High Crimes and Misdemeanors

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Impeachment of the President has occurred twice in American history and was preempted in a third case by the resignation of the President. This little-used mechanism of republican government has recently been on the lips of many, fueled by an unpopular President and a special counsel investigation into the conduct of his subordinates. If a President is impeached by the House of Representatives and convicted by the Senate, he or she is removed from office, but may be subject to later criminal prosecution. The constitutional grounds for impeachment are “Treason, Bribery or other high Crimes and Misdemeanors.” Treason is defined in the Constitution itself and bribery has a clear legal meaning. But what are high crimes and misdemeanors?

I am certainly not a constitutional scholar, but the answer to this question and much more can be found in several sources. Most useful were Raoul Berger’s Impeachment: The Constitutional Problems (1974) and Impeachment: A Citizen’s Guide (2017), by Cass Sunstein. Understanding the history of the language is important.

At the 1787 Constitutional Convention, delegates agreed on a unitary executive – the President — who would not share executive power with other officers. But how prevent this President from becoming as oppressive as the king just overthrown? The preliminary solution was that the President would be elected for a term of four years. An abusive or incompetent President would not be re-elected. This did not satisfy skeptics, who argued that much mischief could be accomplished within four years. The final solution was to add the remedy of impeachment, a tool used from time to time by the British Parliament and American colonial legislatures to control abusive royal ministers.

Checks and balances on the potential misuse of power are everywhere built into the Constitution. The idea that Congress could remove the President through impeachment worried James Madison and others who feared the legislative branch would have too much power and that the President would end up serving at the pleasure of Congress. This concern was driven by initial drafts of the impeachment clause that included “maladministration” as a ground.

But through Madison’s arguments, the convention moved from this broad language toward the notion that the President should be impeachable only for a narrow and specified category of abuses of the public trust. Madison proposed treason and bribery as the sole grounds for impeachment. The terms “high crimes and misdemeanors” were added near the end of the debate to satisfy George Mason, who argued that treason would not reach many great and dangerous offenses. There was no discussion on what the terms meant.

There was no discussion because “high crimes and misdemeanors” had an accepted meaning at the time with which these delegates were familiar. The terms had been in use in English political life since 1642. Here in a nutshell is what these terms mean.

  • The terms high crimes and misdemeanors do not refer to criminal conduct in the ordinary sense. Criminal conduct on the part of the President is neither necessary nor sufficient for impeachment. There was no such crime as a misdemeanor when the terms were first in use – petty crimes were called trespasses. High crimes and misdemeanors may be also be criminal, such as bribery, but lots more is covered.
  • The non-criminal nature of impeachment is confirmed by other parts of the Constitution. The Fifth Amendment guarantees that no person shall be subject to double jeopardy for the same offense. Because the impeachment provision declares that a convicted President can be subject to later criminal prosecution, impeachment was clearly meant as a non-criminal proceeding. Furthermore, while a criminal defendant is guaranteed the right to a trial by jury by the Sixth Amendment, a President is tried by the Senate.
  • High crimes and misdemeanors are political offenses against the state, and impeachment is designed to secure the state not punish the offender. Impeachment has been reserved for gross abuses of power or violations of the public trust. Remember that impeachment was used mainly to rid the state of the king’s corrupt ministers, who were not subject to the normal criminal process.
  • The modifier “high” refers both to the position of the offender and the seriousness of the offense. Impeachment is reserved for especially serious offenses. Only officers in high positions of trust can commit these egregious political offenses.
  • Intense political opposition and a general sense that the President is a failure are not sufficient grounds for impeachment. Nor is a sense that the President’s policies are wrong and harmful to the nation. If these points were not true, both Jimmy Carter and George W. Bush would have been impeached.
  • Because high crimes and misdemeanors are political crimes that cannot be committed by someone who does not hold high political office, they do not include reprehensible conduct committed before a President is elected, unless the conduct procured his or her election. An example might be some fraud or misconduct by the candidate that improperly influenced the election, like the Watergate bugging cover-up by President Nixon.

Arguing for the impeachment of Justice William O. Douglas in 1970, then-Congressman Gerald Ford famously asserted that “an impeachable offense” is whatever the House, with the concurrence of the Senate, “considers it to be at a given moment in history.” But this view is wrong. The terms high crimes and misdemeanors have a relatively precise meaning that was intended, in part, to limit the availability of impeachment. When considering this limit, the two actual impeachments of sitting Presidents were probably unconstitutional.

