because there wasn't any dispute about who'd won
• 28:53
  Speaker 2: the race. There was no one saying, oh, well, Powell
• 28:56
  Speaker 2: didn't win. Someone else won. The courts basically said, well,
• 29:00
  Speaker 2: he has the constitutional qualifications. I think the moment that
• 29:03
  Speaker 2: there is like a colorable claim that someone else has
• 29:06
  Speaker 2: won sort of a live dispute about who won that
• 29:10
  Speaker 2: different people in the house are on different sides of
• 29:12
  Speaker 2: that's likely the moment the courts bow out.
• 29:14
  Speaker 3: They say that's a political question. They don't do anything.
• 29:17
  Speaker 2: So that's part of why it's such an important period organization.
• 29:23
  Speaker 2: That's the only moment at which it's really reasonable to
• 29:25
  Speaker 2: imagine courts intervening at all. And so it's, if a
• 29:29
  Speaker 2: majority gets flipped by a rogue clerk or by a
• 29:33
  Speaker 2: clerk who's complying with his duty to leave seats vacant
• 29:37
  Speaker 2: in the event of a certification delay, then you've crossed
• 29:40
  Speaker 2: this Rubicon where you might have a majority that's an
• 29:42
  Speaker 2: improper majority and you run into the question of even
• 29:46
  Speaker 2: if the certifications come in later, even if the result
• 29:49
  Speaker 2: is different, does the House, does the Speaker really have
• 29:52
  Speaker 2: any obligation to seat the lawful winners? Or, you know,
• 29:56
  Speaker 2: does it have any obligation that courts would ever enforce?
• 29:58
  Speaker 2: And the answer is probably not. All right.
• 30:01
  Speaker 1: Let's talk about the clerk. How does, who decides who's
• 30:06
  Speaker 1: the clerk of the House?
• 30:07
  Speaker 2: Yeah. So the, I'll tell you who the current clerk is,
• 30:11
  Speaker 2: which I think is helpful. His name is Kevin McCumber.
• 30:14
  Speaker 2: He was appointed by Kevin McCarthy and But he served
• 30:17
  Speaker 2: in the clerk's office under Nancy Pelosi, too. He's generally
• 30:21
  Speaker 2: understood to be a serious person, has bipartisan bona fides.
• 30:26
  Speaker 2: So you look at Kevin McCumber and you think, maybe
• 30:29
  Speaker 2: not that much to worry about.
• 30:31
  Speaker 1: But.
• 30:32
  Speaker 3: the Speaker of the House can fire the clerk unilaterally.
• 30:36
  Speaker 2: So when people say, you know, oh, current Speaker Mike
• 30:38
  Speaker 2: Johnson turning the election, this is where current Speaker Mike
• 30:42
  Speaker 2: Johnson has power because he can fire the clerk unilaterally
• 30:45
  Speaker 2: the moment that he sees that there's an issue and
• 30:48
  Speaker 2: that it might be convenient to have a compliant clerk
• 30:50
  Speaker 2: in place.
• 30:51
  Speaker 3: He can do that in December.
• 30:52
  Speaker 1: He can fire, but can you hire a clerk? No,
• 30:55
  Speaker 1: you cannot.
• 30:56
  Speaker 2: You need a majority to install a permanent replacement, but
• 30:59
  Speaker 2: it's sort of cold comfort because the Speaker can also
• 31:02
  Speaker 2: unilaterally appoint an acting clerk who temporarily is supposed to
• 31:06
  Speaker 2: fulfill all the statutory duties of the clerk, including the
• 31:09
  Speaker 2: making up of the role. And in fact, McCumber himself
• 31:12
  Speaker 2: was an acting clerk for about a year and a
• 31:14
  Speaker 2: half when he started his term. So I don't think
• 31:17
  Speaker 2: that the majority to install a permanent replacement thing is
• 31:20
  Speaker 2: as comforting as it seems. I think that, you know, sure,
• 31:26
  Speaker 2: if you're arguing the clerk is in charge here, everybody
• 31:31
  Speaker 2: should obey the clerk. You have more of a leg
• 31:34
  Speaker 2: to stand on if the clerk is the properly installed clerk.
• 31:37
  Speaker 3: But yeah, you need the majority to install him.
• 31:39
  Speaker 2: Presumably, that is, I mean, I.
• 31:42
  Speaker 1: Don't want to say presumably. So Johnson... Can appoint an acting,
• 31:46
  Speaker 1: is there an expiration on the acting title before the
• 31:49
  Speaker 1: whole House gets to vote on whether this person should
• 31:52
  Speaker 1: be the clerk?
• 31:53
  Speaker 3: I don't think there's an expiration.
• 31:55
  Speaker 2: I would want to go back and check it, and
• 31:56
  Speaker 2: I don't want to say something that I'm going to
• 31:58
  Speaker 2: be wrong about. But McCumber was an acting clerk for
• 32:00
  Speaker 2: a year and a half, and that didn't expire.
• 32:02
  Speaker 1: Boy, that is really problematic. That is a huge vulnerability.
• 32:07
  Speaker 3: It seems like a vulnerability to me. Yes. I mean,
• 32:12
  Speaker 3: I think, again, the issue is.
