Friday, June 05, 2020

Good News? Skeptically Assessing the Claim That 'the System' Will Force Trump to Leave Peacefully

by Neil H. Buchanan

Will Donald Trump ever leave office, either because he loses this Fall or because his second term ends in January 2025 (and the Constitution has not been amended in the meantime to allow a third term)?  I am among those who have been frantically warning that the answer is no, that Trump will simply refuse to leave office.

My most recent Verdict column explains that there might be nothing that we can do about this.  Wednesday's parade of silence from Republican U.S. Senators, who were asked about Trump's order for security forces to violently push peaceful protesters out of Trump's path to a photo op, certainly supports my assertion on Verdict that these senators would piously refuse even to entertain questions about a Trump coup in advance.  "I will not dignify such an outrageous question with an answer!"

The two plausible non-outrageous and non-dangerous scenarios in which Trump stays in office next year are: (1) Trump is declared the winner of the election, and Democrats decide not to force any possible claims of voter suppression or election fraud; (2) Trump is declared the winner and the Democrats aggressively challenge that declaration, but they lose in the courts and then accept that result.

If Trump is declared the loser of the election, or if the courts rule that he should have been declared the loser, then my prediction that Trump will refuse to leave and that Republicans will abet him would be wrong under two further scenarios: (1) Trump tries to stay in office, but Republicans -- finally facing a non-hypothetical constitutional crisis -- stop him; or (2) Trump decides not to try to stay in office, choosing to forgo false claims of voter fraud and all that, instead quietly packing up and going to Mar-a-Lago.

Clearly, I think that that last possibility is now hilariously, horrifyingly impossible to imagine.  Republicans finally stopping him also has become impossible to imagine.  The only way that we will not have a crisis later this year, then, is if Trump wins and Democrats give up; and even then, we would merely be back here four years from now, wondering if the 78-year-old Trump will leave office (assuming that there is anything at all left of the rule of law by then).

But wait, maybe I am wrong!  A reader pointed me to a very recent Slate column, "Trump Can’t Just Refuse to Leave Office: We have a lot of things to worry about in the next eight months. This isn’t one of them," by someone named Fred Kaplan.  That sounds wonderful.  Maybe there is something that I have not thought of before now, and if Kaplan has some great insights, I am all ears.

As I will explain below, however, the case that Kaplan makes does nothing to allay any reasonable fears.  His claims are slightly better than other don't-worry-be-happy arguments, but he simply does not prove that Trump and the Republicans would be unable to keep him in office.

That is not to say that Kaplan does not make some useful points.  Some readers might recall a Dorf on Law column that I wrote last summer, part of which involved my mocking a guest op-ed in The Washington Post, "Why We Shouldn’t Fear a Trump Dictatorship," in which a professor argued that because George Washington transferred power peacefully, Trump will, too.

Realizing that this characterization might sound unfair, I was quick to add this parenthetical: "Note: Skeptical and/or fair-minded readers might reasonably suspect that my characterization of the history professor’s op-ed is an exaggeration.  I invite everyone to read it for themselves.  Seriously, read it.  It is truly vapid."

Kaplan's argument is not vapid, and it is not based on the belief that things that have never happened cannot possibly happen.  Instead, he relies on existing rules and laws and simply assumes that those rules will be followed and that those laws will be obeyed or enforced.  Here is where he begins, assessing what would happen on January 20, 2021, if Trump refuses to leave:
"On the dot of noon, the nuclear codes, which currently allow Trump to order and authenticate a nuclear attack, expire. The officer who has been following him around everywhere with the 'football'—which, contrary to popular belief, is not a button or a palm print but rather a book filled with various launch codes—leaves. If Trump and whatever lackeys stay with him prevent the officer from leaving, another officer, holding a backup football, would join Biden at the inauguration ceremony."
This line of thinking continues with claims that "[t]he principle of civilian control is hammered into American officers from the time they’re cadets—and the 20th Amendment of the Constitution states, “The terms of the President and Vice President shall end at noon on the 20th day of January”—no ifs, ands, or buts."  Also, "[i]f any officers obey his order—say, to circle the White House to keep him in power—they would certainly be tried and convicted on charges of mutiny and sedition."  And "[i]f any of Trump’s aides or Cabinet officers continue to take his orders, they too could face criminal charges and, in any case, would have a hard time finding respectable employment after the pretend monarch is taken away in handcuffs."

