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    Will Pence Do the Right Thing?

    AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWill Pence Do the Right Thing?On Jan. 6, the vice president will preside as Congress counts the Electoral College’s votes. Let’s hope that he doesn’t do the unthinkable — and unconstitutional.Neal K. Katyal and Mr. Katyal, a law professor at Georgetown, is a former acting solicitor general of the United States. Mr. Monsky is the creator of the American History Unbound Series of multimedia productions that covers watershed moments in American history and a board member of the New-York Historical Society.Dec. 29, 2020, 5:00 a.m. ETCredit…Tom Brenner/The New York TimesPresident Trump recently tweeted that “the ‘Justice’ Department and FBI have done nothing about the 2020 Presidential Election Voter Fraud,” followed by these more ominous lines: “Never give up. See everyone in D.C. on January 6th.”The unmistakable reference is to the day Congress will count the Electoral College’s votes, with Vice President Mike Pence presiding. Mr. Trump is leaning on the vice president and congressional allies to invalidate the November election by throwing out duly certified votes for Joe Biden.Mr. Pence thus far has not said he would do anything like that, but his language is worrisome. Last week, he said: “We’re going to keep fighting until every legal vote is counted. We’re going to win Georgia, we’re going to save America,” as a crowd screamed, “Stop the steal.”And some Republicans won’t let up. On Monday, Representative Louie Gohmert of Texas and other politicians filed a frivolous lawsuit, which has multiple fatal flaws in both form and substance, in an attempt to force the vice president to appoint pro-Trump electors.Mr. Trump himself has criticized virtually everyone’s view of the election, from that of the Supreme Court to the F.B.I. to Senator Mitch McConnell, but he has never attacked Mr. Pence, suggesting he has hopes for the vice president.But as a matter of constitutional text and history, any effort on Jan. 6 is doomed to fail. It would also be profoundly anti-democratic and unconstitutional.Both Article II of the Constitution and the 12th Amendment say that the votes of the Electoral College are to be opened by the “president of the Senate,” meaning the vice president. The Electoral Count Act, passed in 1887 to avoid chaotic counts like the one that followed the 1876 election, adds important details. It provides a detailed timeline to tabulate electoral votes, culminating with the final count to take place on Jan. 6, and it delineates the powers of the vice president.He is to be the “presiding officer” (meaning he is to preserve order and decorum), open the ballot envelopes, provide those results to a group of tellers, call for any objection by members of Congress, announce the results of any votes on objections, and ultimately announce the result of the vote.Nothing in either the text of the Constitution or the Electoral Count Act gives the vice president any substantive powers. His powers are ministerial, and that circumscribed role makes general sense: The whole point of an election is to let the people decide who will rule them. If an incumbent could simply maneuver to keep himself in office — after all, a maneuver to protect Mr. Trump also protects Mr. Pence — the most foundational precept of our government would be gravely undermined. In America, “we the people,” not “we, the vice president,” control our destiny.The drafters of the Electoral Count Act consciously insisted on this weakened role for the vice president. They guarded against any pretense he might have to throw out a particular state’s votes, saying that the vice president must open “all certificates and papers purporting to be” electoral votes. They further said, in the event of a dispute, both chambers of Congress would have to disagree with a particular state’s slate of electoral votes to reject them. And they made it difficult for Congress to disagree, adding measures such as a “safe harbor” provision and deference to certification by state officials.In this election, certification is clear. There are no ongoing legal challenges in the states of any merit whatsoever. All challenges have lost, spectacularly and often, in the courts. The states and the electors have spoken their will. Neither Vice President Pence nor the loyal followers of President Trump have a valid basis to contest anything.To be sure, this structure creates awkwardness, as it forces the vice president to announce the result even when personally unfavorable.After the close election of 1960, Richard Nixon, as vice president, counted the votes for his opponent, John Kennedy. Al Gore, in perhaps one of the more dramatic moments of our Republic’s short history, counted the votes and reported them in favor of George W. Bush.Watching Mr. Gore count the votes, shut off all challenges and deliver the presidency to Mr. Bush was a powerful moment in our democracy. By the time he counted the votes, America and the world knew where he stood. And we were all lifted up when Mr. Gore, at the end, asked God to bless the new president and vice president and joined the chamber in applause.Republican leaders — including Senators McConnell, Roy Blunt and John Thune — have recognized the outcome of the election, despite the president’s wrath. Mr. McConnell put it in clear terms: “The Electoral College has spoken. So today, I want to congratulate President-elect Joe Biden.”Notably, Mr. Pence has been silent. He has not even acknowledged the historic win by Kamala Harris, the nation’s first female, first African-American and first Asian-American vice president.He now stands on the edge of history as he begins his most consequential act of leadership. The question for