• We The People Podcast

The Mob, the Capitol, and the Constitution

January 07, 2021

In the early morning on January 7, 2021, Congress certified President-elect Biden’s Electoral College victory after a pro-Trump mob stormed the U.S. Capitol. This episode reflects on the historic and constitutional significance of the events of “a date which will live in constitutional history.” Host Jeffrey Rosen was joined by Judge J. Michael Luttig, formerly of the U.S. Court of Appeals for the Fourth Circuit, and Dean Erwin Chemerinsky of Berkeley Law. They discuss the president’s debunked claims about the 2020 election results that sparked the riot; whether President Trump’s words at a rally held in Washington, D.C., on January 6 count as incitement under the law; what the blocking of President Trump’s social media accounts by Facebook and Twitter afterward means for freedom of speech; and what the unprecedented nature of the events means for the future of the country.



Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at Berkeley Law. He was the founding Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at UC Irvine School of Law He is the author of many books and law review articles, including the 2018 book We the People: A Progressive Reading of the Constitution for the Twenty-First Century.

Judge J. Michael Luttig was just named counselor and special advisor to The Coca-Cola Company and its board of directors. He previously served 15 years as a judge on the U.S. Court of Appeals for the Fourth Circuit. Prior to that, he served as assistant attorney general and counselor to the attorney general at the U.S. Department of Justice, and was assistant counsel to President Reagan.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

This episode was engineered by the David Stotz and Greg Scheckler and produced by Jackie McDermott, Tanaya Tauber, John Guerra, and Lana Ulrich.


This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Alexandra "Mac" Taylor and Lana Ulrich.

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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.

Yesterday, January 6th, 2021. A date, which will live in constitutional history. The U.S. Congress ratified president elect Biden's victory, after a pro-Trump mob stormed the U.S. Capitol. On today's episode, we will reflect on the historic and constitutional significance of yesterday's events. I'm honored to be joined by two of America's leading constitutional scholars.

Erwin Chemerinsky is Dean and Jesse H chopper professor of law at Berkeley Law. He was the founding Dean of UC Irvine school of law. And as the author of many books, including "We, the people: a progressive reading of the constitution for the 21st century." Erwin, it is great to have you back on the show.

Erwin Chemerisnky: [00:01:14] It's always my great pleasure to be with you. Thank you for inviting me.

Jeffrey Rosen: [00:01:18] And Judge Michael Luttig was just named counselor and special advisor to the Coca-Cola company. He previously served for 15 years as a judge on the U.S. Court of Appeals for the Fourth Circuit. Before that he served as assistant attorney general and counselor to the attorney  general at the U.S. Department of Justice and was assistant counsel to President Reagan. Mike, it is an honor to have you on the show.

J. Michael Luttig: [00:01:44] Thank you, very, very much Jeff. And thank you to the National Constitution Center. It's an honor for me to be here with you, Jeff, a long time and dear friend, and especially with Professor Erwin Chemerinsky . Both of you are giants in the law and it's my pleasure to be here with you today.

Jeffrey Rosen: [00:02:04] Thank you for that. Erwin, I'm going to begin with you. Is there any constitutional or historic precedent for yesterday's events?

Erwin Chemerisnky: [00:02:13] There is no precedent for what happened. Democracy is about the orderly transfer of power based on elections. Since John Adams, an incumbent president lost in 1800, every time the incumbent has been defeated, there's been the peaceful transfer of power. Never before have we seen an incumbent who lost try to cling to the office in this way. Never before have we seen an incumbent president try to intimidate elected officials and election officials to change the results of the election. Never before have we seen an incumbent president try to have the results of the electoral college overturned. Never before have we seen an incumbent precedent engage in what is regarded as incitement. And the Capitol of the United States hasn't been breached since 1814, when it was burned by the British, as part of the war of 1812. We shouldn't be ennurred to all of this. We've got to realize that what we've observed yesterday and over the last two months really is unprecedented American history.

Jeffrey Rosen: [00:03:19] Mike, I'm going to ask you the same question. Is there any precedent for yesterday's events?

