This New Book Reminds Us Tom Cotton Is One to Watch With a Very Wary Eye

This venerable law, nearly as old as our republic itself, doesn't amount to "martial law" or the end of democracy, as some excitable critics, ignorant of both the law and our history, have comically suggested. In fact, the federal government has a constitutional duty to the states to "protect each of them from domestic violence." Throughout our history, presidents have exercised this authority on dozens of occasions to protect law-abiding citizens from disorder. Nor does it violate the Posse Comitatus Act, which constrains the military's role in law enforcement but expressly excepts statutes such as the Insurrection Act.

During the day of the attack, Senator Tom Cotton sent a tweet, stating, "This violence is unacceptable and needs to be met with the full force of the law. God bless the Capitol Police who are keeping us safe." In a statement released later that day, Cotton said those who mobbed the Capitol should "face the full extent of the law." Also saying, "It’s past time for the president to accept the results of the election, quit misleading the American people."

In the weeks after the 2020 election, as Trump’s aggressive, multistate effort to overturn his defeat foundered in court after court, the outgoing president and his supporters zeroed in on a new remedy: overturning the Electoral College. To say that Cotton was not swayed by Trump’s theory of the case is an understatement. But as is his habit, he wanted to be thorough. In early December, Cotton directed legislative aides on his Senate staff to research the matter extensively and prepare an exhaustive memorandum. As the senator suspected, it made plain that the Constitution had not, in fact, built in a secret back door for Congress or the vice president to invalidate presidential election results. In mid-December, after the states had certified their results and the Electoral College had voted, Cotton read in McConnell. Together, they plotted to countermand Trump’s bid to overturn the election and neutralize interest in objecting to Biden’s victory that was developing in some quarters of the Republican conference.

Publicly, Cotton remained noncommittal, worried that Republican infighting could tank the party’s chances in two January 5 runoff elections in Georgia that would determine the balance of power in the Senate. So even as he privately counseled colleagues to follow the majority leader’s prompts and ignore Trump’s pleadings, he urged that they all keep their powder dry until January 6 to avoid an intra-party row that might blow up in their faces in Georgia.

That was Cotton’s original strategy: say nothing until the 6th. That morning, in an op-ed the senator planned to publish in the Arkansas Democrat-Gazette, he would argue that objections to state-certified electoral votes were unconstitutional and threatened the viability of the Electoral College, and declare his intent to support certification.

But Cotton’s strategy was derailed. On December 30, [Josh] Hawley became the first fly in the ointment. Despite harboring little desire to run for president, the young, intellectual populist is often mentioned as a 2024 contender because of his telegenic looks, Ivy League pedigree, and attempts to channel Trumpism into a coherent ideological framework and tangible legislative agenda. One week before certification, Hawley announced that he would object.

On Sunday, January 3, two days before the Georgia runoffs and three days before the certification vote, the senator dropped his bombshell statement. It read in part: “I share the concerns of many Arkansans about irregularities in the presidential election, especially in states that rushed through election-law changes to relax standards for voting-by-mail. I also share their disappointment with the election results...Nevertheless, the Founders entrusted our elections chiefly to the states—not Congress. They entrusted the election of our president to the people, acting through the Electoral College—not Congress...I’m grateful for what the president accomplished over the past four years, which is why I campaigned vigorously for his reelection. But objecting to certified electoral votes won’t give him a second term.”