President Andrew Johnson was a Southerner who oversaw Reconstruction with a galling sympathy for the South. He was hugely unpopular for this. But his impeachment in 1868 was specifically for firing Secretary of War Stanton in violation of a statute passed by Congress to prevent him from firing Stanton. Johnson in good faith believed he had the right to fire officials who worked for him and that the statute was unconstitutional. This position was later vindicated by the Supreme Court. Johnson avoided conviction in the Senate by a single vote. This is an example of an intense disagreement between Congress and the President over matters of policy and law, which are rather frequent and are not egregious abuses of power simply because a majority of Congressmen might say they are.

When President Bill Clinton was impeached, he was a relatively popular President who had implacable opposition among Republicans. They believed him to be a liar and relentlessly sought grounds to impeach him. Recall that Kenneth Starr produced an investigatory report that focused on Clinton’s relationship with Monica Lewinsky and his efforts to cover it up by lying to his wife, his staff, the Cabinet and the American people. But Cass Sunstein remarks that

the impeachment of Bill Clinton is almost incomprehensible, at least if it is explored in the light of the debates in the late eighteenth century. You would have to work really hard to make a minimally plausible argument that Clinton committed an impeachable offense.

Clinton did lie under oath about his affair and this is unlawful, but it wasn’t an impeachable offense because it was not an abuse of his Presidential authority. It was a tawdry offense that practically anyone could commit.

One thing common to these two impeachments was the extreme factionalism in Congress at the time. In Federalist No. 65, Hamilton noted

the prosecution of [political offenses] will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.

Factionalism and passion will always be present in the midst of supercharged political issues, but in our present situation it will do nothing but get in the way of sound judgment.

Some commentators have argued that we have been too timid in the use of the impeachment mechanism. In an excellent opinion piece in the online journal Vox, published on November 30, 2017, Ezra Klein observes

There are plenty of people who simply should not be president of a nuclear hyperpower, and Trump is one of them . . . . We have grown too afraid of the consequences of impeachment and too complacent about the consequences of leaving an unfit president in office. If the worst happens, and Trump’s presidency results in calamity, we will have no excuse, no answer to give. This is an emergency. We should break the glass.

The piece concludes with a proposition at odds with the original meaning of the impeachment clause: “being extremely bad at the job of president of the United States should be enough to get you fired.”

However, events are moving quickly and there may be more to consider than bad job performance. Two days after this post was originally written, Trump’s former national security advisor, General Michael Flynn, pled guilty to lying to the FBI about his contacts with the Russian ambassador, and according to the Washington Post “court records indicate he was acting under instructions from senior Trump transition officials in his dealings with the diplomat.” Working in tandem with a foreign power to defeat a political adversary in a contest for the Presidency, and then attempting to obstruct an investigation into it, or to cover it up, is a “high crime and misdemeanor” in the true, original sense.

The best approach may be to consider only the actions said to be the basis of the potential impeachment behind an imaginary veil of ignorance about the President and his policies. It should not matter whether we agree with his policies and decisions. The sole question should be whether he has inflicted a serious political injury to the country, an abuse of power, enabled by his high office. Put another way, would we consider Trump’s actions to be a gross abuse of Presidential power if committed by a President whose policies we supported? If the answer is yes, then he should be removed.

Jeff Flake’s Conservative Conscience

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Jeff Flake is the junior United States Senator from Arizona. He graduated from Brigham Young University with a degree in International Relations and spent time as a missionary in South Africa. Later he served as the Executive Director of the Goldwater Institute, a conservative think tank, and was elected to the House of Representatives six times beginning in 2000 before his run for the Senate. Flake is very conservative, believing that government’s involvement in the lives of individual citizens should be minimized and that strangling tax revenues and spending is the best way to ensure this. He is pro-life, opposed to gun control and voted against disaster relief spending for victims of Hurricanes Katrina and Sandy. So one would not expect Jeff Flake to be openly critical of a Republican President whose election in 2016 made this conservative nirvana more likely. But Jeff Flake is a man of principle and he has unloaded on Donald Trump.

Flake’s opposition to Trump began during the 2016 Presidential campaign. Although he does not acknowledge a vote for Hilary Clinton, Flake openly admits he did not vote for Trump. He then opposed Trump’s travel ban, declaring that it was unacceptable when even lawful permanent residents could be stopped at the border.

