The January 6 committee’s aversion to cross-examination shows that no one is allowed a different perspective from Adam Schiff’s.
The committee’s aversion to cross-examination shows that no one is allowed a different perspective from Adam Schiff’s.
G eorgia’s secretary of state Brad Raffensperger was the most prominent witness at Tuesday’s January 6 committee session. The notoriety of a man who would otherwise be a state official of evident competence but no national profile owes to then-president Donald Trump’s now-infamous phone call with him on January 2, 2021. Leading the committee’s presentation, Representative Adam Schiff (D., Calif.) expectedly made hay with this conversation, stressing Trump’s aggressive pleas that Raffensperger find him 11,780 votes — the amount that would give Trump just enough to overcome Biden’s slim lead in the Peach State, where about 5 million people voted.
As Rich Lowry observed at the time, Trump’s appearance on this call and his conduct as it ensued were appalling. For an hour the president alternatively tried beguiling, bullying, and pressing the bonds of party loyalty on the state official, eventually intimating that the admirably immovable Raffensperger might have legal as well as political exposure for failing to act on the supposed truth of Trump’s claims. It should go without saying (but no longer does) that an American president should never exploit the majesty of his office for personal political gain by browbeating a top state elected officer — meaning, an officer who does not answer to the federal government, let alone the president.
Everything may be personal to Trump, but in the scheme of things, he was bullying not Raffensperger but the sovereign state of Georgia. To repeat a theme that has played out again and again in this dark saga, Trump’s conduct during the call exhibited his unfitness for the presidency. He remains under a state grand-jury investigation led by Fulton County’s Democratic district attorney. Trump has his own recklessness to thank for that predicament.
That said, Tuesday’s testimony shows that the lack of cross-examination makes for a skewed account.
Snippets of the phone call were played during Raffensperger’s testimony. Though Schiff had teed up the call as a showdown between Trump and Raffensperger, other voices were audible. Weirdly, Schiff did not ask Raffensperger to identify who else was on the call — something a lawyer of Schiff’s experience would never have omitted if he knew the witness was going to be cross-examined.
See, Trump did not call Raffensperger on his own. In addition to White House chief of staff Mark Meadows, the president had his private lawyers with him — not the Giuliani team, but a different team that was conducting a more standard litigation over alleged voter and government noncompliance with state election law. Trump was represented by election-law expert Cleta Mitchell, who has long been well regarded in conservative and Republican circles, along with two Georgia-based attorneys, Kurt Hilbert and Alex Kaufman. The Georgia officials on the call, along with Raffensperger, were his office’s deputy, Jordan Fuchs, and its general counsel, Ryan Germany.
It was Mitchell’s voice overheard in the snippets Schiff played. Of course, had Schiff elicited that Mitchell and several others — lawyers and government officials — were on the call, viewers might have realized that the context was a conference between opposing sides of a litigation to try to narrow their disputes, rather than a one-on-one mafia-style extortion.
How strange, though. The committee went on a rant at the end of Tuesday’s hearing about how vital it is to have every person’s relevant testimony, no matter what constitutional rights and privileges get bulldozed in the process. Well, the committee has Mitchell’s testimony. We know this because the panel mined a snippet of it, maybe ten seconds in length, which it weaved into its narrative — although about a different subject, viz., John Eastman’s dubious legal theory of circumstances under which state legislatures could substitute their own presidential vote for the popular vote.
Okay . . . but what did Mitchell have to say about the Raffensperger call, for which — like Trump and Raffensperger — she was present throughout? If everyone’s testimony is so vital, and that phone call was so vital, then shouldn’t the committee tell us what, if anything, she was asked about it, and what her answers were? Maybe release the full interview video or a transcript so we could read a perspective different from, say, Adam Schiff’s? Nope. Apparently, what’s vital is that the committee get everyone’s testimony, not that the public gets to hear it. We’re to be content with whatever the panel deigns to show us, spliced and diced into its storyline. In fact, we don’t even know what Mitchell had to say about the Eastman theory, the subject of the selectively edited sliver of her deposition that was slid into one of the committee’s slick video presentations, narrated by its young aides.
