- - Wednesday, February 9, 2022

The Department of Justice is not a political referee. Treating it as such will erode public faith in both our legal and political institutions.

Recently, the DOJ opened an investigation into the alternate slates of electors put forth by the Republican ticket in seven states following the 2020 presidential election, in response to appeals from Michigan Attorney General Dana Nessel, New Mexico Attorney General Hector Balderas and U.S. Rep. Mark Pocan of Wisconsin — Democrats who expect to benefit politically from media coverage of the drama.

Media coverage, not justice, is their true objective. Unfortunately, the DOJ is playing along. This threatens to criminalize legitimate efforts to contest future election results.

Ms. Nessel, for instance, claims she has enough evidence to pursue state-level fraud and forgery charges, threatening that she will attempt to imprison the 16 Republican electors from Michigan for up to 14 years if the feds don’t pursue them vigorously enough to suit her.

She claims this is the result of a year-long investigation. The relevant section of the Michigan penal code is 300 words. The certificate signed by the electors runs all of three pages, only one of which contains substantive language. The electors were completely open and frank about what they were doing and why from the very beginning.

Yet, Ms. Nessel expects us to believe that it took her office a full year to “investigate” the situation? The timing of her referral, coinciding with similar requests from Mr. Balderas and Mr. Pocan, is transparently political. She was waiting for a politically opportune time to threaten charges, knowing her statements would be extensively covered in the media.

“Fraud” and “forgery” are crimes of intent. Therefore, Ms. Nessel’s threatened charges depend on her ability to demonstrate in court that the Republican electors intended to deceive the government and/or the public. But nobody on either side of the political divide was under any misapprehensions about what was happening at the time.

The alternate slates of Republican electors that the Trump campaign organized and put forward were very clear about their purpose: To serve as a “contingency plan” in case the courts ruled in their favor, or their state legislatures opted to certify them.

In New Mexico, where a state investigation is somehow still ongoing more than 13 months after the fact, the Republican electors put out a press release explaining the historical, legal and political basis for their actions, noting that “legal proceedings … continue to work their way through our nation’s judicial system.”

The New Mexico Republicans cited a relatively recent precedent: the 1960 election in Hawaii. Although Hawaii was initially certified for Richard Nixon, the courts overturned that result, and Congress counted Hawaii’s electoral votes for John F. Kennedy. They also pointed out that even “prominent Democrat lawyers, Van Jones and Larry Lessig,” had acknowledged the legitimacy of competing slates of electors in contests that could still be reversed before Congress convened to count the votes.

In Pennsylvania, the Republican electors were even more explicit about the “procedural” nature of their actions, noting that their intent was “to preserve any legal claims that may be presented going forward” and clarifying that “this was in no way an effort to usurp or contest the will of the Pennsylvania voters.”

Likewise, the chair of the Georgia GOP publicly described the votes of the state’s Republican electors as a contingency plan. “Had we not [met] today and cast our votes, the President’s pending election contest would have been effectively mooted,” David Shafer explained. “Our action today preserves his rights under Georgia law.”

Wisconsin GOP Chair Andrew Hitt offered an equally unambiguous explanation, stating that Republican electors sought “to preserve our role in the electoral process with the final outcome still pending in the courts.”

These were not individuals engaged in fraud or deceit. They were people representing a political campaign that had yet to exhaust its options, under the law, to contest the outcome of an election that many people believed — and still believe — was tainted by unlawful actions and potential fraud.

Many Democrats took a similar position in 2016. Citing a then-popular conspiracy theory about foreign interference, Virginia Rep. Don Breyer and 70 Electoral College electors asked Congress to delay former President Donald Trump’s victory certification until they could receive a classified intelligence briefing. The broader strategy, outlined by Lessig, was to convince a sufficient number of Republican electors to cast their vote for a different candidate to deny Mr. Trump a majority of Electoral College votes — even if that violated state law.

Then, there were no calls for criminal investigations or media tours threatening prison. Our nation must have citizens and institutions willing to protect the freedoms of those with whom they disagree to remain a nation of free people.

Federal law does not preclude presidential electors from submitting paperwork to Congress, either. In fact, the Electoral Count Act of 1887 was written to guide Congress if states sent competing slates of electors, as several did in the 1876 election.

Sadly, the effort by partisan attorneys general and Members of Congress to weaponize the Department of Justice against their political opponents is part of a larger trend that has been evident for decades. Each time justice is effectively politicized, it strengthens the precedent and ensures further politicization of the law.

The inevitable result is the deterioration of public confidence in our nation’s legal and political institutions alike. The courts cease to be viewed as impartial arbiters and come to be viewed as mere extensions of the political debate. Political leaders lose their legitimacy in the eyes of those who do not support their agenda.

Moreover, political discourse often includes different interpretations of events and law. Weaponizing the law and institutions of justice against political opponents is the method of a despot, not the actions of a vigorous democracy. Such intimidation chills speech, the lifeblood of our democratic republic.

• Phill Kline is the former Kansas attorney general. He is now a law school professor and director of the Amistad Project.

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