Flake is up for reelection in 2018, so he has recognized that his maverick positions require some explaining. He has attempted to do this in a book recently published entitled Conscience of a Conservative, a title he borrowed from Barry Goldwater’s famous manifesto.

Flake’s opening salvo in the book is a description of the “madman” strategy employed by Richard Nixon to make Ho Chi Minh believe that we might actually drop a nuclear bomb on North Vietnam. In a breathtaking observation about Trump, Flake says “there is a significant difference between appearing to have problems with impulse control and actually having impulse-control problems.” Flake does not let up from there.

Perhaps most destructive of all, we haven’t ever had an occupant of the White House who so routinely calls true reports that irk him “fake news” while giving his seal of approval to fake reports that happen to support his position. This is tremendously damaging . . . Only in anti-democratic propaganda states do we see “alternative facts” successfully compete with the truth for primacy.

Flake not only takes aim at Trump, he is also critical of the partisan gridlock in Congress and the behavior of his own party. He says that the “impulse to dehumanize, to ascribe the worst possible motives to people who in normal times would be regarded not as ‘the enemy’ but merely as political opponents, is a signal that something is terribly wrong.” This applies, of course, not only to Republicans but to all of us these days. In a chapter entitled “Country Before Party” he speculates that Lincoln, Teddy Roosevelt and Ronald Reagan might not be welcome in the Republican Party of today because they were pragmatic and willing to compromise to achieve important national goals. In a particularly powerful passage he argues that

populist resentments may feel good in the moment, but indulging them is destructive, and self-destructive, and offers no solutions to the very real problems that gave rise to the resentments in the first place. Manipulating populist resentments is the oldest trick in the book, and it is shameful. When we allow ourselves to prioritize winning at all costs over what is best for our country . . . then we have chosen our political interests over the public interest and in so doing we inflict great harm on the country.

This is certainly refreshing and welcome. But it will not endear Flake to the harder right elements in his own Party. He now has a challenger in the upcoming Arizona Republican primary, who called his refusal to support Trump “treacherous” and describes Flake’s policies as “America Last.” Trump won in Arizona over Clinton by only 49% to 45% — a far smaller margin than in West Virginia and the narrowest win for a Republican since 1996. So Flake will have both a vigorous Democratic opponent and his hard right challenger to consider. On top of this, his popularity rating in Arizona last fall was only 35%. All this has led The Atlantic magazine to wonder whether Jeff Flake is “too nice” for the Senate, noting that he sometimes seems as if “he has just crash-landed here in a time machine from some bygone era of seersucker suits and polite disagreements.”

It is hard for a progressive to wish a man like Flake political success. His views on most things are somewhat extreme, as befits his libertarian outlook. But on closer inspection he can’t be so easily dismissed. Indeed, he may be an example of a middle course like the one Joe Manchin has attempted to take. For example, Flake is a globalist, believing that we all prosper through international trade agreements and calling for a renegotiation of NAFTA instead of a complete rejection of the treaty. He also flatly rejects Trump’s populist anti-immigrant stance and supported an end to the Cuban Trade Embargo.

Whatever can be said about Jeff Flake’s political views, it is plain he is driven by principle. It is hard to say the same about Joe Manchin. The best that can be said about Manchin’s behavior in the Senate is that he consistently votes in a way he thinks will help West Virginians. But his judgments on this are sometimes debatable, such as with his unflagging support for the coal industry. On matters affecting the nation more than the state, Manchin’s only “principle” is political survival. One can’t help wish for a West Virginia Senator who is willing openly to stand for country over party, for respect of the opponent even during disagreement, and for basic decency despite the political risk. Maybe this is the true middle course that, in the end, will be rewarded by voters.

 

Charlottesville

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I have spent a lot of time in Charlottesville, first for college and then numerous visits later.  It is a lovely city, home to a fine university that pursues reason in the Enlightenment tradition of its founder. So it was that yesterday, as I saw the still photographs of the violent demonstrations by white supremacists and alt-right thugs in Charlottesville, I let out a convulsive sob. How could this kind of thing be happening in our country, much less in Charlottesville? On the pretext of protesting the removal of a statue of Robert E. Lee from a city park dedicated to the emancipation of African-American slaves, these hate-mongers slithered out from under their rocks and paraded around as if they were respectable. Something has  emboldened this ugliness. That something is Donald Trump.

