Rep. Liz Cheney (R-WY) got triggered by a history lesson conservative news host Mark Levin delivered on his Fox News show. Cheney lashed out on Twitter, spouting accusations that former President Trump “likely violated two criminal statutes” because “White House lawyers said so.”
Cheney sits on the committee tasked with investigating the events that unfolded on January 6, 2021. The committee is aiming sharply at former President Donald Trump for what the committee says was a “fake elector scheme.”
History matters, especially when interpreting the United States Constitution and procedures that are not entirely clear. Levin merely cited historical precedent that established elections are not over until Congress certifies the vote. According to a Smithsonian piece written in 2004, a case might be made that pushing back until the moment of certification is neither unprecedented nor “criminal.”
Here is the transcript from the show that got triggered Cheney:
Levin: Before we speak to our guests, as is my wont, I want to give you a little bit of history that you probably haven’t heard and were never taught. It’s the election of 1800. There are really four candidates for president, as it turned out. There were supposed to be two. John Adams was running as a Federalist, of course, seeking re-election, and his main opponent was Thomas Jefferson, running as a Republican. Jefferson was running with Aaron Burr. That was the ticket. Jefferson, Burr as the vice president.
But back then, before the 12th Amendment, whoever got the most electoral votes would be the president. And for reasons I don’t need to get into, although it’s very exciting, Aaron Burr decided that he had a shot at being president. Given the fact that the Federalists were playing games, they knew that Adams couldn’t get the presidency. And having decided that, they then decided to try and stop Thomas Jefferson. They had a problem, though. Even though Hamilton despised both Jefferson and Burr, he despised Burr more. They were both New Yorkers, and he had very, very bad experiences with Burr. Jefferson was furious about all of this. He was furious that the Federalists were playing games. He was furious that Burr had stabbed him in the back. And in the end, as pointed out in the Smithsonian of Peace, written on November 1, 2004, an excellent piece, as a matter of fact, by John Ferling. The Federalists decided to back Burr. Hearing of their decision, Thomas Jefferson told John Adams that any attempt … “to defeat the presidential election would produce resistance by force and incalculable consequences.” … That’s Thomas Jefferson.
Hmm. What else? Burr’s was not the only intrigue. Given the high stakes, every conceivable pressure was applied to change votes — every conceivable pressure. Those in the deadlocked delegations recorded daily, but no one was lobbied more aggressively than James Bayard, Delaware’s lone congressman, who held in his hands the sole determination of how his state would vote. This was the guy that would make all the difference in the world. He was pressured. He was lobbied. Bribes were even offered. For weeks, warnings had circulated of drastic consequences if Republicans were denied the presidency. Now the danger seemed palpable. A shaken President Adams was certain the two sides had come to the precipice of disaster and that … “a civil war was expected.” … There was talk that Virginia would secede if Jefferson were not elected. Some Republicans declared they would convene another constitutional convention to restructure the federal government so that it reflected, … “[the] democratical spirit of America.” It was rumored … “that a mob had stormed the arsenal in Philadelphia and was preparing to march on Washington to drive the defeated Federalists from power.” Jefferson said he could not restrain those of his supporters who threatened … “a dissolution” … of the union. He told Adams that many Republicans were prepared to use force to prevent the Federalists’ … “legislative usurpation” … of the executive branch. Wow.
I think Jefferson would be serving fifty years by about now. In all likelihood, it was these threats that ultimately broke the deadlock. The shift occurred sometime after Saturday’s final ballot. It was Delaware’s Bayard who blinked. And he abstained. So the state didn’t go for either side. And that’s how Jefferson won. The final mystery of the election of 1800 is whether Jefferson and his backers would have sanctioned violence had he been denied the presidency. Soon after taking office, Jefferson claimed that … “there was no idea of using force.” … His remark proves little. Yet, during the ongoing battle in the House, he alternately spoke of a ceding to the Federalist misconduct in the hope that their behavior would ruin them or of calling a second constitutional convention. He probably would have chosen one or both of these courses before risking bloodshed and the end of the union.
Why do I tell you this? Because Jefferson made statements, affirmative statements that Donald Trump never made. The committee’s trying to find ways to put those words in Jefferson’s – Trump’s — mouth. He didn’t talk about a civil war. He didn’t talk about any of that stuff. He didn’t talk about violence that he wouldn’t be able to stop. No, they’re whining about 187 minutes where he put out a video and told people to stop.
So this is a big deal. We have a piece in the Washington Post a couple of weeks back and they’re very excited. And it’s titled, “What Crimes Might the Jan 6 Committee Say Trump Committed” by Amber Phillips – obstruction of an official proceeding of Congress is one of them. And in part, they talk about stopping lawmakers from certifying Biden’s win. They aim to show that the attack on the Capitol was not a spontaneous outburst, but that Trump and his allies specifically planned to disrupt the congressional counting. They have no evidence that Trump did that. None whatsoever.
But what if the counting didn’t go forward? And what if there were legitimate concerns raised by senators or House members? See, here’s the problem: We have prosecutors in the U.S. Attorney’s Office in Washington. We have an attorney general. We have a media. We have politicians in Congress who don’t understand how the Electoral College works. All these electors’ votes from the different states are sent to the archivist of the United States, certified by the state. The archivist sends them to a joint meeting of Congress on January 6 by federal statute. Why does he do that? If the election is over, if the election is done, if the president has been chosen, why does he do that? Because it’s not done until Congress says it’s done. Congress is the last check. Not the courts, not the ballot boxes. Congress, which is why Jamie Raskin, one of the members of the January 6 Committee, objected … to a Republican president at one time. Why? Why? Because he wanted to prevent a Republican from being president, which is why the chairman of this committee, Bennie Thompson, objected – objected once because he wanted to prevent a Republican from being a member … of the presidency.
