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tv   Virginia Bar Assn. Discussion on January 6 Committees Work  CSPAN  July 25, 2022 10:03am-11:39am EDT

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3:00 p.m. eastern senators will vote on legislation providing grants to the computer chip industry to better compete with china. the senate is expected to take up a bill for v.a. health care. the houses back for legislative work tuesday at 2:00 p.m. eastern and also plans to take up a computer chip legislation following expected passage by the senate. later this week, members will vote to provide wildfire and drought relief. watch live coverage of the house on c-span. you can also watch on our free video app, c-span now, or online at now, jamie raskin he is part of the discussion that includes the chief investigative council and retired federal judge who testified at the hearings.
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this virginia bar association event is about 90 minutes. [applause] >> think you so much. i want to thank steve bush, paul atkinson for their exceptional work for the work they did to get this program together. the events of january 6 are feared in our memories. i use that firm appropriately. the only connection, the only other example i can think of is 9/11. i think in each instance we actually saw this in real time, almost as if we were there. but we have to get past those images and we have to ask ourselves why did it occur?
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who or what is responsible, and perhaps most importantly for our discussion today, how do we prevent it from happening again? that is why this panel and these four individuals are so extraordinary so we can hear them altogether. we will spend the better part of an hour with each one of them giving us their thoughts and perhaps i will have a follow-up question or two. then we will do the audience questions. at the end of this 90 minute period i expect we will know more than we already do about these critically important events. our apostle -- our panel is truly extraordinary. most of us, if not all of us have seen congressman ruskin on television. if you concluded he is area diet
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and scholarly, you would be correct. he is a magna cum laude graduate of harvard college, phi beta kappa. also magna cum laude from harvard law school where he was editor of the harvard law review. and for 25 years he was a professor of constitutional law at american university's washington college of law. we will next hear from tim hauthee, who is the chief investigative counsel to the select committee. he is for those of you who hold , this in great honor, he's a double who. [applause] >> those of us at thomas jefferson's other university salute you. he also interestingly enough work for senator joe biden after he graduated. and he has been a partner at
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both mcguire woods and hutton williams, now hutton andrews. we will hear from judge mike lou dake -- judge alluded perhaps the most famous tweeter with maybe one exception. his very first tweets are in your program materials on page nine. i would encourage you to look at them because they are momentous. and perhaps changed american history. at 9:53 a.m. on january 5, he spoke by twitter with the vice president to indicate to the vice president why there was only one correct constitutional course of action. and then betsy woodruff swan.
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she is only 10 years out of her college. but she has worked for national review as the william f buckley fellow. from there, she went to the washington examiner, slate, the daily beast, and is now a respected reporter at politico. she is also a contributing to msnbc. significantly, she has appeared on cnn, fox news, and msnbc. i am nominating her to be a diplomatic correspondent after this panel. we will begin with congressman ruskin. congressman ruskin, before i do that, we had initially expected to have one other contributor to this panel, congressman morgan griffith. due to unforeseen circumstances,
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he cannot be with us today. he had intended to talk with us about the letter he and 36 other congressman wrote prior to january 6 explaining why they would vote against the acceptance of ballots from four states. i think it's important to note after january 6 had occurred, he went to the inauguration out of respect for both the president, president biden, and the presidency. on february 11, he wrote a letter to his constituents after hearing from 4000 of them in southwest virginia. that full letter is, again, in your materials. i want to quote from it. "the counting of the electoral votes in congress ended the constitutional process of the 2020 presidential election. as expected, resulted in a
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victory for joe biden. this election was not the first presidential election with controversy, nor will it be the last. no matter whom you supported in november or what you think about the process, joe biden is our president now and deserves our it is time to move forward.' those of the words of congressman griffith. today is we move forward i will ask congressman raskin, sir, you are the foremost expert on january 6 in congress based upon your four different committee assignments, but also because of the leading role you played including in the impeachment. you are also, and i say this with full confidence, you are the foremost constitutional
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expert of the 535 members of congress. share with us your thoughts. let me just have you take it away from there. rep. raskin: whenever somebody cause me the foremost expert in in congress i hear them damning , me with faint praise. thank you for the introduction and thank you for having me. for these opening remarks, should i go to the lectern or should i stay here? justice mims: probably stay there. rep. raskin: that tells me you maybe wanted to be shorter than anticipated being. eight or nine minutes? i will do eight or nine minutes. i just don't want them to be surprised when i launch into a little discourse here. justice mims: about 50 minutes like a common-law class. rep. raskin: thank you so much, justice mims for inviting me,
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and thank you to richard cullen. my old buddy and thank you all for coming and inviting a marylander to join the virginia bar in this important discussion today. i was thinking on my way here about thomas jefferson, as you always have to do when you enter virginia. i heard a story about him when he was ambassador plenipotentiary to france. whenever he would toast the people of france, reportedly he would say that everybody on earth who loves freedom has two countries, his or her own in france. i was thinking coming over here that every american who loves the constitution has two states his or her own and virginia
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because so much of our constitution was written here by madison and jefferson and george mason and george washington. i just don't think there are any other states that can quite find a -- vye with a cast of founders you sent into battle. i guess new york had hamilton and timothy pickering. massachusetts had the ad ams's and ben franklin he ran away from the puritans in massachusetts. anyway nothing really comes , close in terms of what madison and jefferson gave us. especially madison with the first amendment and the idea of separating church and state, the great radical breakthrough of the american constitution. because for centuries human beings had lived with theocracy and holy crusades and inquisitions and witchcraft trials and all that.
