On Tuesday night, as runoff elections in Georgia decided control of the U.S. Senate and Congress braced for a standoff over certifying the presidential election, legal and political experts from UNC-Chapel Hill gathered for a public discussion of a tumultuous first week of 2021.
Hosted by UNC law professor Eric Muller, the virtual roundtable included law professors Andy Hessick, Carissa Hessick and Ted Shaw, Political Science professor Jason Roberts and attorney and former federal prosecutor Lawrence Cameron.
At least a dozen Republican senators and more than 100 GOP house members are expected to raise objections to official state results today as Congress meets to finalize the November victory of President-elect Joe Biden. Many plan to cite theories of election fraud that have been repeatedly disproved and rejected even by GOP election officials in states across the country.
The objections will slow rather than prevent the eventual certification of the results, the UNC experts agreed Tuesday night. But the episode is a disturbing sign of the political division in the country and what a Biden administration could expect from Republicans in Congress going forward, they said.
“In 2004 and 2000 we had some Electoral College challenges in the House,” said Roberts. “But we’ve never really had a Senator sign on to those so that the chambers have to leave the joint session and go vote. It seems preordained we’re going to have that.”
“It’s something most of us who are alive today have not witnessed,” Roberts said. “‘How serious are these people?’ is a question I have in mind.”
In the modern Congress many votes are essentially political theater meant to send messages, Roberts said. But those votes can often change when the votes are more than symbolic. In recent years there were many Republicans who were happy to vote to appeal the Affordable Care Act when that had no chance of actually happening, Roberts said. After Donald Trump was elected president and the GOP controlled the House and the Senate, it was difficult to find the votes to actually get it done.
“That may be the position we’re in,” Roberts said. “That doesn’t make it any less concerning as someone who cares about law and order and the proper functioning of government.”
On Wednesday morning, after Vice President Mike Pence reportedly had informed the president that he did not have the power to block certification and overturn Biden’s victory, Trump took to Twitter to implore him to do it anyway.
“States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval,” the president tweeted early Wednesday morning, echoing legal and conspiracy theories his supporters have advanced without evidence for for weeks, and which have been repeatedly rejected by the courts.
“All Mike Pence has to do is send them back to the States, AND WE WIN,” he tweeted. “Do it Mike, this is a time for extreme courage!”
The roundtable of experts agreed that Pence’s role in the certification is essentially a “glorified envelope opener” and he appears to understand that.
Last night, pro-Trump protesters clashed with Washington D.C. police near the White House. A series of arrests were made with protesters being charged with offenses that included possession of unregistered firearms, possession of unregistered ammunition and carrying firearms without a license.
Right-wing pro-Trump groups and self-styled militias have lit up online forums like the conservative Twitter alternative Parler with threats of violence and calls to arrive in Washington heavily armed in defiance of weapons ordinances.
Shaw, who is director of the UNC Center for Civil Rights and a member of the National Task Force on Election Crises, said he is watching the mass protests planned for today and hopes they will be peaceful.
Looking beyond this week, the group of experts looked at the legal question of whether the president could face prosecution for a widely reported phone call in which he leaned on Georgia election officials to overturn the results in that state.
Carissa Hessick said that when reading audio clips from the call, she thought the president had clearly violated the law. But after reading the entire transcript of the call, she said, she feels it is a more complicated question.
“I’m sad to say it’s complicated only because it appears the President of the United States might not know what happened in an election he was a candidate in,” she said. “Those aren’t two very attractive alternatives — either the president is committing a crime or he is woefully, woefully misinformed about what is happening in this country.”
Prosecution would be seriously complicated by the complicated question of whether Trump actually believes what he said in the call, she said — including complicated conspiracy theories for which there appears to be no evidence.
Cameron said he has himself struggled over the last four years with whether the president is intentionally manipulative, genuinely conspiracy-theory-minded or merely gullible.
“I think the fact that it’s a question I’ve had and many others have had makes the call of criminal prosecution extremely unlikely,” Cameron said.
The fact that members of his legal team were also part of the call and appeared to support him muddies the waters, the experts agreed, and creates potential professional ethics issues for those attorneys.
On Wednesday, one of those attorneys, Cleta Mitchell, resigned from the Washington D.C. law firm where she was a partner after being heavily criticized for her part in the call. The firm said in a statement that it was “concerned” about her participation as it has a policy against its attorneys representing anyone in connection with elections matters.
Carissa Hessick said professional sanctions such as these are politically fraught and could be seen as partisan, however well founded.
“A lot of us agree that this stuff really shouldn’t be happening,” Hessick said. “But we think we can’t convince certain people who have a political affiliation that aligns them with the people doing these things.”
Whether Trump himself, his lawyers and those in his administration will face prosecution for acts committed before and during his time in office is a difficult question, Cameron said. He likely will face some sort of charges, most likely in New York State, Cameron said. But how they will play out is difficult to say.
“It will be a Herculean task to find 12 impartial jurors to hear his case and judge it fairly,” Cameron said. “Either a hung jury or an acquittal would be very damaging to this country.”
What happens to the Republican party after Trump leaves office is another major question, Roberts said.
With Rev. Raphael Warnock besting Republican Kelly Loeffler in one of the two Georgia Senate race Tuesday and Democrat Jon Ossoff looking likely to prevail in the other as of Wednesday afternoon, Democratic control of both the House and Senate could further complicate that question.
Trump and Trump loyalists within the party have blamed the failure of GOP elections officials to overturn election results there for the poor GOP turnout in the Senate runoffs. Elections officials and party officials within the state have said they believe conspiracy theories about the corruption of elections led their voters to stay home.
“[Republican Majority Leader Sen.] Mitch McConnell, no matter what you think of him, is a remarkable leader in terms of his ability to maintain caucus unity,” Roberts said.
The intra-party struggle over the question of whether to accept Biden’s victory is a very public fracturing of that unity, Roberts said.
“They’re about to have a family feud, everybody’s throwing food at everybody fight,” Roberts said. “What does that look like going forward? Which one of those factions control the party to the extent they can, going forward? That’s an open question. Where does the party go from here? Can they move beyond Trump and Trumpism? Do you have the old school Republicans, establishment Republicans, who will regain control? Or does the Trump wing sort of win out?”
“It’s going to be a fascinating part of American politics for the next four years,” Roberts said.