• 32:14
  Speaker 2: So I don't think it's that difficult to put the
• 32:16
  Speaker 2: compliant clerk in place. What I think is difficult for.
• 32:21
  Speaker 2: What I think is difficult is for the rogue clerk,
• 32:24
  Speaker 2: even if the clerk goes rogue, to actually successfully pull
• 32:28
  Speaker 2: off this sort of coup that people are describing.
• 32:31
  Speaker 3: Why is that?
• 32:33
  Speaker 1: So give the– we've identified the vulnerability. Give the– now
• 32:38
  Speaker 1: you're giving a little bit of comfort that might not
• 32:41
  Speaker 1: be as powerful.
• 32:42
  Speaker 2: A little.
• 32:42
  Speaker 3: A teeny, tiny bit.
• 32:44
  Speaker 1: Yeah.
• 32:46
  Speaker 2: So I think there are two axes on which to
• 32:50
  Speaker 2: think about it.
• 32:51
  Speaker 3: One of them is comfort.
• 32:53
  Speaker 2: Legal viability and one of them is practical possibility. So
• 32:57
  Speaker 2: we talked already a little bit about the legal question.
• 33:01
  Speaker 2: And so that's where it seems like as a matter
• 33:04
  Speaker 2: of positive law, the clerk has a duty what's known
• 33:08
  Speaker 2: as a ministerial duty. And that goes all the way
• 33:10
  Speaker 2: back to Marbury versus Madison, by the way, most people
• 33:12
  Speaker 2: remember that as the case that in transjudicial review, but
• 33:15
  Speaker 2: to get there, what was important was that Madison, the
• 33:18
  Speaker 2: secretary of state had a ministerial duty to deliver a
• 33:22
  Speaker 2: Marbury who'd been appointed as a justice of the peace,
• 33:24
  Speaker 2: his commission. And the court said, yeah, it's up to
• 33:26
  Speaker 2: us then to hand down a writ of mandamus. So
• 33:29
  Speaker 2: what courts do is they say, if, is there a
• 33:32
  Speaker 2: ministerial duty to that we can enforce. And to do that,
• 33:36
  Speaker 2: they ask whether there's any room for discretion in the statute.
• 33:40
  Speaker 2: And so in this case, you look at the clerk's
• 33:42
  Speaker 2: duty to make a role of the representatives elect and
• 33:46
  Speaker 2: place there on the names of those persons and such
• 33:48
  Speaker 2: persons only whose credentials show that they were elected in
• 33:51
  Speaker 2: accordance with the law. And you ask, is there any
• 33:54
  Speaker 2: discretion there?
• 33:56
  Speaker 1: And, you know, You tell me.
• 33:59
  Speaker 2: I think you could argue that there's not, at least
• 34:02
  Speaker 2: in the case where there is someone who comes in
• 34:07
  Speaker 2: with a certificate, there's only one person who comes in
• 34:09
  Speaker 2: with the certificate, and state law is clear on who
• 34:12
  Speaker 2: the lawfully certified elected member is. And state law is
• 34:17
  Speaker 2: clearer and clearer, as I mentioned earlier. So I think
• 34:20
  Speaker 2: there's a good argument that the clerk does have a
• 34:22
  Speaker 2: ministerial duty to put the certified winner on the roll
• 34:26
  Speaker 2: if there's a certified winner. Right. And I think that
• 34:29
  Speaker 2: there is a decent argument to make that at least
• 34:33
  Speaker 2: some courts would be willing to enforce that ministerial duty
• 34:37
  Speaker 2: with the writ of mandamus if the clerk refused to
• 34:39
  Speaker 2: do it, install someone else to do it for him,
• 34:41
  Speaker 2: which they can do, and say it's not a political
• 34:44
  Speaker 2: question because of what I mentioned earlier about the fact
• 34:47
  Speaker 2: that the House isn't in session and the clerk isn't
• 34:49
  Speaker 2: a member of the House. I think it gets a
• 34:50
  Speaker 2: little trickier where there are dueling sets of credentials. I
• 34:54
  Speaker 2: think the fact that state law is better on that
• 34:57
  Speaker 2: mitigates that issue. And I think the problem, again, is
• 35:01
  Speaker 2: the delayed certification where you could argue that the clerk,
• 35:03
  Speaker 2: in fact, has a ministerial duty to leave the seat vacant.
• 35:06
  Speaker 3: So that's the legal side of it.
• 35:09
  Speaker 1: So it's interesting. It feels as if then that the clerk,
• 35:16
  Speaker 1: that this isn't the vulnerability, the real vulnerability is certification
• 35:20
  Speaker 1: itself and not having certified elections. not having certified. And
• 35:26
  Speaker 1: I'm like trying to, I'm going through, I think the
• 35:28
  Speaker 1: biggest vulnerability is the state of Texas. And let me,
• 35:31
  Speaker 1: let me walk you through it. It's an all Republican
• 35:33
  Speaker 1: controlled state at the moment. It's going to be, it
• 35:37
  Speaker 1: looks like we're on a knife's edge. This looks like
• 35:39
  Speaker 1: it's going to be extraordinarily close elections. I could identify
• 35:43
  Speaker 1: three to five seats in Texas alone that might, you
• 35:48
  Speaker 1: could argue the Democrats win in that if you took
• 35:50
  Speaker 1: them away, it could put them below the majority, right?