J. Michael Luttig: [00:03:23] No, Jeff . Professor Chemerinsky is of course correct. But it's not just that it's unprecedented in American history. What we witnessed in the past 24 hours is, to date, the ultimate  test of our Constitution and of our democracy. It's nothing short of that, frankly. I believe that the professor and I will eventually conclude that our Constitution and the American democracy met the test. But it was a singular test, both of our Constitution and, and literally of the American democratic system, Jeff.

Jeffrey Rosen: [00:04:09] Well, let us examine the different constitutional aspects of yesterday's events. Erwin, some on both sides of the aisle, have argued that President Trump incited an armed mob to insurrection. Do you agree with that definition? What is the legal test for incitement? And is that a fair statement or not?

Erwin Chemerisnky: [00:04:34] I think that the place to begin is with the legal test for incitement. It comes from a 1969 Supreme court case Brandenburg versus Ohio. And it says that incitement requires advocacy where there's a substantial likelihood of imminent illegal action and where the speech is directed at causing imminent illegal action. It is justifiably a very difficult standard to meet. And yet I think when you look at President Trump's words yesterday, Rudy Gulliani's words yesterday, and what proceeded it, there certainly was a substantial likelihood of imminent illegal activity.

I don't know whether or not President Trump had the intent to incite it. But remember he said January 6th was going to be a wild day, and he certainly encouraged his followers to go to the Capitol. Whether he encouraged them to breach the Capitol in that way, whether that was that intent, seems to me legally, the much harder question.

Jeffrey Rosen: [00:05:34] Judge Luttig, your thoughts on whether or not the president's words met the legal standards for incitement.

J. Michael Luttig: [00:05:39] Sorry, Jeff, the question of whether the president of United States incited the events of yesterday , in the technical sense, is one that I'm going to demur on , as the professor did . I'd say first that were that question teed up , you know, for constitutional decision , it would make Brandenburg look like an ordinary case and it would likely be the the landmark case in constitutional, in all of constitutional, history.

And as Erwin said, there, you know, there's no question that a case could be made.  A technical case could be made that the president incited the events of yesterday. But  as Erwin , you know pointed out , it would be most highly relevant, the president's intent. And  I would not even attempt to comment on whether the president's intent would satisfy the requirements for incitement.

Jeffrey Rosen: [00:06:41] Erwin, in addition to the legal question of whether the president incited violence, there a legal question about whether the people who participated in the armed assault of the Capitol were guilty of violating the prohibition against insurrection against the United States articulated in the Smith Act and in other statutes. Can you tell our listeners whether you think there might be a legal case to be made against the armed mob and more broadly, whether or not the legal requirements are met, how yesterday's events compare to previous examples of armed insurrection against the United States.

Erwin Chemerisnky: [00:07:19] Let's be clear that those who engaged in the violence at the Capitol violated the law and need to be prosecuted for that. And that's unquestioned. Those who disobeyed the police, those who broke into the Capitol, those who defaced the Capitol, violated many different laws and those seem to be the easiest basis for prosecution. Violence is never justified as a form of expression.

Now, to answer your specific question. Again, I would start with the words of the statute. It says whoever incites, sets on foot, assists engages in any rebellion or insurrection against the authority of the United States, the laws thereof, or gives aid or comfort there to has violated federal law. I think there's certainly an argument that would happen yesterday was a form of insurrection.

Now, whether it's worth prosecuting that given the other crimes seems to me the difficult question. In terms of the Smith Act, it's about advocating the overthrow of the United States government. I don't think that's what was going on yesterday. Obviously, what they were trying to do was intimidate Congress and convey a message. But I don't know that it's the same as overthrowing the government. I'm always worried about federal prosecutors or state prosecutors, overcharging crimes. Here, there's a lot of crimes that can be charged. I don't think there's a need to reach for the Smith Act.

