The 2020 Election and the Capitol Insurrection

[music]

0:00:07.1 Aaron Powell: Welcome to Free Thoughts. I’m Aaron Powell.

0:00:09.4 Trevor Burrus: And I’m Trevor Burrus.

0:00:10.9 Aaron Powell: Our guest today is Walter Olson. He’s a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies. Welcome to the show, Walter.

0:00:18.8 Walter Olson: Thanks for having me on.

0:00:21.1 Aaron Powell: On a scale of 1 to 10, how well did America’s institutions hold up to Trump’s attempts to subvert them?

0:00:27.4 Walter Olson: I’d say the institutions themselves held up, oh, at least 8. Now, the people in those institutions are a different issue. Congress, for example, managed to come out institutionally okay, but a lot of members of Congress did not. And the courts, of course, in my view, came out best of all, but it’s interesting, we talk often about the sprawling executive branch and about the fact that the President doesn’t have full control of agencies or even cabinet departments, it was interesting to see that sometimes that worked against the crisis becoming worse. Even if in some sense we may think that it’s a glitch for the bureaucracy to have that much independence, nonetheless, in a case where the head of the executive was going very, very seriously wrong, some of the friction, some of the distance between the President’s wishes and actual executive action turned out to be pretty helpful.

0:01:32.1 Trevor Burrus: When we talk about the members of Congress, you mentioned some who have some things to answer for, but I… It’s also struck me that given the widespread… I’m not sure if you’ve actually seen polling on how many people think election fraud, widespread election fraud occurred, I think it’s over 50% of Republicans from what I saw, and so a House member in a Republican district, his constituencies would be asking him to at least investigate or do something to make sure that there wasn’t election fraud on a wide level, and so they responded to their constituencies, a lot of them, when they decided to say not vote to certify. Does that give them a pass as a representative democracy… In a representative democracy?

0:02:18.4 Walter Olson: Well, not to me. Now, I bring in more Edmund Burke content than people are necessarily comfortable with, and I think that the Republican structure in which they are not supposed to be mere transmitters of erroneous opinion in their districts is important and in fact kind of essential to making the system work. We don’t have a plebiscitary democracy. Where a bit of the… A portion of the public converted to a crazy conspiracy theory, it does not mean that that ought to have representation or even get its way for a while. Built into the system are the various delays and the various insulations that can enable the Senate in particular, and if you want to do that check on was the Senate more independent of voter opinion, I think you find that yes, fewer Senators went crazy than members of the House of Representatives because many of them aren’t going to face the voters as quickly as the… The primary voters as quickly as the House members are.

0:03:19.8 Walter Olson: But as branches, and of course we could take this toward the committee system and the structure of leadership and the filibuster and all of those sorts of things, but as branches, they are not supposed to impetuously pass on whatever delusion the public is on currently, because the public is always currently on a bunch of delusions. I’m not saying that to hurt the public’s feelings, but it happens to be true. Just as the elite is off on a bunch of other delusions and mistakes, so the public is always off on a bunch of its.

0:03:50.2 Aaron Powell: Can we excuse them maybe by saying, look, they know what their constituency wants, and they know, especially the people in the House of Representatives, that the chances of them getting primaried or losing the election if they don’t toe President Trump’s line is high, and they also know, bracket the issue of the rioters storming the Capitol, in the days leading up to that, they knew that the election was not going to get overturned, there weren’t enough votes, even if what they were trying to vote on could pass muster, there weren’t enough votes to actually pass it, and so this was just a signalling, a show to their voters that they were kind of on their side, even though they knew it wasn’t going to be effective, and particularly because they knew it wasn’t going to be effective, and so this was a way for them to keep their jobs and continue to do good things for the country after the fervor had died down.

0:04:42.4 Walter Olson: Good things for the country, well, let me push back on that, because we expect… Let me bring in again the idea of objective morality, and also the oath of office. Let’s start with objective morality, which is supposed to instruct us to go no further, that we’re not supposed to tell lies. If you take that seriously, and I think there’s no reason to excuse elected officials from the moral expectation not to tell lies that we would apply to other occupations and professions, then right there you’ve got a constraint, which is they’ve got to keep their constituents happy, but they have to contrive to do so in such a way as not to lie. A whole bunch of them I think failed at that in that they said things about voter fraud that they didn’t actually believe, they said things about the reliability of voting machine systems that as practiced politicians, the one thing that brought them all together was that they know about elections, and they’ve been watching cycle after cycle to see whether there’s any indications of fraud in their own states, because of course they care about that.

