Ken Blackwell: What Trump Must Do in His Senate Impeachment Trial

senate
OLIVIER DOULIERY/AFP via Getty Images

We are less than a week away from a congressional event that will be a pivotal moment on our nation’s history as a constitutional republic, and former President Donald Trump should use this unconstitutional impeachment trial to force a national conversation on democratic principles and election integrity.

The former president should order his lawyers to lay out the problems inherent in large-scale mail-in balloting and the constitutional violations that occurred in key states, to spur state-level reforms nationwide.

Now that the former president’s lawyers have confirmed that he will not be personally appearing in the Senate trial, the media will not be able to concoct an excuse not to cover his lawyer’s presentations on the constitutional and statutory violations that cast a shadow on how November’s election was conducted. 

I have spent half a century in public life, with a special focus on elections, both here in America and abroad. As anyone who has been a candidate for office can tell you, in every campaign you need to take stock of your strongest issues, and make those the centerpiece of your pitch to the voters. You communicate those points to voters in language carefully selected to minimize your opponent’s ability to twist your words into something that misleads the public and unnecessarily costs you votes.  

This is all the more true for presidential politics. As Ohio Secretary of State, I administered the presidential elections in the Buckeye State in 2000 and 2004. In that second election, Ohio was Ground Zero for the nation. If John Kerry had flipped just 60,000 votes, he would have beaten George W. Bush to become president of the United States. 

I also know what it is to be wrongly accused of violating election rights. Democrats accused me of short-changing Ohio Democrat stronghold Franklin County of voting machines, despite the fact that in Ohio the decision they criticized was made by the 88 county elections boards, and the elections board of Franklin County is controlled by – you guessed it – Democrats. 

Once I was even involved in objections raised in the Jan. 6 joint session of Congress to certify the Electoral College results. Democrats in the House and Senate objected to counting the Bush electors from Ohio, arguing that I had suppressed black votes (despite being black myself), and therefore that Ohio’s results were not valid. 

Even though those attacks were false, I acknowledge that Democrats in the House and Senate had the prerogative in 2005 to voice their objections during that joint session. It is an ominous sign of the current cancel culture that for raising objections in 2021, House and Senate members are threatened, and corporations announced that they will cut off campaign contributions to those lawmakers. 

Hopefully that range of experience puts me in a position to offer some advice to President Trump on facing the challenges of an impeachment trial and channeling it in a direction to foster positive outcomes though the points his lawyers need to address. 

This will be the second time I have offered advice to the former president’s advisers. The first was when I advised his reelection campaign that when referring to President Trump’s commitment to keep American neighborhoods safe and to support our wonderful men and women in law enforcement that he should use phrases like “rule of law” and “public safety” rather than “law and order.” I did this because there are two groups for whom “law and order” carries a negative connotation, especially after the president’s earlier references to the Secret Service using “vicious dogs” to protect the White House. 

The first is black voters. “Law and order” was used in the 1950s, 60s and 70s as code for racism, where white politicians would use it as justification for mistreating black Americans and suppressing black votes. It brings back memories of Bull Connor, fire hoses, and large police dogs attacking black protestors. Areas like the Atlanta suburbs in Georgia are teeming with affluent black Americans for whom the phrase brings back painful memories for middle-aged and older black Americans, and disturbing stories passed down by parents and grandparents to younger black Americans.

The second group is suburban white voters. College-educated middle-income and higher-income white Americans who live in the suburbs and are moderate in their politics have become very sensitive to what they consider racially insensitive rhetoric. In recent election cycles this has been especially true for suburban white women (often called “soccer moms”), and in 2020 we saw this trend emerge among suburban white men as well. 

Many in the Trump campaign thought that “law and order” was okay because Richard Nixon had invoked it in 1968 in what was in some regards a similar political climate to 2020, but they were wrong. In 1968, Nixon used George Wallace as a foil, who was openly racist and used the same phrase “law and order.” Nixon triangulated off of Wallace, charting a middle course, using the same phrase to channel people’s frustration, but then making campaign ads that showed unruly rioters who were white, not black. 

But there was no third-party candidate in 2020 to pivot off of, so even though Trump used the phrase to refer to supporting police officers and protecting innocent people from angry mobs – especially protecting black Americans in high-crimes areas – Democrats and the establishment media were able to falsely accuse Trump of racism. The terms “rule of law” and “public safety” carry the positive message that Trump wanted to convey, without opening himself to unfair and slanderous accusations by his opponents. 

Although some key players running the campaign stiff-armed my advice at the time, some of them have since come around after examining the polling data admitting their mistake, which cost the former president votes in key battleground states. 

President Trump increased his black support to 12 percent, but I think he could have gotten 15 to 18 percent. And he did not need to lose near as many suburban white votes as he did to Joe Biden.  

So I hope President Trump takes my advice on this one, which could help him prevail against this unconstitutional impeachment trial, help rehabilitate him in the eyes of millions by showing the valid points the president has to make, vindicate his supporters in the House and Senate who should not be condemned for following constitutional procedure, and foster much-needed reforms across the nation. 

Rumors around D.C. are that President Trump wants his lawyers in the trial to focus on conspiracy theories about computer software, voting machines, and foreign interference. 

