What we are witnessing is not a “tantrum.” Donald Trump is not in denial, nor is he going through “a process” to make peace with losing the election. He is trying to do what he has clearly intended to do all along, which is to stay in office no matter what. He would have liked to have won the election fair and square, but he never had any intention not to engage in a coup d’état if necessary.
As frequent readers of Verdict are all too aware, I have been sounding the alarm about Trump’s existential threat to the continuation of American constitutional democracy and the rule of law since even before he was elected. There are simply too many columns making variations on that argument to provide all of the links here, but my Verdict author’s page is the starting point to find all of them.
Am I here today to write: “I told you so”? Actually, no. I am scheduled to publish a column on January 21, 2020, which means that I will be writing it on January 20, Inauguration Day. If President-Elect Joe Biden becomes President Biden on that day, I will publish a column in which I eat a lot of my own words. If not, an I-told-you-so will be unnecessary and pointless. In the interim, my columns will surely follow this unfolding post-election process closely.
Today, I want to explain why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, but why this could all end very badly. It is not guaranteed to go the wrong way, but it is terrifying to think just how possible a Trump coup still is.
“Letting His Fragile Ego Accept Reality” Merely Gives Republicans Time to Knuckle Under to Trump
The people who mock left-leaning college students as “snowflakes” are suddenly the Kumbaya party, telling everyone not to worry that Trump has thrown the country into a constitutional crisis, because he merely needs to find some inner peace after a huge disappointment. Apparently, for some students to ask for extra time on an exam in response to the shock of yet another Black man being murdered by the police is laughable, but a 74-year-old man putting America’s national security at risk because he cannot yet admit that he lost a not-particularly-close election is simply an understandable response to a profound personal disappointment.
But even if this were not the height of hypocrisy, the real problem is that it completely misunderstands what is happening. Trump is not getting used to the idea that he lost. It is Republicans who are getting used to a different idea, which is that they are at long last approaching the ultimate American betrayal: helping a usurper subvert the Constitution. The longer we wait, the more likely it is that they will sign on.
Thus far, only a few Republicans have had the decency to publicly acknowledge that Biden won the election. Many have been reported as saying off the record that certainly this will all end as it should, but they refuse to be publicly identified, lest they face Trump’s anger (and threats from his most extreme supporters). That itself is obviously not a good sign.
More importantly, this is a pattern that we have seen many times before: Trump does something that almost everyone immediately agrees is completely out of bounds, Trump then not only refuses to apologize but pushes harder, and eventually Republicans fall back into line.
Remember when Trump insulted Senator John McCain, saying that the Vietnam veteran was not a war hero because he “got caught”? Everyone said that Trump was wrong, Trump refused to budge, and ultimately more Republicans fell in behind him. But that was a mere dress rehearsal for the many times that Trump would do something horrible, only to have Republicans quickly get over any negative reaction and back Trump once again.
Calling a federal judge biased because he was “Mexican”? Insulting the family of a dead soldier? First we see outrage, a few days of “Trump is done, and even Republicans are abandoning him,” but then a collective shrug and business as usual. This is the pattern.
We should recall, after all, that Republicans were initially so shocked by the “Access Hollywood” tape that they were openly talking about replacing Trump at the top of their presidential ticket mere weeks before the 2016 election. Now-former congressman Jason Chafetz of Utah dramatically said, “I’m out,” echoing many others who said that they could not in good conscience support Trump any longer. A few days later, almost all of them were back on board (including Chafetz, who continues to be a Trump enthusiast even after retiring from Congress).
What about Charlottesville? Trump defended as “very fine people” neo-Nazi marchers who chanted “Jews will not replace us!” and the world recoiled in horror. One of Trump’s top advisors resigned, but most did not. (Treasury Secretary Steve Mnuchin ignored a public letter from his Yale graduating class that begged him to do the right thing.) Trump’s approval rating dropped by a few points for a few weeks, and then all of his supporters skulked back onto his bandwagon.