0:05:47.1 Walter Olson: This is a sophisticated bunch, for the most part, and so when they come out with great big whoppers, I don’t think it’s because they’re totally new to the subject, I think it’s because they are at some level knowingly telling great big whoppers. So right there, you have one reason why we should not forgive people for following constituents’ opinion, which is that they shouldn’t lie. Secondly, they are all sworn to oaths of office. Now, oaths of office are a funny thing. They are declarations in the presence of a religious text. They are not something that libertarians tend to talk about very much, because they seem a little bit mystical, a little bit too formalistic, they don’t seem to correspond to anything except a ritual, and yet the longer I spend around law and political theory, the more I’m convinced that you need to take oaths of office seriously, because they are in some sense, whether merely symbolic or for fear of some other consequences, they are the mechanism by which officials whose self-​interest and inclination takes them off in various directions get yanked back by the oath to realizing that they have to behave constitutionally, and they have to behave in, depending on the exact wording of the oath, in such a way as to uphold the laws of the land.

0:07:04.8 Walter Olson: Now, different actors here had somewhat different constitutional obligations. The Vice President, for example, you can point to where he is directed to do certain things, and where not doing those things would more clearly violate his oath than in the case of some of the other actors. But I think the oath is there for all of them. To the extent that they understand what the Constitution requires of their branch, they may not work to contradict or undermine it without raising questions about whether they’re being loyal to the oath.

0:07:36.6 Trevor Burrus: Now, for months before election day, we saw Trump and others, but Trump most prominently, going after election fraud and raising the specter of mail-​in ballot fraud and a bunch of things, saying that this was going to be a fraudulent election, and I tweeted a bunch saying that he was intentionally laying the groundwork to challenge the election. Now, aside from psychologizing that man, I think that’s probably true. That being said, it was a weird year for an election, with the pandemic on top of everything else, so the mail-​in ballots and all these new rules that came into place. Was there a reason to be more concerned this year for election fraud that maybe should have been dealt with, of course, before than after the election?

0:08:23.9 Walter Olson: Well, yes, but I don’t think that that wound up being the most important factor, and I also went through some of the summer sounding the alarm saying that with a shift toward mail-​in voting, which was a not very familiar process in many states, they were going to have to think out the possible problems with it. And we should get back to that, because it turned out to be important in Trump’s narrative, but I think the key thing that was different, it’s not as if the US is the only country to run an election amid the pandemic this year, the key thing was different was that Trump was a different person and had a different attitude. And your predictions before the election about his plans to contest the election were, of course, very well grounded, and reporting since the election has suggested that he spent the weeks before trying out arguments about the election being stolen.

0:09:11.2 Walter Olson: Everyone’s memory was refreshed about how in earlier contests such as losing the Iowa caucuses to Ted Cruz, he cried fraud and cried do-​over and all those things. This is how he has behaved. He was prepared to cry fraud against Hillary Clinton and then he wound up winning and didn’t have to use the arguments, but he had laid the groundwork there too, so this is how he behaves. It’s extraordinarily dangerous for the risk that the country will enter a constitutional crisis, as we have seen, but it’s one reason why this is such an alarming thing, is that if that style of politician turns out to be other than a one-​off, we have to expect that there will be closer elections, we have to expect there will be ones where there is genuine doubt, if not as much as in Florida in the year 2000, then that we have a lot of closer elections than this last one.

0:10:02.3 Walter Olson: In fact, I’m told that at least half of them on the presidential level are closer. So we have a very serious problem of potential constitutional crisis in which legitimacy forks along two different paths and you come to blows of some sort. So Trump is the main thing that is different. Getting back to the inherent challenges that the pandemic threw at the system, those are real, and we saw, for example, in the special elections that were held earlier in 2020. In my own state of Maryland, there was one that coincided with the introduction of a new type of voting machine.

0:10:36.3 Walter Olson: Well, there were ridiculously long lines, there were long delays before votes were counted, and that wasn’t even a close election, it wasn’t really in doubt, but we saw it as a kind of demonstration and a principle, and likewise in Wisconsin, I believe, likewise in Georgia, a bunch of special elections signalling strongly that the types of challenges, they include the volunteers that make local elections work in most communities tend to be elderly, a lot of them were for self-​preservation not willing to show up and do the work, the voters themselves of course in large numbers, and it became clear early on in numbers that were tilted toward Democratic voters, that they were turning to mail-​in and other non-​day-​of types of voting, partly out of fear of the pandemic that was somewhat party-​correlated, in that Republicans tended to be downplaying and poo-​pooing the danger of the virus and Democrats not, so that would account for some of it.