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it was the virginians who insisted that everybody be allowed to worship exactly as he or she pleased. the question of faith was upbeat -- between the person and god. the question of faith was between a person and god. it has to do with reason and facts and data and not superstition and conspiracy so anyway we owe a debt of gratitude to the virginians. the course, the history of your state is important to the fate of our republic. i hope you guys will continually -- continue in that way. i wanted to start is by telling a little story what is. the story he was a famously
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absent-minded guy and he got on the train at union station up in d.c. headed north and he couldn't find his ticket. he was looking all over the place for it and the conductor came down the aisle getting everybody's ticket and he was very upset. he was looking at the seat and the seat pocket and jacket and everything and the conductor said, we recognize you, it's fine don't worry about it. but he kept looking for the ticket everywhere. he was getting done on the floor and looking at under people's seat and he said justice holmes you don't have to worry about it. we know you have the ticket, you are good for it. he said wait, you misunderstand me. the question isn't where is my ticket the question is where are we going? [laughter] i guess that is the question for us today. where we going? we are still in the middle of our hearings and the middle of
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our committee and in the historical sense january 6 so isn't that far away. i wanted to offer just three thoughts that might provide some clues about where we are going or at least were i think we ought to be going. i will state that this kind of obvious, moral truths. others might see them as political provocations in the nature of my business. i thought i would offer these from a constitutional perspective to help frame our thinking about where we are going. so, you know, i started with what i think should be clear to everybody who has been watching. just by a show of hands, how
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many people have been watching the hearings? good. how many are boycotting the hearings? we have one boy caught her over there. you don't know what you're missing. i think the hearings tell the story of a violent insurrection in aid of an attempted political coup. a coup is an odd word to use because we don't have a lot of experience with them, and we think of that is something in the military against a civilian power, but the political scientists have identified a different kind of coup. a so-called self coup where a president or leader decides to go out against the constitutional order in order to perpetuate his stay in office.
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which is a pretty exact description of what took place here. i want to make one point about the original constitution. and how it conceived insurrections. i want to make a point about the spirit of the evolving constitution that has changed since the original constitution in 1887 -- then i want to make 1787. one final point about the necessity of what i call constitutional patriotism. my first point is an answer to two kinds of things i have heard from my fellow countrymen, and women and also from colleagues. we heard the cry of 1776. this is our house. we are the people. we are taking it back.
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the president invited us to be here. this belongs to us, and so on, all in the course of attacking and assaulting our police officers and more than 150 of them ended up with broken arms, fingers, legs, toes, concussions and traumatic brain injuries. heart attacks strokes, broken , neck, and several of them died and took their lives in the days that followed. this is also an attempt to respond to my colleagues who continue to argue that there is something in the constitution and usually they invoke the second amendment that gives people a right of violent insurrection. or armed insurrection against the government.
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so, the first point is, it states in obvious constitutional truth. there is no equivocation to the gravity and danger of what happened on january 6 because our constitution rejects insurrection at every turn. it considers insurrection the very opposite of republican government. it considers insurrection a threat and a danger to government by the people. it considers insurrection a displacement of the deliberated will of the people through elections, and through governmental deliberation and discussion. so it is a replacement of the will of the people by the violent will of some small fraction of the people. at the second to last hearing, i
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invoked hamilton. in the first federalist paper he warned of politicians who know how to stir up the negative emotions of the mob to destroy our political institutions. hamilton said they begin as demagogues, but they end as tyrants. they devour the freedoms and liberties of the people. these sentiments and that analysis were inscribed in the constitution. madison, who recoiled from and rejected the violent fury of shays rebellion insisted on protecting states with a federal guarantee against internal violence and this became the genesis of the republican guarantee cause an article for constitution which says that the united states shall guarantee to every state a republican form of
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government and protect each of them against invasion and on application of legislature or the executive, against domestic violence. there are multiple other places in the constitution where the founders rejected violent insurrection such as article three section three cause one it defines treason as levying war against the united states. what is a violent insurrection? it is levying war against the country. article one and 12 and 13 authorize congress to create a standing army and section 15 gives congress specific power to provide and call forth a militia to execute the laws of the union, suppress insurrections, and repel invasions. so when bands of dangerous extremist show up show up in the
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federal city, claiming to be a militia or a collection of militias, and they have the true sovereign power, and they speak to the people, they are expressing a purely anti-constitutional ideology and sentiment because our constitution contemplates that congress can call forth a real militia, the militias that are well organized by the states to put down and suppress insurrection. our constitution does not support violent extremists insurrections. it supports our constitution. by the way, all 50 states make private armed militias illegal and criminal organizations. congress should do the same. indeed, the constitution recognizes only the official , and reserves the states, respectively, the appointment of
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officers in the authority of training the militia according to a discipline described by congress. states are not going to appoint officers to overthrow their own governments, nor will congress prescribe organizing the militias in a way to incite those militias to attack our government. now when i point these very obvious features of the constitutions out to my colleagues, those who are still in the pro-insurrectionist camp will try to rescue the insurrectionist in a couple of different ways. they will quote the virginian patrick henry. i have a friend who would go to that college. they quote him in a number of things he does say, along with an insurrection line, but they conveniently ignore the fact that he was an anti-federalist who opposed the constitution
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including the second amendment because he thought it gave too much power to the government and took away the power of the people to overthrow any arrangements they didn't like. so then they turned, and this is the heart of their argument, they tend to argue there has to be a right of insurrection in the constitution. the american revolution itself is an attack on unjust tyranny, so if the founders engaged in revolution, then the constitution must incorporate a right. this confuses a constitutional right to insurrection which does not exist with a natural law or right of revolution. to throw off a tyrannical regime. the founders clearly thought it does exist. certainly, jefferson thought it
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in the declaration of independence. they exercised that right after a long train of abuses and usurpations either crowned and by parliament. they set forth justification in a very elaborate litany of abuses and grievances against the crown in an appeal to the world out of a decent respect for the opinions of mankind. but they thought the idea absurd that you would appeal to the authority of the crown to rebel against the crown or the authority of parliament to rebel against parliament. and it would be ridiculous to appeal to the authority of the constitution to overthrow the constitution. as gary wills points out a necessary evil, abraham lincoln teased out the distinction between the natural right of revolution which exists outside of the government, and the claim that there is a constitutional right of insurrection.