I do not know if any of that is true, but I do know that the polls show that a majority of Americans are not onboard with wide-eyed conspiracy theories that sound like the plot of a spy-thriller movie, so the former president and the Republican Party would be better served by focusing on the following:

Article II of the Constitution says that members of the Electoral College in each state will be appointed in a manner determined by the state legislature. In modern America that is done in each state by a statewide popular election held on the federal Election Day. Yet in several key battleground states, those laws were rewritten by administration officials or by state judges, in violation of the U.S. Constitution. 

Like in Pennsylvania, where courts ordered ballots to be accepted three days after the deadline specified by the legislature in law, and over 300,000 ballots were counted in massive convention halls where the candidate’s legally authorized observers were kept at a distance, unable to examine a single ballot. 

Or in Wisconsin, where 220,000 absentee ballots were issued and counted in violation of state law. In a 4-3 decision, the liberal-led Wisconsin Supreme Court refused to rule on their legality, holding that the lawsuit should have been filed sooner, with the three conservatives on the court railing in dissent about how the ballots were definitely illegal, and that Wisconsin’s election laws were being trampled underfoot. 

Or in Georgia, where Trump’s campaign lawsuit specified that over 15,000 ballots were cast by people whom the Postal Service says moved out of state, and that thousands more were cast by convicted felons (who cannot vote in Georgia), by people who listed a P.O. box as their residence, or by people who listed no address. The lawsuit alleges that over 60,000 ballots were illegal in a state where Biden’s margin was 12,000. 

This does not even consider the impact of the illegal consent decree that Georgia Secretary of State Brad Raffensperger entered into with Stacey Abrams to not verify absentee ballot signatures against the voter registration file as required by Georgia law. Historically the rejection rate is 3 percent or more, which in November 2020 would have cost Biden up to 40,000 votes – three times his margin in the state. 

That Georgia case specifically irritates some election experts because it was never given a court hearing. Trump’s lawyers filed suit on Dec. 4, yet when Congress convened on Jan. 6 there had still been no hearing to consider the evidence and rule on the merits of those claims. That is a denial of due process of law, and puts the lie to the notion that the courts had rejected all of Trump’s claims. 

In each of these states, Biden appears to have been the beneficiary of these deviations from state election laws. Republicans in several other battleground states with close margins claim that their elections were similarly marred. 

None of this necessarily involves any deliberate fraud. But these irregularities and constitutional violations taint those ballots, and lawyers in those states argued that under the laws of those states those ballots should have not have been counted. Even if it is possible that Biden might have won those states, members of Congress were entirely within their rights to raise objections, just like Democrats objected to my election results in 2005. None of that is an attempt to overturn an election; it is an attempt to determine who actually won the election. 

President Trump needs to focus on these massive irregularities, illegalities, and unconstitutional rewriting of state legislatures’ election laws by administrators and courts, most of them showcasing the problems that plague large-scale mail-in balloting. 

Some of the states listed above were decided by less than 1 percent. At most, these violations could have been determinative in each of these states, and Trump needed only three of them to win a second term. At minimum, it gives tens of millions of Americans reasonable doubt as to which candidate actually won the statewide contest in those very close states. Such doubts are toxic to the health of the American republic. 

Focusing on these irregularities are what will show that those who raised these objections – like Sen. Ted Cruz (R-TX) and Sen. Josh Hawley (R-MO), and over 140 House members – were raising completely legitimate points, not trying to undo an election. It will also show that Trump was trying to shine a spotlight on all this, perhaps laying the foundation for a 2024 rematch by impressing upon the nation that this election was so flawed that he deserved the chance to try again. That worked for Andrew Jackson in 1824 who came back to win in 1828, and my friend Newt Gingrich – who was a historian before he became Speaker of the House – has noted similarities in temperament and style between Trump and Jackson. 

By focusing on these irregularities and constitutional violations instead of conspiracy theories, Trump could also spur serious election-law reform efforts in 2021 and 2022, as states look at how terribly wrong things went with mail-in ballots, early voting, no-excuse absentee voting, and abandoning verification measures such as checking signatures and requiring witness information to be fully listed on envelopes. 

This focus would also show that the establishment media is flat-out lying when it says that claims of election problems are unfounded. The point about Georgia alone – where there was never any court hearing – by itself proves the media’s claim that the courts have rejected these claims is false. I am convinced that those false media claims further stirred up public frustration, as millions of Americans thought no one was listening to them, and that those who should have been giving voice to their concerns were instead calling them liars or fools. 

This proposed presentation would also serve the nation well by highlighting the recurring nightmare that would be visited on America every two years if H.R. 1 – the For the People Act – were to become law, as that ill-conceived legislation takes everything that caused controversy and conflict in the 2020 election and would make them permanent features of elections in every single state going forward. 

As I explained in a previous article, the upcoming Senate impeachment trial of Trump is unconstitutional. But if the former president has his lawyers focus on these issues in the trial with full presentations that the American people can consider and debate, his contribution to the public debate may yet result in public reforms to ensure that nothing of this sort ever happens in America again. 

Reforming and restoring our election process is surely part of making America great again. 

Ken Blackwell is on the board of the Public Interest Legal Foundation, a senior fellow with the Family Research Council, and served as U.S. ambassador to the United Nations Human Rights Commission and a commissioner on the Presidential Commission on Election Integrity.

.

Please let us know if you're having issues with commenting.