0:11:33.7 Walter Olson: But beyond that, it just became very politicized, where Trump was, even though occasionally you could find him making communication saying, “By the way, here’s how to vote early if you want to vote for me,” but the great majority of his communications were attacking the mail-​in process as intrinsically unreliable, subject to fraud. By the end of it, you had a great deal of genuine fear on the part of Republicans that their votes would not be counted properly if they mailed them in. They were afraid of corrupt postal service workers, and I have seen no evidence that that played any role this election. If you go back to other elections, you might find like one or two people who did not deliver the mail, but by and large, that worked well, but Republicans were talked out of confidence that it would work well, and likewise, they were talked into a general fear that if they mailed in their ballots or even dropped them into the drop boxes that many places had in front of public buildings, that they would be stolen or tampered with, and that there was nothing like going and voting right there at the machine.

0:12:33.8 Walter Olson: So that built in, and people could see this coming many months in advance, the likelihood that the early vote would be systematically more democratic than the day-​of vote. We already knew from earlier elections that so-​called early voting, in which you do show up at the polling place but it’s a couple of weeks early, tends to be democratic. That was already kind of baked in and it happened again this year, but the mail has not always been that way. If you think about it, mail is used by military voters who lean Republican, by expatriates who lean, I understand, Democratic, I’m not totally sure why, but I understand that non-​military expatriates tend to lean Democratic, and by people who are very elderly or infirm or have a doctor’s note in some other way, and although that has gone back and forth it’s usually, in most years, a pretty good group for Republicans.

0:13:26.6 Walter Olson: So, that earlier history did not suggest that mail-​in votes were anything that Republicans had to worry about intrinsically. With a different President, with different messaging, enthusiastically encouraging Republicans to use mail-​in voting and particularly for the elderly, the entire course of the year would probably have been different. Had there been relatively even proportions of Democrats and Republicans using that mechanism, the fateful course of the first 48 hours in which Trump seemed to build up a big lead based on the practice in a number of states of counting machine day-​of votes first would not have been… That mirage would not have been there. The remaining day-​of voters would have been more evenly split, but we could see it coming.

0:14:11.7 Walter Olson: And one of the tantalizing theories which I have seen asserted, I have not really seen it proved, but I will be talking about it for a while, is that in the states that refused to move to what many people believe are best practices on mail-​in voting, Northern states that Trump had often won last time and did not win this time, that the refusal to adopt quicker count methods of the sort that Florida has in which they get most of the paperwork out of the way on the mail-​in votes before polls close, doesn’t mean that they open and read them because you don’t want people knowing how the election is turning out. But get through all of the other stuff, get that paperwork out the way. Well, where you had that, then you didn’t have a big delayed mail-​in effect, and Florida, for example, had a brief Biden lead, I believe Trump at any rate was going to win and it didn’t change all that dramatically over the course of the evening because Florida, being a national embarrassment in 2000, has spent more time thinking about good voting practices, it also has a whole bunch of elderly voters, and so Florida had really cleaned up its act and was able to do a good quick count, which held up very well.

0:15:20.4 Walter Olson: No one wanted to challenge it and demand recounts and things. Some… We will be asking about those Northern states where typically the Republican legislature blocked a move to early tabulation. We’ll be talking about that for a while, but I have to hope that certainly by four years from now, and maybe by two years from now, even though let’s hope the pandemic goes away, those states will have public opinion mobilized saying that this should never happen again with the votes of Pennsylvania and Michigan and Wisconsin. We need a system under which there isn’t that opening for a demagogue to say, oh, I was ahead by hundreds of thousands of votes, and either demand that the count stop or claim that later counting reports were quote dumping unquote. It’s a whole separate issue why Trump’s claims of this sort were so readily transmitted and believed by the conservative media machine, and yet they were, so one way or another, although more sophisticated public opinion would be welcome and better press intermediation of it would be welcome, there’s really no substitute for vote reporting systems that can do a quicker job in particular, as well as an accurate job.

0:16:34.2 Aaron Powell: Well, I think that we can safely dismiss the voting machine, Venezuela, China connection delusions of people like Giuliani or Sidney Powell or the My Pillow guy, everything we’ve just discussed said this was an odd election, there were a lot of changes. Things were a lot different than what people were used to. They had concerns about it, about its integrity or its accuracy leading up to it, and then those were made worse by Trump’s words and other conservative talking heads afterwards, but if I’m a Republican lawmaker, then, what’s wrong with me saying, hey, I’m not voting to overturn the election, all that I’m voting is my constituents are worried about this, so why don’t we put a little bit of effort into looking into these claims, and they may turn out to be false, but if there’s something there, if there in fact were fraudulent votes or whatever, we definitely want to know about those, so we’ll just… Before January 20th comes along, we’ll just vote to delay certifying a little bit to look into it.