Jeffrey Rosen: [00:08:51] Judge Luttig, Erwin just  quoted 18 U.S. Code 23, 83, whoever incites, sets on foot, assists or engages in any rebellion or  insurrection against the authority of the United States or gives aid or comfort there to shall be fined or imprisoned. Your thoughts about whether the technical definition might be met and, more broadly, you've served in many branches of government and the executive branch and the Department of Justice. How should a prosecutor think about whether or not to prosecute the mob and which charges, if any, to bring?

J. Michael Luttig: [00:09:21] I don't believe that as Erwin does not believe  that this should be prosecuted as an insurrection or effort to overthrow the United States government. It was not that . On the other hand , I don't have any doubt that those people, at least who breached the Capitol , and entered and occupied the Capitol , should be prosecuted to, you know, to the fullest extent of a number of laws that they could be prosecuted under . As to those people who remained outside the Capitol in mere protest, assuming it was not violent, I would not prosecute those people at all , on the same basis I suggested, which is I don't think there's enough evidence to satisfy the statute that these people were or attempting to overthrow the United States

Erwin Chemerisnky: [00:10:27] government.

Erwin, Facebook

Jeffrey Rosen: [00:10:29] today has blocked the president's account for two weeks , Twitter for a period of

Erwin Chemerisnky: [00:10:34] time, which it may re-examine. Discuss the

Jeffrey Rosen: [00:10:37] role of the social media companies in this mob activity. The president invited his supporters to Washington several weeks ago, and the coordination for the armed assault was made online. Are the social media companies applying the correct standards in deciding when and whether to block accounts, and more broadly, what are we learning about how online mobs can organize online and then take violent actions offline?

Erwin Chemerisnky: [00:11:04] To

Jeffrey Rosen: [00:11:04] start with, as I'm sure you and all the listeners

Erwin Chemerisnky: [00:11:07] know, the first amendment doesn't apply to the choices of Facebook. The first amendment limits only what the government can do. Facebook is a private

Jeffrey Rosen: [00:11:16] company, it can make

Erwin Chemerisnky: [00:11:17] the choices

Jeffrey Rosen: [00:11:18] it wants as to what will be

Erwin Chemerisnky: [00:11:19] on its

Jeffrey Rosen: [00:11:20] platform. That said, I'm

Erwin Chemerisnky: [00:11:23] troubled by what

Jeffrey Rosen: [00:11:24] Facebook did, though I understand

Erwin Chemerisnky: [00:11:26] why they did it. Social media was crucial in allowing this mob to form. Social media

Jeffrey Rosen: [00:11:34] was a basis for their

Erwin Chemerisnky: [00:11:36] incitement.

And yet, I'm so worried when anyone, whether it's the government or a large company, like Facebook, is censoring speech. I've always believed that the best remedy for the speech we don't like is more speech. And, so, in this instance, I'm troubled by what

Jeffrey Rosen: [00:11:57] Facebook did though I certainly

Erwin Chemerisnky: [00:11:58] believe they had the legal right to do it.

Jeffrey Rosen: [00:12:00] Mike, your thoughts on Facebook's decision to block the president's account and the role of social media companies in this mob violence?

J. Michael Luttig: [00:12:09] Yeah, Jeff , you know, all of us have have struggled with this question as it relates to the present United States for the past four years And, it is an agonizing question of first amendment law, as it would relate to the the government, but also as to the nonconstitutional question, as it relates to social media . It is, let's begin by saying it is remarkable, remarkable, that anyone would censor statements by the president of the United States. Now, of course, the statements that have been made by this president of the United States for four years and particularly over the past couple of weeks, are the statements that one might want to censor, even though they come from the president of the United States of America. As to the media , I have convinced myself and I believe this is correct, that the media should never censor the statements of the president of the United States.

And I really finally came to that conclusion yesterday. As I was watching the events unfold, watch the president elect make his statements to the nation. And to the world and then followed by the the, the video that the present United States released. I think most people in America had the same reaction that I did to the, to the president's video.

