Like a Road Runner cartoon, the pursuit of Donald Trump is unending, noisy, and repeatedly running off the edge of a cliff.
The January 6th committee concluded its hearings in July with a thundering failure to present any of the long-promised evidence that Trump had committed a crime. But then another box of Acme explosives arrived in the form of subpoenas from the Biden administration’s Department of Justice, just in time to fill the newspapers, airwaves and internet with reports about the coming this-time-we’ve-got-him.
A check of online headlines Thursday found CNBC trumpeting, “Trump likely to be criminally charged in DOJ election probe along with other former White House officials,” and CNN splashing, “Exclusive: Trump lawyers in talks with Justice Department about January 6 probe.” Next to the story was a video clip of Rep. Liz Cheney with the caption, “I think he’s guilty.”
CNN cited “sources familiar with the matter” for its report that Trump’s legal team was communicating with Justice Department officials, “the first sign of talks between the two sides as the criminal probe into January 6, 2021, accelerates.”
CNBC’s story that Trump is “likely” to face criminal charges had no sources other than pure speculation by former Attorney General Eric Holder, who made the comments on a Sirius satellite radio program. “I think ultimately you’re probably going to see the president, former president of the United States indicted,” the former Obama administration official said, while admitting that he had not yet seen any evidence that would justify it. However, Holder was confident that as “more evidence is elicited, you will see people start to cut deals.”
A week earlier, the New York Times had breathlessly reported that the Justice Department’s “investigation into a central element of the push to keep Mr. Trump in office – the plan to name slates of electors pledged to Mr. Trump in battleground states won by Mr. Biden — now appears to be accelerating as prosecutors with the U.S. attorney’s office in Washington ask witnesses about Mr. Trump and members of his inner circle.” The report was sourced to a “person familiar with the testimony.”
But here’s where the story runs off the cliff: Senators Susan Collins and Joe Manchin have introduced a bill to reform the Electoral Count Act of 1887, the law on Electoral College procedures that was the basis for the Trump team’s plan. The fact that the senators are proposing to change the law to prevent what Trump tried to do is itself evidence that what Trump tried to do is within the law.
That’s not the evidence Liz Cheney promised to show everybody, but there it is.
The proposed Electoral Count Reform and Presidential Transition Improvement Act follows months of work by the majority staff of the Committee on House Administration. In January, the staff produced a dense 35-page report — 191 footnotes — on the Electoral Count Act of 1887 and proposals for reforming it. Among the recommendations: “narrowing the vice president’s role at the count.”
Here’s another one: “narrowing states’ ability to appoint electors after Election Day.”
There are more recommendations for changes, such as “enacting new counting rules” and raising the minimum number of lawmakers required to object to counting a state’s electoral votes. The staff report concludes, “Taken together, these reforms would end any ambiguity about the timing of presidential elections, clarify Congress’s role at the count, and constrain Congress in future controversies.”
The Electoral Count Act of 1887 is wildly complicated, as is the history of how it came to be. But you don’t have to know the fine points of the “safe harbor” provision to see that if Congress is trying to change the law so no one can do what President Trump tried to do, then what President Trump did wasn’t a crime.
It wasn’t unlawful to seek alternate slates of electors, or to talk to members of Congress and U.S. senators about raising objections to accepting the votes of some states, or to talk to state officials about how many ballots may have been illegally counted because they were cast too early or too late.
“President Trump’s campaign argued that 3 U.S.C. Section 1 [setting a single, uniform Election Day] prohibits states from undertaking certain election-related acts prior to or after Election Day, such as receiving or processing mail ballots,” the committee staff report explains, “Congress should clarify that 3 U.S.C. Section 1 does not restrict states from permitting acts and procedures of that kind.”
Until Congress actually does clarify it, there is nothing criminal about questioning the legality of mail ballots that were accepted past a state’s legal deadline (as in Pennsylvania) or in an illegal drop box (as in Wisconsin). It wasn’t criminal to have a rival slate of electors in case a state legislature could be convinced to appoint them, or to ask the vice president to do what the newly revised law would prohibit in the future.
Nonetheless, the show must go on. On Thursday, Liz Cheney released a video of her father, former Vice President Dick Cheney, denouncing former President Trump with the ridiculous statement, “In our nation’s 246-year history, there has never been an individual that was a greater threat to our republic than Donald Trump.”
Staring into the camera with a hatred that would melt steel, Cheney vowed that his daughter would “lead the effort to make sure Donald Trump is never again in the Oval Office.”
This coyote is off the cliff. Beep-beep.
Susan can be reached at [email protected] Follow her on Twitter @Susan_Shelley