Lawrence Lessig Offers Free Legal Aid To Anti-Trump Electors

Harvard law professor Lawrence Lessig will support members of the Electoral College who don't cast their vote the president-elect. NPR's Scott Simon asks him why he's decided to take up this cause.

SCOTT SIMON, HOST:

The Electoral College convenes in a little over a week and will officially make Donald Trump the next president of the United States, unless - Lawrence Lessig the Harvard law professor who briefly ran for president last year is one of the co-founders of a group called The Electors Trust. They offer free legal counsel to any elector in the Electoral College who wants to vote for someone other than the candidate who won their states. So far, but seven electors have said publicly they will vote independently. That would not be enough to change the expected result. Professor Lessig joins us this morning from Reykjavik, Iceland. Professor, thanks very much for being with us.

LAWRENCE LESSIG: Thank you for having me, Scott.

SIMON: Is it as simple as you're hoping to stop Donald Trump from taking the oath of office?

LESSIG: Well, no, it's not that simple. What we're trying to do is to give counsel to electors who are trying to exercise what the constitution gives them the right to exercise, which is, as Justice Jackson said, independent, nonpartisan judgment when they decide who to elect and who to vote for.

SIMON: Well, what's the law as you see it? Most electors can vote for anyone they like? There are some states that bind them, I know.

LESSIG: No, the electors are legally free, but they are morally obligated to vote as they are pledged. And the question they need to decide is whether there's another moral obligation that overrides their obligation to vote as they're pledged. So, for example, if they find the candidate who's been - they're pledged to - doesn't meet one of the requirements of the Constitution, that's a plain and easy case.

Richard Painter, who was George Bush's ethics lawyer, says Donald Trump doesn't meet the requirements of the Emoluments Clause. He has too many foreign ties. That would be another fair reason not to vote for him. And if you believed the election was thrown by Russian hacking, that would be a pretty good reason to override what is otherwise your moral obligation to vote as you are pledged. These are all very difficult decisions that the electors need to consider, and what we've just tried to offer is a free context for them to be able to make that judgment.

SIMON: I gather from The Washington Post report and the interview we've done that though you would need to demonstrate that voters in Pennsylvania, Michigan and Ohio were swayed by some of the information that came out that - for which Russian hackers may have been responsible through WikiLeaks, which is not the same thing.

LESSIG: It's not, but what I'm saying is that the judgments which they have a constitutional right to exercise would consider these factors. And what we've - what we've said is we're going to help you to be able to exercise that judgment without the fear of what we think is unconstitutional state law interfering.

SIMON: Can you tell us how many electors you've heard from?

LESSIG: Well, we've heard about at the level that you've mentioned in your talk - in your introduction here - and nobody knows.

SIMON: That would be - that would be that would be seven. Yeah.

LESSIG: Yeah. Nobody knows whether there's a critical mass. What we've tried to do is to say, when you contact us, you don't speak to me. You only speak to lawyers. And when you contact them, that's completely confidential. And you can begin to learn about other people who might be in a similar position so you can decide whether it makes sense to step out and be - exercise that independent judgment or not. And so obviously, if there are 40 people who are thinking about voting contrary to as they're pledged, it's going to make sense to step out.

SIMON: Would you do this, Professor, if Hillary Clinton had been elected?

LESSIG: Well, you know, in 1998, I was at a conference where I said I did not think the American people would ever stand for the idea of a person being elected by the popular vote, but not being elected by the Electoral College vote. And I said then, whether Democrat or Republican, I would think that there would be some kind of outrage over - you know, I didn't say revolution, but 2012 - that's exactly what Donald Trump said. Donald Trump said the Electoral College is a disaster. It's a total sham and travesty. And he - and he called for it. He said we should have a revolution in this country at the point when he thought Romney had won the popular vote, but Barack Obama had won the Electoral College vote.

So, you know, at least, he clearly is on the record contrary to his position right now. And I'm, at least in the academic circles, on the record supporting the position I take right now. But the question isn't my, you know, position. The question is their right to exercise a judgment. And, you know, they meant this to be a kind of emergency break, and now it's time to ask the question whether it's - we should be pulling or they should be pulling this emergency break.

SIMON: Lawrence Lessig of Harvard University, thanks so much for being with us.

LESSIG: Thank you.

Copyright © 2016 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.