0:17:44.5 Walter Olson: This kind of take is one thing, if it’s happening on November 7th, and it’s possible to do recounts investigations, perhaps full dress investigations with subpoenaing witnesses at a point where the wheels have not ground through the selection of electors and the certification of states. The same arguments become legally and constitutionally dubious when offered to overturn what the law and the Constitution specify to be the stages at which things are accepted, and you see this the same way, there’s really no problem in getting up before the minister pronounces the words “you are now man and wife,” getting up from the back of the congregation and saying, “No, she shouldn’t marry him, he is a terrible catch,” but once those words have been pronounced, the person who does that is in a different moral sort of, perhaps they were in a bad moral situation all along, but it stops being something they have quite as much of a right to do once the couple is married, and that’s how the law inevitably has to treat it.

0:18:50.4 Walter Olson: It’s not just that the law has chosen arbitrarily to set up a couple of things like the meeting of electors and the certification of votes. It needs to do that in order to gather types of legal certainty, so that everything is not uncertain at the last minute as of January 20th. And so anyone who wants to be part of this process by calling for investigations or casting votes on the floor needs to know about, not just what objections are apt, but when those objections are apt. The widest open time for objections is before the election has taken place. We all heard about the legal concept of latches in which courts said, you have a potentially plausible case that the election procedure should have been done differently, and it’s too late, you should have brought it in before the election, rather than catch people in a mousetrap with having voted the way they were told was legal to vote, and then disallowing their votes because someone didn’t cross a t or dot an I.

0:19:54.9 Walter Olson: So that time is something the courts very much pay attention to, and likewise as these challenges moved through the courts, the courts treated it very seriously each successive stage, the selection of electors, the certification of states’ electoral count by governors and so forth, a whole bunch of lawsuits that were still alive got thrown out at each point because the courts, used to administering the law this way, recognized that it then became too late to raise certain types of objections, and so likewise with Congress. That stage, January 6th, was not the proper stage to raise questions about, you know, wouldn’t it have been better if they’d used this other kind of machine. That stage was limited to a very, very small list of questions, like did someone forge the governor’s signature.

0:20:41.9 Trevor Burrus: On the question of the court cases, there were, I think, 60 total and maybe more than that, and of course, all different types of people filling various types of process, but there was one case that went up to the door of the Supreme Court at least. What was that case about, and should the Court have actually taken that case as a method of at least allaying fears? And I guess, a third question is, were you surprised that three Trump-​appointed Justices apparently didn’t fall in line with that?

0:21:14.6 Walter Olson: Let me work from the last question. I was not surprised that The Trump Justices did not support Trump’s case. That’s exactly what I would have predicted. Nor was I surprised that Trump’s appointees in general throughout the federal judiciary gave him, I believe, not even one on overturning of a state’s vote; the only small issue on which he won was, by coincidence, one where he actually had some merit, but it wasn’t going to affect very many votes, this was in Pennsylvania. It was kind of a side issue that the press blew up, but was never destined to change the outcome in that state.

0:21:48.3 Walter Olson: So, no, I was not surprised, and if I may take one of the rare opportunities to tout my foresight, since normally my predictions are wrong on any given subject. I did say, when the batteries of lawsuits began from the Trump side, I said that I did not think that the Supreme Court would wind up hearing any of them, which was in fact the outcome. Now, when you mentioned in one case in particular, you’re probably thinking of Texas versus Pennsylvania, which is unusual as a matter of Supreme Court jurisdiction, because the great majority of Supreme Court cases it chooses whether to hear are based on whether it wants to allow a lower court decision to stand. And in the case of this kind of suit by a state against a state, the first place it gets filed is in the Supreme Court, there is no record with lower courts, and so the posture is somewhat different.

0:22:36.9 Walter Olson: There is a respectable school of thought, which includes some Justices such as Alito and Thomas, saying that they need to at least open the door, even if they then slam it in the face of the state filing a bad suit. And there had been earlier cases, like the one that Nebraska and Oklahoma filed against Colorado challenging Colorado’s pot legalization, and talk about cockamamie affronts to federalism. And of course, ill-​fated suits that were destined only to be laughed at, but nonetheless genuine suits in which two states’ attorney general had been genuinely convinced to sign a truly stupid complaint against Colorado, but this had already raised the question of whether there are cases that are so low merit that the Court doesn’t even have to open the door, as opposed to open and then slam.

