Lee made some bad judgments during Trump’s effort to overturn the 2020 election, but he is an honorable conservative, and McMullin isn’t.
Lee made some bad judgments during Trump’s effort to overturn the 2020 election, but he is an honorable conservative, and McMullin isn’t.
I agree wholeheartedly with our editorial endorsing Mike Lee for reelection against “independent” Evan McMullin. Utah voters know what they are getting in Mike Lee. They know where he stands on issue after issue. They also know that a vote for Lee is a vote for Republicans to oust the Democrats from control of the Senate. They know that, over a six-year term of office, Lee will be a reliable and predictable supporter of both conservative policy and Republican control of the chamber, as well as being a hard-working senator who is a leader, not just a follower, on matters of public policy and the judiciary. What you have seen in the past of Mike Lee is what you can expect to get in the future.
Not so Evan McMullin. McMullin is running a campaign that is an active insult to the intelligence of Utah voters. I now regret choosing McMullin as the vehicle for my protest vote in the 2016 presidential election, and most of the McMullin voters I know feel the same way. Lee himself voted for McMullin, and obviously shares the sentiment. But fool me once, shame on you; fool me twice, shame on me. Since he burst onto the scene in that race, McMullin has, as I have documented at some length (and as is further detailed in our editorial and by David Harsanyi), reinvented himself. In the process, he has revealed that he never really believed the message he sold us in 2016 about who he is and what he believes. His entire public persona was a fraud. For good measure, he never paid back his campaign debts, stiffing his vendors to the Trumpian tune of $664,000.
Any reasonable observer can logically assume that McMullin’s ideological reinvention is driven by the people to whom he now answers. Democrats and liberals are now his political and fundraising base, just as his political firm was bankrolled by pro-abortion megadonors before he discovered that he was actually not in favor of overturning Roe v. Wade, a cause he claimed as a heartfelt personal conviction while running for president.
McMullin has spent $1.6 million and counting on Democratic strategists, ad-makers, and pollsters, some of whom are simultaneously working for Joe Biden and his allies. His campaign manager worked for Barack Obama and Hillary Clinton. He raises money on ActBlue, the Democrats’ small-donor fundraising website. There are numerous Democrats among his larger donors, including Democratic elected officials, Obama appointees, and turncoat former Republicans such as Stuart Stevens whose open aim is to break the Republican Party’s power. The Lincoln Project is running ads for McMullin. He’s making the rounds on MSNBC. None of these people are doing so in the expectation that McMullin would vote to dislodge Chuck Schumer as Senate majority leader, or that McMullin would support a Republican agenda over the next six years.
Treating American democratic politics like just another intel op in which he goes undercover as a new identity does not speak well of McMullin’s character, or even his respect for democracy. That is ironic, because character and alleged threats to democracy are the entire basis for McMullin’s argument against Lee.
What is McMullin’s case against Lee’s character? He’s running on text messages Lee sent to Trump chief of staff Mark Meadows during the then-president’s effort to overturn the 2020 election. The fact that those messages are being used to raise money and campaign against Republican candidates provides a pretty good illustration of why the Democrat-dominated January 6 Committee leaked them in the first place.
The background for Lee’s response to the Trump election challenge is Lee’s evolving relationship with Donald Trump. Undoubtedly, by 2020, Lee was all too aware that — like many serious conservatives — he had placed himself on the wrong side of his own party’s voters by opposing the rise of Trump. In the 2016 primaries, he’d supported Ted Cruz, and in the general he’d cast his McMullin protest vote. Like a lot of Republican politicians in his position, he subsequently overcompensated. It is easy — from the sidelines, where those of us in the opinion-writing business have both the luxury and the obligation to always say exactly what we really think — to criticize a man in Lee’s position for attempting to balance his original, principled judgments with his obligation to voters. In a democracy, elected leaders cannot so easily dismiss the will of the people. In 2016, Utah voters shared Lee’s skepticism of Trump, who took 45.1 percent of the state’s general-election vote while Lee was reelected with 68.2 percent of the vote. Four years later, however, Trump got 57.5 percent of the vote in Utah, and drew over 100,000 more votes than any presidential or Senate candidate had ever received in the state. Lee could have quit the business, as Paul Ryan and Pat Toomey did, but he chose to make accommodations in order to keep fighting for the causes he believes in. That makes him a politician.