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lincoln said, in his first inaugural address, whenever people grow weary of existing government, they can exercise there constitutional right of amending it or their new revolutionary right or their natural revolutionary right to overthrow it. but the revolutionary right cannot be a constitutional right. as lincoln put it, it is safe to assert that no proper ever had a provision to destroy itself, except by some action not provided in the instrument itself. so, that should be obvious to everyone. there's not even a constitutional right to nonviolent civil disobedience. when dr. king and my former colleague john lewis, a late beloved colleague, when they went to protest, manifestly unjust unequal arrangements later deemed to be unconstitutional still submitted to arrest, nonviolently.
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they submitted to the lawful and authority of government to put them in jail. they had the courage of their convictions and they went to jail. but if the constitution doesn't give you that right, when you have justice on your side it doesn't give you the right to violent disobedience when you don't have justice on your side. and you don't have a legitimate point. the second point i want to make as some people say well, we have asserted the republicans and democrats on our panel that we are engaged in the work of defending democracy. democratic institutions, but we are not a democracy. we are a republic. i suppose we could say in a strict semantic sense we are a democratic republic we are a representative government, with representative institutions.
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based on the democratic will of the people. but there is more than a semantic difference going on here because i believe that you can read and you should read the constitution with all of the unmanned mints as the chronicle of the progressive democratization, and inclusion of the people of the country, in the original handiwork of the founders. we did not begin anything like lincoln's vision of government of the people by the people. we were a slave republic when it started, with white male property owners over the age of 21, but through the social and political and constitutional struggles of the people, we have come much closer to approximating lincoln's ideals. we have built a more perfect union. the 13th amendment abolished slavery. the 14th amendment gave us to process. the 15th amendment forbade race discrimination.
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the 17th amendment shifted the mode from the state legislatures to the people. the 19th amendment doubled the size of the electorate and gave women the right to vote a century ago. the 23rd amendment gave our friends in washington, d.c. the right to participate in presidential elections. the 24th amendment abolished taxes, and it lowered the age of voting to 18. you see what is happening that the democracy is expanding as more and more people get to become part of it. now tocqueville said that in america, he wrote democracy and voting rights are always either contracting, constricting, or they are growing. they are expanding. we have been in a contractionary mode with voter suppression and gerrymandering of our federal and state legislative districts.
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it works in usurps the will of the people. the filibuster, which is not in the constitution or the federal law. it is a rule already with more than 100 exceptions. they continues to be a blockade against manifestly popular legislation on everything from voting rights itself, to gun safety legislation favored by more than 90% of the people. and the electoral college also remains a remnant of the original antidemocratic constitution with all of these filters, like the state legislative section of u.s. senators. the manipulation of the electoral college has become less undemocratic as we have popular vote losers becoming president, twice in the century, but also a positive danger to the people because there are so many note --nooks and crannies
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in phases in the electoral college that it is easy or a bad-faith actor to plant booby-traps that will explode in different places, and not just against popular will but against police officers and members of congress. i think the question of democracy is critical. we have to get democracy back on a growth track, and that requires us to think creatively and seriously about the constitutional level and the statutory level. the last point i want to make is it starts with abraham lincoln in talking about constitutional patriots. lincoln was when it was a speech he always talked about the declaration and people gave him a hard time for that. when he made the speech from the gettysburg battlefield in 1863 and he started it off fourscore
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and seven years ago, that is 87 years. that gets you back to 1776, not 1787. the pro converter it -- pro-confederate conservatives of the time said what does this have to do with the declaration of independence? the constitution is a handshake among the states. lincoln said no the country began with the declaration of independence and the proclamation of unalienable fruits, life, liberty, the pursuit of happiness and the definition that all of us, men, and later women, are created equal. and that government is erected amongst us, and only legitimately based upon the consent of the governed. there you have it liberty, , equality, and democracy. it is set forth in the declaration. everything that follows in the articles of association, confederation, the constitution,
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were nothing but continue only working with revisable drafts, trying to implement that dream to vindicate those values. so, when i call for a con -- constitutional patriotism today, i also go back to the founders original suspicion of partisan factions which was a big problem for madison. of course, that is what federalist number 10 is all about. but in truth the founders were kind of schizophrenic about political parties. on the one hand they vowed opposition to political parties, and they said they were a major problem for us. jefferson said that if i could only go to heaven with a political party, i would prefer not to go. in his inaugural address in 1801, he said, beautifully, and
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-- in a cadence that would ring through this entry, we are all federalist. lincoln picks up on that he said we are not enemies but friends. even barack obama had a modern take on that formulation when he said we are not read states that desperate states of america or blue states of america we are the united states of america. the constitution didn't mention political parties, much less a two-party system or two specific parties, which makes all of the efforts to institute, with political parties so illegitimate under our constitution. but in any event, that was one level that they spoke about when they were in the high-minded, abstract notion, but acting as bareknuckle hardball politicians as judge luddig as a skeptic of my profession. then
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they were all deep into the partisan mud. jefferson was quite the political operator. barack obama is a great politician in addition to being a great rhetoric speaker all knew that. i am calling for more intellectual honesty about the question of partisanship. i would say to cheers for partisanship. partisanship. let's acknowledge what they do for us, because political parties are a sign of freedom. they exist because of the first amendment. because of the freedom of speech. the freedom of association. freedom of the press. political competition and open elections. that is what happens when people are allowed to run for things. they disagree, and that is not just a form of political level. that is true in school boards and faculty meetings. anytime you get groups together, people factional lies that is . human nature. they accepted that. it was a reality. it is something we should accept and also we should acknowledge the positive role that they play. they educate people. date can organize people.
