Ex-Trump administration officials all seem to agree on one thing: Their former boss is a walking
Anthony L. Fisher September 24, 2020
Republican presidential nominee Donald Trump looks on during the Presidential Debate at Hofstra University on September 26, 2016 in Hempstead, New York. Drew Angerer/Getty Images
Ex-Trump administration officials tend to agree on one thing: Their former boss is a walking disaster.
Whether they’re four star generals, energy company CEOs, or career civil servants, they paint a frightening picture of an unstable ignoramus in the White House.
Trump, naturally, calls them bitter liars. Who are you going to believe?
A common theme has emerged from comments made by ex-Trump administration officials. Whether they were four star generals, energy company CEOs, or career civil servants, they all say their former boss is dangerously ignorant, inexcusably incompetent, and frighteningly unstable.
In the face of this consistent and specific criticism from a slew of highly qualified people he hired, Trump’s response has been to call them liars, cowards, bitter or “dumb as a rock.”
The president would have the American people believe that all of these former subordinates — most of them loyal, lifelong Republicans — have got it all wrong. Only he has it right.
The question that Trump supporters or Trump-sympathetic voters need to ask themselves is: Who are you going to believe?
A brief list of ex-Trump administration officials’ testimonials for the president
There’s far too many to recount, so let’s recall just a few of the more high-profile veterans of the Trump White House:
Trump’s former National Economic Council Director Gary Cohn, a former president and chief operating officer for Goldman Sachs, reportedly called Trump a “professional liar.”
Former Secretary of State Rex Tillerson, who prior to joining the Trump administration was the CEO of ExxonMobil, in a meeting at the Pentagon reportedly called Trump a “f**king moron.”
Former National Security Adviser John Bolton, who previously served as an ambassador to the UN and has worked in three Republican presidential administrations, in his memoir called Trump “erratic” and “stunningly uninformed.”
Former Secretary of Defense James Mattis, a four star US Marine Corps general who commanded troops in three wars, in a statement in June said Trump “tries to divide us,” that he makes “a mockery of the Constitution” and that “we are witnessing the consequences of three years without mature leadership.” He also told veteran journalist Bob Woodward: “The president has no moral compass.”
Former White House Chief of Staff and Homeland Security Secretary John Kelly, also a four star US Marine Corps general, has been the tightest-lipped about his time working for Trump. But he did say he agrees with Mattis’ assessment of Trump, and he publicly disputed Trump’s claim that he fired Mattis. That means Kelly effectively called Trump a liar.
Every ex-Trump administration official can’t be a secret Democrat
Nobody circles the wagons, moves the goalposts or changes the subject quite like hardcore Trump supporters.
When audio recordings of Trump bragging that he grabs women by their genitals, Trumpists what-a-bouted their way into Bill Clinton’s sordid past.
When White House advisers Jared Kushner and Ivanka Trump — the president’s son-in-law and daughter — were revealed to have used private email accounts to conduct government business, the same people screaming at Trump rallies to lock Hillary Clinton up simply yawned.
When reports emerged of Trump disparaging fallen members of the military as “suckers,” they dismissed the anonymous sourcing out of hand. Never mind the fact that disparaging military personnel is nothing new for Trump, who has himself been an anonymous source in the media for decades.
It will never matter to Trump’s base that the people who have worked intimately with the president at the highest levels of the administration think he’s a dangerous, dishonest buffoon.
Theirs is a cult of personality.
As long as Trump continues to “trigger the libs,” they’ll abide every easily disprovable lie, every deranged conspiracy theory, and every just plain stupid thing that dribbles out of his mouth.
But the reluctant 2016 Trump voters and Never Democrat voters ought to consider the words of the Trump former administration officials. They’re not secret Democratic activists. They’re staunch conservatives, or in the case of the generals, devout patriots who felt it their national duty to accept the president’s offers.
They’ve all seen Trump’s leadership in action. And they’ve told us it is a horrifying thing to behold. Trump says they’re all liars.
Federal Judge Ousts Trump’s Bureau Of Land Management Chief
Chris D’Angelo, Environment Reporter, September 25, 2020
A federal judge on Friday blocked William Perry Pendley, the anti-public lands extremist who has overseen the federal Bureau of Land Management for more than a year, from continuing to lead the bureau.
U.S. District Judge Brian Morris in Montana ruled that Pendley has illegally served as acting director of BLM for more than 400 days.
The decision comes in response to a lawsuit filed in August by Montana Gov. Steve Bullock (D), which argued that Pendley’s ongoing tenure violates the Federal Vacancies Reform Act. The act limits the amount of time Cabinet officials may serve in an acting role to 210 days.
