Wednesday, November 23, 2016

To Get Rid of the Electoral College Is to Let San Francisco Elect POTUS

       A Coup in the “College.” To some the three most depressing words in the English language are Hillary Rodham Clinton. Others are hoping against hope for a coup in the Electoral College that will make her President. One bitterly disappointed die hard, Senator Barbara Boxer (D-CA), introduced a bill to abolish the Electoral College.

If the popular vote determined the Presidency, candidates would stay in California, Texas, and New York; in Florida, Illinois, and Pennsylvania; and in Ohio, Georgia, North Carolina, and Michigan. Their combined population (174,000,000) far exceeds the population of the other 40 states put together, and accounts for more than half the population of the  country: 321,418,820. President-elect Donald J. Trump recognized this, tweeting on November 15th that if the popular vote decided the Presidency, he would have spent more time in California, New York and Florida and, he added, he would have won by an even greater margin. (But for California, Trump would have won the popular vote, and won it big. More on that below.)

Please Meet the Electoral College. Our President is not elected by direct vote of the citizens, and never has been. The Electoral College was established in 1790 by Article II of the Constitution of the United States. Although the ballot identifies the candidates by name and political party, the vote is actually for a pre-determined slate of Electors who are pledged to support the candidate of their party.

Electors are appointed in each state in the manner provided for by the state legislature. The political parties establish their slates of Electors at a convention or at a meeting of a central committee. Electors tend to be deeply-committed party loyalists and they pledge to vote for their party’s presidential candidate. The number of Electors in any given state equals the size of its Congressional delegation. Illinois has 20 members in Congress (two senators and 18 representative) and 20 Electors. In all, there are 538 Electors, including three for the District of Columbia.

Because Mrs. Clinton won the popular vote in Illinois, the Electors pledged to her will meet in the Capitol in Springfield on December 19th for a vote that presumably will be unanimous. The results will be tallied, certified and sent to Washington D.C. to be counted by the Senate. (In case of a tie vote in the Electoral College, the President would be elected by the House of Representatives.)

It Takes a Coup. It would take a coup in the Electoral College to make Hillary Clinton President of the United States, and a coup is possible, though only in theory. That theory presupposes that each Elector is a “free agent,” which is true only in the loosest sense of that term. But to pull ii off, job one would be to hang on to the 232 electoral votes Mrs. Clinton won on Election Day. Then it would be necessary to induce 37 of the 306 electoral votes won by Mr. Trump to turn coat and vote for Mrs. Clinton.

The Coup Won’t Happen. Here’s Why. Laws in 29 states and the District of Columbia bind Electors to vote for the candidate who wins the popular vote in their state. An indispensable premise of those who cling to the fairy tale that Mrs. Clinton could pull out a win in the Electoral College is that Electors bound to Trump would vote for Clinton instead because the legal penalties for disobedience are trivial  (e.g., small fines), and so they would risk little by defying the law and voting for Mrs. C.

However, a far greater force is at work upon all Electors than the risk of a fine or penalty for violating a statute, namely, peer pressure. Picture this: At the upcoming meeting of the slate of Illinois Electors for Mrs. Clinton, a so-called faithless elector casts a vote for Donald Trump. The life expectancy of that poor soul, from the time she got found out to the time she almost made it out the door, would be about six seconds. And in any case, the reaction of her fellows would likely evoke the old Hollywood threat: “You’ll never work in this town again.”

If ever a coup in the Electoral College were to happen, the year 2000 would have been the year for it: the year of Bush and Gore, when Mr. Gore asked the courts to settle the matter of who would be President and the courts obliged him. On that occasion, Mr. Bush lost the popular vote and had only a slim lead in electoral votes: 271 to 266. (If you’re counting, that comes to 537 electoral votes. What about number 538? A “faithless elector” from the District of Columbia abstained in protest of the lack of voting representation in Congress. The District has one representative in the House but she has no vote.)

Another obstacle to a coup in the Electoral College of 2016 is the sheer force of history. There have been only 157 “faithless electors” in the history of the Republic and only 17 in the last 119 years.

More About Abolition. As for efforts to abolish the Electoral College, the quixotic bill introduced by the soon-to-retire Senator Boxer is set up to do it the old fashioned way: by amending the Constitution. That requires (i) a vote of two-thirds of the House of Representatives; (ii) a vote of two-thirds of the Senate; and (iii) a vote of three-fourths of the States. (U.S. CONST. Art. V). Senator Boxer does not have the votes for her bill in the current Congress, and she will be retiring from the Senate in a few weeks.

Other efforts are afoot as well, notably the National Popular Vote Interstate Compact (“NPVIC”). It proposes to do away with the Electoral College without amending the Constitution on the theory that the very article which created the Electoral College in the first place contains the seeds of its demise, to wit: “Each State shall appoint (Electors), in such Manner as the Legislature thereof may direct.” (U.S. CONST. Art. II) (parenthetical added). Proponents of this so-called compact locate in the quoted part of Article II a way to get rid of the Electoral College without undergoing the arduous process of amending the Constitution.