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they can articulate public agendas that elected officials can translate once they are in. what i insist upon is once we are elected, once we are in office, those of us who are in have got to acknowledge what the party is. the word party comes from the french word. apart. each party is nothing but a part of the whole. we have to try to represent the whole. now, that might sound unrealistic or romantic, but i would encourage everybody to think of something that we do as politicians were we are perfectly nonpartisan. we know how to do it when we want to do it. think about constituent services. if you come to my constituent office in maryland and you have a problem with social security or your v.a. benefits or ppp loans or passport or whatever it might be, we don't ask you are you democrat, republican,
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libertarian. we just go to work free. we know how to do that. that is the attitude we should try to bring, but that is the attitude we must bring to the impeachment process which is why i was so thrilled with the performance of seven republicans and 50 democrats in the impeachment trial of donald trump in the senate in february of 2021. and why i was so disappointed in 43 of them. those people were acting on to both. one an oath to open hold and defend the constitution of the united states against all enemies foreign and domestic, and another specific oath as jurors in the trial to render impartial justice. what does impartial mean if not not partisan? to render justice according to the fact and the law. what we need is constitutional
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patriotism, and everyone should rise above lyrical parties when the constitution calls upon us to do that. >> you heard me say erudite and scholarly i left out passionate. [applause] >> this is a cle, there will not be an exam. congressman's counsel. you have yielded your time for -- i want to come back and ask a pointed question during the q&a. there are many people who have condemned the violence yet do not agree with every conclusion that has been reached by the
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january 6 committee or believe that other facts should come in as well. and they have criticized the process because there is no cross-examination. or there is not an adversative aspect to it. is that a legitimate criticism? and how do, as a public servant, how do we all ensure that other views are heard? >> it is a legitimate question. but it depends on the forum in which that criticism or counter narrative takes place. our hearings are not trials. they are not meant to be, they are not structured that way. they are not fact gathering exercises. they are presentations of facts that we have gathered over the course of the last year. we have tried very hard from the beginning of this and for --
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investigation together all of the facts, not just facts to support a particular conclusion, but all facts that bring to bear lessons learned about what happened on january 6 in the context of it when i was first hired to run this investigation, chairman thompson said, i need your help getting the facts, following them wherever they lead. there are times when those facts line up in a very coherent narrative and there are times where they don't fit. both of those categories are crucial. if so the overall investigation, i think, when all of that is made public and all of that information is revealed for america, i hope the body of work there is that out. the hearings are a subset of what we have found. there are a lot of important themes we have not been able to develop. we have not talked about law
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enforcement. the appropriate role of the military in response to a mass demonstration event inside of the united states. we have not talked about social media and its role in radicalizing people. the algorithms that push content that generate engagement with the platform. we have not talked about domestic violence and the extent of violent ideology. there are in things that are important context that the hearings are not touching on. i don't think america should walk away from those hearings with the sense of completeness or that that is our, the full record of our work. the criticism about cross-examination of the people, i would point to people like judge luddig or bill barr or richard donoghue and asked pete will does anyone think if there was a jim jordan sitting down the dais from jamie raskin that
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bill barr would somehow not have the very same account of what occurred, somehow have his credibility questioned? we worked very hard even though it is a subset of information to prevent -- present a story that is corroborated by people who were loyal republicans, part of the administration, and i think all of them will stand up to criticism and the challenge. again, there will be a more wholesome narrative that comes forward. our full findings will be available for history to pick apart and i am actually excited about that. i think we have approached it consistently to follow facts wherever they lead. i think the narrative we have presented would continue to be compelling even if there were other voices coming at them from across the dais.
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>> very good. we will come back to you during the q&a. you mentioned jug luddig's testimony. by the way i got so carried , away with this first series of tweets, i forgot to mention he is a graduate of washington and lee. he clerked for judge scalia and then chief justice burger and had a distinguished tenure on the fourth circuit. his testimony is in your written materials. judgeluddig, you have spoken out about the electoral act of 1887. tell us what the problems are and how to solve them. and any other thoughts.
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judge luttig: thank you, justice mims. first, i want some broader observations. justice mims: absolutely. judge luttig: the first is this. none of us knows whether we are going to go to heaven or not. that turns out to be beyond our reach, up to someone else. but i have thought a lot about thomas jefferson's observations that congressman raskin recited for us over the years. i don't know about you, congressman, but i am planning on going to heaven. i do not know if i will make it or not. but if i do, the one thing i am
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certain about is if i get there, i will be unaccompanied by either of the political parties. [laughter] the next thing i want to say but i do not know where to start after hearing that elegant constitutional presentation by one of our foremost american leaders, who is himself an elegant man. i feel betrayed by my friend richard cullen who i now understand invited me under false pretenses.
