Trump's Only Road to Victory

by Alan M. Dershowitz • November 18, 2020 at 5:00 am

I just received an email asking me to sign a petition demanding the disbarment of President Trump's lawyers for their advocacy. That is McCarthyism pure and simple. Lawyers are entitled to advocate all reasonable and ethically permissible strategies that serve the interest of their client.
Let us remember that as a matter of law and constitutionality, Joe Biden is not yet the president-elect. He has been coronated by the media, by politicians and by most Americans. But to officially become president-elect requires, at the very least, certification by enough states to give him the 270 required electors. That has not yet occurred.
Biden is the presumed president-elect, the likely president, even the probable president, but he is not officially the president-elect for legal and constitutional purposes.

On several occasions in the 19^th century, no candidate received enough electoral votes to win the presidency. Pictured: The Electoral Commission, comprised of House Members, Senators, and Supreme Court Justices investigates disputed Electoral College ballots after the 1876 presidential election, on February 16, 1877. The Commission awarded all the disputed ballots to Rutherford B. Hayes, who became president by a single electoral vote. (Image source: Frank Leslie's Illustrated Newspaper via Library of Congress)

President Trump has only one road to victory, and it would require a perfect storm that at this moment seems unlikely. The goal of the Trump legal team is not to get 270 electoral votes for their client. That seems beyond the realm of all possibility. The goal is to question Vice President Biden the 270 he needs for the Electoral College to select him as president. Since this is a zero-sum game, how is it possible for Biden to be denied the 270 without Trump reaching that number?

The answer to that question provides the clue to what the Trump legal team is trying to do. If enough electoral votes are still being contested by mid-December, and if fewer than 270 electors are certified by their respective states by that date, then Biden could -- in theory -- be denied the necessary 270. If that were to happen, then the election would be thrown into the House of Representatives, as it was on several occasions in the 19^th century.

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