• 35:53
  Speaker 1: Like where suddenly they went from, I mean, in theory,
• 35:57
  Speaker 1: I think what you're describing, if we're assuming that everybody's
• 36:02
  Speaker 1: going to behave as a partisan, then it is the
• 36:07
  Speaker 1: states where the certification is being controlled by the Republicans,
• 36:13
  Speaker 1: where Democrats could make gains. And that's why I look
• 36:16
  Speaker 1: at the state of Texas and I guess to a
• 36:18
  Speaker 1: lesser extent Ohio, though Mike DeWine just doesn't roll that way.
• 36:22
  Speaker 1: So I'm not concerned about a Mike DeWine. Greg Abbott's
• 36:25
  Speaker 1: on the ballot. Greg Abbott himself may be fighting certification, right?
• 36:30
  Speaker 1: And you have an entire slate, right, where there's going
• 36:33
  Speaker 1: to be pressure and motive and all sorts of things.
• 36:37
  Speaker 1: So painting that picture, right, I already painted a Missouri
• 36:41
  Speaker 1: picture for you that is a different scenario that is
• 36:43
  Speaker 1: frankly legitimate for the clerk to say, hey, I can't
• 36:46
  Speaker 1: seat these folks. There's real questions here. Texas seems to be,
• 36:53
  Speaker 1: and I'm still not clear here, Molly, that just because
• 36:57
  Speaker 1: the state certifies a House election that the House can't
• 37:01
  Speaker 1: just sort of ignore that. I thought the House had
• 37:04
  Speaker 1: that power.
• 37:06
  Speaker 2: Yeah.
• 37:06
  Speaker 3: So, OK, I guess two things.
• 37:08
  Speaker 2: One, if you accept my argument that the clerk has
• 37:13
  Speaker 2: a ministerial duty to put the lawfully certified person on
• 37:16
  Speaker 2: the role, which and that that goes to your last question,
• 37:19
  Speaker 2: you're saying that the House doesn't have to do it.
• 37:21
  Speaker 2: The argument is that the clerk does have to do it.
• 37:24
  Speaker 2: The clerk isn't a member of the House. The clerk doesn't.
• 37:26
  Speaker 2: doesn't have this sort of article one protection from any
• 37:29
  Speaker 2: judicial interference but you're right that if you accept that
• 37:32
  Speaker 2: which i think some people wouldn't accept i think it's
• 37:34
  Speaker 2: it's possible that a clerk that a court wouldn't buy
• 37:36
  Speaker 2: that right so i'm not going to tell you that
• 37:38
  Speaker 2: a court necessarily will i'm more telling you that if
• 37:41
  Speaker 2: a court wanted to not let this happen i think
• 37:43
  Speaker 2: a court could that that would be a viable route
• 37:47
  Speaker 2: to take and it's a solid legal argument but but
• 37:51
  Speaker 2: So if you accept that argument, that some people might
• 37:53
  Speaker 2: not accept, then you are 100% correct that it means
• 37:56
  Speaker 2: that the role-making process is only robust, only as vulnerable
• 38:02
  Speaker 2: to interference as the certification process is.
• 38:04
  Speaker 3: You're totally right.
• 38:05
  Speaker 2: It hinges on whether you can, first of all, certify
• 38:10
  Speaker 2: someone who shouldn't be certified, which I think is quite difficult.
• 38:13
  Speaker 2: And second of all, whether you can affect a delay
• 38:15
  Speaker 2: that gets past that Jan 3rd period, which I.
• 38:17
  Speaker 3: Think is easier to do.
• 38:19
  Speaker 2: So that I think that is a totally accurate assessment
• 38:22
  Speaker 2: of the logical implication of that argument. The argument might
• 38:26
  Speaker 2: make you feel a little better, but it shouldn't necessarily
• 38:29
  Speaker 2: resolve all your concerns about what can happen. But that
• 38:32
  Speaker 2: gets you to the practical possibility point, I think. So
• 38:35
  Speaker 2: if there's a certification delay, how likely is it that
• 38:39
  Speaker 2: the house actually gets flipped. And I think that one
• 38:44
  Speaker 2: point is this thing I was saying about the math
• 38:48
  Speaker 2: and the two X-ing, right? You need a, you need
• 38:51
  Speaker 2: a razor thin margin. Like to me, if it's an
• 38:54
  Speaker 2: even split, all bets are off. Like, I'm not going
• 38:56
  Speaker 2: to tell you to feel good about things if.
• 38:58
  Speaker 3: It's an even split.
• 38:58
  Speaker 1: No, I mean, look, I think that's always the lesson
• 39:00
  Speaker 1: of 2000. When an election's close enough, At this point,
• 39:04
  Speaker 1: it's who's got better lawyers. I mean, that's what we
• 39:05
  Speaker 1: learned in Minnesota Senate in 2008. It's what we learned
• 39:08
  Speaker 1: in the presidency in 2000. Yeah.
