State Sen. Doug Mastriano, R-Franklin (R) and former state Rep. Rick Saccone at the U.S. Capitol on 1/6/21 (Facebook photo)
I hope I speak for all Americans when I say that it is troubling when one political party uses its majority in Congress to investigate the other party’s potential candidate for governor in a politically important state. Of course, such an investigation might be justified.
But it certainly raises a red flag and should be looked at carefully.
That is what occurred on Feb. 15, when the Democratic-led House select committee investigating the Jan. 6 attack on the U.S. Capitol issued six subpoenas, including two to Republicans currently running for statewide offices. One of those subpoenas was issued to state Sen. Doug Mastriano, R-Franklin, who is a major candidate for the Republican nomination for governor in Pennsylvania.
The potential for abuse is obvious.
That is why we must ask what the Jan. 6 Commission should be investigating.
Clearly, the commission should be investigating the Jan. 6 attack itself. The American people need to see that Jan 6 was no simple act of civil disobedience to be compared to protests like Black Lives Matter or people chaining themselves to fences outside abortion clinics. Jan. 6 was an organized attempt to disrupt the peaceful transfer of power after a Presidential election. It was an attack on democracy itself.
Criminal prosecution of the participants is not sufficient. Everything about the attack, including the shameful failure to prevent it, must be brought to public light.
Second, the people who planned the attack must be exposed. The attack was not a spontaneous event. Undoubtedly, many, maybe most, of the people who entered the Capitol that day were swept up in the mob without premeditation. But that is not true of everyone and not the case with some people behind the scenes.
It is especially important to expose such persons because criminal prosecution of the planners will be difficult.
Third, the Jan. 6 Commission should be investigating the Big Lie that the 2020 election was stolen. By far the greater threat to democracy than the attack itself is the fact that millions of Americans, almost a third by a recent poll, and 71% of Republicans, believe that Biden was not legitimately elected. In Wisconsin, a Republican led effort to decertify the 2020 Presidential election result is actually gaining support. This belief in election fraud is why the Jan. 6 attack took place.
The problem is that the commission subpoena of Mastriano does not fall into any of these three categories. Yes, Mastriano was in Washington on Jan. 6 and organized, and paid for, buses to bring other people with him. And, further, Mastriano is perhaps the most prominent purveyor of falsehoods about the 2020 election.
But it seems crystal clear that Mastriano thought, and the people he brought with him, thought, they were going to a lawful protest.
In November, 2020, Mastriano hosted a public meeting with Trump lawyer Rudy Giuliani promoting claims of election fraud. In other words, Mastriano appears to actually believe that the 2020 election was stolen and went to Washington on Jan. 6 to protest the steal. He may even have hoped that Congress would reject the Biden electors. Nevertheless, as far as has ever been shown, this was to be done by lawful means in an attempt to prevent what Mastriano believed was an unlawful event—the fraudulent installation of Biden as president.
And, while it would be immensely helpful to the nation to call Mastriano to Washington to testify about his theories of election fraud in order to show that they have all been debunked in court, often by Republican judges, or, like Mastriano supporter Michael Flynn’s theory about Chinese vote machine interference, are just too looney to take seriously, none of that is why Mastriano was subpoenaed.
Instead, Mastriano is being called to investigate an effort to reverse the 2020 election by what he thought were constitutional and lawful means. After the 2020 election, efforts were made to send alternate electors to Washington, convince Vice President Mike Pence to reject the certified electors for Biden and accept these electors instead, electors who would then cast ballots for Trump and thus reverse the result of the 2020 election.
There is not much doubt that Mastriano was part of this effort, though the details are unclear. Mastriano said publicly that if the presidential election was fraudulent, the Constitution empowered the Pennsylvania General Assembly to select Pennsylvania’s electors itself.
There is clearly a legitimate matter here for Congressional investigation. A bipartisan group of Senators is pushing to amend the Electoral Count Act, the cumbersome and ambiguous provisions of which created an illusion for some that Pence had more than a ceremonial role in certifying electors.
There is support in the House for such reform. U.S. Rep. Zoe Lofgren, the chair of the House Administration Committee, suggested this path for the Jan. 6 Commission.
But there is no indication that this is purpose the for which Mastriano is being called. Nor, beyond the fact that he misunderstood how the current law operates, is there any reason to think that Mastriano would be of any assistance in amending the act.
Mastriano is being called because of a false constitutional theory he propounded after the 2020 election and probably still holds—the 2020 election was fraudulent, Congress should have rejected the unlawfully certified Biden electors, and if Congress failed to do so, former President Donald Trump had constitutional authority to seize voting machines and force an honest count or even to conduct a new election.
Though none of this is true, and all of it would overturn a properly held election, a dangerous constitutional theory based on debunked factual claims is not an insurrection. Biden electors were not going to be kidnapped. These false electors were not going to be installed without a vote of Congress.
If Mastriano can be called to testify, why not every Republican legislator who voted to reject lawful Biden electors?
There may be partisans who would like to do exactly that. Not to debate their false assertions, but to drag political opponents into the witness seat. And that is precisely why the subpoena to Mastriano is unjustified and threatening. You don’t investigate your political opponents for their false views. You run against those views. That is how constitutional democracy is supposed to work.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Duquesne University Law School.
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