Vice President Pence, as well as other members of Congress, is which side of history he wants to come down on. Can he show the integrity demonstrated by every previous presidential administration? The American people accept a graceful loser, but a sore loser never goes down well in the history books.We urge Mr. Pence to study our first president. After the Revolutionary War, the artist Benjamin West reported that King George had asked him what General Washington would do now that America was independent. West said that Washington would give up power and go back to farming. King George responded with words to the effect that “if he does that, he will be the greatest man in the world.”Indeed, Washington did so, surrendering command of the army to Congress and returning to Mount Vernon for years until he was elected president. And he again relinquished power eight years later, even though many would have been happy to keep him president for life. Washington in this way fully realized the American Republic, because there is no Republic without the peaceful transfer of power.And it’s now up to Mr. Pence to recognize exactly that. Like all those that have come before him, he should count the votes as they have been certified and do everything he can to oppose those who would do otherwise. This is no time for anyone to be a bystander — our Republic is on the line.Neal Katyal (@neal_katyal), a former acting solicitor general of the United States and the author of “Impeach: The Case Against Donald Trump,” is a law professor at Georgetown. John Monsky is the creator of the American History Unbound Series of multimedia productions that covers watershed moments in American History and is a board member of the New-York Historical Society.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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    Got $1 Million to Spare? You Can Buy an Ambassadorship

    AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyGot $1 Million to Spare? You Can Buy an AmbassadorshipThe donor-diplomat has a long and sordid history in American politics. Joe Biden should finally end it.Mr. Schwartz is a contributing writer for The New York Times Magazine who reports regularly on national security and foreign policy. He is based in Washington.Dec. 15, 2020, 5:00 a.m. ETGeorge Harvey, the American ambassador to the United Kingdom, at a ball in London with the Prince of Wales on March 23, 1923.Credit…PA Images, via Getty ImagesWho wouldn’t want to be an American ambassador?Beyond the pomp and social cachet, you get a luxury residence, six-figure salary, and private school tuition for your children — a comfortable diplomatic lifestyle bankrolled by taxpayers. For decades, presidents from both parties have quietly distributed a portion of these cushy posts (often in the touristy capitals of Europe and the Caribbean) to some of their most generous campaign donors. Although the practice is technically prohibited by law, Congress has long acquiesced.“We’re the only country in the world that does business in this way,” says Dennis Jett, a retired ambassador, career foreign service officer and professor who wrote the book “American Ambassadors.” “Nobody else has an open market on ambassadorships. If we really believed in capitalism, we would list these postings on eBay.”The problem, as indicated by Gordon Sondland and other donor-ambassadors during the Trump administration, is that the most loyal are often the least competent. But the practice of effectively selling ambassadorships did not start with President Trump. The fact that nearly every modern president has done the same would seem to be the rare piece of evidence in support of Mr. Trump’s claim that he is no more corrupt than the Washington “swamp.” The incoming Biden administration now has a chance to prove him wrong.The precise origins of ambassadorial graft are obscure, but one of the earliest examples can be found inside the original “smoke-filled room,” a suite at the Blackstone Hotel in Chicago, where Republican power brokers haggled into the early hours of June 12, 1920, trying to choose an agreeable presidential candidate to unite their party’s deadlocked convention. They finally settled on the stately-looking junior senator from Ohio, Warren G. Harding. One of Harding’s powerful backers was George Harvey, publisher and industrialist, who had engineered Woodrow Wilson’s ascent to the White House. After Harding won the election, he made Harvey ambassador to the Court of St. James’s in London.Ambassador Harvey wasted no time in making a fool of himself. He showed up dressed like a minister from the previous century, in satin knee breeches and silver-buckled slippers. He gave a speech at a London club questioning whether women had souls. In another speech, delivered before the Pilgrims Society, he claimed that the United States had fought in World War I “reluctantly and laggardly” to save its own skin. Almost immediately, Harvey was condemned on both sides of the Atlantic. Harding distanced himself from his ambassador’s views.George Brinton McClellan Harvey, seen here in 1914, was the United States Ambassador to the United Kingdom during the Harding administration.Credit…Harris & Ewing Collection, via Library of CongressIn 1924, Congress passed the Rogers Act, an attempt to create a corps of professional career diplomats. But the temptation to reward political allies with ambassadorships has only grown.Mr. Sondland, a hotelier who gave a million dollars to Mr. Trump’s inaugural committee, was made the United States ambassador to the European Union. Unlike Harvey, who had real clout, Mr. Sondland was mainly distinguished by his willingness to give away his own money. (Among his “honors,” according to his official curriculum vitae, was the purchase of a California