0:23:28.6 Walter Olson: And this led to some confusion when the Court refused to take the Texas case, because Alito and Thomas wrote a separate thing saying, by the way, we’re still right on the fact that it should open the door before slamming it. There was no indication whatsoever that they would not have joined the others in slamming the door. The Texas case was a ridiculously bad case; I do not believe it would have convinced either Alito or Thomas. And if you look at the other ones that, where they tried to get Supreme Court review, Pennsylvania, I believe that Georgia and others, they were all extraordinarily weak. And in those cases, you can look to the opinions of, in many cases, federal appeals courts for the third circuit, which ruled on one of the Pennsylvania cases, you had a pattern that you actually saw a number of places, which is they passed it to the young Trump-​appointee judge, Steve Bibas, who has actually had, trying to remember, I blurbed one of his books. I know that he has done some stuff…

0:24:26.3 Trevor Burrus: I know him from going to speak at a couple of his classes. He’s a very, very good guy.

0:24:31.0 Walter Olson: Yeah, and he also wrote, or co-​wrote a wonderful book with Ben Barton of Tennessee, back when he was a professor at Penn. But let’s say they passed it to him and Judge Bibas writes this wonderful resplendent opinion with just the right kind of philosophical language and just the kind of skewering of the extraordinarily weak efforts to throw out Pennsylvania votes. So, it was the finest hour for the Trump judiciary in general. To the extent that any conservative judges came out with opinions that I did not find persuasive, they tended to be state court judges. There were… The Wisconsin litigation… Many of these states had a federal track and a state track of litigation. The Wisconsin state track resulted in dissents from three of the conservatives that I really didn’t find very convincing. But again, the federal judges just came through with complete unanimity and often with… If there wasn’t a Trump appointee, then often there was the most conservative appointee on the three-​judge panel chosen to issue the rebuke.

0:25:34.5 Trevor Burrus: I’ve used a similar analogy in a couple media hits on… The dispute on this case was, it’s like the phone is ringing and some Justices think that you have to pick it up and then just slam it back down, and other Justices think you can just let it ring and not ever pick it up. On the question of the Texas case, of course, our shock muscles over the course of the last four years, and I guess over the last three months are very, very strained, but it did strike me as odd that there were conservative commentators talking about this case having legs when the case itself, you mentioned it was insane and the implications of the Court even taking a case like that were crazy, but nevertheless, you saw people supporting this, which struck me as frankly a little bit scary.

0:26:25.8 Walter Olson: Let’s get into the branches of insanity a bit, because the Texas case included some bizarre and at some level, fundamentally insane factual allocations, I think that was the one that said that it was only a one chance in a quadrillion that Biden could have won fair and square. Now, as we all know, after we’ve watched the Supreme Court for a while, if the Supreme Court wants to get rid of cases quickly, it can’t simply pick up on in insane facts and say, you know, we view this fact as insane and and therefore we’re not going to take it. It needs to look to legal issues rather than to second-​guessing the facts.

0:27:05.2 Walter Olson: And so strangely, it had to accept obviously demeasured factual assertions as if they might be right for long enough to look at the other aspects of the Texas thing. Now, among the different levels of irony in which some, but not most, I think, right-​of-​center law professors indulge themselves, there is, what do we think of federalism? Well, what we now think, for those who supported the Texas suit, which is not that many of them, but there were some, is that federalism means that state control of their own elections, which has been an absolute pillar of federalism. It’s one of the very important functions that states have kept to themselves, even though the elections are for federal office, the states still got to run them. The few incursions that you’ve had often through equal protection and equal rights to vote have taken away some state autonomy, but the great majority of it remains in state hands.

0:28:06.6 Walter Olson: And now you have a claimed cause of action saying that the other 49 states can come in, can parachute in and demand judicial review of your methods of running an election, and all on the basis of some speciously attractive, but I think really not very persuasive glosses put on the discussion of state legislatures making the decisions. And not to get too far into the constitutional weeds on this, but you look at where certain language in the Constitution says, not that the states shall determine this, but that the state legislature shall determine that. Well, why would the language defer unless there were an intended distinction, that they wanted to keep it away from the governor or away from others than the state legislature in the courts.

0:28:53.8 Walter Olson: On the other hand, as soon as you try to put much weight on the theory that state election procedures become unconstitutional once the governor tinkers with them or once the state courts tinker with them, you suddenly find yourself in a world in which most things that states have been doing, including states like Texas, are unconstitutional. In Texas, as basically everywhere, state election law lays out certain generalities and then the governor and his appointees get to fill in certain details of how it works, the counties or municipalities or whoever runs the local elections also get to fill in certain details, and no one has a lawsuit saying that it’s unconstitutional. And of course, I forgot to fill in, the courts themselves in the state then take that not fully clear statute and fill in details, and up to this point, no one has thought that state election law has been pervasively unconstitutional, rendering potentially illegitimate all the elections we’ve been having all along.

0:29:58.9 Walter Olson: It’s just this fantastically radical assertion. So where do you find it? You find it from some of the most ostentatiously right-​wing law professors who are willing to cut out all of the props of legitimacy under the entire system in order to win one case.