• 39:11
  Speaker 2: Yeah. So, I mean, again, if it's that narrow, then
• 39:15
  Speaker 2: you have a certification delay and I think you can
• 39:18
  Speaker 2: run into real trouble. If it is a wider margin,
• 39:23
  Speaker 2: then to have a certification delay flip control.
• 39:27
  Speaker 3: You would need to have.
• 39:29
  Speaker 1: a.
• 39:31
  Speaker 3: Lot of seats.
• 39:33
  Speaker 1: A lot of people following this conspiracy. A lot of
• 39:37
  Speaker 1: people have to get together.
• 39:38
  Speaker 2: So you would need a lot of people to get
• 39:40
  Speaker 2: together to do this in all the right places.
• 39:43
  Speaker 3: You would need a lot of people in.
• 39:45
  Speaker 2: the correct place or multiple correct places to make that
• 39:48
  Speaker 2: actually yield the.
• 39:49
  Speaker 3: Math that you wanted.
• 39:50
  Speaker 2: So I think that it's quite difficult to do. And
• 39:54
  Speaker 2: I think that when the margin is wider, then, I mean,
• 40:00
  Speaker 2: I think that kind of no matter what, you do
• 40:03
  Speaker 2: get a situation of chaos. Like, so let's say that
• 40:07
  Speaker 2: the clerk is, says, all right, I'm going to leave
• 40:11
  Speaker 2: these seats vacant. Well, we've seen that happen. We've seen
• 40:13
  Speaker 2: a clerk leave seats vacant. So I take you all
• 40:16
  Speaker 2: the way back to 1838, 1839 in what's known as
• 40:20
  Speaker 2: the Broad Seal War, which is essentially a certification dispute.
• 40:24
  Speaker 3: It's not a delay.
• 40:24
  Speaker 2: It's a dispute where you have dueling certificates, but it
• 40:27
  Speaker 2: teaches basically the same lesson. And there, New Jersey elected
• 40:32
  Speaker 2: It had six federal representatives. Five of those seats were
• 40:35
  Speaker 2: in dispute and partisan control of the chamber hinged on
• 40:38
  Speaker 2: who the Whigs or the Democrats won those seats. So
• 40:42
  Speaker 2: the governor, who was a Whig, certified the Whig winners
• 40:45
  Speaker 2: and he gave them the official broad seal of the state.
• 40:48
  Speaker 2: That's why it's called the Broad Seal War. So they
• 40:50
  Speaker 2: came in with these fancy certificates with the broad seal
• 40:53
  Speaker 2: on them. But a few towns returns had been left out.
• 40:57
  Speaker 2: And if the returns had come in properly, they would
• 41:00
  Speaker 2: have shown that the Democrats won all five of those seats.
• 41:02
  Speaker 2: So the secretary of state, who was a Democrat, certified,
• 41:06
  Speaker 2: quote unquote, the Democrats. But he didn't have the broad seal.
• 41:10
  Speaker 2: He had his kind of makeshift, dodgy looking certificates.
• 41:15
  Speaker 3: So everyone shows up to work at the U.S. Capitol.
• 41:17
  Speaker 3: It wasn't January 3rd back then. It was sometime in December.
• 41:20
  Speaker 2: But they all show up to work with their dueling certificates,
• 41:24
  Speaker 2: some of which have the broad seal and some of
• 41:26
  Speaker 2: which don't. And so the clerk at the time, his
• 41:29
  Speaker 2: name was Hugh Garland. He'd been appointed by the outgoing
• 41:32
  Speaker 2: Democrats who knew the election would be tight.
• 41:35
  Speaker 3: They hoped he'd be compliant.
• 41:37
  Speaker 2: And what he ended up doing was he said, I'm
• 41:39
  Speaker 2: just going to skip New Jersey. They would have wanted
• 41:42
  Speaker 2: him to just put the Democrats on the roll. He
• 41:43
  Speaker 2: actually didn't do that.
• 41:44
  Speaker 3: He said, I'm going to skip New Jersey and I'm
• 41:47
  Speaker 3: going to leave those seats vacant.
• 41:49
  Speaker 1: But he's part way through. Seems like a reasonable decision, actually.
• 41:52
  Speaker 3: That's what he said. That's the way to give no
• 41:53
  Speaker 3: party advantage.
• 41:54
  Speaker 2: He said, you know, of course, the Whigs said, well,
• 41:56
  Speaker 2: the way to give no party advantage would be to
• 41:58
  Speaker 2: properly install the Whigs who have this nice broad seal
• 42:01
  Speaker 2: on their certificates. But he said that that was the
• 42:03
  Speaker 2: thing to do, to leave the seats vacant. And there
• 42:05
  Speaker 2: wasn't this statute at the time telling him to do that.
• 42:09
  Speaker 2: But that would be, if the statute had been there,
• 42:11
  Speaker 2: that would be what the statute requires. But he'd already
• 42:14
  Speaker 2: started calling the roll when he did this. So it
• 42:16
  Speaker 2: interrupted the calling of the roll. There wasn't a quorum yet.
