By Carl WeinschenkMany of us–and not just Democrats–breathed a sigh of relief earlier this month when the Supreme Court put an end to administration plans to use the U.S. Postal Service to paralyze mail-in voting. That crisis has passed, at least for this election cycle.
That’s far from the end of the election subversion story, unfortunately. Please check out the conversation between long-time broadcast journalist Katie Couric and retired federal judge Michael Luttig.
Luttig is one of the most important figures of the conservative right. He also is respected across the spectrum and, in the podcast, cites Laurence Tribe – a high-profile retired liberal judge – as a good friend and somebody for whom he has great respect. Luttig has a clear and deep-seated dislike of Donald Trump and what he thinks the president is doing to undermine our democracy.
Luttig and Couric spend the first half hour of the hour-long conversation discussing Trump and the importance of the USPS decision. An interesting sidenote is that Luttig says he has been close friends with Chief Justice John Roberts for decades. He sounds both angry and ashamed of how Roberts has led the court.
The Loophole
The most important part of the conversation begins at roughly the 25:40 mark. (I’d recommend starting there if you are pressed for time. The earlier portion is quite interesting but not as timely.) Luttig relates that a group of respected and influential conservative jurists and thinkers recently came to him and described a scenario in which the administration could conspire with House Majority Leader Mike Johnson to enable the Republicans to retain control of the body even if the Democrats win the majority of seats. The group wanted Luttig to use his platform to educate the public on the issue.
The short version is simple: The clerk of the House has a vital administerial duty, which is to seat all House members for each two year Congress. The House has no members before the clerk does this. The Speaker of the House appoints the clerk and can replace him or her at his discretion. No reason is required.
In the scenario feared by Luttig and those who sought his help and guidance, Johnson would replace the current acting clerk – a man named Kevin McCumber, who is said to have great integrity – with a MAGA loyalist. That individual wouldn’t seat enough Democrats to gain control for the Republicans despite the results of the election.
Luttig is very concerned. In this scenario Johnson would obviously be wrong and working in an anti-Democratic manner–but not breaking the law. He would be working within the system to destroy the system. It could be called an electoral auto immune disease.
The topic is complicated. Check out Lawfare’s Molly Roberts for a deeper explanation than what Luttig and Couric were able to provide in a podcast format. For what it’s worth, she seems to be more optimistic than Luttig:
These tales of doubt and disorder involving the clerk may seem discouraging. But before readers despair, they should take note that even when non-law seemed to win out over law, political compromise prevailed over partisan uniformity. Now that the legal system surrounding certification is stronger, not weaker—laws having replaced what once were only norms—it seems even less probable that a rogue clerk could enable a minority party to undo our democracy.
Near the end of their conversation, Luttig suggested that the odds of the administration trying to finagle its way into power are greater if the election is close. That is in line with the idea that Viktor Orbán accepted his election defeat so easily in Hungary this April because he lost by such a wide margin. The denouement of that drama may have been different if the citizens had been passive and the vote closer.
The subtext of the conversation between Luttig and Couric is that the real power is with the people–if they choose to use it. “If all of us got out and voted against this [it] will never happen, and America will long endure, as Abraham Lincoln hoped it would,” Luttig said near the end. “It’s that important to the future of our nation.”
(Homepage photo: The Hill via Creative Commons)