Thursday, November 19, 2020

Trump's Remaining Coup Options are Daunting — but Scary

by Neil H. Buchanan
 
While he was frantically running around the country at the end of his losing reelection campaign, Donald Trump continually told his audiences that the media were pushing the coronavirus story simply to hurt him.  He predicted that, come November 4, we would stop hearing anything about COVID-19.  It is worth noting, then, that Trump's paranoid sense of victimization was wrong again.  The pandemic is raging, and the press is covering it aggressively, even after he lost.
 
The problem is that Trump and the Republicans are doing their best to push that story aside by making news of the worst sort: attempting to destroy constitutional democracy.  (Trump also is now claiming credit for progress on vaccines, and Donald Trump Jr. has claimed that Pfizer withheld its positive announcement until after the election to hurt his father.  A chip off the old paranoid, self-pitying block.)
 
But is the Trump coup attempt dead in the water, as much of the media discussion assumes?  Of course not.  As I will explain here, his remaining options are long shots, but in some ways that makes them even more worrisome.  At best, the outcome will be a Biden presidency that must constantly fend off attacks on its legitimacy.  At worst, we will have a constitutional crisis over the next two months that could shake (and perhaps demolish) the nation's foundations.  How might that all play out?
 
I occasionally write columns that are quickly validated by events.  (And of course, sometimes I am quickly proved wrong.)  But I have never been proved right as quickly as I was yesterday.  Late in the day, I had just finalized my new Verdict column (published this morning), in which I warned that merely because one of Trump's strategies was failing, that did not mean that he would not move on to other strategies.
 
Specifically, even though Trump's claims of election fraud have failed miserably in multiple courts, he can still try to convince Republican legislatures to try to appoint pro-Trump electors notwithstanding his election losses in key states.  Not an hour after I put that column to bed, The Washington Post reported that Trump's team has indeed now decided to change strategies, no longer pursuing their embarrassing lawsuits and instead trying to steal the election through the legislatures-only strategy.

None of that was a surprise, but I do admit that I was a bit taken aback by this:
“His personal lawyer, ­Rudolph W. Giuliani, who has taken over the president’s legal team, asked a federal judge to consider ordering the Republican-controlled legislature in Pennsylvania to select the state’s electors. And Trump egged on a group of GOP lawmakers in Michigan who are pushing for an audit of the vote there before it is certified.“
I certainly knew that Republicans might try to get legislatures to initiate the process of stealing the election by appointing their own electors, but this was the first time that I had come across the idea that a judge -- let alone a federal judge -- would be asked to force a state legislature to do so.  (How would that even work?)

This is, in fact, good news -- not as good as knowing that Giuliani "has taken over the president's legal team," but still good news.  It suggests that there is surprisingly little enthusiasm to ignore the voters, even among Republicans who represent heavily-gerrymandered state legislative districts.  I am honestly surprised that, say, Wisconsin's 2-to-1 Republican majority state House (in a state where significantly more than half of the people voted for Democratic House candidates, showing the power of gerrymandering) cannot come up with a majority of the chamber to vote for a coup.  So that is something.

And The Post's report also offers this encouraging information:
"Giuliani has also told Trump and associates that his ambition is to pressure GOP lawmakers and officials across the political map to stall the vote certification in an effort to have Republican lawmakers pick electors and disrupt the electoral college when it convenes next month — and Trump is encouraging of that plan, according to two senior Republicans who have conferred with Giuliani and spoke on the condition of anonymity to discuss the matter candidly.
 
"But that outcome appears impossible. It is against the law in Pennsylvania, Wisconsin law gives no role to the legislature in choosing presidential electors, and there is little public will in other states to pursue such a path."
In the time since 2016, I have pointed out on numerous occasions that Trump's win back then was an eye-of-the-needle affair, with something like 77,000 total votes in Michigan, Pennsylvania, and Wisconsin being the difference between his Electoral College win and a Hillary Clinton presidency.  The fact is, however, that the total votes necessary to have swung 2020 in the other direction might be even less than that, after the counting is done in Arizona, Georgia, and Wisconsin (whose combined 37 electoral votes would have created a 269-269 tie, which Trump would have then turned into a win in the House's Twelfth Amendment vote).

The difference, of course, is that Biden is winning the popular vote by something like six million ballots, whereas Trump lost by three million in 2016.  So the coulda-shoulda from people like me four years ago went something like this: "She was the choice of a clear majority of voters, but that damned Electoral College blocked the will of the people by only a sliver of a few swing states."  From Trumpists in 2020, what is their argument?  "We lost the popular vote even more bigly, but we came pretty close to filling the inside straight again in the Electoral College, so we wuz robbed!"

The problem is that Trump and plenty of his supporters seem to believe something like that, even though they have no evidence that he actually was robbed.  But they do not need evidence to continue to press this even more counter-majoritarian strategy, and lacking any sense of shame, they will say whatever they find convenient in order to justify this coup attempt.

Even so, and even though I am clearly on the record as a pessimist extraordinaire regarding what Trump and the Republicans might do, it is worth putting together what turns out to be a daunting list of what would have to happen for this Hail Mary attempt to succeed:

(1) The legislatures of at least three of the group of swing states that Biden flipped (Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin) would have to decide to ignore their election results and appoint Trump electors.  Only Arizona and Georgia have Republican governors, so at least one of those would be a state with a Democratic governor.  (Note, however, that the longer Trump and the Republicans push their false fraud allegations, the more pressure will mount on state legislatures.  And if even one state's Republicans make the move, the pressure will become overwhelming on other states to join in.)