But I thought to myself as I was watching that and, and listening in, in rapt attention as the world did, could you imagine, and do we want to imagine a country in which that statement yesterday dramatic, constitutional historic statement would be censored by anyone at all? And, and, and I think for me, that's unimaginable and I have essentially the same views as to that statement and like statements by the president for social media as, as R one points out, it's not for us to tell, tell Facebook and Twitter what what to do.

But it's inconceivable to me that they serve there. Customers by censoring the statements of the president of the United States. Jeff. Thank you for grappling with that question. So thoughtfully or when? Not only the U S Capitol was assaulted yesterday, but state capitals across America who experienced similar violence, the moms are moms who.

Assembled across America were motivated by their belief that the election had. In fact, been stolen, reflecting a vision of reality that federal courts have almost unanimously rejected. What should we make of this armed uprising across America? And is there any role for courts. Congress or the media or the president in establishing reason rather than falsehoods.

First violence is never protected by the law and is never acceptable in a society governed by the rule of law. There's the right to peaceful protest. But when people storm, state, capitals of the United States Capitol, they're violating the law and there's no first amendment protection for such behavior.

Second. It's crucial to note that every federal and state court with the judges Republican or democratic rejected, the claims of fraud, the attorney general of the United States said there was no significant evidence fraud. And I would even hope that the United States Supreme court in dismissing the remaining cases on its docket.

Would issue some kind of statement as part of the dismissal of cases, but the absence of evidence of fraud. There are millions of people who not withstanding this believe that there was fraud. And I think we need to find a way to get the accurate information to them. And finally, we do have to be troubled by how false information can circulate over social media and the internet.

The solution to that isn't censorship. But we do have to think about when chief speech is so easy when false hoods can be so readily circulated, how do we make sure that true speech triumphs? And I think that's an enormously difficult question for the first amendment and for our society. Thank you for putting the question so forcefully, how do we make sure that true speech trans over false speech, Michael asked you your thoughts about that question?

How did the judiciary perform in establishing true speech rather than false speech and given the first amendment, what can be done to ensure that true speech triumphs th th the judiciary performed. It's constitutional role throughout this Jeff supremely, if you will. And, and, and in the course of doing that, it did not quote, adjudicate at any point the public policy question that you raised nor should it have.

So the courts rejected as Erwin pointed out every claim of fraud as they properly should have done. And then I would just, you know raise this interesting question for discussion. Maybe today. Probably not, but, but for, for the future you know, the president's claim was fraud throughout the entire post-election time period.

But what we saw yesterday in the president's longer statement was in my view, a very important shift. In that, that extended letter, really the, the PR. And, and of course the president didn't write this and that's, that's really my point. It was his lawyers who wrote it. They did not claim that there was fraud in the 20, 20 election, as you know, Jeff and, and professor.

What, what, what the president claimed yesterday was that the various States in question. Had promulgated their election rules, unconstitutionally. Yeah. That is that the, the, the rules, the election rules in the various States that, to which he made reference promulgated their rules either through the courts or through yeah.

 Administrative and political officials within the respective States rather than. Through the legislature. Now that isn't that is an argument that, of course that was raised first and foremost. Post-election and, and by the way, even pre-election because that was the Significant constitutional issue that was posed by the the litigation that went to the Supreme court of the United States in the Pennsylvania and Wisconsin cases.

That was the case that, that the court initially rejected and declined to decide for four. And that most of the country expected to return to the Supreme court later for a final decision. I believe it would have come to that. Had the Pennsylvania been a determinative state for the election, which in the eventually it was not but it was for history.

It is significant what the president said yesterday to be his culminating argument. And it was not that there was fraud in the election. But instead, it was the constitutional question that I just posed for you. Thank you for teeing that up and it's well worth discussing. Or when Mike properly notes the president yesterday and his lawyer previously before the Supreme court.

As well as senators Holly and Cruz in objecting to electoral votes claim that for example, Pennsylvania courts violated the constitution when they created deadlines for the counting of mail-in ballots and said that it was the exclusive province of the legislature to do so. What do you make substantively of those arguments and are the courts or Congress the right venue to resolve them?

