Our American system is under assault by dirty tricksters who are looking for loopholes and weaknesses to exploit to overturn a free and fair election. They came darn close to succeeding in 2020, and we need to use the time we have right now to fortify our election protections.
Our system is under attack by right-wing Hackers. The Constitution and laws are the software “operating system” that runs our society. Our system is at grave risk from law-hackers including John Eastman, Rudy Giuliani, Sidney Powell, Jeffrey Clark, and the assent of the 147 Congresspeople who objected to the election certification even after the January 6 insurrection attack. We only have a short window of time in which to shore up our system against future hacks.
One thing I have learned from my years of writing about parenting and relationships is that if you have trust and goodwill between people, you can work through almost any problem. If you don’t have goodwill; if you are dealing with an abuser, or narcissist, or sociopath, the normal rules that guide us through polite society won’t help you, and you really need to take concrete steps protect yourself. It’s the difference between co-parenting kids in a happy, healthy relationship, and hammering out an iron-clad custody agreement with a vengeful ex.
The 2020 election and the January 6 insurrection showed us that we are not in normal times. Norms, guidelines, rules of ethics, and unenforced laws are not sufficient to protect us. We saw two forms of attempted coup: what I call the “hacker coup,” and the violent insurrection. Both could happen again. The hacker coup involved looking for ambiguities or loopholes that can be exploited to change an election result. We are fortunate that this time, the hacker coup failed due to several defense mechanisms holding the line. The courts decided against 60 or so legal challenges coming from the Trump team (Giuliani and more). Republicans including Georgia Secretary of State Brad Raffensperger, and members of the Michigan Board of State Canvassers resisted extreme pressure to “find votes” for Trump or fail to certify a valid election. State legislatures could also be key in failing to recognize valid electors—we are fortunate that it did not come to that in 2020. What happens in 2022 or 2024 if the Trumpsters can install more compliant people in these key positions? Or intimidate officials who want to do the right thing, through threats to their career, or death threats?
People who want to protect democracy need to be working around-the-clock now to study the vulnerabilities that people acting in bad faith can exploit, starting with clarifying the Electoral Count Act of 1877, something that most of us have never thought about, but is key to preventing the next attempted “hacker coup.”
I want to recommend two must-listen podcast interviews this week that address these issues. Both are highly listenable for lawyers and non-lawyers alike:
On “The New Abnormal” podcast, Washington Post columnist Greg Sargent highlights parts of our laws and Constitution that are vulnerable to a hacker coup. It is really scary, because the way things stand right now could be a “legal” way to do it, driving a bad-faith effort through loopholes. This interview was based on Sargent’s piece: “What would a 2024 Trump coup look like? A new paper offers a worrying answer.”
On Greg Olear’s latest “Prevail” podcast, Greg’s conversation with “The Bulwark” columnist Amanda Carpenter really shows the value of pro-democracy folks of every party engaging in serious dialogue. Amanda Carpenter’s piece “The Six Main Strands of the Trump Coup Attempt” really shows how ideas that start out as extreme Trump statements were made mainstream by people like AG Barr, then were subsequently weaponized by law-hackers like Giuliani and Eastman.
For good measure, I highly recommend the “Fresh Air” interview with Jane Mayer, “Is Ginni Thomas A Threat To SCOTUS?” Spoiler alert: the answer is YES, big time. Did you know that the Supreme Court Justices are not held to the code of conduct that applies to other judges, because the Supreme Court Justices are “above it all” and expected to self-enforce their own ethics? Ginni and Clarence Thomas are making an absolute mockery of this system, another example of how norms are not enough to protect us from bad actors. Ginni Thomas 1. supported the January 6 protests and 2. has taken hundreds of thousands of dollars of undisclosed consulting fees from organizations that have business before the Supreme Court. Clarence Thomas has not recused himself from these cases as many other judges have. Ginni and Clarence Thomas are also hacking our system with these secret, blatantly unethical back-door dealings.
The final minute of the “Fresh Air” interview chilled me, as a child safety expert who teaches that “problems should not be secrets:” Q: Do you think that Justice Roberts or other Justices reach out to Clarence Thomas to make it clear they are uncomfortable with Ginni Thomas’ connections to groups with business before the court?
Jane Mayer: ….I was told, “No way.” That each Justice sort of functions as their own law firm, separately, independently, and no Justice would feel that it was appropriate to criticize another, and the way they get along with each other is by not making an issue of such things.
***
Yet another failure of norms to protect us from corruption, this time in the highest court of the land. It is time for a binding code of conduct for Supreme Court Justices, just like the rest of us.
Thank you for clearly articulating all of the ways in which our American system is under attack. When you add voter suppression and gerrymandering to the mix, you end up with something that looks pretty dire and hopeless. Thankfully, efforts are underway to raise awareness and mobilize resources to save our democracy. VOTE. Run for office. Help someone else to VOTE and run for office.