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[laughter] introduction of congressman raskin and then sitting in all as i listened to congressman raskin, i have to issue a disclaimer. not only am i not a constitutional scholar, and have never been, but today i don't even feel like i'm a licensed lawyer. [laughter] and by the way, i am all but defenseless today as it was because if i live in fear of anything these days, it is of being recalled by the january 6 committee to testify. [laughter] so i am not going to purposely
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say anything today that might bring about that fate. [laughter] if the congressman and i disagree on anything, he will have to say it, i am not going to. next, the second disclaimer is this. believe it or not, and you may choose not to, congressman raskin did not write my testimony for the january 6 committee. i never showed it to congressman raskin in advance. indeed, i chose for the reasons i included in a historic footnote that i declined to provide my testimony in advance pursuant to the house rules because i didn't want anyone to think i was appearing on behalf of another, including the
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january 6 committee. for better or worse the views and the words i spoke in that testimony were mine and mine alone. but now that he has spoken so eloquently on many of the issues i actually spoke to in my testimony, i am going to go back and reconsider that testimony and be sure that i meant what i said. now, so i am not defenseless totally. if, for no other reason, then -- than this one. i listened to justice mims' introduction of the congressman. not only his scholarly credentials but increasingly to his virginia bona fidees, or
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lack thereof. i am a fairly quick study. what i want to do is display my own virginia credentials in contrast to congressman raskin's, so if we do disagree, you will ultimately agree with me and not him. [laughter] a m naik on and began my professional career here. i went to both college and law school here. my wife went to both college and law school here. my daughter went to college here. my son went astray to california and, of course, we cut him out of the well. -- will justice mims: is this
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the one that taught you how to go on twitter? judge luttig: yes, but that did not rehabilitate him. [laughter] my whole family and our life is in the commonwealth of virginia, which is a long-winded way of saying it is an honor and privilege to be here before the virginia bar association. i am appreciative of the of a invitation. to get to the question justice mims asked about the electoral count act, the plan to overturn the 2020 election was multifaceted. and we now know this was not a plan that was developed by political hacks.
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it was actually quite the opposite of legal hacks. the plan was hatched and developed by individuals, one of whom was a former law clerk of mine, disappointingly, by scholars of constitutional law, and in particular scholars of presidential politics and the constitution. in fact, i have said that on january 6, i don't know this of course but i don't doubt it, that among the several who developed this plan my law clerk, john eastman, on that day i believe he would have known more about the constitution and
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the laws of the united states, and the history of the united states and constitutional evolution, if you will, than any man in america. which is to say this, as wrong and wrongheaded as the plan was it was conceived and ill-conceived in the law. the extent law at the time as a developed, literally, since the founding of the republic. all of this is discussion for another day. but the central features of the
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plans exploitations of the laws, the constitutional laws of the united states was the 12th amendment and the electoral count act of 1887, and what we probably will not get into today but what is today now famously understood as the independent state legislature theory of constitutional interpretation. that would be constitutional interpretation of both the elector's clause and elections clause of the constitution. i have written the centerpiece of the plan was the independent state legislature theory. and from the outset of the execution of the plan, which began months and months before
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the election of 2020, the former president and his supporters and allies and in particular his legal advisors, they were pursuing the independent state legislature theory through the federal courts and eventually the supreme court. and so, in short, as i have conceived of the plan, and others can conceive it differently, but at least up until december of 2020 when the supreme court did not decide the independent state legislator -- legislature doctrine but declined to decide the independent state legislature theory. until that point, arguably, the plan as conceived and executed was lawful. but in my conception once the
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supreme court and it was a divided supreme court, and much of the declination of the case played out in public opinion. at least three current justices, then current justices, suggested that they favored the doctrine. and justice barrett did not participate. there was every reason to believe she would embrace the doctrine if it were presented to the court. there would be at least four votes for that doctrine. that is the centerpiece. to turn now to the electoral count act of 1887, that is what i think of as the exploitation of the third law or constitution of the united states that was
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by the former president. so the, three months after january 6, i wrote a piece in the wall street journal with a colleague of mine, david rifkin, where, to my knowledge, the two of us said that the electoral count act of 1887 is unconstitutional. that is neither here nor there in today's discussion, but we concluded after studying the constitutional history that undergirded the act that the founders never intended for congress to play any significant role whatsoever in the selection of the president of the united states. we said so in that march of 2021 "wall street journal" piece.
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but we were responding, of course, to what the world knew at that point was one of the biggest sources of january 6, which was the electoral count act of 1887. so, what that act does is in a host of circumstances, it essentially gives the congress of the united states the power to decide the presidency. many people, up until the time my friend and i wrote, continuing to today had said the act was impenetrable, circuitous, ambiguous, and on and on. and it is all of those to the untutored mind.
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when i actually first read it, my colleague said you can't even understand this thing. i forget the single most important sentence in the entire act is five or 600 words. in any event, when i read it very slowly, i thought i understood every word of it. but i don't for the life of me understand how anyone could. in my view, the attack on the capitol and the attack on the electoral count process itself originated with the electoral count act. why? because under that law, congress had the authority to decide the presidency in the circumstances that had been, let's just say,
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generated, by former president trump and his colleagues. trump . that is that there were to be, in their estimation, alternative slates of electors submitted to the congress to be counted other than the official certified slates from six or seven of the swing states. the electoral count act specifically provided, in 1887, that the congress would decide that dispute. congress would decide which of those two electoral slates from the respective set states would be counted, and therefore, who would be president. so, to go back to the justice's
