A couple days before the recent conflagration at the Capitol, the Washington Post published an op-ed by a conservative talk radio host who defended the decision by Sens. Ted Cruz and Josh Hawley to object to the certification of electoral college votes.
Surely no one reading this column has yet an open mind on whether they should have had that debate, and I’m not about to go there.
But in making his case, that there’s no need to freak out that some senators were planning to exercise their constitutional prerogative to object to Joe Biden’s win, the columnist made a statement that stuck with me, like popcorn between the teeth. It went something to the effect that any process allowed by law is never a crisis. So zip it. The senators had the right to object, even without reason; ipso facto, there can be no crisis.
For most people, I think this is pretty accurate. Most citizens can take full advantage of the law. To sue your date because she’s texting during the movie. Or your eight-year-old nephew for giving you a “careless” hug.
It’s not without reason that “frivolous lawsuits” like these garner such antipathy. Yet even the most committed legal reformers direct their ire at the laws or legal precedents that allow (admittedly uncivil) people to bring these cases. The fault is with the “broken” legal system, not the plaintiffs; they’re just taking advantage of loopholes.
And so, the reasoning goes, were the senators. The Constitution allows objections to electoral college certifications; therefore, there’s nothing to worry about.
But this argument overlooks something terribly important. And that is, that senators (and congresspeople and the president and judges and every other federal official) aren’t just ordinary citizens.
Most of us, to become citizens, don’t have to do anything; it’s our mothers who do the hard work of giving birth on US soil. But federal officials take an affirmative oath to “support and defend the Constitution.” (Incidentally, so do citizens who actually work to earn their citizenship through naturalization.)
So the question is, can you “defend the Constitution” when you take advantage of legal loopholes that undermine the public’s faith in the Constitution? I’ll grant that that’s a charged question in this context. Some will doubtless object that the senators had good-faith reasons for objecting to the electoral college certifications.
Which may be the case. But let’s assume they didn’t, because this will help us test the proposition that any process allowed by law is never a crisis. If a senator objected because he could, knowing that the objection was baseless, would he be upholding his oath?
Clearly no, even though what he’s doing is legal.
The reason goes back to that cliche, that leaders are to be above the law. There’s something inherently undefinable about what this means, to be above the law. It even seems contradictory to say that someone can comply with the law and yet undermine it. And yet, we know that’s the case.
Because it’s hard to uphold the law when you use its protections to intentionally lie to or bully others. In doing so, you cause others to question the government’s ability to administer justice and fairness. You undermine the law. And if you’re a public official, you’ve just violated your oath of office.
This whole charade reminds me of another case in Washington, DC when another public official, a judge, took advantage of his legal rights to sue his dry cleaner for losing his pants, to the tune of $54 million. Though he had the right to file a lawsuit, doing so sure didn’t advance the cause of justice. That man lost his case, and his position.