First, it was unnecessary in this election to resolve those issues. Let's take Pennsylvania who was at stake was that the Pennsylvania Supreme court extended the time for counting absentee ballots from November 3rd to November 6th, it involved 10,000 ballots that came in. They made no difference to the outcome of the Pennsylvania election.

And that's why the Supreme court didn't take up the case. The same thing was true with regard to Wisconsin. Second on the merits. I disagree with the argument. The constitution says that the state legislature makes the rules, but of course, any laws passed by a legislature are interpreted by the courts in 2015, the kiss called Arizona state legislature, Brazil, Arizona district commission, the United States Supreme court said that legislature in this context, Refers to the lawmaking process of the state, not just the body of the legislature itself.

Otherwise it would say the courts can't declare a state laws, unconstitutional, the deal with the election can't even interpret state laws that deal with the election. And so I don't think on the merits, it's a strong argument, but as I said, I think it's irrelevant here because it made no difference in Pennsylvania or any other state.

Mike. Do you have anything to add about your thoughts, about the merits of the argument about article two and then turn, if you will, to the question of whether you think that. Congress in counting electoral votes has any role in adjudicating that question or whether Congress's role is purely ministerial?

Yes. I asked her the first, I was just going to say Jeff, that it, the Supreme court properly did not decide the case for the reasons that that Arwin said. But for your listeners this is an utterly fascinating. Constitutional question of the highest, highest order. And as, as you know, in many of your listers listeners know, you know, there, this was the concurrence in, in Bush versus Gore.

And and then in this past election cycle, both justice Alito and justice Kavanaugh broach the, the issue with justice Alito inviting it. And then and that was before on justice. Amy Coney Barrett was confirmed. And so I think most people who, who had studied the question seriously believed that there might well be five votes.

Had the question return to the Supreme court. And most people believe that that was the issue at stake with Amy Coney Barrett confirmation. And in that regard I would just remind me, remind you that I, I wrote. Based upon a Supreme court opinion that justice Barrett would have to recuse herself or might have to recuse herself from that all important constitutional question had it returned to the Supreme court after your second.

The good question you know, this is, this is moving us toward the, the. The all important question of the vice president's role, which you'll get to I'm sure. In a moment, but you asked about the con the Congress's role. Of course the Congress does have a role and I'll call it a substantive role in the, the, the counting, if you will, of the electoral college votes On, unlike in my belief, the vice-president for instance.

So what, what Congress did, you know, yesterday was debate and discuss the, the, the, the issue surrounding the election that's their, that is their role and you know, had that discussion turned out differently. Then the Congress could have played a role in the election of this president. But if we, if we go back to the fundamental position that there was not sufficient and I, and I'm going to say sufficient problems with the election fraud in the elections, then there's no way that, that discussion by the Congress.

Could have ever led to Congress's involvement in the selection of the next president United States. Erwin focusing on this question of Congress's substantive role in counting the ballots in objecting to Arizona and Pennsylvania's certification, senators, Cruz, and Holly and others said that they wanted to create a commission to look into the question of fraud and then reconvene and decide whether or not to accept the vote certified by the States.

Is that consistent with the 12th amendments instructions to Congress that the votes shall be. Counted the president of the Senate shall and the presence of the Senate open the certificates and the votes shall be counted in the person having the greatest number of votes for president be the president or in the event that there is not more than one slate submitted by the States.

Do you believe that Congress has no substantive role to play in deciding whether or not to accept state certificates here? It's both the 12th amendment. And the electoral County act that govern how it's to be done. It's important to note the electoral County act says that if a state designates its electors by the designated day, which this year was December eight, there is a safe Harbor and it's to be presumed that those electors will vote for the state in the electoral college.

The electoral college met on December 12th. And it voted. There was no evidence that the electoral college didn't comply with the constitution, but electoral County act, there was no evidence found by any court to support there being fraud. There was no state where there were two sets of electors to choose among whether it was a viable choice between them.