Only eight states have signed on for this compact so far, and it should come as no surprise that all eight are deep “blue” states with sizeable populations: California, New York, Illinois, New Jersey, Washington, Oregon, Pennsylvania, and Virginia. (True, Pennsylvania voted “red” in 2016, but it has historically voted “blue,” and it is too soon to tell whether 2016 is a one-off.)

San Francisco Picks Our Presidents Forevermore. What Could Go Wrong? The impetus to scrap the Electoral College for a straight popular vote comes from “blue” states with big populations – the biggest and bluest of which is California, of course (population: 39 million). The current year (2016) makes the point. Mr. Trump won the electoral vote by a landslide: 306 to 232. He also won the popular vote in 30 states. But Mrs. Clinton won the popular vote countrywide (63.6 million to 61.9 million), and she won it only because of California. More to the point, her margin of victory countrywide practically matched her margin of victory in and near San Francisco (1.7 million votes, give or take). (But for California, Trump would have won the popular vote countrywide by more than 1.6 million votes, and won in the Electoral College by 306 to 177).

Were we to switch to straight popular voting, then from that time till God knows when the President of the United States -- of all 321.5 million of us in all 50 of the “united” states --  would be selected by a relative handful in and near San Francisco. If you think that’s a good thing, you’ll want to work for the abolition of the Electoral College. Better hurry, though. There has been talk out of California since Election Day of its seceding from the Union.


Friday, November 4, 2016

The FBI Spoke Because the AG Punted

It’s all about Attorney General Loretta E. Lynch and her do-nothing response to news of her secret meeting with Bill Clinton on the tarmac in Phoenix last June.

FBI Comments a Second Time. On October 28th, FBI Director James Comey sent a letter notifying Congress that investigation had resumed into Hillary Clinton’s use of a private email server while she was Secretary of State because new information on that subject had surfaced in a different investigation of another subject (the alleged “sexting” to a minor by one Anthony David Weiner, a/k/a Carlos Danger, former Congressman from New York and estranged spouse of Huma Abedin, long-time aide to Mrs. Clinton). In a twinkling the letter was leaked to the media, became known around the world, and excited a furor.

The Evil of Telling the Voters the Truth before Election Day. It has been said that Napoleon was not disturbed that Moscow was burning but was disturbed that the development had caught him by surprise. What disturbed the Clinton campaign, apparently, was not that the investigation continues but that all Americans were informed of it in time to do something about it on election day, e.g., not vote for Hillary Clinton when they otherwise might.

The candidate herself complained on the grounds that the letter had been sent only to Republicans. That was false and untrue, and readily refuted by the face of the letter itself: It was sent to Democrats as well as Republicans. Eventually the campaign acknowledged the error.

Most of the complaints characterized the conduct of Mr. Comey as a mistake or “inappropriate” or illegal, largely on the theory that (a) it might influence the election and (b) Mr. Comey intended for it to influence the election. These critics, who had been effusive in their praise of Mr. Comey in July, included U.S. Rep. Nancy Pelosi (D-CA), Speaker of the House of Representatives during the first two years of the Obama administration; U.S. Rep. Elijah Cummings (D-MD), ranking member of oversight committee and the special Benghazi committee; and U.S. Senator Harry Reid (D-NV) who, of course, needs no further introduction.

The Secret Meeting Comes to Light by Chance. It is this observer’s conclusion that the Comey letter and the ensuing uproar was made possible, and probably inevitable, by Ms. Lynch’s clandestine meeting with Mr. Clinton on her private airplane in Phoenix; by the serendipitous discovery and reporting of it; and above all, by Ms. Lynch’s “quietist” response to the dreadful publicity.

The meeting may well have passed without notice had not a local television anchorman (Chris Sign of ABC15) been tipped off about it the next day and questioned Ms. Lynch while she was still in town. 

This is the story: On Monday evening, June 27th, Mr. Clinton was due to depart from Sky Harbor International Airport in Phoenix after completing some fund-raising activity and Ms. Lynch was due to arrive for business related to “community policing” (which to some is code for management of municipal police forces by the Department of Justice (“DOJ”)). Mr. Clinton learned of Ms. Lynch’s imminent arrival, delayed his own departure, and boarded her private plane for a lengthy meeting attended only by Ms. Lynch, who owes her 1999 appointment as U.S. Attorney for the Eastern District of New York to Mr. Clinton; by Mr. Clinton, spouse of the subject of a criminal investigation by the FBI, which answers to DOJ; and by the husband of Ms. Lynch. (I have been unable to confirm one report that the meeting took place on a third plane that neither Ms. Lynch nor Mr. Clinton were travelling on. Nor have I been able to ascertain why the husband of Ms. Lynch was traveling with her on a business trip at the start of a work week.) Although the length of the meeting has been variously reported at between 25 and 40 minutes, Ms. Lynch characterized it as “primarily social” and said the only subjects discussed were grandchildren and Mr. Clinton’s golf game. She denied that there was any conversation about the FBI investigation of Mrs. Clinton’s email practices.