It is painful to see the thugs in public dressed up in uniforms reminiscent of the fascist past, complete with Nazi emblems. But because of the First Amendment, the polestar of our democracy, this kind of thing is lawful as a form of protected speech. That has been the law of the land since at least 1977 when the American Nazi Party was granted a parade permit in Skokie Illinois, home to a large number of Holocaust survivors. We have decided as a nation that freedom of expression, particularly of political matters, carries a higher value than the pain that speech may cause to listeners. In this we are unique among nations. But we do not have to be silent in the face of hateful speech, thereby letting the haters mistake our silence for our assent. Yet that is precisely what our President did yesterday in his tepid response to the Charlottesville events.

Donald Trump has never made outright statements of support for the alt-right movement, but that movement clearly feels he supports their views. During his campaign he urged supporters to rough-up protesters at his speeches, which promptly happened. He doesn’t need to give the thugs overt support. He gives them a wink and a nod — which they recognize. Former KKK leader David Duke, who was in Charlottesville said at a rally that the events there were to “fulfill the promises of Donald Trump” to take back America. Take it back from whom? You guessed it — African-Americans, Jews, Muslims and immigrants.

On the day it occurred, Trump made a brief live statement condemning the violence but not calling out the white supremacists and alt-right fascists who caused it: “We condemn in the strongest possible terms this egregious display of hatred, bigotry and violence on many sides. Many sides.” Trump can be very specific when he wants to criticize someone or something. In this statement he pulled his punches. Where was the specific condemnation of the movement whose fundamental mission is the spread of hatred and bigotry? The alt-right surely must see this as a public relations success. One alt-right demonstrator interviewed by an Atlantic magazine reporter called the Charlottesville events “a tremendous victory.”

Two days after the horrific events in Charlottesville, under tremendous pressure, Trump finally specifically mentioned white supremacists and neo-Nazis. But many consider this too little too late. Writing in the Washington Post on August 14, Alexandra Petri remarked:

Here we are in the year of our lord 2017 and the president of the United States lacks the moral courage to condemn Nazis and white supremacists. And they are not even making it difficult. They are saluting like Nazis and waving Nazi flags and chanting like Nazis and spewing hatred like Nazis.

Donald Trump did not at first specifically condemn the white supremacists and alt-right haters because he sees them as political allies. It is as simple as that. This man — our President — has no commitment to what is morally right rather than politically expedient. It is hard to imagine a less presidential statement when the country needed our leader to stand up to bigotry and hatred. He allowed a false moral equivalency to be created between the two sides of the conflict. But, as Chris Cillizza, CNN Editor at Large, pointed out this morning:

both sides don’t scream racists and anti-Semitic things at people with whom they disagree. They don’t base a belief system on the superiority of one race over others.  They don’t get into fistfights with people who don’t see things their way.

This is a sad moment in our country. Not only do we have the death of one innocent person and injuries to others in Charlottesville to mourn. We have the revival of the alt-right knuckle-draggers to fear. We have a further debasement of civility and our social fabric, which we cannot afford. And, if we needed further proof, we have a President who is morally bankrupt.

 

Moral Politics

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Recently, the Charleston Gazette published an editorial that I have not been able to quit thinking about. The editorial was entitled Morality, Irony and the Fate of America. It pointed out that the current Republican agenda is to take healthcare away from 20 million Americans, 170,000 of them West Virginians, and direct that money to the rich in tax cuts. It noted further that the proposed Trump tax cuts would cut one-fourth of the SNAP benefits for low-income families, undermining nutrition for 100,000 West Virginians. All with the same result of benefitting the rich. And “various other programs that keep the wolves from the door, that give people breathing space to improve their own circumstances, are at risk in the ongoing conflict.” According to the Gazette, this is not just wrong as a matter of policy. It is immoral.

Using morality as the basis for political argument has a rich history in America and elsewhere. But this is dangerous territory because each of us has a personal view of morality fashioned by family, religion, education and personal experience. When it comes to morality we are not all using the same language. As but one example, opponents of abortion use one version of morality to fuel their opposition. Freedom of choice proponents use a different version to argue for the opposite outcome. Still it seems worthwhile to discuss whether there is a moral politics and, if so, what it is. So, with no expertise in political philosophy or thinking about morality, I now venture there.

