[Will Trump leave office if defeated? A law professor fears a
meltdown this November.] [[link removed]]

WILL HE GO?   [[link removed]]

 

Sean Illing, Lawrence Douglas
June 3, 2020
Vox
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_ Will Trump leave office if defeated? A law professor fears a
meltdown this November. _

President Trump walks with Attorney General William Barr, Secretary
of Defense Mark T. Esper, Chairman of the Joint Chiefs of Staff Mark
A. Milley, and others from the White House to visit St. John’s
Church on June 1. , Brendan Smialowski/AFP/Getty Images

 

Imagine that it’s November 3, 2020, and Joe Biden has just been
declared the winner of the presidential election by all the major
networks except for Fox News. It was a close, bitter race, but Biden
appears to have won with just over 280 electoral votes.

Because Election Day took place in the middle of a second wave
of coronavirus [[link removed]] infections,
turnout was historically low and a huge number of votes were cast via
absentee ballot. While Biden is the presumptive winner, the electoral
process was bumpy, with thousands of mail-in votes in closely fought
states still waiting to be counted. Trump, naturally, refuses to
concede and spends election night tweeting about how “fraudulent”
the vote was.

We knew this would be coming; he’s been previewing this kind of
response for a while now.

There is NO WAY (ZERO!) that Mail-In Ballots will be anything less
than substantially fraudulent. Mail boxes will be robbed, ballots will
be forged & even illegally printed out & fraudulently signed. The
Governor of California is sending Ballots to millions of people,
anyone.....

— Donald J. Trump (@realDonaldTrump) May 26, 2020
[[link removed]]

One day goes by, then a few more, and a month later Trump is still
contesting the outcome, calling it “rigged” or a “Deep State
plot” or whatever. Republicans, for the most part, are falling in
line behind Trump. From that point forward, we’re officially in a
constitutional crisis.

This is the starting point of a new book by Amherst College law
professor Lawrence Douglas called _Will He Go? Trump and the Looming
Election Meltdown in 2020_
[[link removed]].
According to Douglas, a scenario like the one above is entirely
possible, maybe even probable. And if nothing else, we’ve learned in
the Trump era that we have to take the tail risks seriously.
Douglas’s book is an attempt to think through how we might deal with
the constitutional chaos of an undecided — and perhaps undecidable
— presidential election.

 

I spoke to Douglas by phone about why he thinks our constitutional
system isn’t prepared for what might happen in November, and why
he’s not worried about a stolen election so much as an election
without an accepted result. “If things go a certain way,” he told
me, “there’s a Chernobyl-like defect built into our system of
presidential elections that really could lead to a meltdown.”

A lightly edited transcript of our conversation follows.

Sean Illing

What worries you most about the November election?

Lawrence Douglas

To say that we’re facing a perfect storm is clichéd, but it does
strike me that there are a lot of things coming together that could
spell a chaotic election.

Foremost among them is the fact that we have a president of the United
States who has pretty consistently and aggressively telegraphed his
intention not to concede in the face of an electoral defeat,
especially if that electoral defeat is of a very narrow margin. And it
looks like it probably will be a narrow margin. In all likelihood, the
2020 election is going to turn on the results in probably the three
swing states that determined the results in 2016: Michigan,
Pennsylvania, and Wisconsin.

The other concern is that if we do fall into an electoral crisis and
we start seeing the kinds of challenges to the results that we saw
back in year 2000, during _Bush v. Gore_, then we could really see a
meltdown because our contemporary political climate is so polarized.
That’s what led me to start asking,_ _what types of federal laws do
we have in place? What kind of constitutional procedures do we have in
place to right the ship?

And what I found is that they just don’t exist.

Sean Illing

What does that mean, exactly? Are we racing toward a constitutional
crisis?

Lawrence Douglas

In a word, yes.

What makes our situation particularly dangerous is it’s not simply
the statements that come out of Trump. We’re pretty used to Trump
making statements that leave us all gobsmacked at this point. What
worries me is that if there are going to be any guardrails protecting
us from his attacks on the electoral process, it would have to come
from the Republican Party. And we’ve seen that Republican lawmakers
simply are not prepared to hold this guy to account
[[link removed]].

We saw that in the impeachment proceeding, where it was really
astonishing that you have Mitt Romney as the only Republican voting in
the Senate to remove the president. And it was only, what, eight years
ago that Mitt Romney was the standard-bearer of the party in the
national election.

It’s a pretty disturbing erosion of democratic norms.

Sean Illing

If you’re right that the Republican Party isn’t going to stand up
for the rule of law, where does that leave us legally and politically?