Let’s walk through what Lee’s text messages actually show about how he handled Trump’s efforts to overturn the 2020 results, the grounds for which looked weak in the days after the election and only grew more tenuous from there. The text messages do not always reflect well on Lee’s judgment of people or situations, and they show him taking some ill-considered positions on constitutional law. But they also rather plainly reveal a man looking to ensure that his own stances could be firmly justified by the law and the evidence, and trying in vain to get Trump to do the same. They do not show a man who took the law cavalierly, nor do they show a man who was trying to pull the wool over the eyes of the voters — as McMullin did by posing as a conservative in 2016 and is trying to do again today by posturing as an “independent.”
Mike Lee is, by training and habit, a lawyer. He began his legal practice, in fact, at my old law firm, Sidley Austin, whose D.C. office his father, the former solicitor general, founded. He later served as general counsel to Jon Huntsman when Huntsman was governor of Utah, and spent additional years in private practice as well as clerking for Samuel Alito both when Alito was a federal appeals judge and after he became a Supreme Court justice.
To read through Lee’s texts to Meadows is to see a situation that is wearyingly familiar to lawyers: He’s trying to humor a client who wants to do something but does not have the evidence to make the case that the law demands, attempting to gradually talk the client down from the ledge. As a U.S. senator, of course, Lee’s ultimate client is the people of Utah, not the president. But his relationship with the president — as the leader of his party — had a similar dynamic.
“If you want senators to object, we need to hear from you on that ideally getting some guidance on what arguments to raise,” Lee told Meadows on December 16. “I think we’re now passed [sic] the point where we can expect anyone will do it without some direction and a strong evidentiary argument.” Later, in a mordant understatement, he told Meadows, “I don’t think the president is grasping the distinction between what we can do and what he would like us to do.” Throughout, Lee stressed to Meadows that what the White House needed in order to mount any sort of campaign to overturn the results was evidence that Trump had actually been the winner. Of course, no such evidence was forthcoming.
Lee underestimated how dangerous Trump’s challenge to the election would be. He failed to anticipate that it would not proceed in the civil and orderly way that it would have if he himself had been directing it. Four days after Election Day, he co-signed a joint statement with many conservative activists reassuring the White House of his “unequivocal support for you to exhaust every legal and constitutional remedy at your disposal to restore Americans faith in our elections.” He told Meadows, “This doesn’t have to come down to a binary choice between (1) an immediate concession, and (2) a destruction of the credibility of the election process. There is a third way exhausting legal remedies while cooperating with the transition proc[e]ss.” Of course, what Trump did — consistent with his own past behavior — was precisely to attack the credibility of the election while dragging his feet on the transition.
Likewise, Lee was too free in recommending bad people to Meadows. At first blush, he vouched, unwisely, for the lunatic Sidney Powell, telling Meadows, “Apparently, she has a strategy to keep things alive and put several states back in play. Can you help get her in?” Two days later, he passed on comments from Powell and said, “I have no way of verifying or refuting that on my own, but I’ve found her to be a straight shooter.” Two weeks later, though, once he’d seen Powell’s claims laid out, Lee was blunt in his assessment. He warned Meadows that “the potential defamation liability for the president is significant here. For the campaign and for the president personally. Unless Powell can back up everything she said, which I kind of doubt she can.”
Four days after that, Lee instead suggested that Meadows talk with John Eastman. Given Eastman’s generally sound reputation in the conservative movement before the 2020 election, it may not have been unreasonable at the time to suggest that he’d offer a more serious grounding in constitutional law for Trump’s strategies than did Powell, Lin Wood, or Rudy Giuliani. Still, Lee should have been more skeptical of Eastman’s legal theories, which ranged from the dubious to the preposterous.
As far as his own legal advice, Lee repeatedly took the hardline pro-states position that state legislatures have the constitutional power to appoint their own slates of electors, and that they could do so after the election if there was sufficient evidence that Trump had actually won their state. The former position is true in general; the latter, while it has its reputable defenders, is much more constitutionally radical given Congress’s power to set the date of the election.