And in fact, there's a procedure in electoral County where the governor gets to Dan have a role in resolving it. I could certainly imagine with different facts, a role for Congress and holding an investigation. I can imagine with different facts or role for Congress, Devin choose between competing sets of electrics mistake, but it wasn't remotely close to that in these facts.

Mike, any further comments that you have about whether or not the six or seven senators who objected to those two States acted consistently with the constitution yesterday, and then turn to the second question, which you so importantly addressed in an op-ed of yours that was quoted by the vice president and tell our listeners why you believe that the vice-president has no substantive role to play.

Beyond certifying the counting of the votes. Sure. Jeff, you know, to beat somewhat provocative. Yeah. First question. I believe that if it had been done in a timely fashion that a commission could have been set up But it probably would have had to be set up not just in a timely fashion, but completed its work, whatever that work was in a timely fashion as well, because a as our wind points out, you know, there are time limits for these various act that are constitutionally prescribed.

And, and, and the Senate or the Congress would not have the constitutional power to exceed those time limitations. For instance I would say bracketed in, in this event, at least by the inauguration date set forth in the constitution, but then the provocative point I would make is that assuming that that was not permitted.

The interesting question for me. And I don't think the country will ever get to it is whether the Supreme court of the United States would adjudicate that question. And I don't think it ever would. If you want me to turn them to the what in my view is the largest question of the day. I will, Jeff.

Good, you know, and that question listeners is th th the obvious one. And that is the role of the vice president yesterday in the counting of the electoral college vote. This is not just, you know, monumentally important, constitutional questions. Never before thought to be such. I should. I had but was made such by the historic historic moment that vice-president Pence was put in by his president.

So to review the bidding, as it were know, we have the president of the United States of America. Demanding that his vice president challenge and reject certain of the electoral college votes. Talk about historic, never before in history. I suspect never again in history, but all of us just should focus and concentrate on the position that the vice president of the United States of America was in yesterday.

It's excruciating political constitutional and historic pressure. Unlike any pressure that could be put on the president or the certainly the vice president of the United States. And it was all on. The vice president's shoulders alone. And, and everyone knows that the fascinating discussion of what we know now as to what occurred between the two men, literally leading up to the moments that the vice president left to, to travel to Capitol Hill, but in any event on the issue I did make a statement through Twitter.

That outlined in my view, the, the the constitutional imperative on the vice president of the United States. And, and I said what I believe to be the correct constitutional position that the that the vice-president I will not say performs only a ceremonial role, because I think it's more than that, but I said, Under the constitution.

He does not have a larger power than to count the electoral college votes as they were cast by, by the respective States. And then to to my great surprise, but great personal honor Jeff and, and professor the vice president United States. Cited. My analysis, if you will in his letter to the nation explaining what he would do yesterday and of course what he did do again, I don't never before in history and I don't believe ever again, in history, will the country be faced with that issue?

Or when do you agree with judge Luke's conclusion, which he shared in the way he described that the only responsibility and power of the vice-president under the constitution is to faithfully count the electoral votes as they have been cast, as his statement began. And then more broadly, how do you evaluate the conduct of vice-president Pence during this remarkable events of the past few days?

I completely agree with judge Ludwig's analysis of the role of the vice president. It's an important role, but under the constitution, under the electoral County act, the vice-president has no authority to reject the electors of a state. I also share his admiration for how the vice-president performed here.

It's hard to imagine the pressure that he was under from the president of the United States to reject the results of the electoral college. Of course had he done. So he would have remained vice-president of the United States. So there was a personal incentive to do that. And yet this regard, I would say he was a profile of courage.

He followed the constitution and the law, and we should all admire him for what he did. Judge. What are the remaining legal and constitutional questions, if any, for us to discuss, should there be any punishment? For either the president or the mob or should the country simply move on? I, I think that I'll take the Liberty to, to confine myself to the second question.

 Jeff, I think we've, we've we've addressed it and certainly touched upon the, the, the first and of course the second is the most serious of all. In addressing that I, I would. Huh first footnote, the, a large constitutional question remaining. And one that is probably more alive and vibrant today than it was yesterday.

