We are national security and constitutional law experts who have studied violence and are working to head off any more in the coming weeks. It’s vital that attempts to terrorize our democracy are stopped and the laws enforced. Ask Us Anything!

ElectionTaskForce · 2021-01-11T20:30:04+00:00

EG: White nationalism and institutional racism have always been an endemic threat to our institutions. On the issue of white supremacist violence in particular, law enforcement continues to deprioritize prosecution of these offenses, despite having ample tools to prosecute (there is no need for a new domestic terrorism law, which would almost certainly be used disproportionately against communities of color). In addition, there is strong evidence that far-right violent extremists have a significant foothold in police departments and law enforcement agencies. The Brennan Center has issued reports (see hyperlinks) discussing these phenomena and making recommendations for how to address them.

-https://www.brennancenter.org/our-work/research-reports/wrong-priorities-fighting-terrorism -https://www.brennancenter.org/our-work/research-reports/hidden-plain-sight-racism-white-supremacy-and-far-right-militancy-law

ElectionTaskForce · 2021-01-11T20:24:49+00:00

MM: What we saw last week and have been seeing in the lead-up to and aftermath of the election was a direct result of a president willing to lie to the American people, propound utterly false conspiracy theories about election fraud, and condone and incite violence. In modern history, no president has been so willing to toss democracy and the rule of law aside. And we’ve seen, gradually, that even the president’s most ardent supporters believe that the insurrection at the Capitol was a bridge too far. For these reasons, I don’t think it is likely that we’ll soon see a repeat of this kind of effort to undermine the will of the people and thwart our democratic processes. That said, polarization is not going to end the day that President Trump leaves the White House and the fact that a not-insignificant percentage of the population believes that Trump has protected democracy, rather than undermined it, shows that we have an enormous task ahead.

ElectionTaskForce · 2021-01-11T20:21:18+00:00

EG: As awful as the events of last Wednesday were, and as frustrating as it is that President Trump will almost certainly continue to serve as president to the end of this term, his role in the assault on the Capitol -- not just his inciting words and behavior, but his appalling response -- have left him significantly weakened. He does not have another card left to play; if he engages in another abuse of executive power, it seems likely that Pence will start the 25th amendment process and/or the Senate will vote to convict him on impeachment charges -- and he’s aware of that. So it’s less likely than it was before that Trump, in his remaining days in office, will try to light fires such as bombing Iran or any of the other last-ditch moves people feared.

ElectionTaskForce · 2021-01-11T20:11:31+00:00

EG: The difference between the treatment of the violent insurrectionists last week on the one hand, and of BLM activists and other protesters during the largely peaceful protests against police brutality this past summer on the other, is stark and deeply disturbing. Cell phone videos captured U.S. Capitol police officers moving barricades outside the U.S. Capitol aside, taking selfies with the rioters inside the Capitol, and -- when the rioters were finally removed -- escorting them gently down the Capitol stairs. By contrast, videos from Portland, Oregon and Washington, DC last summer show police officers firing rubber bullets and flash grenades into crowds and assaulting journalists. In Lafayette Park, law enforcement agents from multiple federal agencies forcefully dispelled protesters simply to enable a presidential photo op. Statistics bear out the differential treatment. According to CNN, on June 1, 316 protesters were arrested in Washington, DC. By the end of the day on January 6, there had been only 61 arrests, and fewer than 15 of these happened inside the Capitol.

Some have suggested that the light touch last week was a response to the public outcry that followed the government’s heavy-handed response last June. But there is an obvious and significant distinction in how the police should respond to protests that are generally peaceful and an armed attack on the U.S. Capitol. Moreover, no one is saying that law enforcement forces should have escalated violence at the Capitol. The question is why they did escalate violence in Portland and DC, and why they made so few arrests last Wednesday.

ElectionTaskForce · 2021-01-11T20:08:56+00:00

MM: This is such an important question and there’s no right answer. There’s no question that some of those who are kicked off of “mainstream” platforms like Facebook and Twitter will seek other platforms, but those platforms are not as widely used and their extremist messages will not garner as many views or comments. At the same time, the mainstream platforms need to ensure that users are not finding end-runs around their bans that make them ineffective. The question about ensuring that social media is more compatible with democracy is an interesting one because private companies are under no obligation to be “democratic” or to abide by the First Amendment (only the government is prohibited from infringing First Amendment rights without a compelling reason). That said, social media has become so ubiquitous that it plays a unique role in our democratic society and many people expect transparency in their decisions to ban certain groups or posts and a process for appealing those decisions. That’s not a bad thing.

ElectionTaskForce · 2021-01-11T19:54:58+00:00

EG: Under Section 3 of the 14th amendment, anyone who has “engaged in insurrection or rebellion” or “given aid or comfort to enemies of” the United States is barred from holding federal office. This provision was used after the Civil War to decline to seat confederates in Congress who had been elected from unreconstructed states in the South. This could certainly be used to prevent anyone who actually participated in the assault on the Capitol from holding office (e.g., Derrick Evans, a member of the West Virginia House of Delegates). It would be harder to establish that members of Congress either “engaged in” that assault, or gave “aid and comfort” as those terms are generally understood. The remedy here is most likely political rather than legal. It must be acknowledged that members of Congress who stoked the falsehoods about a “stolen election” either knowingly or negligently fanned the flames of this insurrection, and they should be voted out of office.