0:30:15.1 Aaron Powell: One of the blessings of Trump and his administration’s authoritarian urges is that they were married to a breathtaking level of incompetence. And so as we look back at these attempts to steal the election, to overturn the legitimate election results, it seems like… I mean, all of them, as we just said, they didn’t win any cases, everything fell flat, the evidence that they made up they never presented in court because they knew that there was no there there, and so this attempt was a just total failure that doesn’t appear to have had really any chance of being successful. Should we, does that then mean that we shouldn’t be worried as much about this kind of thing happening in the future, because there was a lot of people in the lead-​up to the election and the days after who were expressing genuine fear that the election would be overturned in favor of Trump, that that fear was misplaced, or did we dodge a bullet because of the incompetence, so if we had a more competent President and a more competent set of lawyers, could this have worked?

0:31:34.8 Walter Olson: You’ve packed several questions in there, but let me say that we dodged bullets this time, and the problem was not what much of the liberal establishment press thought it would be early on, which is that the Supreme Court tilting toward conservatives would somehow hand Trump the election. You can imagine certain close issues, like Florida 2000 in which they might be swayed, but the issues that actually came up never got anywhere near that. But the continual uncertainty about… That fed into public opinion in which the public was not, at least the Republican side, was… Retained a grassroots belief that the election had been stolen by Biden forces. Very corrosive and very important.

0:32:30.5 Walter Olson: And even though the courts were not the likely locus for this to have turned into a constitutional crisis, they were not the only places that were tried. We remember that there was the effort to go after state legislatures in Arizona, in Georgia, in Pennsylvania, in Michigan, and get them to recall the electors, get them to basically second-​guess their own population and try to insert a Trump slate. Now, the system held institutionally, not one of those states did that. We can’t really be sure that the pressure that was placed on officials in states like Michigan was very severe. There was a substantial, at least a dozen, rump of Republicans in the Pennsylvania legislature who wanted to go through with this scam.

0:33:21.4 Walter Olson: They weren’t a majority of the Republican caucus, but we can’t be sure that the numbers won’t be different next time, especially now that the possibility of stealing an election this way has been drawn to their attention. Now, had the requisite, I think, depending on how big the states were, two or three states would have had to have this ploy of legislature’s insertion of a new slate of electors. At that point, what would have happened? The Congress might have refused to accept that, and we would then have gone through the process prescribed for a Congressionally-​contested election, in which perhaps the House and Senate come out differently. Possibly the courts would have played some role or other, but it would have been a closer run then. It would have been quite striking had the numbers in the Senate and House have been somewhat different so that they did divide on this.

0:34:15.8 Walter Olson: You can find your way through not very outrageous hypotheticals to constitutional crises in which there is a genuine, or should I say more than now, genuine popular divide among people with arms about who won the election. And beyond the role of the state legislatures, the Trump people certainly believed that enlisting governors, like the governor of Georgia, to begin issuing orders down the line to election directors, could have caused… Even though Georgia did recounts and did a bunch of those sorts of challenges, that the Trump people certainly seemed to believe that executive orders within the states, not relying on the legislature, might change a state or two. And again, something to consider, they were wrong this time. Georgia officials became national figures by saying no to Trump’s demands and by recording one of the calls and releasing that. But we can’t say in principle that that won’t work next time.

0:35:26.1 Trevor Burrus: Of course, the culmination of this, except for the remarkably peaceful Election Day, which I expected to be much worse, but… Inauguration Day, I mean. But the events of January 6th, and I personally believe that Trump intended something like that to happen and enjoyed most of it until he saw public opinion going the other way. I don’t know what else he expected to happen if he got these people together and said, “Go to the Capitol.” But, one of the most common things you hear from the right is this is just basically, “What about the riots on the streets in Portland and Seattle in the summer?” That, “What we did was no different and maybe even better than what happened this summer.” How do you take that form of whataboutism?

0:36:13.9 Walter Olson: I want us to remember the principles that violence is wrong and that street violence is not an acceptable way to override the political process, and I want both sides to learn the lessons. So I don’t just turn on my heels, say, “You’re being whataboutists,” whatever I may probably think, because obviously some people are just looking for an argument to rationalize what happened. But some people also seriously wonder, “Do we live under different rules than they do? Why was all of that allowed?” And that’s a good question. Why was it allowed without more legal consequences? And we can go back and forth about whether stealing goods from store shelves is worse or better than stealing an election. There is a certain kind of libertarian who loves being contrarian and will say, “Well, we know that stealing stuff off store shelves is definitively wrong because of private property. Whereas a government has no legitimacy, so how can you be sure that stealing votes is not just as bad as participating in government?”