And that's whether the president has the authority to pardon himself as he leaves the oval office. Perhaps you could express your views about that because you've expressed them eloquently and our leaders would benefit from Uranus. Yes.  As you know, I, I, I I wrote on this issue as well long before today.

But I did say that the president does not have the authority under the constitution to pardon himself. That is a question that, that reasonable scholars could disagree with me over. Th th the contrary argument, which has a long been held by most people, never had the occasion to think much about it was that because of the, the, the, the language of the pardon clause is so expansive and seemingly limitless.

Believe that the present United States could pardon himself. So I did take a I guess you, what you could call a provocative position on that as well. And I wasn't writing as a, as a scholar. I was I was writing as if I were a federal judge deciding that that constitutional question.

And and as you know, I I parsed. That seemingly limitless, expansive constitutional text in, in, in the way that, that, that you Jeff know I do and and concluded that the, the text was at the very least ambiguous on the question, whether the president could pardon himself. And as I ultimately concluded, it was.

Less ambiguous even than that, such that if I were to interpret the clause, I would interpret it. So as not to permit the president to pardon himself, but, but to go, you know, just, and tee it up for you or, or Irwin this is going to be a monumentally important question. I think most people today, And, and, and again, most people today, as opposed to yesterday, would believe that the president will be tempted to pardon himself on the way out the door, or when your thoughts about whether or not the president can.

Pardon himself. I completely agree with Mike here to the language of article two says the president can grant pardons. That implies that it's something bestowed on another. If you look at the pardon power in Anglo American history, world history, it's always something that's been bestowed on. Another, even more important to me, the constitution is about the rule of law in the core of the rule of law.

Is that no one, not even the president is above the law. If the president can pardon himself for any federal crimes than the president can place himself above the law. And I don't think the constitution can allow that. Well, Mike, then let's focus on this crucial important to them. The most important question.

How can the rule of law be preserved moving forward? And you began by saying that you believe that in the end. So far yesterday, January six, 2021. The rule of law. One, tell us why that's the case and how the rule of law can continue to win moving forward. W well, to answer that, the first question first, Jeff and, and simply the president of the United States did not prevail before the courts of the United States.

And therefore, before the nation. In his baseless claims of fraud in, in the 20, 20 election. Second putting aside the question of, of his technical incitement of the events of yesterday, he wanted that the events of yesterday to occur, not. We will assume in into their extent or, or in their magnitude of of course, but he wanted his own vice president to reject the electoral college votes.

And he wanted the Congress of the United States to declare him the next president of the United States as well. That did not happen. So this was, as I mentioned at the beginning, in my view, the, the the ultimate test of, of our constitution and literally of the American democratic system it was messy.

It was maybe we can say it could have been successful. We could say it might have been successful. But I will drop another footnote here too. If it would have been successful, it was not successful in the end of the day because of the historic profile in courage as, or when called it of the vice president of the United States.

He along yesterday had the power. An awesome power beyond our comprehension until yesterday to have, you know, I, and I, and I will be careful about the word, but I will not say to have brought down the American democratic system, but to have seriously impaired it going forward in a way, and to a degree.

That I don't believe that our democracy could have ever recovered. So that that's the way I that's the way I would answer that. Jeff. Erwin. Do you agree that the rule of law prevailed yesterday? And if so, what institutions would you credit for that? Mike has mentioned the role of the vice president.

There were others ranging from state election officials to federal and state judges. If the rule of law and the constitution prevailed. Why do you think that was? I think that the rule of law did triumph. I think there was an impressive assault on the rule of law. There was an effort by the president of the United States to undo the results of a popular election and the results of electoral college.

There's an effort by the president United States to stay in power, even though the democratic process had rejected that, but ultimately the rule of law triumph in a triumph the last couple of months to go back, the election was held in the midst of a pandemic, and yet there was record turnout. And no evidence of fraud, no evidence of foreign influence elected officials, democratic and Republican accurately counted the votes and they refuse to change the count.

