Letter to Hon. Christopher Coons, Chairman of the Senate Committee on Ethics, Hon. James Lankford, Vice Chairman of Senate Committee - Investigation Request for Senators Ted Cruz and Josh Hawley

Letter

Dear Chairman Coons and Vice Chairman Lankford,

When Senators Ted Cruz and Josh Hawley announced they would object to the counting of state-certified electors on January 6, 2021, they amplified claims of election fraud that had resulted in threats of violence against state and local officials around the country. While Congress was debating Senator Cruz's objection, a violent mob stormed the Capitol. These insurrectionists ransacked the building, stole property, and openly threatened Members of Congress and the Vice President.[1] Dozens of police officers were injured;[2] five people died, including U.S. Capitol Police Officer Brian Sicknick.[3] By proceeding with their objections to the electors after the violent attack, Senators Cruz and Hawley lent legitimacy to the mob's cause and made future violence more likely.

Senators Hawley and Cruz's actions have been denounced by individuals across the political spectrum. The Senate has the exclusive power to determine whether these actions violated its ethics rules, to investigate further conduct of which we may not be aware that may have violated these rules, and to consider appropriate discipline. The question the Senate must answer is not whether Senators Hawley and Cruz had the right to the object to the electors, but whether the senators failed to "[p]ut loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department"[4] or engaged in "improper conduct reflecting on the Senate"[5] in connection with the violence on January 6. The Senate Ethics Committee should investigate their conduct to fully understand their role. The actions of which we know demand an investigation and a determination whether disciplinary action is warranted. Until then, a cloud of uncertainty will hang over them and over this body.

I. Facts

Senators Hawley and Cruz Declared Their Intention to Object to the Vote Amidst Violent Threats
Senators Cruz and Hawley's objections on January 6 were part of an ongoing effort by President Trump and his allies to obstruct the counting of electoral votes that would confirm his defeat. The President filed dozens of meritless lawsuits;[6] made direct threats to state and local officials;[7] and issued false public statements alleging election fraud. President Trump's efforts culminated in an attempt to convince Congressional allies and Vice President Pence to reject groundlessly the electors from six states when Congress met to count the Electoral College votes on January 6.[8] Senators Cruz and Hawley became leaders of that effort.

At the time the senators announced their support for President Trump's scheme, his rhetoric had already incited threats of violence. By early December, President Trump's false fraud claims had provoked numerous threats against state and local election officials[9] and employees of voting machine companies.[10] On December 1, 2020, Gabriel Sterling, a Republican election official at the Georgia Secretary of State's office, stated that the false claims of election fraud by President Trump were "inspiring people to commit potential acts of violence."[11] He called on the President, as well as Senators Kelly Loeffler and David Perdue, to "step up" and "condemn" these threats.[12] Instead, President Trump continued to repeat the baseless claims. He called on his supporters to "Come to D.C. January 6th to "StopTheSteal.'" On December 19, he tweeted: "Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!"[13]

Senators Ted Cruz and Josh Hawley lent legitimacy to President Trump's false statements about election fraud by announcing that they would object to the certification of electors on January 6. On December 30, Sen. Hawley became the first Senator to state that he would object.[14] In a pair of Tweets later that day, Sen. Hawley explained: "Millions of voters concerned about election integrity deserve to be heard. I will object on January 6 on their behalf,"[15] and "Somebody has to stand up."[16] On January 2, Sen. Cruz announced that he and ten other Senators would "reject the electors from disputed states . . . unless and until [an] emergency 10-day audit is completed."[17] Sen. Hawley responded by Tweeting: "Glad to see more Senators joining the fight on #JAN6"[18] and "It's time to STAND UP."[19]

At the time Senators Hawley and Cruz announced their intent to object to the electors, Sen. Lindsay Graham, the Chairman of the Senate Judiciary Committee, noted that Sen. Cruz's proposed audit had "zero chance of becoming reality."[20] Both Senators Hawley and Cruz argued that the public perception of fraud justified their actions. This perception was created by President Trump's baseless claims, and was magnified by Sens. Cruz and Hawley's repetition of those claims. It is probable that Sens. Cruz and Hawley knew those claims to be false.