The first question is the legitimate role of government. This, of course, is a hot topic these days. Beginning from the conservative view of its proper role, government should only do the things that to be effective must be done collectively. In this category would be things like national defense, large infrastructure projects, and the tax collection system that funds both. Since government has a legal monopoly on force, then also among the things government should do is make laws for common safety and security, enforce the laws through policing and corrections, and resolve disputes through the court system.

Are social welfare programs that create a floor beneath the less fortunate among these things? Here we are talking about highly popular programs like Social Security, Medicare, SNAP benefits, unemployment compensation and disability benefits. If social welfare programs are to be undertaken at all, then it is easy to conclude that these programs are also among the things government should do.

Only government can mount social welfare programs on the scale that would be effective. Most social welfare programs operate on insurance principles that spread the risk of catastrophic outcomes and their cost throughout the whole population instead of forcing the individual victim to bear the full weight. This has to be organized collectively. There may be some among us who would say that churches and private charities could do this work but this is a pipe dream. Private charity is important but it would be quickly overwhelmed without collective government action.

Well then, does government have an obligation to devise and implement social welfare programs – to support the needy and less fortunate among its citizens? Libertarians and other followers of the “objectivist” philosophy of Ayn Rand would say no. They believe that the individual prospers by being selfish, asking for no help from others and giving none.

This objectivist view is inconsistent with the Judeo-Christian philosophy of action and with the teachings of every organized religion. Religious leaders whose business it is to consider moral issues consistently say that helping others in need is a moral imperative. A recent letter to the editor of the Gazette from the Executive Director of the West Virginia Council of Churches urged our Congressional representatives to maintain their support for SNAP benefits on religious grounds.

Then there is the fact that every modern government recognizes this imperative, those in Western Europe more than others. Social welfare programs became more common as the phenomenon of empathy spread in society. But mere empathy withers in the face of the high cost of acting on it. As New York Times columnist David Brooks has argued, those we recognize as having a strong moral compass have sense of obligation to some religious, military, social or philosophic code. They would feel a sense of shame or guilt if they didn’t live up to the code. Whatever the source of this moral sense, when it comes to social welfare most people have it. It would be difficult to find a political leader in any country, except perhaps our own, willing to deny that government has a moral obligation to build some sort of support system for those in need.

Without anything to back this up other than a visceral feel, I believe that our sense of moral imperative, and therefore the legitimacy of government social welfare programs, is highest when dealing with basic needs. Wide swaths of society can rally around programs that eliminate or reduce hunger, but far fewer around programs that, say, provide recreational opportunities. In the high legitimacy category I would also put minimizing pain and disease, homelessness, the infirmities of old age, and responding to natural disasters. But certainly there can be a lot of debate around what we are morally compelled to do.

Unlike the debate about abortion, there is no countervailing moral argument behind the current Republican opposition to Medicaid and SNAP benefits. Medicaid expansion, and even the basic idea of Medicaid itself, has been threatened in the fever to repeal Obamacare. How, or if, we manage health insurance for those able to afford it is a different question entirely from whether we provide it for those who can’t. The fact that Congressional Republicans have wrapped the two issues together in the repeal effort demonstrates that the argument to undermine Medicaid cannot stand on its own.

When Paul Ryan, Mitch McConnell and their surrogates offer any reason behind their hostility to Medicaid and SNAP benefits it is a fiscal, not a moral reason. They say we must cut back on these benefits because they are growing at a rate that is unsustainable over the long run. I don’t pretend to know whether this is true but it seems unlikely we couldn’t find some adjustments to make them sustainable. What is perfectly obvious is that the people who receive these benefits are in need now — today. The moral imperative for government to act should not yield in favor of some cool assessment of future bookkeeping. Doing what should be done may not be easy, but that is often the nature of moral choices.

 

 

Trump’s Advisory Commission on Election Integrity

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One thing that rankles President Donald Trump is that he was not the most popular candidate in the 2016 Presidential election. In fact, he lost the popular vote to Hilary Clinton by approximately 3,000,000 votes, 2.1% of the total votes cast for President. Trump’s explanation is that Clinton’s vote total was the result of widespread voter fraud. In a tweet on November 27, 2016, Trump asserted “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally.” Although he has produced no evidence of fraudulent voting, Trump has continued to make this claim and threatened an investigation. The truth is that voter fraud is exceedingly rare.