At no time, however, did Lee suggest that Trump go forward with fake electors unsupported by any legitimate arm of a state government. On December 8, he told Meadows, “If a very small handful of states were to have their legislatures appoint alternative slates of delegates, there could be a path.” On another occasion, he wrote: “Everything changes, of course, if the swing states submit competing slates of electors pursuant to state law. . . . I really think this could all backfire badly unless we have legislatures submitting trump slates (based on a conclusion that this was the proper result under state law). Even setting aside constitutional concerns, this will be harmful to the president if we don’t channel this effort properly. We simply have no authority to reject a state’s certified electoral votes in the absence of a dueling slates, with the Trump slate coming from a state legislative determination.” Lee’s eventual vote against the objections reflected this advice; he ended up saying the same thing in public that he had said in private.
Lee began warning Meadows, perceptively, that efforts by Ted Cruz and Josh Hawley “could help people like Ted and Josh to the detriment of DJT” and that “I have grave concerns with the way my friend Ted is going about this effort.” He told Meadows that the objections to the electoral-vote count planned by Cruz and Hawley would be a mistake in the absence of action by state legislatures. “I only know that this will end badly for the President unless we have the Constitution on our side,” he wrote on January 3. “And unless these states submit new slates of Trump electors pursuant to state law, we do not.”
In spite of these cautions, Lee persisted all the way to January 4 in the misguided effort to get state legislatures to appoint electors, and at this point, grasped at the straw of having state legislators act unofficially. He told Meadows, “I’ve been calling state legislators for hours today, and am going to spend hours doing the same tomorrow. I’m trying to figure out a path that I can persuasively defend. . . . We need something from state legislatures to make this legitimate and to have any hope of winning. Even if they can’t convene, it might be enough if a majority of them are willing to sign a statement indicating how they would vote.” Fortunately, no Republican-controlled state legislature went along with this effort.
And when the time finally came for Lee to make his own decision on January 6, he made the right call. Unlike several of his Senate Republican colleagues and many House Republicans, Lee voted to count all of Joe Biden’s electors, voting not just no but “hell no” in the aftermath of the Capitol riot, which seems to have shocked him. His speech explaining why is worth quoting at some length, and it explicitly repudiates the position taken that afternoon by Trump and Eastman:
Our job is to open and then count. Open, then count. That’s it. That’s all there is.
Now there are of course rare instances, instances in which multiple slates of electors can be submitted by the same state. That doesn’t happen very often. It happened in 1960. It happened in 1876. Let’s hope it doesn’t ever happen again. In those rare moments, Congress has to make a choice. It has to decide which of the electoral votes will be counted and which will not. That did not happen here, thank heavens, and let’s hope that it never does.
Many of my colleagues have raised objections or had previously stated their intent to raise objections with regard to these. I have spent an enormous time on this issue over the last few weeks. I’ve met with lawyers on both sides of the issue. I’ve met with lawyers representing the Trump Campaign, reading everything I could find about the constitutional provisions in question, and I’ve spent a lot of time on the phone with legislators and other leaders from the contested states.
I didn’t initially declare my position because I didn’t yet have one. I wanted to get the facts first and I wanted to understand what was happening. I wanted to give the people serving in government in the contested states the opportunity to do whatever they felt they needed to do to make sure that their election was properly reflected. I spent an enormous amount of time reaching out to state government officials in those states, but in none of the contested states—no, not even one—did I discover any indication that there was any chance that any state legislature, or secretary of state, or governor, or lieutenant governor, that had any intention to alter the slate of electors.
That being the case, our job is a very simple one. This simply isn’t how our federal system is supposed to work. That is to say, if you have concerns with the way that an election in the presidential race was handled in your state, the appropriate response is to approach your state legislatures, first and foremost. These protests, hearing from those who have raised concerns, should have been focused on their state capitols, not their nation’s Capitol.
Because our role is narrow. Our role is defined. Our role is limited. Yes, we are the election judges, when it comes to members elected to our own body. And yes, the House of Representatives are the judges of their own races. We also have the authority to prescribe, as a Congress, rules governing the time, place, and manner of elections for senators and representatives. There is no corresponding authority with respect to presidential elections. None, whatsoever. It doesn’t exist. Our job is to convene, to open the ballots, and to count them. That’s it.
I should like to have seen Mike Lee make better judgments in the ugly aftermath of the 2020 election. But I would still trust a whole Senate full of Mike Lees with our republic before I would fall for the latest Evan McMullin con.