B. The Events on January 6 Were Coordinated, and May Have Been Coordinated With Members of Congress.

On January 6, as Congress was preparing to certify the election results, President Trump held an event dubbed the "Save America Rally." The event was orchestrated by a network of groups who obtained permits, provided funding and equipment, and actively recruited participants. The March to Save America website listed eleven groups as rally sponsors.[21] Many of these groups conscripted their members to attend the rally: Women for America First's Facebook pages show the group calling on supporters to be part of a "caravan" to Washington.[22] Turning Point Action, an arm of Turning Point USA, paid for 350 students to attend,[23] and the so-called policy arm of the Republican Attorneys General Association, the Rule of Law Defense Fund, sent robocalls encouraging people to march on the Capitol.[24] Ali Alexander, one of the rally organizers, said the goal of the event was "putting maximum pressure on Congress while they were voting so that . . . we could change the hearts and the minds of Republicans who were in that body hearing our loud roar from outside."[25] It also created a situation in which chaos was likely.

The extent, if any, of communication or coordination between Sens. Hawley and Cruz and the organizers of the rally remains to be investigated. Three members of the House of Representatives who coordinated with Senators Hawley and Cruz to object to the electors, Reps. Andy Biggs, Paul Gosar, and Mo Brooks, have been identified as alleged co-architects of the rally.[26] Further investigation is necessary to determine whether and to what extent Senators Cruz and Hawley were also aware of these groups' activities or coordinated with their efforts.

C. Senators Hawley and Cruz Continued Their Objections to the Electors After the Attack on the Capitol, Escalating the Crisis

On January 6, at 1:00 PM, the House and the Senate met in a Joint Session of Congress, with the Vice President presiding, to count the Electoral College's votes.[27] On his way into the Capitol, Senator Hawley raised his fist in support of protestors who had already gathered there.[28]

Inside the Capitol, Rep. Gosar filed a written objection signed by Sen. Cruz challenging Arizona's electors.[29] Outside the Capitol, Trump supporters attending the "Save America" rally attempted to breach the security barriers protecting the building.[30] Some members of the mob carried firearms and spears; others had Molotov cocktails in nearby vehicles.[31] Many displayed racist symbols.[32] Within minutes, the mob breached the Capitol, forcing Members and staff to barricade themselves in offices or evacuate to secure locations, thus suspending the count.[33] The mob stormed Member offices, vandalized and smashed property, overturned furniture, and stole electronics.[34] They threatened and assaulted Capitol police and staff.[35] These events were reported in real time by major media organizations and on social media.

By the time the Capitol was secured and the count resumed, four insurrectionists had died.[36] It had also been widely reported that numerous police officers had been injured. When the Senate reconvened to debate Sen. Cruz's objection to Arizona's electors, several senators who had planned on joining the objection changed course. Although Sen. Loeffler said she had "fully intended to object to the certification of the electoral votes . . . , the events that have transpired today have forced me to reconsider, and I cannot now, in good conscience, object to the certification of these electors."[37] Six of the senators who had announced their intent to join Sen. Cruz's objection--Senators Lankford, Braun, Johnson, Daines, Blackburn, and Hagerty--also did not challenge the electors.

Rather than following their colleagues' example, Senators Cruz and Hawley continued to amplify the claims of fraud that they likely knew to be baseless and that had led to violence earlier that day. Sen. Cruz continued his objection to Arizona's electors, and voted against certifying the results in that state. Although Sen. Hawley acknowledged the disruption that had taken place, he also voted against certifying Arizona's electors. He also signed a written objection to Pennsylvania's electors,[38] and both he and Sen. Cruz voted against certifying the results in that state. By continuing to object to the electors after the insurrection, Senators Cruz and Hawley lent legitimacy to the mob's cause.

Violent action provoked by false fraud claims remains a persistent threat. On January 13, the FBI issued a Joint Intelligence Bulletin warning of a continued threat of violence from extremists emboldened by the January 6 attack and motivated by a "shared false narrative of a "stolen' election."[39] On January 14, FBI Director Christopher Wray announced that his agency was seeing "an extensive amount of concerning online chatter" about events with the potential for violence surrounding the inauguration of President-elect Joe Biden, including "potential armed protests and activity leading up to the inauguration."[40] Vice President Pence[41] and Members of Congress[42] have been the subject of numerous death threats.

D. As Violence Was Threatened and Consumed the Capitol, Senators Hawley and Cruz Engaged in Fundraising Efforts

In the days leading up to January 6, both Sen. Cruz and Sen. Hawley touted their plan to challenge the electors to drum up campaign contributions. Sen. Cruz sent fundraising emails on January 3 and January 4 claiming he was "leading the charge" to challenge the electors.[43] In the week before the certification, Sen. Hawley sent a fundraising solicitation, asking donors to support his efforts to challenge the electors.[44] One hour before the count of the electoral votes began, Sen. Hawley's campaign sent an email asking for donations.[45]

These solicitations continued during and after the insurrection. At 3:33 p.m. on January 6, after the mob had entered the Capitol, the Cruz campaign sent an automated fundraising text message.[46] His campaign sent a similar email approximately 10 minutes later.[47] Around the same time, Hawley's campaign sent a fundraising text message stating that Hawley was "leading the charge to fight for free and fair elections."[48] On January 8, the Senate Conservatives Fund sent out a fundraising email arguing that Sen. Hawley's "decision to object to the election results showed tremendous courage."[49] As of January 14, OANN, a conservative news network, continued to encourage donations to both senators on a page entitled "OAN Call to Action: How to Donate to Lawmakers Who Stayed True to President Trump."[50] Investigation may reveal further connection or coordination with donors supporting the rally and the assault on the Capitol.

