Among the co-defendants in Monday’s indictment of former President Donald Trump are Georgia Republican Party chairman David Shafer; state Sen. Sean Still; former Coffee County GOP chair Cathy Latham, and Coffee County elections supervisor Misty Hampton.
Shafer, Still and Latham are accused of presenting themselves as the true electors from the state of Georgia and claiming that Trump was the actual winner of the state, which prosecutors say amounted to forgery and false statements under oath.
There are two big problems with this indictment:
The first is that the law at the time, the Electoral Count Act of 1887, is generally acknowledged to be confusing, but it clearly grants Congress the power to reject electoral college votes that were not "regularly given." While the ECA appears to make state certification the test for authenticating Electoral College votes, the Constitution grants the power to count to Congress, meaning Congress through a simple majority vote could adopt rules that deviate from the scheme set forth in the ECA.
The bottom line is that under the Constitution Congress is the finder of fact with regard to what votes are the legitimate Electoral College votes. It is up to Congress to accept or reject evidence or information that might confirm or call into question the legitimacy of an Electoral College vote – and there’s no appeal from such a congressional decision.
The second problem is that under the First Amendment then-President Donald Trump had an absolute right to petition Congress for the redress of his claims the 2020 presidential election was stolen. *
And as Jason Goldman wrote for the Obama White House, “while it guarantees the right to petition, the First Amendment doesn’t explain how to petition or what the government owes in response. Over the years, many people have petitioned the government by sending written letters to the White House and Congress, asking for assistance and expressing grievances on a variety of issues. For example, in 1897, Native Hawaiians who petitioned Congress were successful in temporarily blocking the annexation of the Hawaiian Islands. And in 1874, suffragette Susan B. Anthony petitioned Congress to remit a fine imposed on her after she was arrested for casting a vote in the 1872 election in Rochester, New York.
In those and any other cases the government – in this case Congress – may act to satisfy the petitions, may directly reject the petitioners’ request, or as happens in most cases, simply ignore the petition, because there’s nothing in the Constitution that requires the government to act, the First Amendment merely grants the right to petition without retribution.
As Trump campaign lawyer Kenneth Chesebro wrote in an email obtained by the Jan. 6 committee, “the purpose of having the electoral votes sent into Congress is to provide the opportunity to debate the election irregularities in Congress, and to keep alive the possibility that the votes could be flipped to Trump.”
That’s what’s called petitioning for redress of grievances under the Constitution.
Indeed, Congress was acting on the petition of Donald Trump and the alternate electors for redress of their grievance when Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnel decided the security situation on January 6 required Congress to suspend proceedings.
When Congress returned it acted upon the petitions of Mr. Trump and those who alleged they had been defrauded of their right to cast an Electoral College ballot by voting to reject their contest and count the ballots of their opponents.
Equally, Congress could have simply ignored the petition, should the petition have failed to garner requisite number of Members for a challenge.
Clearly, the Executive Branch in the person of a local prosecutor, may not, ex post facto, encroach on the prerogatives of Congress to specify the form or subject matter of petitions presented to it by making a petition for recognition of one’s claim into a crime.
Right now, under House Rule XII, subsection 3 the only petition which may not be received by the House is one that is in the judgement of the Speaker “obscene or insulting.” We should not allow a Democrat-run Executive Branch, in the persons of the President and Attorney General, or especially a local country prosecutor, to decide what speech and petitions may be directed to Congress and retaliate by jailing those who speak in opposition to the government’s policies or legitimacy.
The charges against Georgia Republican Party chairman David Shafer; state Sen. Sean Still; former Coffee County GOP chair Cathy Latham, and the other alternative Electors from Georgia should be dismissed forthwith.
*The absolute right may have some limitations in the sense that slanderous or libelous statements made in a petition may be actionable by the aggrieved party. Supreme Court decisions subsequent to Debs have recognized but severely limited the government’s powers over speech even in time of war.
Georgia Trump indictments
Fulton County DA Fani Willis
First Amendment Right to Petition
Special Counsel Jack Smith
Obstruction of Official Proceeding
Joe Biden administration
January 6 prisoners
Washington DC juries
District Court Judge Tanya Chutkan
Change of venue motion