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question. there is no question if you want to prevent another january 6, whatever you think about the constitutionality of the act, that act is desperately in need of amendment and reform. so, i have been advising over the past year plus in any number of members of the senate on the ways in which to do that, which we are not going to go into detail today, but just before this conference the bipartisan group of senators that have been working on this for a year -- a group i have been advising over the course of
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the year -- came forward with their proposed amendments. i believe congressman cheney and congressman lofgren suggested they too might be coming forward with a set of amendments from the house of representatives. at one point i was asked to review the package that was then going to be proposed by congressman cheney and congressman lofgren. i said, this was about as perfect an amendment as could possibly be had and that this would all but ensure there would never be another january 6. a week ago before the senate
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version came out "the washington post" called me and said, this is what the bipartisan group is going to propose. if this is what they propose, what would you say? i said, as to that proposal, which to date i have not seen, i said, if it has the provisions "the washington post" was telling me it had, it would all but ensure the country would never endure another january 6. justice mims: judge, i want to ask betsy swan to pick up where you are. we do not have "the washington post" here, that i know of, but we do have "political." betsy, with the developments of the past week in the endorsement
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of judge luttig, can something along these lines pass congress? betsy: i think it is feasible. one of the biggest challenges is time. the house is likely to flip based on data with the midterms. congressman rasmussen might disagree -- congressman raskin might disagree. but it does not look like democratic-controlled can remain. if this is going to happen -- most democrats think it is going to happen if they remain in control of both chambers -- but the fact there is a senate bill that is bipartisan that is currently percolating is something that would give heart to people hoping to see this car crash of a piece of legislation get fixed. and the fact it originated in the senate -- this might sound cynical -- but that is also
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helpful. the reason is if the house flips, and he legislation -- any proposals generated by the january 6 committee are likely to be rejected unread by incoming, future house republican leadership. solely based on the fact those proposals will then put forward by this committee. that is the level of animosity among republican leadership directed toward this committee. frankly, that is one of the biggest challenges this committee faces. figuring out how do we take concrete steps to make sure the violence that occurred january 6 and the conditions that occurred do not happen again? the committee thus far has not put out recommendations, any suggestions, for policy or practice changes within, for
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instance, organizations within the fbi, dhs, that could have performed at a much higher level on january 6. if they want to get those changes to happen, the clock is ticking down and that is perhaps the single biggest pressure point. justice mims: in -- yes, sir. judge luttig: what betsy is alluding to is what i said in every meeting i had with senators or congressmen or their staff. i said, the problem on the hill is that each of you wants to be able to decide the presidency when you want to decide it. you don't want anyone else to decide the presidency when you don't want them to be able to decide the presidency. and from the first conversation
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i had they nodded and said, yeah, judge, that's the problem. i believe, you know, knock on wood there is hope, but i think congress has waited too long to do this. i don't think it is even possible before the midterms and then at the midterms go with the republicans. i do not think you will see an amendment of the electoral count act. justice mims: we are going to wrap up with one more question and then go to questions from the audience. betsy, you are the only nonlawyer on the panel. you are an experienced and thoughtful observer of the political process, the policy process. and you truly are writing the
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first rough draft of history. this is one of the most important historical issues we will deal with in our lifetimes and historians will be looking at what you have written to try to understand the broader picture. i want to ask you a question for posterity's sake. i want you to look out at this room full of lawyers and imagine instead of these lawyers, some of them shaking their heads, some of them taking notes, doing any number of things, imagine it is a room full of teenagers, high school students, perhaps college students. they are thoughtfully trying to understand what is going on. what happened? why did it happen? how can we prevent it? all of the questions we are
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grappling with. what would you say to them and, frankly, whatever you would say to them i think we lawyers could probably learn from. take it away. betsy: i think what i would say is the conditions that resulted in the violent attack on the capitol on january 6 were not a fluke. it was not something that came out of the blue. it was not something that should have surprised anyone working in law enforcement or intelligence. in fact, there is a lot about the way the united states intelligence community and law enforcement agencies work that almost cute this up. going back to the early days of the obama administration there is an episode that gets overlooked. an analyst within the department of homeland security wrote a warning about extremism about
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people. veterans coming back to the country. this guy was concerned some of these american veterans were being radicalized. the paper leaked and it drew very angry condemnation, particularly from congressional republicans, that signaled any suggestion there could be domestic extremism as a problem on the far right in the united states was overwrought political targeting of the republican party. the obama administration revoked that paper and the secretary of homeland security apologized. it destroyed that analyst's career and it had a chilling effect on intelligence analysts the next decade and a half. anybody who even thought about pursuing a career focus looking at domestic extremism, particularly far right from is him, those folks thought twice.
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it sent the signal that if you wanted to ascend within dhs and the fbi, you needed to stay away from the mystic threads. fast-forward to the trump administration. in the early days officials saw a trend they found disturbing and frightening. there was a spate of vandalism targeting jewish cemeteries. i spoke with officials who said they saw this playing out, they were concerned, they did not think too hard about what the role for the department of homeland security might be, and a few months later there was a violent attack in charlottesville. at that point trump administration officials within dhs realized there was this metastasizing, violent, dangerous, far right domestic threat that prevented a lethal threat and security threat to this country.