We saw the same pattern in 2018 when Trump backed Vladimir Putin—directly contradicting the unanimous conclusion of over a dozen U.S. intelligence agencies—when he lied and said that the Russians did not interfere in our election to help Trump. Even though the Senate Intelligence Committee later concluded that the intelligence community was right (and Trump was wrong), none of that committee’s Republicans could be roused to oppose Trump’s reelection bid.
The impeachment process was the same, twice over. The whistleblower’s report of Trump extorting Ukraine’s president momentarily seemed like a game-over moment for Trump, only to find Republicans saying that they actually did not think that a quid pro quo was an impeachable offense. Then, when John Bolton offered to testify, there was a flurry of Republicans publicly saying that the testimony should be heard, followed by dithering, quickly ending with “We don’t need to hear this at all, because we’re not going to convict him, no matter what.”
The “inject bleach to cure COVID-19” moment, and “I don’t take responsibility at all”? Trump on tape admitting that he lied about the coronavirus? Trump supporting the killer of two people in Kenosha, and refusing to allow Confederate generals’ names to be removed from U.S. military bases? Trump calling military service a game for “suckers” and “losers”? Those were all situations in which Republicans should have said, “OK, this is finally too much,” but they never did.
All of these examples and more demonstrate that we are not waiting for Trump to change but are instead simply enabling Republicans to run the clock and let people become accustomed to Trump’s new assault on decency and the rule of law.
And we should not forget that none of the public statements by Republicans thus far is set in stone. Just as Chafetz could say “I’m out,” only to happily dance back in, there is nothing stopping Susan Collins, Lisa Murkowski, Mitt Romney, or Ben Sasse (who still has delusions of a future of his own in the White House) from saying: “Well, I was just being nice in saying that Biden appeared to have won. But now, I see that I was wrong.”
Similarly, the Republican Secretary of State in Georgia has thus far stood up to the bizarre call for him to step down from that state’s two Republican senators, but he might yet do so. Worse, he could decide to help rig that state’s presidential recount and guarantee that Republicans win their Senate runoff elections. There is intense pressure on Republicans everywhere to support Trump’s evidence-free claims of voter fraud, and that pressure will only get worse.
I admire President-Elect Biden’s calm demeanor through all of this. Projecting confidence and avoiding a sense of crisis is precisely what is needed from him right now, and it is why—even though he was by no means my top choice in the Democratic primaries—he is particularly well suited to this moment.
But even though the President-Elect needs to act as if this will not end badly, it still can.
The Fight to Stop the Coup
Once Republicans start filing back on board Trump’s bandwagon, the current environment of bemused calm by everyone else is going to change. As it stands, people are pointing out that Trump’s legal challenges are all falling flat. Indeed, the only question from many of us is why it is so difficult for courts to sanction Trump’s lawyers for making frivolous arguments. Late-night comedians are having a field day with the amateurish efforts by those lawyers, especially Rudy Giuliani.
But those efforts might not continue to fail. Thus far, they have not found witnesses who are willing to lie under oath. But if (when?) potential perjurers receive corrupt promises of legal immunity, that might soon change. The county-level Republicans who have thus far done their jobs with integrity might soon decide that threats to themselves and their families make it not worth the fight.
And even if Trump cannot prove that there has been election fraud, he has tens of millions of people now believing a fantasy in which he rightly won the vote. Many of those people are Republican state legislators, but even the legislators who are skeptical will be under the same high pressure that every other Republican is now under to deny reality.
It is true that the Supreme Court would not be likely to weigh in, so long as the legal fight is over the current flurry of baseless suits from Trump’s lawyers. And those are not adding up to much. But the Court could be called upon to act on Trump’s behalf if the Republicans in key states decide to test the “legislatures-alone theory,” which would supposedly allow the Republican-dominated legislatures in key states simply to ignore their own voters and appoint Trump-committed electors to the Electoral College.