Hyatt, crowned “transaction of the year” at the American Lodging Investment Summit.)As ambassador, Mr. Sondland undermined his State Department colleagues by serving as a backchannel during Mr. Trump’s attempted shakedown of the Ukrainian government. He was also overheard conducting a sensitive conversation with the president on his personal cellphone in a Kyiv restaurant, a security breach that a former C.I.A. official called “insane.”Under Presidents Bill Clinton, Barack Obama, George H.W. Bush and George W. Bush, roughly 70 percent of ambassadorial posts went to Foreign Service Officers — professionals who spent years training for such a post. The other 30 percent have been political appointments. Some of those are competent foreign-policy veterans; others have country expertise from working in business or the nonprofit sector; still others are chiefly qualified by their willingness to pour money into their patron’s political campaign. Under Mr. Trump, the number of political appointments rose to 43 percent.The history of American diplomacy is replete with presidential cronies who get their coveted ambassadorships only to find themselves in over their heads. Franklin Roosevelt sent the Democratic backer Joseph P. Kennedy Sr. as his envoy to the United Kingdom. Like Harvey, Kennedy proved to be a headstrong magnate who couldn’t control his isolationist streak. He predicted that “democracy is finished in England,” after the Battle of Britain and resigned soon after.Over the following decades, as the costs of campaigning rose, money took the place of back-room influence as the key criterion for would-be ambassadors. Richard Nixon’s lawyer put an explicit price tag on an ambassadorship — $250,000 for Costa Rica — then denied having done so to a grand jury. One of his appointed donors, Vincent de Roulet, called his Jamaican hosts “idiots” and “children.” De Roulet’s attempts to protect American bauxite interests by threatening to interfere in Jamaican elections were not well-received by the host government. In 1973, Jamaica declared him persona non grata; he resigned in disgrace.President Jimmy Carter attempted to reform the system, promising a merit-based process overseen by a bipartisan screening board, and Congress made another attempt to limit political appointments with the Foreign Service Act of 1980. But the pay-for-play system continued, spurred on by campaign costs and the aspirations of the wealthy.William A. Wilson, a longtime friend and backer of Ronald Reagan’s, was made the first United States ambassador to the Vatican, a post he held until 1986, when reports surfaced of his unauthorized meeting with the Libyan dictator Muammar el-Qaddafi, which flouted White House policy.George Tsunis, another wealthy hotelier, raised $1.3 million for Mr. Obama and was his choice to be ambassador to Norway. Mr. Tsunis proved so ignorant of the country in his confirmation hearing that the Senate sat on his nomination for more than a year. Mr. Tsunis eventually gave up. Three other Obama backers who made it through the confirmation process for other assignments resigned in the midst of scathing reports on their management from the State Department’s inspector general.Under Mr. Trump, the inspector general has reportedly examined allegations of racist and sexist remarks by Woody Johnson, a seven-figure donor who became ambassador to the United Kingdom. Jeffrey Ross Guntner, Mr. Trump’s donor-ambassador to Iceland, reportedly wanted to manage the embassy remotely, from California, through the coronavirus pandemic. Kelly Craft, currently ambassador to the United Nations, spent more than 300 days traveling outside the country during her brief tour as donor-ambassador to Canada.President-elect Joe Biden, who had a clear view of this system as the top Democrat on the Senate Foreign Relations Committee for many years, now has a chance to reform it. It is unclear whether he will.While his primary opponent Sen. Elizabeth Warren vowed that no ambassadorial posts would go to donors or bundlers, Mr. Biden demurred when asked about the issue earlier this month, saying only that he would “appoint the best people possible.” Sen. Tim Kaine, a Democrat from Virginia, has sponsored a bill that would require would-be ambassadors to disclose their country knowledge and language skills in detail, along with any political contributions given or bundled over the previous 10 years.Ambassadors are responsible for hundreds of government employees and have a hand in most every aspect of American policy within the borders of their host nation. “Would you want a campaign contributor to be the captain of an aircraft carrier?” asked Mr. Jett, the retired foreign service officer and author. “Obviously not. This is a national security issue.”Beyond the inherent risk of giving such a sensitive job to anyone but the most competent candidate, the practice of nominating donors demoralizes the foreign service, wastes opportunities to develop future leaders, and presents the world with a cynical face. It is an especially dangerous practice when Mr. Trump has been working to reframe foreign policy as a more contingent set of arrangements where there are no permanent bonds, only interests.Perhaps there was once a time when American alliances were strong enough to withstand a few Sondlands, but that is far less true today than it was four years ago. If Mr. Biden is serious about restoring America’s standing in the world, he should entrust that task to professionals.Mattathias Schwartz (@schwartzesque) is a contributing writer for The New York Times Magazine. He is also a contributing editor for Rest of World and a former staff writer at The New Yorker, where he won the Livingston Award for international reporting.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More