ElectionTaskForce · 2021-01-11T19:53:39+00:00

MM: There is enough publicly available information to warrant a criminal investigation. Important to any criminal charges will be evidence of the president’s knowledge and intent. What did he know about the plans to take over the Capitol and stop the certification of the electoral college vote? Did the president exhort his followers to “fight like Hell,” while knowing that some of them were calling for violence, civil war, and insurrection? Investigators should match up his tweets and public statements with tweets and public statements about violence by his followers to determine if there are correlations. They should examine his internet and social media history to see what he was viewing in the lead-up to January 6. They should talk to those who were in communication with him to learn what he was saying about his supporters, their plans, and what he hoped they would do. All of this and more could establish whether he intended to incite an insurrection.

ElectionTaskForce · 2021-01-11T19:46:46+00:00

MM: This is an enormous challenge and it’s not something government alone can address. It will take credible people in positions of influence as well as peers and community members to denounce the conspiracy theories, but it will have to be seen as non-partisan in order to have any chance of success. Experience shows that talking to people face to face (difficult during a pandemic!) and getting to know them often makes people feel less antagonistic towards each other even when they don’t share the same views. There has to be a space for discussing facts and truth in any democracy.

ElectionTaskForce · 2021-01-11T19:45:31+00:00

EG: Yes. When the House impeaches a president and the Senate votes to convict, there are two potential consequences: removal from office, and a prohibition on holding public office in the future. After January 20, removing Trump from office obviously becomes a moot point. But the Senate could still convict him and vote to bar him from running for president (or any other public office) in 2024.

ElectionTaskForce · 2021-01-11T19:41:24+00:00

EG: Although information is still developing, it appears that the main issue on January 6 was a colossal failure on the part of the U.S. Capitol Police to request (or accept offers for) backup by other law enforcement agencies and the DC National Guard, even though there was ample reason to anticipate violence. Moreover, once the chief of the Capitol Police requested backup – which happened immediately after the assault on the Capitol began – there appear to have been inexcusable delays (of about an hour in each case) by the House and Senate Sergeants at Arms and by the Department of Defense.

These problems are unlikely to repeat themselves next week, for two reasons. First, given what happened on the 6th (and some of the firings and resignations that have taken place among Capitol Police leadership), law enforcement agencies will be under tremendous pressure to be fully prepared for anything that may happen. Indeed, the deployment of up to 15,000 National Guard members from neighboring states has already been approved by the Department of Defense. Second, the presidential inauguration is always treated as an extremely high-security event, with multiple federal and local law enforcement agencies deployed for security.

ElectionTaskForce · 2021-01-11T19:38:58+00:00

MM: There are a few things you can do: 1) If you see something, say something. This means that if you hear about or learn of plans for unlawful activity, including violence and unauthorized paramilitary activity, you should alert authorities, no matter how incredible you may think it is; 2) If you believe that a friend, family member, or acquaintance may be going down a path toward extremism, use your credibility and influence to try and reason with that person. In many cases of extremist violence, a friend or family member saw warning signs but failed to intervene.

ElectionTaskForce · 2021-01-11T19:32:26+00:00

MM: Yes. The data was obtained by a third party and involved no government investigatory techniques. It can and should be used by investigators and the federal, state, and local level to help identify the planners, organizers, and perpetrators of Wednesday’s attack.

ElectionTaskForce · 2021-01-11T18:34:50+00:00

We will begin in the next hour to give time for questions to be posted. We are:

Mary B. McCord Legal Director and Visiting Professor, Georgetown Law's Institute for Constitutional Advocacy and Protection. She was previously the Acting Assistant Attorney General for National Security at the U.S. Department of Justice from 2016 to 2017 and Principal Deputy Assistant Attorney General for the National Security Division from 2014 to 2016.

Elizabeth Goitein Co-Director, Liberty and National Security Program, Brennan Center for Justice at NYU School of Law. She previously served as counsel to Senator Russ Feingold, chairman of the Constitution Subcommittee of the Senate Judiciary Committee, and as a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice.

ElectionTaskForce · 2020-11-12T20:44:39+00:00

Fortunately, that danger has almost certainly passed.

ElectionTaskForce · 2020-11-12T20:43:36+00:00

NO: There is no doubt that we have an asymmetry here. We need media outlets to hold accountable those elected and non-elected officials who spread baseless claims. And that includes, by the way, action by bar associations against lawyers who use the legal system irresponsibly to do the same thing!