0:37:16.5 Walter Olson: I’ve read Lysander Spooner and thrilled to him like everyone else, and when people are consistent about believing that the government, or whether by their friends or their foes, is a gang of robbers and murderers, then I have to respect the radical consistency of that position. But, radical consistency is not of course what we tend to get in today’s social media discussion. We get deflection efforts. We get the effort to sometimes normalize some things that no one would have imagined as normal until very recently. And I’ll throw out a couple of things that should make us think, and I’m not sure exactly where they point, but The New York Times reported on the one side, and this was after Bush’s inauguration, but they did extensive interviews with the coalition that had organized of hundreds and hundreds of groups on the left, if not even a thousand or more groups, huge, huge coalition on the left on what to do after the election.

0:38:20.8 Walter Olson: And it turns out that there had been a conscious collective decision reflected in basically marching orders passed on down the line saying, “We do not take to the streets. We do not cause any violence. We do not attack any courthouses or state legislatures.” Now, I’m of two minds about this. On the one hand, it was, so far as I can tell, a wise and successful decision, if that was indeed their decision. Better not to have gone onto the streets and probably better, as they calculated, not to let Trump and his followers feel victimized by having some acts of violence seeking to intimidate a state legislature. So, in that sense, good show, left wing. You did right and you got what you wanted.

0:39:09.2 Walter Olson: On the other hand, I couldn’t help thinking at the same time, “Wait a minute. How spontaneous is the next demonstration going to be if we know that there is some group that is not seeking publicity until after the fact that was turning everyone’s levers to off instead of on.” [chuckle] It’s really disturbing to think that big issues of police reform, including issues of police reform where I’m enthusiastically with much of my writing effort on the side of reformers, but I don’t want them to be decided by violence. I want them to be decided by persuasion. That’s the libertarian way, is that persuasion should work, intimidation should not. The use of reason should work, the use of fear should not, or not… At least not fear of what street mobs can do to you. And so… And you can turn that around the same way.

0:40:05.5 Walter Olson: The second thing I wanted to point out is that the crowd that came January 6th, although a few of them were armed… Every so often, police would notice that one of the rioters January 6th was armed. Apparently, they had passed down the word through most of their networks not to bring firearms. Now, who knows what the outcome would have been if half of them had brought firearms? Possibly tremendously different, possibly hostage situations in which the entire course of American political history might have been quite different. So they refrained from that. What are we to think about that? Does it mean that it wasn’t planned as anything other than a show of force, that it wasn’t planned as an actual takeover so much as a manifestation of what they thought was public opinion? Did they think they would win without the guns? These are all questions that I leave open because I’m not sure I know what the answers are.

0:41:06.1 Aaron Powell: Looking at that, you said that we should use persuasion, not violence, and that we should avoid political violence in all cases, and I’ve seen… I’ve seen that argument made, but there’s always… It always strikes me that there’s a bit of a tension here, because you have on the one hand, on the left, the riots regarding police violence were largely from people who have felt justifiably that the state has been oppressing them terribly for a long time in a tremendously unjust way. On the right, the storming of the Capitol, while it was… Let’s call it on epistemically shaky grounds, these were people who believed that the government in power or the government that was coming into power was illegitimate, that the election had been stolen, that democracy had been subverted, and they were going to save the republic.

0:42:04.5 Aaron Powell: And we as libertarians, we venerate the American founding, which was a, I mean, political violence, right? It began, like we have the Boston Tea Party, which was the theft and destruction of private property, and we have a rising up against what was seen as an illegitimate or dangerous government, and we venerate that founding generation, people who encouraged political violence. And so how do we… How do we, I guess, square those things with each other? Because I don’t know the answer to that, but I just know that there feels like there’s a tension there.

0:42:40.6 Walter Olson: Well… First thing I would do is to disambiguate “we” because we’re not all going to take the same approach to it. I am probably a little more Quakerish in that I am probably a little bit willing… More willing to be trod on without biting than is necessarily a good libertarian position for others to take. But I do believe, you brought in the issue of factual accuracy, because I think we should return to it. In the case of the stormers of the Capitol, they believed, erroneously, in my view, that the election was being stolen from them through massive hidden machinations, but if they had been right, what would their recourse have been? Just let every election be stolen from now on? Talk yourself into that factual framework, erroneous as it might be, and they might feel pushed to the wall now, as we know with the anti-​police riots, you also had… And a lot of people interviewed by the press said we’ve been trying democratic processes, or even though this is a city, that these were in cities frequently that were considered highly progressive in their governance and where minorities might include the mayor and much of the city council.

