The Loophole That Trump Tried to Steal the Election With Is Still There

·6 min read
Win McNamee/Getty
Win McNamee/Getty

Much of what was broken on Jan. 6 can’t be fixed, but there’s one thing that can: the loophole in the Electoral Count Act on which Donald Trump pinned his hopes of overturning the 2020 election.

That badly worded law—leaving open the question whether the vice president’s role is merely ceremonial or he has the power to replace duly certified electors—is still on the books. It requires only one member from the House and one from the Senate to make an objection to halt the count, with both branches of Congress then retiring to their respective chambers.

From there, the election can be tossed to the House.

With state delegations voting, not electors, Trump would have prevailed there, and likely prevailed again when that mess eventually made its way to a Supreme Court packed with Trump judges.

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That was the plan for overturning the voters’ will in an election that wasn’t even close, unlike the Hayes-Tilden nail-biter in 1876 that inspired the ECA. The new law created a solemn ceremony, presided over by the vice president, presenting the state’s electors to Congress and setting the election in stone. It worked for 133 years until a madman came along.

Yet neither party’s been in any rush to tackle the ECA, that is until the eve of the Jan. 6 memorial when Mitch McConnell, in answer to a reporter’s question about the flawed measure, allowed that “It is worth, I think, discussing.” Hardly a call to action.

But it gave the cyborgs at Fox, with no interest in covering the Jan. 6 ceremonies, something to chew over the next morning. The panel was aghast that Biden hadn’t mentioned the off-hand comment McConnell had made less than 24 hours earlier.

McConnell, of course, will only think “it” is worth discussing if “it” gives him cover to kill voting reforms and doesn’t enrage Trump to the point where he puts up more crackpot candidates like Dr. Oz and Herschel Walker to challenge any Republican who’s annoyed the King of Mar-a-Lago. Every time Trump dredges up a primary challenger to an establishment candidate, the odds of McConnell reclaiming his Majority Leader post get worse.

The timing of McConnell’s proposal was convenient, diverting attention from his party’s craven decision not to participate in any of yesterday’s events commemorating the day of infamy that Republicans spent the last year denying. They variously called it a mere protest of a fraudulent election, just another day in January, or tourists gone wild—and they all agreed it’s definitely something that should be put in the rear view mirror so the country (read: the GOP) could move on.

A year later, many members remain mum on the subject of who’s president. It took six months for McConnell to concede that Biden is—which has a lot to do with fewer than six in 10 Americans, and barely three in 10 Republicans, believing it. The Senate’s dutiful look back at what happened was careful to leave out Trump and his co-conspirators. The whitewash concluded that it was all a failure of the FBI, the Pentagon, and the Capitol Police to plan for an expected demonstration.

At least Republicans in the Senate cooperated in an inquiry, unlike their counterparts in the House “led,” if that’s the word for it, by Kevin McCarthy. After briefly calling Trump responsible for the insurrection, he flew to Palm Beach to apologize in person. Returned to Trump’s good graces, McCarthy fought tooth and nail to kill any investigation. When he appointed obnoxious Trump sycophants to sabotage the Jan. 6 select committee, then washed his hands of the whole thing, Nancy Pelosi called his bluff and appointed Republicans like Liz Cheney instead. If it’s the last thing he does, McCarthy will see that Cheney, whom he removed from her leadership position for voting to impeach Trump, loses her seat. It’s a daily rebuke to him when she gives witness daily to the reality that Trump’s backers stormed the Capitol Building to interrupt the process certifying the election created by the ECA, and that her fellow Republicans were complicit in it.

If McConnell is serious about reforming the ECA, he would be opening a can of worms he’s kept a lid on until now. He’s covered for his caucus, not criticizing, much less censuring, the senators who pledged to uphold the constitution but instead defiled it to keep Trump in the Oval Office. Sen. Josh Hawley’s star is still rising despite saying on Jan. 5 of 2020 that a second Trump term depended “on what happens on Wednesday,” Jan. 6. He must have known.

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For different reasons, Democrats haven’t been much better when it comes to amending the ECA that remains vulnerable to the machinations of the next authoritarian loser. Part of the Democrat's reluctance comes from the assumption that there could never be another president as unscrupulous as Trump and with such an iron grip on his party. Chuck Schumer is otherwise engaged, focused like a laser on passing two other pieces of critical legislation that will partly correct for the successful efforts in states run by the GOP to make voting as difficult as possible and putting in place partisans to count the vote—and to keep counting it until it comes to the “right” result for their party.

But reform is urgently needed. It’s breathtaking that Trump thought he could overturn the most audited election in history, and it’s frightening how close Trump got with the help of a broad reading of a murky law by his clownish lawyers.

Even after the violent assault on our democracy was contained, the non-violent one continued when Congress reconvened. Three hours after members had been running for their lives, 147 House Republicans drove a Mack Truck through the ECA’s loophole to stop the proceedings, as Trump and those who attacked them wanted. Not even an armed invasion of the Capitol could wake the GOP from its Trump stupor. The terrorists almost won.

“When fascism comes to America, it will be wrapped in the flag and carrying a cross,” Sinclair Lewis famously wrote in his 1935 dystopian novel It Can’t Happen Here. He described insurrectionists hiding behind Old Glory but even he didn’t imagine them wielding it as a literal weapon.

Despite the fact that a failed coup is practice for the next one, the same loophole Trump tried to exploit is still wide open. Except for taxes and judges, McConnell has no brief for Trump. The Turtle can’t stand to be around the Donald, and the Donald can’t stop insulting the Turtle.

To make up for the many chances McConnell’s missed to loosen Trump’s grip, he has a chance now. Like Mike Pence, he should try to relocate his spine, and fix what can be for now. He could close the loophole Trump tried to weasel through and stop Trump or any of the Trump wannabees waiting in the wings from another Jan. 6.

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