The Coming Constitutional Coup

Posted in: Politics

Donald Trump has laid out for all to see a coherent program for a post-election coup d’ètat, including his unprecedented refusal to say that he would ensure a peaceful transfer of power should be lose the November election. Paradoxically, that coup will be carried out in the name of protecting democracy, as he sees it, and it will use institutional arrangements provided in the Constitution and laws of the United States.

It likely will unfold as a concerted litigation campaign challenging election procedures and vote counts all over the country. While Republicans will try to intimidate voters from minority groups and others likely to vote Democratic, that will only be the beginning step. Once the ballots are counted, the President will seek legal authorization to remain in office no matter what the real vote total turns out to be.

He has helped make that possible by seeding the federal judiciary with roughly 200 Trump-appointed judges, and as many as three Supreme Court justices. Trump believes they will be on his side in the cases he is now bringing and will bring in the election’s aftermath.

The seeds of Trump’s current plan were sown long before he was inaugurated and took office, when he refused to say that he would accept the results of the 2016 election.

At a campaign rally in October of that year, Trump said, “I would like to promise and pledge to all of my voters and supporters and to all of the people of the United States that I will totally accept the results of this great and historic presidential election, if I win.”

“If I win” has always been the conditional necessary to Trump’s perception of fairness. In his view, any contest in which he does not prevail must have been unfair.

At that same 2016 rally Trump cautioned his audience that they should be on the lookout for massive, voter fraud and worried about “fairness during the election.” He claimed that “people that have died 10 years ago are still voting” and that there was a massive problem with “illegal immigrants [who] are voting,”

He argued that Democrats were rigging the election and scheming to steal that the presidency from his loyal supporters. He urged them to monitor polls and “watch other communities, because we don’t want this election stolen from us.”

And then in a remark which was little noticed at the time, but seems very important now, he said,  “Of course, I would accept a clear election result, but I would also reserve my right to contest or file a legal challenge in the case of a questionable result,” Trump continued.  “And always, I will follow and abide by all of the rules and traditions of all of the many candidates who have come before me. Always.”

Note the emphasis on “a clear election result.” This was then, and remains now, Trump’s escape clause, his avenue to engineer a constitutional coup d’ètat. A “clear election result,” from his point of view, is only possible if he is the winner.

In 2016, the election was barely over before the president-elect suggested that he would have won the popular vote but for the millions of ballots that he insisted, without offering a shred of evidence, were cast illegally. On January 23, 2017, he told congressional leaders that between 3 million and 5 million illegal votes caused him to lose the popular vote to Hillary Clinton and announced that he was launching what turned out to be an ill-fated investigation into voter fraud.

In the run-up to the 2020 election, with polls consistently showing him losing to former Vice President Joe Biden, Trump has returned to the theme of voter fraud. Again, ignoring the evidence, he has made unfounded claims about the unreliability of vote by mail.

Last month at a White House event, he said, “Mail ballots, they cheat. Mail ballots are very dangerous for this country because of cheaters. They go collect them. They are fraudulent in many cases. They have to vote. They should have voter ID, by the way.”

And he has repeatedly asserted, “The only way we are going to lose this election is if the election is rigged.”

Moreover, the President’s allies are making an aggressive effort to scare local election officials. They are bringing or joining lawsuits challenging vote by mail and seeking to restrict access to the polls.

As an example of the first tactic, three advocacy groups connected with the Republican Party sent letters to election officials across the country calling on them to purge their rolls of ineligible voters and threatening to file suit if they do not do so. And they have already filed a few cases.

They have been particularly active in battleground states. For example, in the state of Michigan, the Public Interest Legal Foundation sent warnings to officials in 33 of that state’s 83 counties. In Pennsylvania, a conservative group, Judicial Watch, is suing the state’s chief election official seeking to purge 800,000 voters from the roster of people eligible to vote.

In addition, lawsuits have been filed to halt state plans to use universal vote by mail, and to contest the hours of early voting, curbside voting opportunities, the use of drop boxes, and other in-person places to return the ballot. And Republican judges have already shown themselves to be reliable allies of the President.

These suits offer just a small taste of what Republicans are planning for election day and beyond when they will carry on guerilla warfare through litigation to slow down or derail efforts to ensure that every vote is counted. A recent article in The Atlantic pointed out just how thoroughly dependent Trump’s post-election plan is on elaborate legal strategies.

Thus it is not surprising that the President thinks that the Supreme Court should and will play a large role in his effort to secure victory.

Referring to the increased use of vote-by-mail that Democrats have supported, the President said last Wednesday “I think this scam that the Democrats are pulling — it’s a scam. This scam will be before the United States Supreme Court…” And reflecting on the way the election will be resolved he predicted, “I think this will end up in the Supreme Court.”

This expectation of the Court’s pivotal role, plus Trump’s evident distrust of, and disdain for, Chief Justice John Roberts, explains why the President repeatedly talks about the prospect of a 4-4 deadlock on the Court. It also explains the rush to nominate and confirm  Justice Ruth Bader Ginsburg’s successor.

So confident is the President that he would prevail before a Court staffed with three Trump-appointed justices that on Thursday he said he would abide by any decision it made, even if it declared Biden the winner of the November election.

All of this reinforces the conclusion that the post-election coup will be carried out by and through, not against, the law. It serves as a sobering reminder that, throughout American history, law has been used successfully in aid of many infamous endeavors.

Law has also resisted infamy and injustice, and the question now remains: how will those who support the rule of law ensure that the will of the voters determines who takes the oath of office in January 2021?

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