Wednesday here on Verdict, Austin Sarat and Daniel B. Edelman explained why that gambit should not work. Similarly, I continue to think that Verdict’s Vikram Amar absolutely destroyed the legislatures-only theory, as did the co-authors Grace Brosofsky, Michael Dorf, and Laurence Tribe in a column on Dorf on Law last month.
All of those analyses, however, are based (as they should be) on existing law and precedent. Sarat and Edelman, for example, rely heavily on the Electoral Count Act of 1887. Amar shows what the word “legislature” has to mean as used in Articles I and II of the Constitution. Brosofsky et al. rely (sensibly and appropriately) on a key precedent, the 1932 Supreme Court case of Smiley v. Holm.
Whereas the U.S. Supreme Court is highly unlikely to take a case in which Trump claims that 53 votes in Pennsylvania were illegal or that Arizona voters should not have been given Sharpies, the Court would be very likely to take up a case in which they could misconstrue the Constitution, overrule precedent, and announce that the legislatures-only theory is the law of the land. Several justices have already indicated as much, and as I argued two weeks ago, there already appeared to be five votes for that proposition even before the Republicans added another Trump appointee to the Court.
At the very least, however, this anti-democratic possibility is finally receiving some attention from other national commentators. Today’s Washington Post, in particular, includes two op-eds that show why that theory should not work. Edward Foley, a law professor at Ohio State, explains how many pieces would have to fit together for this all to work, under the headline: “Relax. Biden will be sworn in Jan. 20.” Similarly, Post columnist Greg Sargent assures us: “No, the ‘Hail Mary’ plan for Trump isn’t going to work.”
Those are both excellent analyses (although Sargent says that the election could be thrown to the House of Representatives, which is simply false, as I explained in a recent Verdict piece with Professors Dorf and Tribe). It continues to be true that this is a very complicated puzzle for Trump’s people to solve.
Moreover, there is some evidence that not only will Trump and his enablers not be able to make all of those pieces fit, they might not even try. Senator James Lankford of Oklahoma—a Trump stalwart from one of the most Trump-loving states—said this week that he will intervene if the Biden transition team is not soon given access to the presidential daily briefings (PDB). (It would be good for someone to be reading the PDB, since Trump ignores them.)
But if this is so important, why “soon” and not now? Moreover, Lankford said that giving access to the briefings “needs to occur so that regardless of the outcome of the election, whichever way that it goes, people can be ready for that actual task.” Whichever way that it goes? He is still toeing the Trumpian line that this is not over.
Some commentators do seem to have moved on. The Post’s two Trumpiest op-ed writers are now writing, respectively, about being civil to President Biden—a column that nonetheless dripped with grievance about the supposedly unfair treatment of Trump by the meanies in the press—and (weirdly) a recommendation to read Matthew McConaughey’s new book. Meanwhile, the awful Drudge Report has apparently started to treat Trump as old news.
There are, as I have acknowledged all along, reasons not to be entirely pessimistic about the survival of America’s system of government. Indeed, there are no non-brazen ways in which Trump could pull off his coup. But brazenness is a feature of coups, not a bug. We have seen again and again that what momentarily looks like the end of the road for Trump ends up merely being a pit stop, allowing Republicans to refill their tanks with the fuel necessary to follow Trump wherever he leads.
Note, moreover, that I have not even mentioned Trump’s firing of the Defense Secretary and installation of loyalists at the Pentagon, potentially to reprise his orders this past summer to have federal troops and law enforcement attack peaceful demonstrators. Nor is there time here to talk about the possibility that Trump will encourage his supporters to resort to domestic terrorism to keep him in office. Those possibilities are frightening, and they are very real.
The last thing I want is to be writing an I-told-you-so column on January 20. I sincerely want to publish a “What went right?” column that explains why I was overly gloomy. The path from here to there, however, is by no means certain. Republicans have too much power and too little willingness to stand up to Trump, even if they wanted to do so. A difficult path to a coup is by no means an impossible one. We can all hope for the best, but we must be prepared for the worst.