• 42:19
  Speaker 2: He said there can't be any business done until there's
• 42:22
  Speaker 2: a quorum, but there can't be a quorum until I
• 42:24
  Speaker 2: call the roll. But I won't call the roll until
• 42:27
  Speaker 2: we've addressed all these objections or until all the objections
• 42:30
  Speaker 2: are gone. So it was this impasse. And What happened
• 42:34
  Speaker 2: in the end, actually, was that John Quincy Adams came
• 42:36
  Speaker 2: to the rescue, took the chair. There wasn't really an
• 42:39
  Speaker 2: official mechanism for this. But as we were talking about earlier,
• 42:42
  Speaker 2: it's sort of all by custom. He just said, all right, clerk,
• 42:45
  Speaker 2: move aside. I'm taking the chair. And everybody kind of
• 42:49
  Speaker 2: wanted to avoid anarchy. So even the Democrats let this happen.
• 42:52
  Speaker 2: John Quincy Adams was a Whig. And he put to
• 42:56
  Speaker 2: a vote whether to seat the Whigs with the certificates
• 42:59
  Speaker 2: or And again, even if he hadn't done this, the
• 43:02
  Speaker 2: clerk could have said, and I think it's reasonable to
• 43:04
  Speaker 2: imagine the clerk saying, let's vote on whether to seat
• 43:08
  Speaker 2: the Whigs with certificates. Because if you have a situation
• 43:11
  Speaker 2: where there are dueling certificates or there's a delay, you're
• 43:13
  Speaker 2: almost certainly going to have an objection to whatever role
• 43:16
  Speaker 2: the clerk makes up from the party that role disfavors.
• 43:20
  Speaker 2: And so then there's the question of what should the
• 43:21
  Speaker 2: clerk do? And they vote on that because they're operating
• 43:24
  Speaker 2: according to parliamentary procedure. They can motion to make votes.
• 43:26
  Speaker 3: They can vote. Right.
• 43:28
  Speaker 2: But- Who gets to vote on whether to, on whom
• 43:32
  Speaker 2: to seat? Who gets to vote on whether to seat
• 43:34
  Speaker 2: the Wigsworth certificates? Do the Wigsworth certificates get to vote
• 43:37
  Speaker 2: on whether to seat themselves? Do the Democrats get to
• 43:40
  Speaker 2: vote on whether to seat the people who have the
• 43:42
  Speaker 2: broad seal certificates when they have their certificates? So there
• 43:45
  Speaker 2: becomes this whole series of votes on who can vote.
• 43:47
  Speaker 2: There's like this parliamentary vortex of voting on who can vote.
• 43:51
  Speaker 3: And at one point, in fact- So meta. It is
• 43:55
  Speaker 3: so meta. All the claimants at one point vote.
• 43:58
  Speaker 2: The Whigs with the broad seal certificates, the Democrats with
• 44:02
  Speaker 2: the made up certificates, which is.
• 44:03
  Speaker 3: Insane, right?
• 44:04
  Speaker 2: Because no matter who won these disputes, some of them
• 44:07
  Speaker 2: obviously are not entitled to vote here. And yet they
• 44:09
  Speaker 2: all get to vote because that's just what happens at
• 44:11
  Speaker 2: the time in the chaos. Ultimately, the Whigs with the
• 44:16
  Speaker 2: broad seal certificates do get seated, but then- Congress thinks
• 44:22
  Speaker 2: it over, realizes, oh, you know what?
• 44:24
  Speaker 3: It's actually true that.
• 44:25
  Speaker 2: These towns' returns were left out. Those returns would have
• 44:28
  Speaker 2: let the Democrats win, and they seat the Democrats in
• 44:31
  Speaker 2: the end. So the Whigs get put on the roll,
• 44:33
  Speaker 2: they get seated, and ultimately they change the seating. And
• 44:37
  Speaker 2: it's sort of interesting because I don't think you'd see
• 44:40
  Speaker 2: that part of it happening now. It's like I said,
• 44:43
  Speaker 2: I think at the point that you get to, I mean,
• 44:44
  Speaker 2: it's like the bloody eighth, right? The bloody eighth is
• 44:46
  Speaker 2: the opposite of that. You're not going to seat the
• 44:49
  Speaker 2: person who rightfully won if you're in control when you
• 44:52
  Speaker 2: don't have to do it.
• 44:53
  Speaker 3: Why would you do that? But I think that what
• 44:55
  Speaker 3: it teaches you about the.
• 44:56
  Speaker 2: Clerk is in the process is that no matter what
• 45:01
  Speaker 2: the clerk does, if the clerk does something that isn't,
• 45:04
  Speaker 2: you know, in accordance with the, regular order of things
• 45:09
  Speaker 2: where the person who appears to have won the election
• 45:11
  Speaker 2: gets seated, you're going to have an objection. You're going
• 45:14
  Speaker 2: to have votes on who can vote and you are
• 45:16
  Speaker 2: going to have some degree of chaos. And how that
• 45:19
  Speaker 2: gets resolved is no longer a legal question. It's wholly
• 45:21
  Speaker 2: a political question. Right.