On May 11, 2017, the President issued Executive Order 13799, which created the Presidential Advisory Commission on Election Integrity. The ostensible purpose of this Commission is to study the registration and voting processes used in Federal elections. Vice President Pence chairs the Commission and has appointed as Vice Chair Kansas Secretary of State Kris Kobach. An early supporter of President Trump, Kobach has been a key architect of anti-immigrant policies and voter suppression rules around the country. In one of his first Commission duties, Kobach issued a letter to all state Secretaries of State requesting the production of sensitive voter registration and voting history information.

The letter requested only publicly available information and suggested that the responsive information could be submitted electronically. Here is the specific information requested:

The publicly available voter roll data for [your state], including, if publicly available under the laws of your state, the full first and last names of all registrants, middle names or initials if available, addresses, dates of birth, political party (if recorded in your state), last four digits of social security number if available, voter history (elections voted in) from 2006 onward, active/inactive status, cancelled status, information regarding any felony convictions, information regarding voter registration in another state, information regarding military status, and overseas citizen information.

As of this writing 44 states have declined to provide some or all the information requested, often because some of it is deemed unavailable to the public or is not collected by the state. But some states such as California and Virginia refuse to cooperate in any way. West Virginia Secretary of State Mac Warner has not yet responded.

It may be unnecessary for West Virginia to decide how to respond. On July 3, 2017, the Electronic Privacy Information Center (EPIC) filed an Emergency Motion for Temporary Restraining Order in U.S. District Court in the District of Columbia alleging that the Commission had begun collecting and aggregating sensitive personal information of voters without any procedures in place to protect voter privacy or the security of the state voter data. In particular, EPIC alleged that the Commission failed to comply with the Privacy Impact Assessment requirements of the federal E-Government Act of 2002. A hearing on the motion will be held on Friday, July 7.

Assuming that collection of state voter information is not enjoined, what response can we expect from the West Virginia Secretary of State? State law already permits the Secretary of State to sell state voter lists and data files containing some of the information the Commission has requested. WV Code 3-2-30. However, this information may not contain the voter’s telephone number, email address, Social Security number or driver’s license number. In addition, no lists or voter data files may be used for commercial or charitable solicitations, sold or reproduced for resale. The Secretary of State is authorized to share data files across state lines with state or local election officials, but there is no express authority to share data with federal officials.

The Commission’s request for voter data is troubling for a number of reasons. The data will reside in the White House with no legal restriction on how it can be used. It is not clear how the Commission will use it in the first place, because each state collects and stores its information in unique ways making state to state comparisons difficult. There is no structure for ensuring that the information, aggregated for the first time on a national basis, would be secure from hackers. And as the plaintiffs in the EPIC lawsuit argued,

It does not matter that a particular state might disclose its voter data to some other requester under some other circumstances: this requester — the Commission — is barred by law from gathering this data without sufficient constitutional and statutory privacy safeguards.

The safest thing for Secretary of State Warner to do is to respond with questions of his own about how the information will be used and how it will be safeguarded. The Commission has no subpoena power, and Warner should not rush to comply with some artificial deadline before he is certain that our voter information will be safe and properly used. Second, he should not disclose the last four digits of a West Virginia voter’s Social Security number under any circumstances. That is prohibited by state law. Third, if he decides to provide the information he should sell it to the Commission on the same terms as he would sell it to research groups and political parties. State law does not authorize him to release the data for free to anyone. And no doubt there are provisions in the form contract of sale used by the Secretary of State’s office when this type of data is sold that bind the purchaser not to use the data for commercial purposes.

But here is an even better strategy. Responding to requests for voter information from federal officials is not among the statutorily enumerated powers of the Secretary of State. WV Code 3-1A-6. This suggests that the decision whether to provide the information belongs to the Governor, who holds the state’s executive power. Governor Justice should simply direct Warner to decline the request to provide voter information, or respond in that fashion himself. Virginia Governor Terry McAuliffe took this approach, saying “I have no intention of honoring this request. Virginia conducts fair, honest, and democratic elections, and there is no evidence of significant voter fraud in Virginia. . . At best this commission was set up as a pretext to validate Donald Trump’s alternative election facts, and at worst is a tool to commit large-scale voter suppression.”