Lawrence Douglas

If you have a president who is really pushing the argument that fraud
cost him the election, he really does have the opportunity to push
things to Congress. And what I mean by that is that Congress is the
body that ultimately tallies Electoral College votes.

It’s not inconceivable that you have states that submit competing
electoral certificates. And I won’t go into the nitty-gritty about
how that happens, but it can happen. And if that happens and you have
a split Congress between the Senate Republicans and the House
Democrats, there is basically no way to resolve the dispute.

Sean Illing

Let’s say that happens and we enter January 2021 without a political
consensus on who won the election. What then?

Lawrence Douglas

I’m not trying to be an alarmist here, but it’s possible to
imagine, come January 20, that we don’t have a president. By the
terms of the 20th Amendment, Trump ceases to be president at noon on
January 20 and [Mike] Pence likewise ceases to be vice president.

At this point, by the terms of the Presidential Succession Act of
1947, the speaker of the House, Nancy Pelosi, could become acting
president, but only if she resigns her House seat. But what if Trump
continues to insist that he has been reelected and is the rightful
president? Imagine if, come January 20, Trump stages his own
inauguration ceremony with Clarence Thomas issuing the oath of office.

Then we might have Nancy Pelosi and Trump both claiming to be the
commander in chief. This is a world of hurt.

Sean Illing

What about the Supreme Court?

Lawrence Douglas

I think a lot of people assume the Supreme Court would step in and end
things before they got too chaotic. This is more or less what happened
in 2000.

But it’s very misleading to think that it was the Supreme Court that
settled the 2000 election. It really wasn’t the Supreme Court in the
decision _Bush v. Gore_ that ended things — it was Al Gore. Al
Gore, for the good of the country, decided to accept the Supreme
Court’s ruling. I’d say it’s impossible to imagine Trump doing
anything like that.

Besides, if it did intervene, I’m not sure that Congress would abide
by a court ruling. Because so many experts [here
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say the Court really doesn’t have jurisdiction to resolve an
electoral dispute once it hits Congress.

Sean Illing

Let’s imagine that the election happens and Biden wins convincingly
enough that the vast majority of the country, even most Republicans,
accept the outcome. In that case, Trump — and a small wing of
hardliners — may refuse to concede, but both parties basically
accept the results.

What happens then? Would federal marshals have to go in and drag Trump
out of the White House?

Lawrence Douglas

Here’s the thing: That’s not the scenario I’m worried about. If
Trump loses decisively, I think his opportunities for creating mayhem
will be dramatically curtailed.

What worries me is that I don’t see him losing in that fashion. I
could certainly imagine him losing decisively in the popular vote, as
he did in 2016, but I can’t imagine him losing that decisively in
the Electoral College. And everything will turn on what happens in
these swing states.

This is going to be an election that is conducted under very unusual
circumstances. There are going to be potentially chaotic scenes at
polling stations, and god forbid there’s a fresh outbreak of
Covid-19 in the fall. Then you’re also going to have millions of
people voting by mail-in.

Sean Illing

Why is that a problem?

Lawrence Douglas

Well, these mail-in ballots are not going to get counted by November
3. That gives someone like Trump space to create incredible chaos.

Imagine a swing state like Michigan. Imagine the November 3 popular
vote appears to go to Trump by a small margin. So he declares that
he’s won Michigan. And Michigan defines the margin of victory in the
Electoral College, so he declares that he’s been reelected.

Well, as these write-in ballots and these mail-in ballots are counted
in the next days, there’s this phenomenon that we’ve seen in the
last several elections called the “blue shift.”
[[link removed]] It
tends to be the case that mail-in ballots break Democratic. It’s
typically the case that mail-in ballots come from urban areas, which
are predominantly Democratic in their voting patterns.

And so in this case, it’s entirely possible that Trump is trailing
once all the votes are counted. But then he says, “Those votes are
bogus. They shouldn’t be counted.” And if you look at the
political profile of Michigan, again, you find this kind of perfect
storm brewing, because the Republicans control the statehouse in
Lansing. So let’s say they all support Trump, and they all say,
“Yeah, we’re going to go with the Election Day results. We’re
going to give our electoral votes all to Trump.”

Then we’ve got total chaos.

SEAN ILLING

But the governor of Michigan is a Democrat, and my understanding is
that it’s the governor, along with the secretary of state and the
board of electors, who sends the electoral certificate to Congress.

Is that right?