(2) The Supreme Court would have to:
   a) agree to rule,
   b) agree that the legislatures-only reading of Article II is correct, which would then supersede the state laws in Pennsylvania and Wisconsin to which The Post referred, and (not or)
   c) agree that legislatures are allowed to change the manner of appointing electors at any time, even after the election.

(3) If the Supreme Court does not so rule, we would have some states not being represented in the Electoral College, because there would be no agreement about who was appointed by those states.  Trump would not pick up those states' electors, but Biden would lose them.  So, for example, Biden would have a 269-232 win in the Electoral College, if the three states were AZ, GA, and WI.  (If all five did this, it would be 233-232 for Biden.)
   a) Senate Republicans would have to refuse to recognize Biden's electors, and
   b) the Supreme Court (which by assumption had not agreed to rule in Trump's favor under step 2 above) would then have to agree to rule, contra Buchanan/Dorf/Tribe (and contra text and logic), that the Twelfth Amendment requires a strict majority of all electors who might have been appointed, not a majority of the electors who were actually appointed.  The House then elects Trump.
 
That is a lot!  Each of those steps, most of which I describe along the way in today's Verdict column but did not put in this order, is less that 100 percent likely (except 3a, which seems certain), and putting together the necessary combination of steps is thus even less likely.  But that still leaves a path.  ("So you're tellin' me there's a chance ...")

Again, however, that is only the last legalistic gasp for Trump, that is, the last attempt at a bloodless coup with the veneer of support from other branches of government.  We can hope that failing somewhere along that line might be enough to stop Trump, and the Post's article includes this: "Behind the thin legal gambit is what several Trump advisers say is his real goal: sowing doubt in Biden’s victory with the president’s most ardent supporters and keeping alive his prospects for another presidential run in 2024."
 
But with loyalists now installed in the Pentagon, and with White terrorist groups itching for a fight, would Trump stop simply because all legal options are exhausted?  Republicans seem to be willing to back him no matter what.  Senator Lindsey Graham, for example, explained that his attempt to intimidate Georgia's Secretary of State was justified because the future of the country is at stake, later saying: "I am all over this. I am not backing off."  While it is some comfort that Graham added, "I never suggested to the secretary of state to do anything inappropriate," his credibility is not exactly platinum-plated right now.

It is good to see that, completely contrary to what I would have expected, Republicans are not already champing at the bit to pursue Trump's disruption strategy via the Electoral College.  That is a lot more than nothing.  But there are no indications that Trump will stop short of anything necessary to stay in office.  He might not succeed -- indeed, I would say that he probably will not -- but that he even might succeed is disturbing.  And the damage that he could do even while failing is simply scary to contemplate.

4 comments:

Michael A Livingston said...

Couple of points:

1. I think the Popolar Vote is legally irrelevant, although perhaps morally significant.
2. I think a militarily coup is unlikely, although I have no contact with people who want this.
3. I do think there will be an effort to create enough doubt so that State legislatures act, this is improbably, although not impossible. Probably the most that could be accomplished would be to get Biden under 270, with Trump still under this. Even that is one-in-a-hunkered.
4. I thought it was relatively clear that you needed 270 to win (but I may be wrong about this).
5. I think Democrats (and some Republicans) are making a serious error by saying “There was no fraud,” “This was the cleanest election in American History,” and so forth. The problem with this is that even one example of bad behavior—perhaps even one mistake—will be taken as evidence that Trump is right. It would be wiser to say, there may have been individual errors, but there is no clear pattern.

I have not reached the issue of fairness in elections and what I believe are efforts by both Democratic and Republican state governments that detract from this. For example, the PA Supreme Court, an elected body, interfered repeatedly in the election and almost always to the Democrats’ benefit. (Republican State Governments have been even more agreesive.). I think these are properly seen as arguments for future reform rather than grounds for overturning this year’s election.

James Freiberger said...

The major problem for Republicans in pursuing this is that, if effective, it would essentially eliminate Presidential elections. Which is their main source of fundraising. But, that might sound appealing -- it's probably cheaper to buy key legislatures than run Presidential campaigns.

Frank Willa said...

The damage is underway.
Washington Post story from 2:50 pm today, first sentence:

'President Trump has invited the leaders of Michigan’s Republican-controlled state legislature to meet him in Washington on Friday, according to a person familiar with those plans, as the president and his allies continue an extraordinary campaign to overturn the results of an election he lost.'

I would also note in the past several days the word 'coup' has appeared in the WaPo.
I very much hope that you are wrong about what may happen.

James said...

I doubt Trump's effort to hijack the election will succeed, but it's disturbing there's even a miniscule chance it could succeed.

What makes this as dangerous as it is wacky is the refusal of elected Republicans to honor their oath to support and uphold the constitution. If they rose up and said, "Enough, Donald. Concede, shut up, and get on with the transition," Trump's effort to stay in office regardless of the vote to replace him would collapse. Instead, these poltroons highest loyalty is to Trump the man.

It's not hard to imagine we are becoming an unstable European state of the 1930s.