Very few ever have the honor of counseling the President of the United States of America. That highest of honors carries with it the highest of obligations. Counsel provided to the President of the United States must be the product of not only exquisite, penetrating legal analysis but also profound, insightful legal judgment. These two combined are so far from mere technical legal competence as almost to be its polar opposite. The President and the country deserve nothing less from those who counsel the President, so consequential are the stakes for the Nation when the President acts upon the advice of his or her Counsel. Whatever else, the President of the United States did not receive such counsel during his sustained effort to overturn the 2020 presidential election. It is as much the former president's fault as anyone's that he did not.
American lawyer and judge
False claims that our elections have been stolen from us corrupt our democracy, as they corrupt us. To continue to insist and persist in the false claim that the 2020 presidential election was stolen is itself an affront to our democracy and to the Constitution of the United States — an affront without precedent. Those who think that because America is a republic, theft and corruption of our national elections and electoral process are not theft and corruption of our democracy are sorely mistaken. America is both a republic and a representative democracy, and therefore a sustained attack on our national elections is a fortiori an attack on our democracy, any political theory otherwise notwithstanding.
Over a year and a half later, in continued defiance of our democracy, both the former president and his political party allies still maintain that the 2020 presidential election was "stolen" from him, despite all evidence — all evidence now — that that is simply false. All the while, this false and reckless insistence that the former president won the 2020 presidential election has laid waste to Americans' confidence in their national elections. More alarming still is that the former president pledges that his reelection will not be "stolen" from him next time around, and his Republican Party allies and supporters obeisantly pledge the same.
The Nation wept during the evening of January 6, as the Capitol police began to clear and resecure the Capitol at day's end. Finally, at 8:00 p.m. on January 6, seven hours after the siege on the Capitol had begun, Vice President Pence gaveled the Joint Session back into order with measured, understated resolve: "Today was a dark day in the history of the United States Capitol. . . . Let's get back to work." January 6 was a dark day in the history of the United States, too. It was not until the next day, January 7, 2021, at 3:42 a.m. in the morning — almost fifteen hours after the Joint Session had first been gaveled into session by Speaker Nancy Pelosi — that the Vice President finally declared that Joe Biden had been elected the 46th President of the United States. On January 6, 2021, the prescribed day for choosing the American president, there was not to be a peaceful transfer of power — for the first time in the history of our Republic.
Inflamed, the gathered mob marched up the hill from The White House to the United States Capitol to protest, disrupt and prevent the counting of the electoral votes for the presidency, which the president falsely charged were wrongly about to be counted by the Congress in his political opponent's winning favor and in his own losing favor. Once staged at the Capitol, the mob soon erected gallows on the United States Capitol grounds, chanting that Vice President Mike Pence should be hanged. Hanged, the mob chanted, for "cowardly" refusing the president's lawless entreaties that his Vice President declare their president reelected, against the will of the American People, though he had lost both the Electoral College and the popular vote for the presidency. There were many cowards on the battlefield on January 6. The Vice President was not among them.
The war on democracy instigated by the former president and his political party allies on January 6 was the natural and foreseeable culmination of the war for America. It was the final fateful day for the execution of a well-developed plan by the former president to overturn the 2020 presidential election at any cost, so that he could cling to power that the American People had decided to confer upon his successor, the next president of the United States instead. Knowing full well that he had lost the 2020 presidential election, the former president and his allies and supporters falsely claimed and proclaimed to the nation that he had won the election, and then he and they set about to overturn the election that he and they knew the former president had lost. The treacherous plan was no less ambitious than to steal America's democracy. Called to Washington D.C. that day by the president, the president himself, and the president's followers, supporters, and allies gathered near The White House for a "Stop the Steal" rally. The president maintained at that rally that the 2020 presidential election had been "fraudulently stolen" from him.
These wars that we are waging against each other are immoral wars, not moral ones, being immorally waged over morality itself. We Americans no longer agree on what is right or wrong, what is to be valued and what is not, what is acceptable behavior and not, and what is and is not tolerable discourse in civilized society. Let alone do we agree on how we want to be governed or by whom, or where we go from here and with what shared national ideals, values, beliefs, purposes, goals, and objectives — if any at all. America is adrift. We pray that it is only for this fleeting moment that she has lost her way, until we Americans can once again come to our senses.
These senseless wars are of our own making, and they are now being waged throughout the land, in our city centers and town squares, in our streets and in our schools, where we work and where we play, in our houses of worship — even within our own families. These wars were conceived and instigated from our Nation's Capital by our own political leaders collectively and they have been cynically prosecuted by them to fever pitch, now to the point that they have recklessly put America herself at stake.
A stake was driven through the heart of American democracy on January 6, 2021, and our democracy today is on a knife's edge. America was at war on that fateful day, but not against a foreign power. She was at war against herself. We Americans were at war with each other — over our democracy. January 6 was but the next, foreseeable battle in a war that had been raging in America for years, though that day was the most consequential battle of that war even to date. In fact, January 6 was a separate war unto itself, a war for America's democracy, a war irresponsibly instigated and prosecuted by the former president, his political party allies, and his supporters. Both wars are raging to this day. A peaceful end to these wars is desperately needed. The war for our democracy could lead to the peaceful end to the war for America's cultural heart and soul. But if a peaceful end to the war for America's democracy is not achievable, there is little chance for a peaceful end to that war. The settlement of this war over our democracy is necessary to the settlement of any war that will ever come to America, whether from her shores or to her shores. Though disinclined for the moment, as a political matter of fact only the party that instigated this war over our democracy can bring an end to that war.
With my respect to the Select Committee, I did not submit this statement prior to my testimony today pursuant to the Rules of the U.S. House of Representatives, so to avoid any appearance or suggestion that my testimony is that of an interested political party partisan or is on behalf of the Select Committee or any person involved with, on, or after January 6, or is that of a witness in any other way “interested” in these hearings. I testify today only as a private citizen, and as a non-partisan, disinterested, independent former Federal Judge on the United States Court of Appeals who happens to have been a fact witness to the events surrounding January 6. The views, the thoughts, and the words herein are mine and mine alone, submitted to the Select Committee on my own behalf and no one else’s.