In the first month of this new year, America has observed the one-year anniversary of the insurrection at the United States Capitol Building, witnessed the Supreme Court’s evisceration of President Biden’s efforts to end the pandemic through vaccine or testing requirements on private businesses, and saw a stunning failure to pass federal voting rights legislation, notwithstanding the ongoing implementation of voter suppression measures throughout the country.
We also celebrated the birthday of Martin Luther King Jr., but even that observation was marred by hypocrisy as Reverend King’s name was continually invoked in the service of promoting the Big Lie of election fraud, in the defeat of voting rights, and in efforts to whitewash American history by banning books and creating environments of fear and intimidation for teachers. Countless times this month, King’s words of unity were undermined by politicians promoting agendas that are anathema to everything he fought for throughout his life.
Our own focus in 2022 includes the launch of the Democracy Commitment, an effort to enlist thousands of lawyers to use their considerable knowledge and influence in support of fundamental principles to protect the rule of law and our democratic institutions. The Democracy Commitment proposes concrete actions that can be taken and offers LDAD’s commitment to assist in its implementation. You can read further about our efforts in this article we wrote for the National Law Journal.
We ask that you sign onto our Democracy Commitment and share it with all of your networks.
We also applaud the work of the New York City Bar Association in asking lawyers to commit to their pledge: America’s Lawyers on Voting and the Rule of Law: Nine Principles. We need other lawyers and bar associations throughout the country to be leaders in their own communities and engage in nonpartisan measures to defend democracy.
LDAD seeks your financial support to help us continue our work. We are grateful to our fiscal sponsor, the Community Foundation of North Central Massachusetts, who has made it possible for our donations to be tax-deductible.
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Among the many important words spoken by Reverend King in his brief life, these have particular resonance for this time of peril in our democracy: "In the end, we will remember not the words of our enemies, but the silence of our friends."
We hope that you heed these words and speak up. Write letters and opinion articles. Run for office at any level. Vote, and make sure everyone else can vote as well. Be the leader you need to be at this moment.
Thank you for your continued support of Lawyers Defending American Democracy. We encourage you to read about this month’s selection of LDAD’s Democracy Heroes and Democracy Threats, and feel free to contact us with ideas for future selections.
Heroes of American Democracy
Democrat Bennie G. Thompson and Republican Liz Cheney serve, respectively, as chair and vice-chair of the Select Committee to Investigate the January 6th Attack on the United States Capitol. Their bi-partisan leadership has been exemplary, as they lead the Select Committee in its dogged and determined effort to understand the how, what, and why of the assault on the United States Capitol that followed efforts to delay, disrupt and overturn the certification of the Presidential election and the peaceful transition of power from President Trump to President Biden.
As part of its information-gathering, the Select Committee sought access to White House documents about the insurrection that were in the possession of the National Archives. The former president sued to prevent disclosure, claiming he could invoke executive privilege as a past president, even though President Biden refused to exert his claim of privilege and authorized the documents’ release.
In ruling that the National Archives should provide the documents to the Select Committee, the DC Circuit Court of Appeals wrote: “An equally essential aspect of the rule of law is the peaceful transition of power, and the constitutional role prescribed for Congress by the Twelfth Amendment in verifying the electoral college vote. To allow the privilege of a no-longer-sitting President to prevail over Congress’s need to investigate a violent attack on its home and its constitutional operations would ‘gravely impair the basic function of the’ legislature.”
The Court recognized the “unique legislative need” for the documents as “directly relevant to the Committee’s inquiry into an attack on the Legislative Branch and its constitutional role in the peaceful transfer of power.” After the Supreme Court upheld the DC Circuit Court’s opinion, the documents were provided to the Select Committee.
When the history of this time is written, Representatives Thompson and Cheney will be remembered as among the heroes for their bi-partisan and laborious efforts to determine: whether there was White House involvement in the January 6 insurrection; whether federal law enforcement relief to the beleaguered Capitol Police was withheld and, if so, why and by whom; whether and how intelligence gathering and dissemination in advance of the events of January 6 were impaired; how the election certification process in the states and at the federal level was threatened; and what needs to be improved to ensure this never happens again.
Democracy Threats
As part of the effort to overturn the 2020 election, fraudulent certificates were submitted to the National Archives from at least 5 states won by Joseph Biden, alleging that the signers were duly authorized electors on behalf of Donald Trump. These efforts, reportedly led by Rudolph Giuliani, with assistance from attorney and Trump presidential campaign advisor Boris Epshteyn, were and remain a threat to our democracy.
In Arizona, state republican party chair Kelli Ward, former legislator Anthony Kern, and incoming legislator Jake Hoffman are among those who signed the fake electoral certificates declaring themselves the duly qualified electors. The Michigan Attorney General has opened an investigation into fake certificates in which 16 individuals appear to have falsely claimed they were that state’s duly qualified electors.
Similarly, 10 individuals in Wisconsin, including Wisconsin Elections Commissioner Robert Spindell, falsely claimed to be the state’s duly appointed Wisconsin electors, while in Nevada, 6 individuals falsely claimed to be the state’s duly elected and qualified electors, attempting to certify Nevada’s electoral votes for Donald Trump.
This threat to the integrity of our election process is profound. Vice President Pence was the target of an enormous pressure campaign to accept these alternate slates of Trump electors, that continued up to and throughout the events of January 6.
With each new revelation, the Select Committee’s role in compiling a detailed record of all of these events becomes increasingly imperative. Its report will ultimately serve as the basis for needed changes in federal laws to prevent any future efforts to undermine our system of free and fair elections. It is equally critical that lawyers, educators, and the media throughout the country be able to explain what happened to a public that now harbors serious doubts about the integrity of America’s election system.
Those who advanced the former president’s Big Lie and sought to overturn the election must be held to account by federal and state law enforcement for their unlawful actions. It is important to note that, in one example of efforts to achieve accountability, Mr. Giuliani’s license to practice law has been suspended. And it appears that federal prosecutors are now investigating the fake certifications that were sent to the National Archives.
The Big Lie has metastasized. The significant erosion in the integrity of the United States election system is a danger to our future. We will need a lot more heroes to save our democracy from these many threats.