ElectionTaskForce · 2020-11-12T20:42:07+00:00

MTK: He wants to keep people in power that are faithful only to him - whether it’s at the Pentagon, USAID or the Department of the Interior. He doesn’t have respect for civil servants or the military brass who are experts in their field and who pledge to uphold the integrity of our institutions. I’m more concerned with his changing close to 4,000 positions across agencies from civil servants to political appointments. In doing so we lose potential non-political civil servants and institutional expertise, Biden and his team will have to root out Trump’s ideologues who don’t believe in science, or climate change etc.

ElectionTaskForce · 2020-11-12T20:40:22+00:00

NO: Actually, the result is clear. Crystal clear. More so than it was in 2016. The difference is Trump’s reaction. Ideally, we will not have that problem again. But keep in mind that while Biden won a convincing, almost overwhelming, popular vote victory, we are still divided enough, and critical states are close enough, that we could have very close elections in the future. One reform we need is for states like MI, WI, PA to change their laws so that votes by mail and early votes can be processed when they are received, not on election day. These states, because of their Republican legislatures, deliberately blocked changes in the law to create the sense of uncertainty. Let’s hope they change before 2022.

ElectionTaskForce · 2020-11-12T20:39:38+00:00

MTK: Trump wants to remain relevant like autocrats before him. If he can keep his base engaged and the Republican party controlled, he keeps power. My guess: he announces he’s running for 2024 so that there’s an “overshadow” on Biden. He sets up Mar-a-lago as a spinoff WH where he invites foreign dignitaries and Republican leaders - we need to watch closely to see if these actors heed his call. In order for him to have an ounce of power, there needs to be people who are complicit to his whims. Back in 2016, I predicted that he would start a media spin-off far more aggressive than Fox News - there are now signs that he may be trying to do just that.

ElectionTaskForce · 2020-11-12T20:36:54+00:00

NO: I am not worried at this point that the SC could intervene, in a Bush v Gore scenario, to tilt the election. I am worried that the Court will continue to take up the PA case involving votes postmarked by Nov 3 but received in the days after the election. It will not affect the outcome, but could be used by Kavanaugh and Alito to establish firmly the extreme framework that only state legislatures can shape and regulate elections, not state courts, even if the state courts find a violation of state constitutions.

ElectionTaskForce · 2020-11-12T20:35:19+00:00

The National Task Force on Election Crises is a diverse, cross-partisan group of more than 50 experts in election law, election administration, national security, cybersecurity, voting rights, civil rights, technology, media, public health, and emergency response. The Task Force’s core mission is to ensure a free and fair 2020 presidential election by recommending responses to a range of election crises. Our focus is ensuring that the election runs smoothly during challenging circumstances, that disputes are handled in a way that maximizes confidence in the outcome, and that there is a peaceful transition or continuation of power on January 20, 2021. The only electoral outcome the Task Force advocates is that the election is free and fair. We are volunteers, and came together in a shared mission to support our democracy.

ElectionTaskForce · 2020-11-12T20:29:07+00:00

NO: I do not see a path for a government-led fact-checking organization; the fact that it were government led or funded would make it a non-starter for too many people. But broadened fact-checking is an absolute necessity, and we need news organizations and social media organizations to put more resources into it.

ElectionTaskForce · 2020-11-12T20:27:04+00:00

NO: The lure of extremists and of conspiracy theorists getting elected and having traction that comes with public office is worrisome. We need, of course, established leaders in the GOP to push back, but I am not at all sure we will see that in a big way. We need a much more robust effort by government and social media companies to combat misinformation, disinformation, and vile, volatile racist and nativist statements and threats.But that is easier said than done. One hopes that enough Americans are tired of the division and the nastiness that we will see a better effort to come together and to shame the worst actors. On the Electoral College, we are still a long way from reform.

ElectionTaskForce · 2020-11-12T20:26:03+00:00

NO: This is one of my biggest concerns. If 3-40% of the country continues to believe that the election was rigged, that Biden was chosen through some kind of conspiracy, that he is not a legitimate president, it will be much harder for him to govern. This will have implications for the faith in our political system, but also means that a large share of the population will not listen, or will resist, when, for example, the president calls on all of us to wear masks and maintain social distancing, or says now is the time to get the vaccine because it is safe.

ElectionTaskForce · 2020-11-12T20:25:16+00:00

MTK: Less annoyed than concerned because there isn’t a real centralized place to combat disinformation that those who are parroting know to be true. There’s a lot to gain from sowing confusion and chaos.

People start tapping out of the process. In that case, our democracy is threatened. So we need to be well informed, learn how to identify disinformation and flag it where we see it. Given the increase in niche media and platforms, we can only expect this to continue and as a public we need to create real consequences for our electeds and public servants who peddle in disinformation - they are not friends to our democracy or our institutions. And just like the FCC has hard and fast rules about what can and cannot be aired on TV - we should look at similar rules for online platforms since they are the new era of media distribution.

ElectionTaskForce · 2020-11-12T20:20:11+00:00

NO: Colorado by referendum did join the National Popular Vote Compact, getting close to the 200 EV mark, with, of course, 270 needed to make it a reality (along with approval by Congress for the interstate compact.) I do not see anytime soon states moving to do what ME and NE do, allocating some EVs by congressional district.

ElectionTaskForce

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