If we had gotten Mitchell’s version of the Raffensperger call, or even if there had been cross-examination of Raffensperger, we’d have gotten the context: a negotiation by attorneys for competing sides of a legal dispute — a numbingly conventional post-election challenge involving various categories of alleged non-compliance with Georgia voting requirements. The Trump team talked about providing additional information to the Georgia officials, asking for discovery of state data, and trying to narrow disputes about alleged election improprieties.
As I related at the time, the lawsuit filed by Trump’s lawyers in Georgia was based on scrutiny by accountants of publicly available data from the postal service, the secretary of state’s office, and other sources. In detail, the lawyers filed a court petition outlining specific voting irregularities they suspected: a total of nearly 150,000 votes they claimed were invalid, broken into several categories of impropriety (votes by people who were underage, felons, deceased, or otherwise unqualified; registration violations; double-voting; and so on).
In context, Trump was not demanding that Raffensperger pull 11,780 votes out of the sky. He was claiming that the total of supposedly invalid votes surpassed Biden’s victory margin by more than a factor of ten. He was claiming that if the improprieties his team of lawyers and accountants had discerned were established — he, naturally, presumed they were true — he would have won Georgia by over 100,000 votes; but, his point was, he didn’t need to win by hundreds of thousands, just by one. In context, when he said he “needed to find 11,780,” he meant, “I’ve shown you 150,000 illegitimate votes, you just need to pick your best 11,780.”
Now, was Trump wrong? Clearly. To begin with, even if his team were right that there had been large-scale noncompliance, that would not mean every invalid vote was a Biden vote — it’s not like if you concede that there were at least 11,780 illegitimate votes, Trump wins. A lot of those votes could have been Trump votes. And as a practical matter, since it’s a secret ballot, how do you sort out any invalid ones once they’re included in the count? More importantly, though, as Raffensperger testified, his office looked into the Trump campaign’s claims and found that they did not withstand scrutiny — describing them as factually wrong, based on faulty data and data-analysis, devoid of legal merit, and reliant on experts who had either reversed themselves or admitted to engaging in speculation.
No surprise there. Raffensperger elaborated that his office receives claims of improprieties, investigates them, and takes whatever action is warranted based on what the investigation shows. Here, his office found that the Trump team’s categorical claims of voting-law violations were baseless. He never wavered from that, regardless of the pressure.
How scandalous is that?
Well, in advance of the 2020 election, Hillary Clinton caused a stir by saying that Biden should not concede “under any circumstances” — and since defeat is a conceivable circumstance, that sounds awfully Trumpy. But irrational, baseless non-concession is less unusual than it sounds. Candidates who do not concede defeat tend to file lawsuits making all manner of hyperbolic allegations. Typically, these claims are futile, based on expert analyses that indulge all kinds of wishful assumptions. (You may have heard that, in many cases, no matter how apparently cut-and-dried, the competing sides manage to find experts who — mirabile dictu! — end up quite sure that the people paying them have the better side of the argument.)
The January 6 committee’s aversion to cross-examination meant that no member of Congress with a perspective different from Adam Schiff’s (if you can imagine anyone disagreeing with Adam Schiff) had the opportunity to ask Raffensperger about, for example, “The Stacey Abrams Playbook for Crying ‘Stolen Election.’”
That’s an essay he penned for NR in March 2021. In it, Georgia’s secretary of state recounted how the once and future Democratic gubernatorial candidate engaged in the same sorts of accounting hocus-pocus as Trump did in claiming that an election she lost by a margin about five times the size of Trump’s defeat was nevertheless stolen from her. Raffensperger recounted that “now-President Joe Biden, Kamala Harris, Bernie Sanders, Hillary Clinton and others throughout the Democratic establishment endorsed the idea that the election was stolen,” despite the lack of proof. Raffensperger did not say whether that list of prominent Democrats includes Representatives Bennie Thompson (D., Miss.) and Jamie Raskin (D., Md.), who also have a history of baselessly trying to stop Congress from counting electoral votes for Republican presidential election winners . . . but were nevertheless tapped by Pelosi for star turns on the January 6 committee.
Interestingly, in assessing what most “tellingly” demonstrated the emptiness of Abrams’s claims, Raffensperger noted that, in the investigation that followed, the people who posited the misleading narrative were subject to cross-examination. What a concept!