• 45:23
  Speaker 3: And maybe there'll be some deal making.
• 45:24
  Speaker 1: The will of the house.
• 45:25
  Speaker 3: Yeah.
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• 47:06
  Speaker 1: pretty deeply when it comes to the house, that this
• 47:08
  Speaker 1: is the vulnerable. It is close result in the house
• 47:12
  Speaker 1: is where suddenly, The voters are left out of the equation, right?
• 47:16
  Speaker 1: There's a point where it becomes either illegal or a
• 47:21
  Speaker 1: test of wills inside that chamber. But either way, that's
• 47:25
  Speaker 1: one vulnerable. The certification process is a vulnerability. Anything else
• 47:30
  Speaker 1: we're leaving out here? I think.
• 47:33
  Speaker 2: As far as the January 3rd vulnerabilities, I think that
• 47:37
  Speaker 2: those are the key things.
• 47:40
  Speaker 1: The Senate's kind of immune to this because it is,
• 47:43
  Speaker 1: as you noted, it's a continuous body.
• 47:45
  Speaker 3: Yeah, the Senate is a continuing body.
• 47:47
  Speaker 2: And so you don't run into a situation where you
• 47:50
  Speaker 2: have this period of organization where there's any one official
• 47:53
  Speaker 2: who could go rogue. That doesn't mean that Senate elections
• 47:57
  Speaker 2: can't get a little ugly. That doesn't mean that there
• 48:00
  Speaker 2: can't be a dispute over whether somebody should be seated. But,
• 48:05
  Speaker 2: you know, it's going to happen. depend on the people
• 48:08
  Speaker 2: who are seated in the Senate and how they decide
• 48:12
  Speaker 2: to resolve that. And so, you know, you'd have all
• 48:14
  Speaker 2: the undisputed people sworn in and then they would decide
• 48:18
  Speaker 2: what to do. I guess that brings me to kind
• 48:19
  Speaker 2: of a second question in the House, which was you
• 48:21
  Speaker 2: asked if there are any remaining vulnerabilities and I don't
• 48:25
  Speaker 2: really think so. But some people would tell you that
• 48:29
  Speaker 2: even at the point where the speaker has been elected,
• 48:33
  Speaker 2: so let's say Hakeem Jeffries becomes the speaker, that Republicans
• 48:37
  Speaker 2: could say, well, you're starting to swear people in.
• 48:42
  Speaker 3: We dispute some of these seats. And there is this custom.
• 48:46
  Speaker 3: It's mostly been custom in the modern age, although it's
• 48:49
  Speaker 3: not clear that it has been followed uniformly in very
• 48:53
  Speaker 3: recent years. But there's this custom, what's known as the
• 48:55
  Speaker 3: stand aside principle, where if a seat is disputed, instead
• 49:01
  Speaker 3: of having the certified people who were on the roll
• 49:03
  Speaker 3: who elected the speaker take their oaths, they're supposed to
• 49:06
  Speaker 3: stand aside and wait until everybody else has taken their oath.
• 49:09
  Speaker 3: And then those people can decide whether they feel that
• 49:12
  Speaker 3: they should be seated.
• 49:14
  Speaker 2: And so the argument is that while still Republicans could
• 49:16
  Speaker 2: challenge just enough seats and tell just enough people to.
• 49:20
  Speaker 2: stand aside so that then when everybody was sworn in,
• 49:22
  Speaker 2: they'd have a majority. But Hakeem Jeffries could also just say,
• 49:25
  Speaker 2: I don't want to do things that way. At that point,
• 49:27
  Speaker 2: you have a house. They can change the rules. So
• 49:29
  Speaker 2: I don't think it's a real vulnerability.
• 49:31
  Speaker 1: The other part of this, and it goes back to,
• 49:33
  Speaker 1: and it's something you keep coming back to, and I'm
• 49:36
  Speaker 1: glad you do, which is Look, in theory, there's a
• 49:39
  Speaker 1: lot of things that could happen that would be, quote unquote, undemocratic.
• 49:42
  Speaker 1: But for them to happen, you have to have a
• 49:43
  Speaker 1: lot of people go along with it. You know, I mean,
• 49:46
  Speaker 1: what we're describing here, you have to assume every member
• 49:49
  Speaker 1: of the House Republican Conference will go along with some
• 49:50
  Speaker 1: of this stuff. And I think it's pretty clear we've
• 49:53
  Speaker 1: already seen this is not a very functioning House Republican Conference.
• 49:58
  Speaker 1: They have plenty of factional disputes among themselves. So it
• 50:02
  Speaker 1: is it is certainly a theoretical vulnerability. And I think
• 50:08
  Speaker 1: we have correctly described how, again, I go back to
• 50:11
  Speaker 1: every close election creates vulnerability. And I think that's probably
• 50:15
  Speaker 1: the ultimate lesson to take away from all of this.
• 50:19
  Speaker 1: But you do need a lot of people participating in
• 50:21
  Speaker 1: the conspiracy for it to work. Yep.