Even when pressured by the president of the United States, the judges. Democrat and Republican stayed in federal listened to the evidence and arguments and concluded that there was no evidence of fraud. And there was no legal claim for overturning the election. And yesterday. The overwhelming number of congressmen and congresswomen and senators democratic and Republican followed the constitution and followed the electoral college act electoral act and deemed Joe Biden to be the next president of the United States.

That's Jeff Wise say the rule of law triumph, the guardrails of democracy were challenged and pushed more than ever before, but thankfully they held. Mike, are there any other ways in which the constitution and the institutions that it created triumphed? Well, Jeff, if the courts of the United States, including most importantly, the Supreme court of the United States, but in the end, the Congress of the United States as well, and then with a footnote provocative footnote to follow the presidency prevailed as well.

The footnote that I want to raise. And of course we can't discuss it today was the apparent decision by the U S military to dispatch the national guard, a decision that seems to have been made by the vice president of the United States, not the president of the United States. So the presidency.

All of the the tripartite system of our government. They did triumph. And in the ways that Ron and I have discussed. Well, it's time for closing thoughts in this remarkable discussion, or when can you share with our listeners, what you think are the constitutional lessons we've learned from the historic events of January 6th, 2021.

I just want to thank you and Mike for this wonderful discussion. I'm so honored to be part of it. Democracies are there until they're not no form of government lasts forever. I never imagined that my lifetime there'd be such a serious threat to American democracy as we've seen over the last couple of months and especially yesterday, but ultimately the guard rails worked, the constitution and federal laws were followed.

And yet I worry. What if there had been significant evidence of fraud in this election? What if it had been a much closer election than it actually was? What if some of the election officials cave to pressure from the president and others? What if the courts haven't fulfilled their function? What if our democracy survived?

I hope very much. We never see anything like this again, but ultimately what this reflected is we are a very polarized society and what's so important is how do we come together? Judge alluded to the last word is to you. What are the constitutional lessons of the crisis of January 6th, 2021? I would just leave, you know, the discussion with that last footnote because the commander in chief is the individual constitutional you as the authority to deploy the national guard, as well as the United States military.

This is an open question of some magnitude to say the least, and we're going to have to get our arms around that. And then finally, I would just say not to create more work for you, Jeff Rosen or the national constitution center. But you know, this is a moment in time in our history where we have to have an after the fact.

Reconciliation of, of all of this, particularly those of us and you who are concerned most with the constitution. And I can think of no one better to undertake that historic review overview analysis and thinking than than the center, Jeff. Thank you so much. Erwin Chemerinsky and Michael Leunig for a principled sober and illuminating discussion of one of the greatest challenges to the us constitution that any of us has ever experienced.

The national constitution center will continue to convene discussions like this as part of the urgently important project of educating Americans about the U S constitution so that we can preserve, protect and defend it. Dean Chemerinsky, Judge Luttig, thank you so much for joining.

Erwin Chemerinsky: Thank you so much for including me, Jeff.

J. Michael Luttig: Thank you. And thank the center. It's been my honor. 

Jeffrey Rosen: Today's show was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Mac Taylor and please rate, review and subscribe to We the people on Apple podcasts and recommend the show to friends, colleagues, or anyone in America or around the globe who was trying to make sense of the extraordinary constitutional events that the nation is confronting.

And thank you so much for learning with us and thank you for listening. Thoughtfully to scholars and Americans of diverse perspectives as together attempt to grow in wisdom about the great document of human freedom and equality that unites us, the us constitution. Always remember that the constitution center is a private nonprofit. We rely on the generosity, engagement and passion with people from around the country learners in the Republic of reason, like you were devoted to civil dialogue and education about the constitution. Please do support our mission mostly by listening, by letting let me know what the podcast means to you.

And of course, by engaging with the constitution center, you can support us by becoming a [email protected] slash membership, or give a donation of any amount to support our work, including this [email protected] slash donate, the work is so important and all of us at we, the people are so grateful to you for being part of it. On behalf of the national constitution center, I'm Jeffrey Rosen.

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