Finally, Kaplan writes this:
"He would have no choice but to give up. It is hard to imagine, even in this time of hard-to-imagine things happening, that a single Supreme Court justice or more than a handful of congressional Republicans—and probably not a single member of the GOP leadership, not even Senate Majority Leader Mitch McConnell (who, depending on how Election Day had gone, might be downgraded to minority leader on Inauguration Day)—would stand up for Trump’s blatantly unconstitutional ploy to stay in power."
He concludes that "[t]he possibility that Trump won’t leave office, even if he loses, is a scenario for which Biden’s aides should draw up contingencies—but it doesn’t rank high among the things for citizens to take seriously, and take action about, now."

I have no idea who Kaplan thinks he is describing, but I can easily imagine at least four Supreme Court justices (and maybe five), along with the entire Republican congressional leadership, going along with anything Trump wants.  McConnell refusing to go in on a Republican power grab?  Seriously?  Maybe Supreme Court Justice Merrick Garland could stop him.

In a way, however, I agree with Kaplan's bottom line, at least in that I have failed to come up with a way in which there is anything that could be done now to head off this possibility.  Kaplan, however, is saying that the reason not to worry is that there is nothing to worry about.  His argument is the stuff of clever students who think that all they have to do is find the law that applies and ignore the reality of how laws are bent and broken by people in power.

Consider some recent examples of things that we once reasonably thought were unthinkable, until they happened:

-- Congress has the power of the purse.  It specifies where to spend money, and how much.  Trump decided to invoke emergency powers and divert money from specified Defense Department appropriations to build parts of a border wall.  Congress took votes to override his emergency declaration, and Republicans in Congress refused to reassert the separation of powers.

-- Michael Flynn pleaded guilty in a court of law.  Roger Stone was convicted.  The Trump team has taken actions that are unprecedented in securing extralegal treatment for their cronies.

-- Administration figures now blatantly flout congressional subpoenas, essentially saying that Congress has no power to stop them.

-- Trump "personally interven[ed] in a disciplinary proceeding" to prevent the demotion and ouster from the Navy SEALS of a man described by his compatriots as "toxic" and "freaking evil," a move that "upended the military code of justice to protect him from the punishment."

-- The Office of Special Counsel determined that Trump advisor Kellyanne Conway had violated the Hatch Act dozens of times and recommended that she be fired.  She was not fired.

-- Republicans, and even Trump himself, initially conceded that a quid pro quo would be an impeachable offense, then said that it was not impeachable, then refused to hear testimony from a willing witness -- while Trump prevented other witnesses from testifying -- with some Republicans finally saying that the charges had obviously been proven but they would not vote to convict anyway.

-- No one knows who ordered uniformed law enforcement personnel to shoot those rubber bullets, tear gas, and flash grenades into a peaceful crowd of protesters for Trump's photo op in Washington earlier this week.  But it happened.

-- There is a federal law that states in unambiguous terms that the Secretary of the Treasury "shall furnish [the Ways & Means] committee with any return or return information" that the committee requests.  The only thing stopping this from happening until 2019 was that Republicans were in the majority in the House, so the committee refused to invoke this power.  When Democrats took over and sent a carefully written request under that law, however, Trump simply refused.  The case is wending its way through the courts, and the Supreme Court's conservative majority might soon announce that "shall" means "is not required to."

If anyone were asked in advance about these things, nearly everyone would have said that they were simply not possible.  Of course administrations comply with congressional subpoenas, with only the rarest of exceptions.  Of course the president does not intervene in military disciplinary matters.  Of course a non-coerced confession will be defended by any president.  Of course Congress will protect its own power by stopping a president from misappropriating funds.  Of course a law that says "shall" means shall, and the White House will comply with a legal records request.

The fundamental error on Kaplan's part is to blithely believe that what is written down, along with existing norms, will be respected.  But these guardrails can be changed in advance or, as needed, simply ignored.  It is not as if the White House lacks the ability to change the way the nuclear codes are handled, legally or not.  And why would anyone be confident that anyone who helped Trump "would certainly be tried and convicted on charges of mutiny and sedition" -- or that Trump would not pardon them?