AG Does Nothing More than Say She’ll Punt to the FBI. Ms. Lynch acknowledged that the situation looked bad. She said that to mitigate the appearance of impropriety she would distance herself from the investigation by accepting the recommendation of the FBI. She might have opted for an independent counsel or special prosecutor, with the total loss of control which that entails. But no. Nor did she recuse herself. And I have just learned that her decision to accept the recommendation of the FBI had been made some months before her secret meeting with Mr. Clinton in Phoenix – or so she said after she got found out. In other words, her effort to remove the taint on the secret meeting consisted of nothing more than telling a television newsman that she had long since decided that she would accept whatever the FBI recommended. (The abdication of her duties to exercise independent professional judgment and prosecutorial discretion is beyond the scope of this piece.)

The FBI Interviews Mrs. Clinton. A few days later, on Saturday, July 2d, Mrs. Clinton met for an interview with representative of the FBI and the DOJ. She was accompanied by five lawyers: David Kendall and two others from Williams & Connolly; Heather Samuelson, one of two aides charged with the task of separating Mrs. Clinton’s business emails from her personal emails; and Cheryl Mills, the other aide charged with separating the business and personal emails, chief of staff to HRC when she was at State, and chairman of the Clinton Foundation). No oath was administered. No tape recording was made. No stenographer attended. And the meeting was “voluntary,” in that the witness appeared without a subpoena (no grand jury was sitting, and so no authority to go to for a subpoena.)

A Nice Job for Ms. Lynch? Two days later, June 4th, according to “sources close to the campaign,” if Mrs. Clinton won, she might ask Ms. Lynch to stay on as Attorney General.

FBI Comments a First Time. On July 5th FBI Director Comey told the world the FBI had recommended that no charges be brought against Mrs. Clinton, and that no reasonable prosecutor would prosecute her even though (a) she had been “extremely careless” in the handling of classified information, (b) 18 U.S.C. 793(f) criminalizes “gross negligence” in the handling of such information, (c) it is practically impossible to see a dime’s worth of difference between “extremely careless” and “gross negligence,” and (d) Mr. Comey went on to indicate that there would be a different recommendation if the subject were not named Hillary Clinton and nominee of the largest political party in the land for the office of President of the United States. (Even as Mr. Comey was speaking, President Obama and Mrs. Clinton were on their way in Air Force One to a rally for her in North Carolina. Some see that as evidence that the outcome was already known to the President, not to say “fixed,” because it is difficult to imagine that the President would be leaving town with HRC to campaign for her while his FBI Director was back in Washington announcing that she was about to be charged with felonies.)

To Cover for the AG, Speak Fully and Honestly, and Be Loved by All: Good Luck with That. My only point here and now is that the public comments of Mr. Comey on two recent occasions about the FBI investigation into what others call the Clinton “email scandal” were made possible and predictable and even inevitable by the acts and omissions of Attorney General Loretta E. Lynch in Phoenix: She met in secret with Mr. Clinton. She got found out. She said the conversation was nothing but small talk, though it lasted up to 40 minutes. Her effort to mitigate the appearance of impropriety – to take the stink off it, if you please -- was confined to telling the press that she had long since decided to accept the recommendation of the FBI. Nothing more, nothing less, and nothing else.   

As a rule the FBI does not comment on investigations. This case is different, and made so by an Attorney General who had thoroughly compromised herself and then did nothing to right the wrong. She did not opt for an independent counsel or recuse herself. She did not even decide to accept the recommendation of the FBI – an abdication of the fundamental duties of her office. All she did was state publicly that her decision to punt to the FBI had been made months before her clandestine meeting on the tarmac. 

Director Comey spoke on July 5th, where he otherwise almost certainly would not have spoken at all, in order to cover for the Attorney General. (Team Clinton welcomed this development, describing it in terms of Mrs. Clinton’s being “cleared” and “exonerated” and found “innocent.” But that, too, is a subject for another day).

The intended beneficiary of the public statements on July 5th by the Director of the FBI was not Hillary Clinton, although she surely did benefit from those statements, but the tainted Attorney General of the United States, Loretta E. Lynch, who publicly dumped her responsibilities on the FBI in general and on its director in particular. However, once Mr. Comey undertook and assumed to speak at all, he had to speak carefully, completely, and honestly. So when new information of consequence came to his attention, as was the case in late October, he was obliged to set the record straight (never mind that he had also indicated to the Congress, on oath, that he would do so).