So this happens. The system is built for objections. The system is built not to rubber stamp. Otherwise, why involve … Congress at all? Why is Congress voting on anything? Why is Congress certifying anything? Because it’s not over until Congress says it’s over.
So when people say that Trump was trying to reverse an election. It’s not over until Congress says it’s over. And we’ve actually had situations like this one with Jefferson where it wasn’t over until Congress made the final decision. And we’ve had other situations like that. So he’s not trying to stop lawmakers from certifying Biden’s win … Conspiracy to defraud the United States. There’s another nasty-sounding criminal statute. That’s an agreement to obstruct a lawful function of the government by deceitful or dishonest means. And they point out, pressuring Vice President Pence to reject state’s electoral results on January 6. Pressuring Vice President Pence. I just told you that members of Congress have objected to electors in state, entire electors. Right. Number one, the vice president of the United States is the president of the Senate. So senators like Barbara Boxer, and she did in the past, can object. But the president of the Senate, who’s also the vice president, he can’t object?
Here’s the dirty little secret that you’re not hearing from the legal analysts. You’re not hearing from the media. You’re not hearing from anybody. Now you’ll hear it. We’re not 100% sure what the vice president’s role is. Look at the Constitution. Does it tell us? No. Look at the 12th Amendment. Is it clear? It’s ambiguous. Look at the federal statute they all rely on from the 1880s. Is that clear? No, it’s convoluted, which is precisely why Republican and Democrat senators are now proposing a bill to clarify what the role of the vice president is when he oversees this process. And they want it to be purely ministerial, where he has absolutely no ability to make any independent decisions. So why are they doing that? Because it’s not clear if he did. I’ll give you a perfect example. What if you learn after the … “election” that there was all kinds of bribery taking place and bribery scheming in, let’s say, a state that turned out to affect the outcome of the election. Now, is the vice president of the United States overseeing the process of the president of the Senate? Can he object? Can he send it back to the states or [must he] rubber-stamp and say, “look, I know, but there’s nothing I can do. I got to wait for one of my friends in the Senate to say something. And they’re not really of the mind to do it and or the House or whatever.” So he can’t do anything. Is that what the framers had in mind? I seriously doubt it. Well, what did they have in mind? They didn’t tell us.
How do you build a criminal case around that? Oh, he pressured the vice president. But the vice president, he resisted. So what? That’s exactly the way the system is supposed to work. It’s not supposed to be criminalized.
What other criminal statute do they have in mind? The committee wants to try and tie Trump directly to the leaders of the mob that attacked the Capitol. Seditious conspiracy. Well, ladies and gentlemen, have you seen any of that? Any of the emails, any of the texts, any of the firsthand testimony, anything on a graphic, anything on a video, anything by anybody, anywhere? Despite the fact that this committee has free reign, you haven’t seen any. There’s been no conspiracy to defraud the United States. There’s been no obstruction. There’s been no seditious conspiracy.
Oh, well, what about these so-called fake electors? That is to be resolved by the United States Congress. That is not a crime either. You might not like it. You might think it’s weird, you might think it’s unethical, but it’s not a crime. So to criminalize politics, to criminalize many of these things that have gone on in this country through its history, to completely misunderstand what the Electoral College is all about, and when the election is finally over — which is why they meet on January 6 — to make that decision is to take the criminal law process and project it on top of the Constitution to pervert it.
The Democrats are pushing hard. They’re pushing hard the attorney general. They’re pushing hard the U.S. attorney. The U.S. Attorney, we’re told, is now investigating Trump. These are the three crimes they’re looking at. They’ve gone after his lawyers. They want to see the phone calls. They want to see the texts.
They want to see what? That a candidate was fighting hard to win. Challenging what was going on in the States. And of course, many of these states don’t have clean hands. There is, you know, Article II of the Constitution, where only the state legislatures – the state legislatures – can make the law through which electors are chosen. Early in our history, the very earliest, the state legislatures selected the electors who didn’t vote. They selected the electors. Well, some of them did, but most of them didn’t. And so the state legislatures had all the power. Today, it could be a state Supreme Court majority Democrat, It could be a governor who’s a Democrat. You see that all occurred in the state of Pennsylvania and so forth and so on. And all these cases, hundreds of them, were brought by a law firm and other law firms in Washington, D.C., trying to change the election laws. They were working their Democrat politicians … in the courts, working them in the governor’s offices, and so forth. And many of them succeeded. Now, like it or not, they’re free to do that, too. They’re free to do that, too. But the other party is free to respond. And the final say is in the Congress of the United States. It’s not in the U.S. Attorney’s Office. It’s not by the attorney general of the United States. It’s not even in the courts. The final say is Congress. That’s why it all winds up before a joint meeting of Congress where the vice president oversees the process. That’s why a member or members of the House and the Senate can object … to the election … and nobody’s been arrested. Nobody’s been charged with obstruction. Nobody’s said that they’re turning democracy on its head. None of those things. I’ll be right back.
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