Trump reiterated today that he plans to have his hand-picked Supreme Court re-install him for a second term:
President Donald Trump predicted that the U.S. Supreme Court will decide the outcome of the November election and argued the Senate should confirm his nominee to replace the late Justice Ruth Bader Ginsburg to break any tie.
“I think this will end up in the Supreme Court and I think it’s very important that we have nine justices, and I think the system’s going to go very quickly,” Trump said Wednesday at the White House, after criticizing the legitimacy of mail-in voting. He made the remarks during a meeting with Republican attorneys general about alleged anti-conservative bias of tech companies.
“I think this scam that the Democrats are pulling, it’s a scam, this scam will be before the United States Supreme Court and I think having a 4-4 situation is not a good situation,” Trump said. “Just in case it would be more political than it should be, I think it’s very important to have a ninth judge.”
“Just in case it would be more political than it should be …” That’s Bill Barr talking.
I don’t mean to alarm you but if you haven’t read this piece by Barton Gelman in The Atlantic, I urge you to do it. Gird yourself.
Just one excerpt that will curl your hair:
The Interregnum allots 35 days for the count and its attendant lawsuits to be resolved. On the 36th day, December 8, an important deadline arrives.
At this stage, the actual tabulation of the vote becomes less salient to the outcome. That sounds as though it can’t be right, but it is: The combatants, especially Trump, will now shift their attention to the appointment of presidential electors.
December 8 is known as the “safe harbor” deadline for appointing the 538 men and women who make up the Electoral College. The electors do not meet until six days later, December 14, but each state must appoint them by the safe-harbor date to guarantee that Congress will accept their credentials. The controlling statute says that if “any controversy or contest” remains after that, then Congress will decide which electors, if any, may cast the state’s ballots for president.
We are accustomed to choosing electors by popular vote, but nothing in the Constitution says it has to be that way. Article II provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Since the late 19th century, every state has ceded the decision to its voters. Even so, the Supreme Court affirmed in Bush v. Gore that a state “can take back the power to appoint electors.” How and when a state might do so has not been tested for well over a century.
Trump may test this. According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.
To a modern democratic sensibility, discarding the popular vote for partisan gain looks uncomfortably like a coup, whatever license may be found for it in law. Would Republicans find that position disturbing enough to resist? Would they cede the election before resorting to such a ploy? Trump’s base would exact a high price for that betrayal, and by this point party officials would be invested in a narrative of fraud.
The Trump-campaign legal adviser I spoke with told me the push to appoint electors would be framed in terms of protecting the people’s will. Once committed to the position that the overtime count has been rigged, the adviser said, state lawmakers will want to judge for themselves what the voters intended.
“The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state,’ ” the adviser said. Democrats, he added, have exposed themselves to this stratagem by creating the conditions for a lengthy overtime.
“If you have this notion,” the adviser said, “that ballots can come in for I don’t know how many days—in some states a week, 10 days—then that onslaught of ballots just gets pushed back and pushed back and pushed back. So pick your poison. Is it worse to have electors named by legislators or to have votes received by Election Day?”
When The Atlantic asked the Trump campaign about plans to circumvent the vote and appoint loyal electors, and about other strategies discussed in the article, the deputy national press secretary did not directly address the questions. “It’s outrageous that President Trump and his team are being villainized for upholding the rule of law and transparently fighting for a free and fair election,” Thea McDonald said in an email. “The mainstream media are giving the Democrats a free pass for their attempts to completely uproot the system and throw our election into chaos.” Trump is fighting for a trustworthy election, she wrote, “and any argument otherwise is a conspiracy theory intended to muddy the waters.”
In Pennsylvania, three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign.
“I’ve mentioned it to them, and I hope they’re thinking about it too,” Lawrence Tabas, the Pennsylvania Republican Party’s chairman, told me. “I just don’t think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution.” He added that everyone’s preference is to get a swift and accurate count. “If the process, though, is flawed, and has significant flaws, our public may lose faith and confidence” in the election’s integrity.
There seems to be a consensus that they will win by any means necessary. And as Gelman says, no matter what happens Trump will never concede:
Maybe you hesitate. Is it a fact that if Trump loses, he will reject defeat, come what may? Do we know that? Technically, you feel obliged to point out, the proposition is framed in the future conditional, and prophecy is no man’s gift, and so forth. With all due respect, that is pettifoggery. We know this man. We cannot afford to pretend.
Trump’s behavior and declared intent leave no room to suppose that he will accept the public’s verdict if the vote is going against him. He lies prodigiously—to manipulate events, to secure advantage, to dodge accountability, and to ward off injury to his pride. An election produces the perfect distillate of all those motives.
Pathology may exert the strongest influence on Trump’s choices during the Interregnum. Well-supported arguments, some of them in this magazine, have made the case that Trump fits the diagnostic criteria for psychopathy and narcissism. Either disorder, by its medical definition, would render him all but incapable of accepting defeat.
Conventional commentary has trouble facing this issue squarely. Journalists and opinion makers feel obliged to add disclaimers when asking “what if” Trump loses and refuses to concede. “The scenarios all seem far-fetched,” Politico wrote, quoting a source who compared them to science fiction. Former U.S. Attorney Barbara McQuade, writing in The Atlantic in February, could not bring herself to treat the risk as real: “That a president would defy the results of an election has long been unthinkable; it is now, if not an actual possibility, at the very least something Trump’s supporters joke about.”
But Trump’s supporters aren’t the only people who think extraconstitutional thoughts aloud. Trump has been asked directly, during both this campaign and the last, whether he will respect the election results. He left his options brazenly open. “What I’m saying is that I will tell you at the time. I’ll keep you in suspense. Okay?” he told moderator Chris Wallace in the third presidential debate of 2016. Wallace took another crack at him in an interview for Fox News this past July. “I have to see,” Trump said. “Look, you—I have to see. No, I’m not going to just say yes. I’m not going to say no.”
How will he decide when the time comes? Trump has answered that, actually. At a rally in Delaware, Ohio, in the closing days of the 2016 campaign, he began his performance with a signal of breaking news. “Ladies and gentlemen, I want to make a major announcement today. I would like to promise and pledge to all of my voters and supporters, and to all the people of the United States, that I will totally accept the results of this great and historic presidential election.” He paused, then made three sharp thrusts of his forefinger to punctuate the next words: “If … I … win!” Only then did he stretch his lips in a simulacrum of a smile.
The question is not strictly hypothetical. Trump’s respect for the ballot box has already been tested. In 2016, with the presidency in hand, having won the Electoral College, Trump baldly rejected the certified tallies that showed he had lost the popular vote by a margin of 2,868,692. He claimed, baselessly but not coincidentally, that at least 3 million undocumented immigrants had cast fraudulent votes for Hillary Clinton.
All of which is to say that there is no version of the Interregnum in which Trump congratulates Biden on his victory. He has told us so. “The only way they can take this election away from us is if this is a rigged election,” Trump said at the Republican National Convention on August 24. Unless he wins a bona fide victory in the Electoral College, Trump’s refusal to concede—his mere denial of defeat—will have cascading effects.
If he does end up leaving on January 21 it will be under duress and he will consider himself the rightful president in exile. I’m sure that’s part of the new brand he’s cooking up to make millions from the suckers and losers of his cult.