0:44:00.2 Walter Olson: Nonetheless, the impetus to riot against the police was there because of the feeling that, look, even if the mayor looks like us, even if they talk our talk on the city council, it somehow doesn’t really matter. The system is fixed and you can’t actually beat police brutality. It’s set up so that you’ll never win, no matter who you vote for. And these are to some extent parallel factual assertions. If you genuinely believe that the anti-​police side is right to give up on democratic process, then what is left to them except the streets. And I disagree factually on both sides. I disagree the election was stolen, and I also disagree that our political system is so unresponsive. Indeed over the last year or two, elections for DA in many cities and counties have replaced law and order DAs with ones who are much more sympathetic to the causes the people were out there demonstrating for in the George Floyd demonstrations.

0:45:00.3 Walter Olson: So, I think, again, when I see someone who wrongly believes that they are out of any other resort except violence, I want to talk to them and reason with them and say, “No, no, no. Come back to the open society system in which we all imperfectly sort things out through these public processes, because you will find that people are listening to you more than you think, you will find that they’re not as dismissive of the need for clean elections on the one hand or the need for police accountability on the other hand. Come back in to a dialog with those who you don’t think you can trust, because you will find that a lot of them are parts of a potential majority with you.”

0:45:42.0 Trevor Burrus: It’s interesting in this time of an American gut check for our Constitution and our republic, where I think a lot of people have started thinking about the seams in the system or the weak points in the system that we know, if you don’t have any answer to a certain question written down about presidential succession, how do you negotiate some dispute over solving, you could have the whole thing collapse in on of itself. That being said, with that gut check, is there a lesson from this, aside from… We can talk about misinformation in American democracy and things like this, but is there institutional lessons that… Should we be out there reforming state election laws, is there anything else that we should be doing, maybe in terms of something missing from the Constitution that offered a possible fail point, if something didn’t go wrong, what’s the general kind of way we should go forward from here?

0:46:41.9 Walter Olson: I’m not big on proposing constitutional amendments, if only because we’ve been in a situation for some decades now in which none of them have passed, and I tend to be incrementalist. State election procedure is something where you can accomplish some good, it’s not going to dramatically change the landscape, but you can fix some of the issues. And of course, if you look at voting as it goes on in other countries, there is no reason to think that we can’t learn a bunch of lessons. I mean, one thing that would take a constitutional amendment, is having in the 1930s moved Inauguration Day from March to January 20th, let’s get it to earlier still so that we don’t have this embarrassingly long period.

0:47:24.1 Walter Olson: You do need some lie, because with our local control of elections, they do take a while to come out with credible answers that have had a chance to be tested in court. You probably don’t need till January 20th. We want to go back and this can be done, I believe, on a statutory basis, revisit the Electoral Count Act, that was the thing that bored everyone to tears; had the country not been at stake, we all would have fallen asleep. But the details of exactly how Congress has to handle the submissions of electoral votes could stand improvement, it could stand clarification of a number of things that were not clarified by the Electoral Count Act.

0:47:58.8 Walter Olson: Now, this is small beer in some ways or a small ball, if you want to call it that. We want to block some of the relatively minor things that we saw that are susceptible to a fairly fast solution. What do we do about things that we haven’t even had a chance to mention yet, such as possible presidential corruption of the Justice Department, extraordinarily important. Trump… I kept on not wanting to write about the issue over four years for fear that Trump would notice it more and that he would openly move to what I think he did get interested in doing in his final days, which is to simply fire all the people who were not personal loyalists, who would not prosecute who he wanted, and announce investigations whoever he wanted, and in other ways run the department as an extension of himself.

0:48:40.9 Walter Olson: But should that happen with some future president, we are all going to face a very serious set of new problems, not just relating to elections, but relating to a lot of other issues of liberty and civil liberty. But I’ve been looking at Justice Department independence issues for many years, and it’s not all that clear what you do as far as passing a new law or passing a constitutional limit. Anything you might suggest has its possible downsides. You make it too independent, and then you have to consider the possibility that the president is good and the Justice Department appointees are bad. And of course, it’s not as if the independence of the FBI under J. Edgar Hoover does not provide a very, very sobering example of giving the law enforcement branch too much independence. So we grapple with these problems, I’m an incrementalist and a non-​Utopian, and it reminds me of the slice of ham that was in a packet saying that “contents 20% solution.” Now, they just meant solution of salt or something, but I immediately wanted to grab it and say, “Yes, I’ll take a 20% solution.”

[music]

0:49:55.7 Aaron Powell: Thank you for listening. If you enjoy Free Thoughts, make sure to rate and review us in Apple Podcasts or in your favorite podcast app. Free Thoughts is produced by Landry Ayres. If you’d like to learn more about libertarianism, visit us on the web at www​.lib​er​tar​i​an​ism​.org.