MARSHUS: touche!
“I’m sure you would agree with me that a stable, democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully, if that candidate is the incumbent,” Alito said.
“Of course,” Dreeben replied.
“All right. Now, if a an incumbent who loses a very close, hotly contested election, knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? Alito asked. “And we can look around the world and find countries where we have seen this process, where the loser gets thrown in jail.”
Here’s what Dreeben had to say about that:
So, I think it’s exactly the opposite, Justice Alito. There are lawful mechanisms to contest the results in an election and outside the record, but … [the] petitioner and his allies filed dozens of electoral challenges and my understanding is they lost all but one. That was not outcome determinative in any respect. There were judges that that said, in order to sustain substantial claims of fraud that would overturn … election results … certified by a state, you need evidence, you need proof, and none of those things were manifested. So, there was an appropriate way to challenge things through the courts with evidence, if you lose, if you accept the results. That has been the nation’s experience. I think the court is well familiar with that.