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.