• 50:24
  Speaker 2: You need a lot of people participating in the conspiracy
• 50:27
  Speaker 2: in the States to create a certification delay or a
• 50:30
  Speaker 2: wrongful certification. And then you need a lot of people
• 50:32
  Speaker 2: participating in the House. You need them in lockstep. We
• 50:35
  Speaker 2: talked about the difficult math, particularly if it's a delay.
• 50:38
  Speaker 2: Say that you've cleverly done your math to leave just
• 50:40
  Speaker 2: the right number of seats.
• 50:41
  Speaker 3: Vacant, but then you have one defector, then math doesn't
• 50:44
  Speaker 3: matter anymore.
• 50:45
  Speaker 1: So, yeah.
• 50:47
  Speaker 2: And I mean, I think, you know, another, I'll try
• 50:49
  Speaker 2: to be briefer with this episode from history, but around
• 50:52
  Speaker 2: the time of the Civil War, there was a clerk
• 50:54
  Speaker 2: who actually decided to go rogue and to try to
• 50:57
  Speaker 2: do a coup, not to just throw up his hands
• 50:59
  Speaker 2: and leave the seats vacant. And this was sort of
• 51:02
  Speaker 2: a complicated time already. The Democrats in the border states, sorry,
• 51:07
  Speaker 2: the Republicans in the border states had made it difficult
• 51:09
  Speaker 2: for Democrats to take control of the House. The clerk
• 51:13
  Speaker 2: was this man, Emerson Etheridge. He had been pro-union and pro-Republican,
• 51:18
  Speaker 2: and the They actually created the statute that defines the
• 51:23
  Speaker 2: clerk duties now in appointing him. They thought it gave
• 51:26
  Speaker 2: him some broad powers to exclude people. And they figured
• 51:31
  Speaker 2: that he would exclude Democrats if need be.
• 51:34
  Speaker 3: But he actually switched allegiances to favor the Democrats between
• 51:37
  Speaker 3: when he was appointed, just changed his mind.
• 51:40
  Speaker 2: And he did what was expected of him and excluded
• 51:42
  Speaker 2: 16 credentialed claimants from the role. But he excluded the
• 51:46
  Speaker 2: Republicans instead. So the Republicans panicked. They thought, all right,
• 51:51
  Speaker 2: they're stealing the election now. And it turned out a
• 51:55
  Speaker 2: few things. One, the Democrats had these 16 people excluded
• 52:02
  Speaker 2: and they were replaced. And even then, when they went
• 52:06
  Speaker 2: to vote on the speaker, they didn't have enough votes
• 52:09
  Speaker 2: to put the wrong speaker in place. It all fell
• 52:12
  Speaker 2: out of order. It was disorganized. They couldn't do it.
• 52:15
  Speaker 2: They thought they'd done the math, and it didn't work.
• 52:18
  Speaker 2: And it didn't work because Etheridge was willing to hear
• 52:21
  Speaker 2: the objection of the Republicans rather than rule it out
• 52:23
  Speaker 2: of order, and then they lost the vote. So then
• 52:25
  Speaker 2: you say, what would have happened if he hadn't been willing.
• 52:27
  Speaker 3: To hear the objection?
• 52:28
  Speaker 2: And then you get to a little more chaos, right?
• 52:31
  Speaker 2: The Republicans were thinking, what are we going to do?
• 52:34
  Speaker 2: They thought maybe we'll pull a John Quincy Adams, we'll
• 52:36
  Speaker 2: have our most senior member take the chair, or maybe
• 52:39
  Speaker 2: we will forcibly remove the clerk from the floor. And
• 52:42
  Speaker 2: Abraham Lincoln apparently considered that seriously and said, he said,
• 52:47
  Speaker 2: let him be carried out on a chip if he
• 52:49
  Speaker 2: undertakes revolutionary proceedings. And he said he'd have troops ready. So,
• 52:52
  Speaker 2: I mean, on the one hand, reassuring teaches you that
• 52:56
  Speaker 2: you do need people in lockstep. Things tend to be disorganized.
• 52:59
  Speaker 2: There also tends to be deals made. So someone you
• 53:01
  Speaker 2: might've thought was going to vote with you might get
• 53:03
  Speaker 2: promised something. It doesn't work out. On the other hand,
• 53:07
  Speaker 2: There's no answer to what happens if the deals don't
• 53:09
  Speaker 2: get made. What happens if the coup is coming close
• 53:12
  Speaker 2: to success? Would anybody try to take more dramatic action?
• 53:17
  Speaker 2: Will you end up with dueling legislatures, you know, one
• 53:20
  Speaker 2: across the street? That's happened in states in history, but
• 53:22
  Speaker 2: obviously it hasn't happened in Congress yet.
• 53:25
  Speaker 1: You know, it's funny. All of these little anecdotes, Molly,
• 53:28
  Speaker 1: are both reassuring on some level, but also a reminder
• 53:33
  Speaker 1: that Most of the things that we take pride in
• 53:36
  Speaker 1: as America that makes us quote unquote different are all
• 53:38
  Speaker 1: kind of 5248 decisions. There's a lot of norms and
• 53:45
  Speaker 1: customs that we've embedded in thanks to 5248 advantages. These
• 53:48
  Speaker 1: are never 80-20 advantages. No.