Kaplan's scenario, in fact, is rigged.  He imagines that everything has gone the way it is supposed to go up until January 20, 2021, at which time everyone knows that Trump lost fair and square, thus triggering all of the things that are supposed to happen on the 20th to make Joe Biden president.  But Trump and his enablers would surely be throwing up barriers and smokescreens every step of the way, such that even though the "principle of civilian control is hammered into American officers from the time they’re cadets," it will not be clear which civilians are supposed to be in control.

I had no idea who Kaplan is, but it appears that he is a journalist who has written some well regarded books on military strategy.  He is no dope.  Even so, his argument simply boils down to saying that the rules are the rules, and people obey the rules, so Trump cannot possibly succeed in changing or subverting the rules.  We might never get to see how this plays out, but nothing in Kaplan's short piece offers any reason to be confident that Trump will go peacefully.


Marty Lederman said...

Kaplan is right *if* the states have certified Biden with over 269 electoral votes and there aren't any (or enough) contested electoral votes. If Congress counts the votes and Biden is declared the President, John Roberts will swear in Biden and even Mitch McConnell will attend.

The crisis will only occur if there are contested electoral votes that determine who gets to 270. And if that occurs, it'll matter a great deal (i) whether the Dems have won the Senate and (ii) how many House delegations are controlled by which parties come January 3.

Fred Raymond said...

Extrapolating from the preceding three years, it just seems to me that DT and the Republicans are going to scream "fraud" no matter what happens. They really will stop at nothing, I'm afraid.

Neil H. Buchanan said...

Thanks to both commenters. Marty Lederman said even more clearly than I could have that Kaplan's set up of the issue is too limited. Sure, if on January 20 the Electoral College has met and Biden has received 270 votes, it's hard (but not impossible) to imagine Roberts or McConnell coloring outside the lines. It's getting to that point that presents all of the opportunities for a coup.

Michael A Livingston said...

As probably one of your few Republican readers, allow me to make a suggestion: I would suggest that you worry less about Trump simply refusing to accept the results of an election, which I think is possibile but very unlikely, and more about the possibility of he and others claiming to have won an election that they actually lost. This could happen (.e.g) by finding friendly courts to try to throw out results form pro-Biden states that took too long to count their votes, or engaged in otherwise questionable practices, perhaps together with low-level intimidation of the vote-counters, etc. A more extreme version of Florida 2000, but this time in many different states. The best antidote to this (aside from winning in a landslide) would be to have the most efficient and transparent vote-counting process possible, with as much consistency as possible between different states. Unfortunately, I am not sure this is going to happen.

darrowret said...

Buchanan observes disdainfully that he doesn't know who Kaplan is. A trip to Wikipedia would have told him:
Kaplan was born in Hutchinson, Kansas, to Julius E. and Ruth (Gottfried) Kaplan.[1] He received a bachelor's degree (1976) from Oberlin College and a master of science (1978) and Ph.D. (1983) in political science from the Massachusetts Institute of Technology.[1] From 1978 to 1980, he was a foreign and defense policy adviser to U.S. Congressman Les Aspin (D, Wisconsin).

Before writing for Slate, Kaplan was a correspondent at the Boston Globe, reporting from Washington, D.C.; Moscow; and New York City. In 1982, he contributed to "War and Peace in the Nuclear Age," a Sunday Boston Globe Magazine special report on the U.S.-Soviet nuclear arms race that received the Pulitzer Prize for National Reporting in 1983. He has also written for other publications, including The New York Times, The Atlantic, The New Yorker, and Scientific American.

Kaplan has authored several books on military strategy. His 1983 book on the individuals who created American nuclear strategy in the late 1940s and '50s, The Wizards of Armageddon, won the Washington Monthly Political Book of the Year award. He published Daydream Believers in 2008,[2] a work which analyzes the George W. Bush administration's use of Cold War tactics in post-9/11 military activities. He criticizes the administration for pursuing policies he believes to be unilateral and violate prohibitions on pre-emptive warfare. In late 2012, Kaplan published The Insurgents: David Petraeus and the Plot to Change the American Way of War,[3] which examines how General David Petraeus attempted to implement new thinking in Afghanistan and Iraq regarding the traditional clear and hold counter-insurgency strategy, and the shortcomings of this strategy, its intellectual underpinnings, and the individuals who defined it.[4]

In 2009, Kaplan published 1959: The Year Everything Changed.[5] The book argues that the course of world history was not changed by the counter-culture movements of the 1960s but rather by artistic, scientific, political, and economics events occurring in the year 1959.

