[Voting is absolutely critical for democracy. But at the end of
the day, stopping a coup attempt will depend on far more than the
ballot, and will require creative and courageous acts of civic and
political engagement from all of us. ] [[link removed]]

TRUMP NEEDS ACCOMPLICES AT EVERY LEVEL OF GOVERNMENT TO PULL OFF A
COUP  
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Marjorie Cohn
October 4, 2020
Truthout
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_ Voting is absolutely critical for democracy. But at the end of the
day, stopping a coup attempt will depend on far more than the ballot,
and will require creative and courageous acts of civic and political
engagement from all of us. _

Donald Trump salutes as he prepares to board Marine One for Walter
Reed National Military Medical Center on the South Lawn of the White
House on October 2, 2020, in Washington, D.C., Drew Angerer/Getty
Images

 

For months, Donald Trump has been mounting a preemptive strike against
the democratic election process. He signals his intent to manipulate
— indeed, steal — the presidential election in the event that Joe
Biden wins. With no evidence to support him, Trump repeats the mantra
“voter fraud” to lay the groundwork for political, legal and
extra-legal challenges to a Biden victory. In an unprecedented move,
Trump refused to commit to a peaceful transfer of power as he orders
right-wing militias armed with assault weapons to “stand back and
stand by.”

Now that Donald Trump has tested positive for COVID-19, all bets are
off. After months of recklessly discouraging social distancing and
mask wearing, the chickens have come home to roost. Trump has tried
mightily to change the subject away from the coronavirus and his
criminal responsibility for more than 207,000 deaths
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and over 7 million people in the United States who have the virus. But
with Trump’s infection, that strategy is now dead.

If Trump’s symptoms had worsened, he could have temporarily handed
over the presidential reins to Vice President Mike Pence under the
25th Amendment
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In the event that Trump becomes very ill and refuses to put Pence in
charge, the 25th Amendment allows Pence and a majority of the cabinet,
or a body Congress lawfully designates, to declare Trump unable to
discharge the duties of the presidency. Pence would then take over. If
Trump tells Congress that “no inability exists,” two-thirds of the
members of the Senate and the House of Representatives could decide
that Trump is still unable to discharge his presidential duties, and
Pence would remain acting president until after the election. He could
become the GOP nominee or the Republican National Committee could
select a new nominee. Ballots already cast for Trump in early voting
would be transferred to his replacement. Each state would decide how
to proceed as there is probably insufficient time to print ballots
with the name of a new nominee. If Trump dies, Pence would become
acting president and if he is unable to serve, House Speaker Nancy
Pelosi is next in line.

The election will not be decided on November 3. Since there are an
unprecedented number of people voting by mail-in ballots due to the
pandemic, it could take weeks to finish resolving challenged ballots
and counting the votes. Nevertheless, Trump, mindful that mail-in
ballots generally tilt toward Democratic candidates, has insisted that
the winner be declared on November 3.

Trump could order postal inspectors to impound mail-in ballots by
claiming forgery or foreign fraud, so they might not be counted.

The Trump campaign is mobilizing “an army for Trump
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calling on “all able-bodied men and women to stop the election from
being stolen by Democrats.” Although it’s unclear just what this
army is being recruited to do, a coalition of progressive
organizations
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has mobilized more than 6,000 “election defenders.”

Are we doomed to suffer a coup d’état and four more years of
Trump’s bullying, racism, misogyny, cruelty, lying and xenophobia?
Or can his assault on the very essence of democracy be stopped?

A Looming Constitutional Crisis

As Biden has been leading in the polls, Trump confirmed at a September
25 rally in Virginia that if he loses the election, “We’re not
going to stand for it
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Reiterating his false claim of voter fraud from mail-in ballots, Trump
told the crowd, “We’re not going to lose this except if they
cheat.”

According to the Transition Integrity Project (TIP), “Trump is
likely to contest the result
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by both legal and extra-legal means, in an attempt to hold onto
power.” The bipartisan group of experts, which conducted a series of
election crisis scenario exercises, warns, “The potential for
violent conflict is high, particularly since Trump encourages his
supporters to take up arms.”

TIP’s report says “there is a chance” that “Trump will attempt
to convince legislatures and/or governors to take actions —
including illegal actions — to defy the popular vote.”

The election is actually multiple elections. Each state controls its
own election process. Harvard professor Daniel Carpenter described a
scenario in which Biden “wins a plausible victory
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and Republicans move to undermine it.” He posed a hypothetical
situation in Arizona or North Carolina where Biden wins a state
majority but the state legislature decides to give their delegates to
Trump.

Barton Gellman reported in _The Atlantic_ that “the Trump campaign
is discussing
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contingency plans to bypass election results and appoint loyal
electors in battleground states where Republicans hold the legislative
majority.”

If states refuse to certify or report slates of electors to the
Electoral College, that will result in “underpopulation” and force
the election into the House of Representatives, according to
Carpenter. “[I]f the Electoral College is underpopulated
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and the courts don’t intervene, or maybe even if they do, the
election is thrown to the House,” he said. The states would then
vote by delegations. The Democrats have a majority of members, but the
Republicans have a majority of delegations because each state has
equal voting power and there are more red states than blue states.