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but there was not the political will inside the administration to even talk about it. coupled with the fact the president at the time was pressuring dhs only to look at issues related to southwest border control, to the exclusion of just about everything else, resulted in people in the department that wanted to do work to combat this threat being sidelined or incapable of doing it themselves. senior officials, focus on counterterrorism, elizabeth newman told me in the summer of 2022 that during the trumpet administration, but after she left, one of the challenges was simply dealing with trump and his personality. she said, when you are spending your energy preventing him from doing something illegal you cannot also run the defense department or state department or department of homeland security. all of these agencies did not do their jobs january 6. part of that is due to political
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pressure, part of that goes further back in trump administration. there is a lot of blame to be spread around. when the biden administration came in they focused on domestic terrorism, put out a plan to combat it, but we have seen these violent forces continue to percolate and materialize in horrific killings in this country. one of the biggest steps the department of justice has taken with a lot of attention was setting up the task force focused on security for election and administration officials, the people who work at the very local level counting votes, checking people in when they register. these are normal, unsexy jobs. people who have these jobs are facing a dramatic uptick in violent threats. the justice department has said they are trying to take steps to keep these people save, but "the
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new york times" had a story weeks ago tracking the number of prosecutions doj has brought against people who leveled violent threats against election workers and it is tiny. people who represent these election workers say there is not nearly enough being done to keep them safe. the result that is really scary is that it is resulting in a brain drain when it comes to election administration. lots of people who have these jobs don't want to do them anymore because they are worried they will need armed security outside their house, or that they will need it but not be able to get it. people who have had these jobs for years and understand the complex nerdy, wonky practices of how election works are leaving and many are being replaced by people who want to have those jobs for nefarious purposes. when we look at january 6, the role that president trump played , the role that the electoral count act played, the activities of that 24 hour period are of
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enormous importance, but, it was not a freak thing that it happened. there have been threats materializing, and metastasizing for a decade beforehand, and many of those threats and dangers, very much still exist. that is the biggest question that remains for the select committee. when we look back years from now and you talk about the first draft of history, the biggest question is frankly before 2024, what changes happen both legislatively, at the state and local level and within law enforcement and intelligence agencies to make sure that this type of violence does not happen again. >> congressman. >> i agree very much with what betsy said. the one witness that i -- that america hope remembers if you can only member one is shea moss who was an election official who
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was violently intimidated and attacked by donald trump and his followers in georgia. and she really embodies the kind of commitment that makes elections work in america. she registers people to vote, she gets people their absentee ballots, she shows people how to make the system work. if those people are going to be harassed and harangued, we have a problem on our hands. we also have a problem that liz cheney has been identified, which is organizing people's political beliefs or hold political party around lies, disinformation, and propaganda. when you look at the literature about authoritarian and fascist political parties historically and on earth today they have two features in common. one, they reject the results of
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elections when they lose. two, they embrace political violence. so, it is a very dangerous thing to have a political party rejecting the results of elections when they lose them, and not disassociating themselves from political violence or tolerating it, or encouraging it. fundamentally that is what these hearings are about. >> ok, thank you. >> i am going to combine two questions that have come up for you. the first is, you were really at the center of the investigation that came after the charlottesville violence, and if you could speak to how this -- your investigation here is either similar or dissimilar from that. and then also we have many individuals who are very significant litigators in this
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audience, what is the magnitude of what you are doing in terms of investigation and preparation and how does it compare to anything that you did in your prior legal work? rep. raskin: both good questions, that is a perfect segue from what betsy and congressman raskin were saying. charlottesville was an early flashpoint and a manifestation of what betsy was talking about. there are a lot of similarities between what occurred in charlottesville and what happened on january 6. they both had at their core a flashpoint issue, in charlottesville it was statues. we in charlottesville were grappling with this issue of history and the appropriateness of recognizing some history and it had a big public discussion about that which resulted in a decision by elected leaders to remove dues -- remove two statues, which was enormously
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controversial, and that became that discussion, and that issue drew a lot of people who really were not concerned about the statues but were looking for a forum in which to pull together a sweet of ideology -- suite of ideologies. unite the right was descriptive, charlottesville meant to pull together people with different views but the core was that america was moving in a different direction, primarily race-based. january 6 in the election was a flashpoint. they were there because they were convicts by the stop -- commenced by the stop the steal. were people who were strongly against covid restrictions and vaccination requirements. you had these events that then draw ideologies that are primarily anti-establishment, people that distrust government, people that believe that
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decision-makers and governments, the media, and higher education do not understand them, so both in charlottesville and january 6 you have core issues, but the core issues metastasized into a constellation of very strong anti-everything, antigovernment, anger, and violence. that is -- that continues and what betsy was talking about in respect to law enforcement's understanding is the new threat landscape, so much of law enforcement is focused on people and potential cases. we have not done a very good job of understanding in the aggregate those constellations or a lot of things that do not seem connected or applied to a particular case or investigation. when you look at them from 30,000 feet, they actually really matter. so, charlottesville and january 6 are manifestations of a larger process.
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the lawyer question is a good one. january 6 is of a magnitude as an investigation beyond anything that i have done, yawned anything that congress has done, just to compare it, when i was an assistant u.s. attorney. a couple of lawyers in a couple of agents serve a bunch of subpoenas and put together an indictment and try your case is a very micro target at a particular event. the charlottesville process, the city hired plantain -- punt and williams and we interviewed a bunch of people and gathered a lot of documents, had a public presentation at city council and issued a long report. this is fundamentally different. we have a team of 30 lawyers, each of whom are broken into teams that focus on subparts of the important context of january 6. all working independently, but in a collaborative way. our product are these national
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hearings, this microscope under which we work is unlike anything i have experienced as a lawyer. everything we do is scrutinized carefully because back to your cross-examination questions, the cross-examination is happening written large in the media every day. and then ultimately we will issue a report and an important forward-looking recommendation because the goal is that the historical record, what happened, let us start with the facts, we want to start with charlottesville and do that with january 6, let us agree in a credible narrative and from that we try to fix the problems that we identified, the electro count act -- the electoral count act and the things that will make january 6 life -- less likely to happen. judge luttig: i want to stay -- to say to both betsy and tim's points, i would testify that there are two wars going on in
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america today. the first war is what i call a war for the heart and soul of america. which is as a proxy we can call the cultural war. and then the second war, that i identified, was a war for america's democracy that began on january 6. and i said that war was instigated by the former president and his party, the republican party. and then i went on to say that if there is ever to be peace in these two wars, the -- it has to be brokered first by the republican party, which brings to peace the war to democracy, if there is ever to be a chance in this world of having peace in
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the larger war for the heart and soul of america. but the point that i want to make is that i said to congress that in my view the war for democracy, the war on january 6 was foreseeable, and understandable from a cultural war that preceded it. in just the way and for just the reasons that betsy and tim have identified. so, of course all of us were shocked, and i am the first that was shocked, but when i did think about it in retrospect i said to myself of course january 6 happens. of course it did, we all could have foreseen that this is how these wars would come to a head,
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and the -- and they did. justice mims: we have two or three questions pending, and unfortunately only time for one. i want to ask that question that if there are historians, half of them love the question of this nature, and the other half roll their eyes at a question of this nature. your tweets went out at 9:53 a.m. on january 5, and according to all reports vice president pence had not made up his mind at the time, and of course the tweets were directly aimed at his thought process as he was listening to your former clerk. as he may have been listening to the thoughts of the former clerk , here is historical question. what if you had not been able to operate twitter, what if your
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son had not picked up the phone when you called to say how do i do this, and consequently, the vice president had chosen to act differently on january 6? judge luttig: my life since january 6 would have been a lot different and a lot more relaxed. but no, i do not know, and i do not know if i will ever know, whether as you suggested that the vice president had yet to make up his mind. there was nothing in my interaction with his advisers that suggested at that late point that he was vacillating, if you will. and of course i asked and have been asked that question hundreds of times in the past
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year and a half. and the committee asked me that question in my depositions to which i will not tell you the answer. but what i did say, first i wanted to say that i have been thinking about this question literally six -- since january 6, so we are coming up on over a year and a half now. it would be barely an overstatement to say that i have been thinking about that almost nonstop. because i knew the day was coming when i would have to testify in front of the country. which i was glad to do, so it was a high honor. but i knew as a lawyer and former judge that if there were a question to be asked of me, that was it.