II. Argument

The Senate has a duty to determine whether the actions of Senators Cruz and Hawley constitute "improper conduct" or other violations of the Senate code of ethics. Only then will this body restore public trust.

Congress has the exclusive power to punish and expel its Members. Under Article I of the Constitution, ""Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.''[51] The Senate has delegated this authority to the Ethics Committee (formerly the Committee on Standards and Conduct), which is empowered to investigate ""violations of the Senate Code of Official Conduct" and recommend to the Senate by report or resolution appropriate disciplinary action.[52]

The Senate has disciplined Members for conduct that it has deemed unethical or improper, regardless of whether it violated any written law or Senate rule or regulation, as well as violations of law.[53] According to the Senate Ethics Manual, "[s]uch conduct has been characterized as improper conduct that may reflect upon the Senate."[54] The rule is intended to protect the integrity and reputation of the Senate as a whole,[55] and has been the basis for discipline on several occasions.[56]

The Senate Ethics Committee may also investigate and discipline senators for violations of the Code of Ethics for Government Service.[57] The Code requires, among other things, that elected officials "[p]ut loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department" and "[u]phold these principles, ever conscious that public office is a public trust."[58] The House has disciplined Members for violations of the Code on several occasions.[59]

Further investigation is necessary to develop a complete account of Senators Cruz and Senator Hawley's involvement in the events of January 6. Because several of the House members who objected to the electors coordinated with the organizers of the "Save America" rally, it is not unreasonable to assume that Senators Cruz and Hawley may also have been involved. A Senate Ethics Committee investigation should seek to determine, among other things:

Whether Senators Cruz and Hawley, and/or their staff or campaigns or fundraisers, were in contact or coordinated with the organizers of the rally;
Whether Senators Cruz and Hawley were aware of other Members' contacts with the organizers;
What Senators Cruz and Hawley, and/or their staff knew about the plans for the event, through public or private sources, or are otherwise accountable for the violence or for their failure to warn the Senate and the public about the risk of violence;
Whether Senators Cruz and Hawley received funding from organizations or donors that also funded the rally;
Whether Senators Hawley or Cruz took any action that encouraged the insurrectionists' actions, and whether the insurrectionists cited Senators Hawley or Cruz as part of their rationale for storming the Capitol;[60] and
Whether Senators Cruz and Hawley and/or their offices, fundraisers, or campaigns otherwise engaged in criminal conduct, or unethical or improper behavior.
The Senate Ethics Committee should ask both senators to preserve all relevant emails and documents in order to ensure that a thorough investigation can occur.

The public record is already replete with information that predicates an investigation and possible discipline as may be appropriate. While it was within Senators' rights to object to the electors, the conduct of Senators Cruz and Hawley, and potentially others, went beyond that. Both senators announced their intention to object to the electors after baseless claims of election fraud, which upon information and belief they knew to be baseless, had led to threats of violence. Both senators persisted in their objections after those threats came to fruition. Their actions lend credence to the insurrectionists' cause and set the stage for future violence. And both senators used their objections for political fundraising. Their actions have been condemned by the public[61] and rejected by members of their own party.[62] As former Senator John Danforth argued, "Lending credence to Trump's false claim that the election was stolen is a highly destructive attack on our constitutional government."[63]

The Senate Ethics Committee should determine if Senators Cruz and Hawley failed in their duty to "[p]ut loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department"[64] or otherwise engaged in improper conduct. [65] Multiple crimes were committed on January 6, for which culpability may be assessed under doctrines of conspiracy, aiding and abetting, accessory, or providing aid and comfort. Disciplinary action may be necessary to protect the integrity of the Senate and ensure public trust and safety. The Senate Ethics Committee has jurisdiction over such determinations.

III. Conclusion

For the foregoing reasons, the Senate Ethics Committee should open an investigation into the actions of Senators Hawley and Cruz, and perhaps others as investigation may reveal, in order to protect the integrity, safety, and reputation of the Senate. The Committee should also offer recommendations for strong disciplinary action, including up to expulsion or censure, if warranted by the facts uncovered.

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