LAWRENCE DOUGLAS

That’s correct. It’s the governor who is responsible under federal
law to send the electoral certificate of the state to Congress. But
that is not to say that the state legislature is barred from sending
its own certificate to Congress. You might say, “Well, then, isn’t
the governor’s certificate the proper certificate?” and the answer
is that it’s up to Congress to make that determination. And if one
House accepts the governor’s certificate and the other accepts the
legislature’s certificate, then we’re in a stalemate.

“I’M NOT TRYING TO BE AN ALARMIST HERE, BUT IT’S POSSIBLE TO
IMAGINE, COME JANUARY 20, THAT WE DON’T HAVE A PRESIDENT”

Sean Illing

So your main worry is not that the election will be stolen so much as
we’ll be left without a result?

Lawrence Douglas

Exactly.

Sean Illing

The situation you’re describing is almost unthinkable: We have an
election and there’s simply no binding result.

Lawrence Douglas

Again, I’m not trying to be an alarmist.

Sean Illing

This is pretty damn alarming, Lawrence.

Lawrence Douglas

Look, one of the main points of my book was to say, “Hello, people.
If things go a certain way, there’s a Chernobyl-like defect built
into our system of presidential elections that really could lead to a
meltdown.”

Sean Illing

Are there any precedents for this?

Lawrence Douglas

We came very close to having something like this happen back in 1876.
There was this Hayes-Tilden election
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in which three separate states submitted competing electoral
certificates to Congress. Congress was likewise divided between House
Democrats and Senate Republicans, and they couldn’t figure anything
out. It was a total stalemate. They eventually jerry-rigged a
solution, but that solution only worked because Samuel Tilden, the
Democratic candidate, agreed to concede.

Again, I don’t see Trump doing that.

Sean Illing

This is an astonishing hole in our Constitution. It’s another
example of our reliance on norms, not laws or institutions, to keep
things humming along.

Lawrence Douglas

It’s such a great point. When I was researching the book, I was
asking myself, well, what does the Constitution and the federal law do
in order to secure the peaceful transition of power?_ _And one of the
things that I realized is they don’t secure the peaceful succession
of power. They presuppose it. They assume that it’s going to happen.
So if it doesn’t happen, well, no one knows ...

Sean Illing

Now, on to another worry: Could the election be postponed?

Lawrence Douglas

No, I don’t think so. The president can’t do that
[[link removed]],
because Election Day is set by federal law. You could have Congress
change the election, but that would require bicameral support and
bipartisan support, and that seems highly unlikely.

Sean Illing

It feels almost pointless to ask this question, but I’ll do it
anyway: Are you confident that our constitutional system can handle
what’s potentially coming in November?

Lawrence Douglas

No. I have incredible respect and admiration for our constitutional
system, but I’ll go back to one of the points you made, which is
that the system really assumes that political actors have absorbed the
norms that make the system work. But if you have a president who
ignores those norms; if you have a party that ignores those norms,
that continues to facilitate the rejection of those norms; and if you
have a fractured media universe that rewards the president for
rejecting those norms, then we’re in a very dangerous situation.

The only real way to avoid this is to make sure we don’t enter into
this scenario, and the best way to do that is to ensure that he loses
decisively in November. That’s the best guarantee. That’s the best
way that we can secure the future of a healthy constitutional
democracy.

Sean Illing is the Interviews Writer for Vox. Before publishing things
on the Internet, he taught politics and philosophy at a university.
Before that, he served in the United States Air Force.

Lawrence R. Douglas is James J. Grosfeld Professor of Law,
Jurisprudence and Social Thought at Amherst College. Professor Douglas
is the author of seven books, including The Memory of Judgment: Making
Law and History in the Trials of the Holocaust (Yale, 2001) and The
Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes
Trial (Princeton, 2016), a New York Times “Editor’s Choice.” His
most recent book is Will He Go? Trump and the Looming Electoral
Meltdown in 2020 (Twelve/Hachette 2020).

In addition, Douglas has published two novels, The Catastrophist
(2007), a Kirkus “Best Books of the Year,” and The Vices (2011), a
finalist for the National Jewish Book Prize. His commentary and essays
have appeared in Harper’s, The New York Times, The Washington Post
and The Los Angeles Times; and he is a regular contributor to the
Times Literary Supplement and The Guardian (US), where he is a
contributing opinion writer. He is the recipient of major fellowships
from the National Endowment for the Humanities, the American Council
of Learned Societies, the United States Holocaust Memorial Museum, the
Institute for International Education, and American Academy in Berlin,
and the Carnegie Foundation, Douglas has lectured throughout the
United States and in more than a dozen countries, and has served as
visiting professor at the University of London and Humboldt
Universität zu Berlin.

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