The electoral votes are to be opened
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Joint Session of Congress on January 6, 2021. But the Electoral Count
Act, which governs the counting of electoral votes, is rife with
ambiguities.

A constitutional crisis could result if the legislature of a state
submits a vote certificate that is different from that which the
state’s Democratic governor submits, and the GOP-controlled Senate
disagrees with the Democratic-controlled House. The conflict would
invariably end up in the Supreme Court.

“I would hope that the Supreme Court would make the winner of the
Electoral College the President if it came to that,” Erwin
Chemerinsky, dean of Berkeley Law School, told _Truthout_. “If not,
theoretically it could depend on the military. I am skeptical that
state governors and governments could do much.”

Trump wants Amy Coney Barrett on the high court to resolve just such a
dispute in his favor. Barrett did research and provided assistance
with briefing for _Bush v. Gore_, in which a 5-4 majority of the
Supreme Court overturned the Florida Supreme Court’s order of a
statewide manual recount in a very close election.

Barrett, who helped install George W. Bush as president, would likely
be a loyal foot soldier in Trump’s army as well.

But Senate Majority Leader McConnell’s plan for a rushed Senate
confirmation of Barrett by October 26 could be derailed by the loss of
his slim Republican majority. The GOP has a 52-48 majority in the
Senate. Thus far, two Senate Judiciary Committee members, Sens. Mike
Lee (R-Utah) and Thom Tillis (R-North Carolina), have tested positive
for coronavirus. Sen. Ron Johnson (R-Wisconsin) also had a positive
test. Sen. Susan Collins (R-Maine) has indicated she would vote
against Barrett’s confirmation and Lisa Murkowski (R-Alaska) opposes
filling Ruth Bader Ginsburg’s seat before the election. With five
GOP senators not voting for confirmation
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Barrett would not be confirmed.

Trump and Biden have unequal power to challenge the results of the
election. Rosa Brooks, co-founder of TIP, contrasted Trump’s
“awesome coercive powers
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with Biden’s lack of power to contest the election results. “Joe
Biden can call a press conference; Donald Trump could call on the 82nd
Airborne,” Brooks told Geoffrey Skelley at _FiveThirtyEight_.

Will the Military Facilitate or Halt Trump’s Coup?

But would the 82nd Airborne help Trump illegally overturn the election
results?

Service members have a duty to obey lawful orders
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But they also have a duty to disobey unlawful orders and a law that
violates the Constitution or a federal statute is an unlawful order.

Indeed, Pentagon officials said in late September
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that top military leaders could resign rather than take on protesters
in the streets in the event of election unrest.

On June 1, Trump threatened to invoke the 1807 Insurrection Act
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and deploy active-duty troops to quell Black Lives Matter protests. In
response to Trump’s deployment of National Guard troops to
Washington, D.C., and his threats to deploy federal troops more
widely, 89 former defense officials
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wrote on June 5, “We are alarmed at how the president is betraying
[his] oath [to support and defend the Constitution] by threatening to
order members of the U.S. military to violate the rights of their
fellow Americans.” They said that Trump gave governors “a stark
choice: either end the protests that continue to demand equal justice
under our laws, or expect that he will send active-duty military units
into their states.” The former defense officials urged Trump “to
immediately end his plans to send active-duty military personnel into
cities as agents of law enforcement, or to employ them or any another
military or police forces in ways that undermine the constitutional
rights of Americans.”

Although some congressional Republicans have pushed back
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against Trump’s suggestion that the winner of the election may never
be known, it remains to be seen whether they will resist his attempted
coup. Thus far, they have walked in near unanimous lockstep with
Trump, notably during his impeachment proceeding and his Supreme Court
nomination of Barrett even as votes are being cast.

Although Trump’s COVID-19 outbreak is the wild card here, the
prospects for a peaceful transition to a Biden administration if Trump
is in charge are dubious.

Ian Bassin, executive director of Protect Democracy, is optimistic,
however. “For those worried that Donald Trump could single-handedly
defy the election results and hold on to power, fear not — he cannot
do that,” Bassin wrote in an email to _Truthout_. “In order to do
that, he’d need accomplices at every level, throughout the country
— in the executive branch, in the Congress, in the courts, in state
legislatures, in the media.” But a landslide in favor of Biden could
make potential accomplices feel less confident in supporting Trump if
he were to claim that the results are ambiguous or fraudulent.

Voting is absolutely critical for democracy. But at the end of the
day, stopping a coup attempt will depend on far more than the ballot,
and will require creative and courageous acts of civic and political
engagement from all of us.

Let’s get to it!

This is an especially difficult time for media orgs and donations to
_Truthout_ are down. Your support amplifies the voices of journalists,
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Copyright © Truthout. May not be reprinted without permission.
Reprinted with permission.

_Marjorie Cohn [[link removed]] is professor emerita at
Thomas Jefferson School of Law, former president of the National
Lawyers Guild, deputy secretary general of the International
Association of Democratic Lawyers and a member of the advisory board
of Veterans for Peace. Her most recent book is Drones and Targeted
Killing: Legal, Moral, and Geopolitical Issues
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_

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