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and i just cannot tell you, i wanted to be right in that answer. for history. and, and sure enough, the vice chairwoman cheney asked me that question in the hearing and i gave her this answer and substance. i said i believe that had the vice president yielded to the demands of then president trump, and overturned the election, the 2020 election on january 6 it
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would have immediately plunged america into what what have been tantamount to a revolution. a revolution within a paralyzing constitutional crisis. the revolution -- and then i went on to say that there are different definitions of course of a constitutional crisis. before the committee i went on to say that under my definition that would have been the first constitutional crisis in american history for the reason that in my view, the constitution itself did not contemplate this kind of fatal
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assault of democracy from within. and that is my definition of a constitutional crisis. but then focus then on the word revolutionary. i only use the word insurrection in the past year and a half one time, very deep into my written statements, and you can find that place. but, that kind of sums up what that year and a half has been for me, but more importantly for the congressman and the congress of the united states. if you want to use the term coup, which i have steadfastly not used, but for conversation's
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sake you want to call this a two, it was a legal coup. and i guess it is appropriate that i say that first in front of a group of lawyers. ok? this was all about law, as i said, this was exploitation of the constitution of the united states and the laws of the united states. by lawyers. and we have to admit that. and so it was a legal coup. my point is that the actual words of the constitution and the laws of the united states like insurrection, that is what has been discussed in front of the nation, and that is what
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literally at stake today for america is the words of the constitution and the laws of the united states. >> can i say something. rep. raskin: if i could make two quick points, one is judge luttig is very important because every coup that has been experienced from greece, chile, and argentina has been wrapped up in law, and like judge carter said, this was a coup in search of a legal theory. but i do want to thank you judge luttig, who of course is a luminary in judicial circles generally, but also especially within the conservative judicial movement, and his coming forward to say that this -- that the eastman theory was totally
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unfounded in the law, and contrary to the constitution and was a real breakthrough i think for the country and certainly for the hearings, what happened if he did not know twitter or his son had not shown him how to do it. i thought immediately of something that was said, "if it appears that there was one decisive moment that made the difference in historical events, you can be certain that there were larger forces in play that would've made it come out the same way." which is not to disparage the greatness of what judge luttig, but i think the greatness of american democracy will survive and we will get stronger. justice mims: let me play off of that and end with a note of hope and appreciation. steve will express appreciation for the panel, i want to offer a note of hope and quote joseph ellis in doing so. that distinguished historian,
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and i might point out william and mary graduate. [laughter] [applause] who has spent most of his career writing about the conflict between the various personalities and policies with washington, adams, hamilton, marshall, essentially on one side, although they had their conflicts too. and jefferson, madison, monrovia, and others on the others. there conflicts were quite significant. at one point jefferson wrote to madison saying that they must fervently hope that patrick henry died. but, what joseph ellis says is that "the constitution to which they were all ultimately devoted, whether they want it initially or not, the
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constitution does not provide all of the answers. its glory is that it provides a context in which we can continue to debate the questions. and what we have seen on capitol hill and what we have seen throughout the population, what we have seen on this panel is how we do not have all of the answers. but how we can continue to debate. we have the framework so we can potentially solve them peacefully and not by resorting to violence. so my note of appreciation is to the constitution itself and i will now yield to steve to close us out. steve: thank you justice mims, and let me say discussion such as this represent the best of what the virginia bar association is trying to accomplish and we are happy to thank c-span for sharing it more
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broadly than those with us today in person. to panelists, betsy woodruff swan, representative raskin, judge luttig, timothy heaphy, and justice mims, you have been a wonderful panel and a high watermark for the virginia bar association. i would like to ask everyone to join me in thanking them. [applause] >> thank you. [applause] [captions copyright national cable satellite corp. 2022] [captioning performed by the na
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you >> c-span has unfiltered coverage of the january 6 hearing investigating the attack on the capitol. go to our web resource page to watch the latest hearings and coverage on the attack and subsequent investigations. we will also have action from members of congress and the white house and journalists talking about the investigation.
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>> here is what is ahead today on c-span. >> this afternoon the white house gives an update on president biden health after he tested positive for covid last week. we will hear from the white house press secretary and response team coordinator. watch live coverage beginning at 3:10 eastern. at 5:00 eastern, former vice president mike thence lays out his policy -- mike pence lays out his policy. you can watch both events live today on c-span, the video app, or online at >> the national urban league held their annual conference in washington, d.c..
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next, we hear from several biden administration's including the cdc director, the epa administrator, and the transportation secretary. health care in the black community, environmental justice, and infrastructure investment are among the topics. this is about one hour and 20 minutes. --. >> the national urban league annual conference in washington. we hear from several administration officials including cdc do like -- different -- director, and epa administrator michael regan -- health care in the black community, invite -- environmental justice, -- were among some of the topics. this is about an hour and 20. -- 20 minutes.


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