Frank Willa said...

Professor, thank you (and Professor Dorf), you seem to have more energy to stand up to say what needs to be said in a day than I can find in a week. I took your a la 'I don't know who this guy is...' to be a form of commentary about his 'editorial position', not your unawareness of his background. (see the first two sentences of your last paragraph).

As you acknowledge that if we get to the 270 votes it may be ok; but the thing is what happens from now until that time- that the electoral college vote is counted in Congress- or not.

Article II, Section 3,in pertinent part:

'...on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper...'

And appearing in 'The Hill' website this afternoon"

'Defense Secretary Mark Esper and Joint Chiefs of Staff Chairman Gen. Mark Milley have refused to testify before the House Armed Services Committee on the military’s role in responding to nationwide protests against police violence and racial injustice, a House aide said Friday.'

Whether by an overreach of law, or by disregard of the norm of the legislature's role in co-equal governance, the 'play by the rules...don't worry' seems naive at best.

kotodama said...


[preface here that Frank Willa just helpfully addressed this to some extent in his first ¶ -- and as luck would have it I fully agree -- but in the meantime I had finished the below already so I'm going to unleash it regardless]

First, I'm not sure I understand the basis for the "disdainfully" accusation you lodge against Prof. Buchanan. Is it just because, in ¶6, he refers to him as "someone named Fred Kaplan"? If so, what makes that at all disdainful? It seems clear enough that his statement was simply meant to indicate that he wasn't familiar with Mr. Kaplan before coming across the article. Why is that lack of familiarity such a major transgression? Is he really supposed to find a directory of all print and online journalists and then commit their bios to memory in advance on the off chance he might encounter one of their articles later? That's neither fair nor realistic. Giving full disclosure though, I hadn't heard of Fred Kaplan before either, so maybe I'm somewhat partial here.

Second, I hope you're not suggesting that he immediately discounted what Mr. Kaplan had to say based on the lack of familiarity. In fact, it's fairly clear that he did exactly the opposite. Just two sentences later in the same ¶, he demonstrates his willingness to be open minded with the statement: "Maybe there is something that I have not thought of before now, and if Kaplan has some great insights, I am all ears."

Third, I'm quite confused by your other comment about taking a "trip to Wikipedia". To borrow that same language -- for which I have no doubt you'll indulge me -- did you not take a trip to the last ¶ of the posting yourself? That doesn't even require going to a different site, just the attention span to get through the entire posting. If you completed that journey, you'd see that he candidly acknowledged his ignorance about Mr. Kaplan and in fact took steps to remedy that: "I had no idea who Kaplan is, but it appears that he is a journalist who has written some well regarded books on military strategy." So, your "taking a trip" comment really has me scratching my head here. Not only did he actually do the research you accuse him of not doing -- thus rendering your lengthy Wikipedia excerpt utterly pointless -- but he also fully recognizes that Mr. Kaplan is accomplished at his profession. And he goes on to complement Mr. Kaplan further by stating that "He is no dope." (To be sure, an inveterate cynic might dismiss that as merely damning with faint praise, but I tend to think he was genuinely recognizing Mr. Kaplan's intelligence.)

Fourth, I can't help but notice that you failed to refer to Prof. Buchanan by using his title. That seems more than a little ironic given your complaints about his posting. I might suggest that you start by setting a better example on your end.

Last, if your larger point is that these alleged shortcomings in the posting somehow undermine the merits of what is being said, then please do provide an explanation for that.

Josiah said...

Hi There, first time reader, long time arm chair politician, I love your blog. I was wondering what would happen if Trump failed to win the election because of faithless electors. Is there a difference between losing the election and losing the election due to the votes of faithless electors? I remember hearing last election that there was some possibility that faithless electors would trigger a "constitutional crisis" and that this was an interesting (if unlikely) concern. I remember hearing about it on NPR (I think). But I noticed your post did not mention this at all. Is there a difference between losing the election, and losing the election because of the votes of faithless electors?