• 53:54
  Speaker 2: And I don't know how that makes you feel about democracy.
• 53:56
  Speaker 2: Does it make you feel good or bad, right?
• 53:58
  Speaker 3: I mean, the majority.
• 53:59
  Speaker 1: It's the worst form of government, except for all the others, right? Like,
• 54:03
  Speaker 1: isn't that why... Yeah, isn't that why that cliche is
• 54:06
  Speaker 1: a cliche in the first place? Because you do, you
• 54:08
  Speaker 1: sit there and go, huh, the tyranny of the majority
• 54:12
  Speaker 1: could always rear its head here, can't it? You know,
• 54:16
  Speaker 1: which is always a scary part of democracy. Molly, this was.
• 54:22
  Speaker 1: I'm so glad you wrote this piece and I'm so
• 54:25
  Speaker 1: glad you did the history. What do you tell your
• 54:28
  Speaker 1: friends and family when they ask you, are the midterms
• 54:33
  Speaker 1: going to be rigged? What say you now?
• 54:40
  Speaker 3: Oh, my gosh.
• 54:40
  Speaker 2: I'm pausing for so long because it's a conversation I
• 54:43
  Speaker 2: argue with my husband like every night over because he's
• 54:46
  Speaker 2: an absolute doomer and he thinks that everything is going
• 54:49
  Speaker 2: to be terrible.
• 54:50
  Speaker 3: I think it is very, very.
• 54:52
  Speaker 1: Very darkest before it goes completely black. That was the
• 54:54
  Speaker 1: old John McCain mouth that he used to.
• 54:57
  Speaker 3: Yeah, no, it's terribly reassuring. I think it's really, really
• 55:00
  Speaker 3: hard to steal an election.
• 55:01
  Speaker 2: And so I'm not going to say that there isn't
• 55:04
  Speaker 2: going to be malfeasance attempted in various points, but I
• 55:08
  Speaker 2: think that the combination of a federalist system and, you know, the.
• 55:15
  Speaker 1: Likelihood- Our layers, I mean, this makes our, you know,
• 55:18
  Speaker 1: this is a reminder why you don't ever want to
• 55:20
  Speaker 1: federalize our elections, isn't it? That in some ways, the
• 55:23
  Speaker 1: cold comfort I think you and I are taking from this,
• 55:26
  Speaker 1: and it's cold comfort, is simply- You have to rig
• 55:31
  Speaker 1: too many apparatuses. And if you centralized everything, well, then
• 55:35
  Speaker 1: you wouldn't have to rig multiple apparatuses. You'd only have
• 55:38
  Speaker 1: to rig one.
• 55:39
  Speaker 3: Yeah, too big to rig. Invoke it in another way.
• 55:42
  Speaker 3: So yeah, I think I would say too big to rig.
• 55:44
  Speaker 3: And I think I would also say that I... I
• 55:48
  Speaker 3: don't want.
• 55:48
  Speaker 2: To concede the point that there is one weird trick
• 55:53
  Speaker 2: to stealing democracy. I think it's better to be in
• 55:56
  Speaker 2: the position of that can't happen and to be in that,
• 56:00
  Speaker 2: you know, take that stance both rhetorically and legally.
• 56:04
  Speaker 1: Look, the fact is we you can't sort of pervert
• 56:08
  Speaker 1: our system unless you get a majority to go along
• 56:10
  Speaker 1: with it. And then then we would ask the question,
• 56:12
  Speaker 1: is the system perverted or did democracy work?
• 56:17
  Speaker 3: Again, I don't know whether that makes me feel better
• 56:19
  Speaker 3: or worse.
• 56:19
  Speaker 1: I know, exactly. You know, as Mo Udall once said,
• 56:22
  Speaker 1: the voters have spoken, the bastards. So, you know, you
• 56:25
  Speaker 1: never know. Hey, Molly, this was terrific. I appreciate the time.
• 56:28
  Speaker 3: Yeah, thank you so much for having me.
• 56:30
  Speaker 1: Before I let you go, plug Lawfare. I just, I
• 56:33
  Speaker 1: love what you guys do. It is, you know, you
• 56:36
  Speaker 1: don't do it for free, but because none of this
• 56:40
  Speaker 1: work can be done for free, but let people know
• 56:42
  Speaker 1: where to find your work.
• 56:44
  Speaker 2: Yeah, you can find my work and my colleagues' great
• 56:47
  Speaker 2: work about elections, the litigation going on with the Trump administration,
• 56:53
  Speaker 2: good old-fashioned national security issues.
• 56:56
  Speaker 1: Like surveillance issues. I'm obsessed with privacy, you guys, and
• 56:59
  Speaker 1: we have none of it anymore. And in many ways,
• 57:02
  Speaker 1: you guys do a lot of that coverage as well.
• 57:04
  Speaker 3: Absolutely.
• 57:05
  Speaker 2: And it is all at lawfaremedia.org, and there is no
• 57:08
  Speaker 2: paywall on anything.
• 57:10
  Speaker 3: Awesome.
• 57:10
  Speaker 1: Well, there you go. Molly, thanks a lot.
• 57:13
  Speaker 3: Thank you so much.