“Today’s ruling is a win for the Constitution, the rule of law, and our public lands,” Bullock wrote in a Twitter response. “Montanans can rest easy knowing that National Public Lands Day will begin with William Perry Pendley packing his desk and vacating the Director’s Office.”
National Public Lands Day is Saturday.
A former property rights attorney who spent his career arguing that public lands should not even exist, Pendley has led the bureau since July 2019 via a series of controversial temporary re-appointments. He’s overseen 245 million acres of federal land ― more than 10% of the entire U.S. landmass ― without ever having to face the scrutiny of a Senate confirmation process.
“The President cannot shelter unconstitutional ‘temporary’ appointments for the duration of his presidency through a matryoshka doll of delegated authorities,” Morris wrote in his decision.
President Donald Trump formally nominated Pendley in June to serve as BLM permanent director only to turn around and withdraw the nomination in August amid mounting public outrage. It was later revealed that Pendley personally crafted and signed a succession order to keep himself at the helm of the bureau indefinitely.
The Interior Department, which previously dismissed Bullock’s legal challenge as frivolous, called Friday’s ruling “outrageous” and “well outside the bounds of the law.”
“It betrays long-standing practice of the Department going back several administrations,” spokesperson Connor Swanson said in an email. “We will be appealing this decision immediately.”
Drilling, mining and logging have been top priorities on public lands during Trump’s tenure, and Pendley has played a key role in working to boost development in the West. The court could ultimately invalidate rules and plans that Pendley was involved in crafting.
“The Court recognizes that any “function or duty” of the BLM Director that has been performed by Pendley would have no force and effect and must be set aside as arbitrary and capricious,” Morris wrote in his opinion. He gave the Interior Department and Bullock 10 days to file briefs detailing which of Pendley’s orders should be scrapped.
The Interior Department, which oversees BLM, has tried in recent months to claim that Pendley has never served as acting chief. “William Perry Pendley is not, and has never been, Acting BLM Director,” an Interior spokesperson recently told HuffPost.
If the vote is close, Donald Trump could easily throw the election into chaos and subvert the result. Who will stop him?
Story by Bart Gellman Special Preview November 2020 issue
The danger is not merely that the 2020 election will bring discord. Those who fear something worse take turbulence and controversy for granted. The coronavirus pandemic, a reckless incumbent, a deluge of mail-in ballots, a vandalized Postal Service, a resurgent effort to suppress votes, and a trainload of lawsuits are bearing down on the nation’s creaky electoral machinery.Something has to give, and many things will, when the time comes for casting, canvassing, and certifying the ballots. Anything is possible, including a landslide that leaves no doubt on Election Night. But even if one side takes a commanding early lead, tabulation and litigation of the “overtime count”—millions of mail-in and provisional ballots—could keep the outcome unsettled for days or weeks.If we are lucky, this fraught and dysfunctional election cycle will reach a conventional stopping point in time to meet crucial deadlines in December and January. The contest will be decided with sufficient authority that the losing candidate will be forced to yield. Collectively we will have made our choice—a messy one, no doubt, but clear enough to arm the president-elect with a mandate to govern.As a nation, we have never failed to clear that bar. But in this election year of plague and recession and catastrophized politics, the mechanisms of decision are at meaningful risk of breaking down. Close students of election law and procedure are warning that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result. We have no fail-safe against that calamity. Thus the blinking red lights.“We could well see a protracted post-election struggle in the courts and the streets if the results are close,” says Richard L. Hasen, a professor at the UC Irvine School of Law and the author of a recent book called Election Meltdown. “The kind of election meltdown we could see would be much worse than 2000’s Bush v. Gore case.”A lot of people, including Joe Biden, the Democratic Party nominee, have misconceived the nature of the threat. They frame it as a concern, unthinkable for presidents past, that Trump might refuse to vacate the Oval Office if he loses. They generally conclude, as Biden has, that in that event the proper authorities “will escort him from the White House with great dispatch.”The worst case, however, is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome against him. If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and then in Congress. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that uncertainty to hold on to power.Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office “shall end” at noon on January 20, but two men could show up to be sworn in. One of them would arrive with all the tools and power of the presidency already in hand.“We are not prepared for this at all,” Julian Zelizer, a Princeton professor of history and public affairs, told me. “We talk about it, some worry about it, and we imagine what it would be. But few people have actual answers to what happens if the machinery of democracy is used to prevent a legitimate resolution to the election.”
Nineteen summers ago, when counter-terrorism analysts warned of a coming attack by al‑Qaeda, they could only guess at a date. This year, if election analysts are right, we know when the trouble is likely to come. Call it the Interregnum: the interval from Election Day to the next president’s swearing-in. It is a temporal no-man’s-land between the presidency of Donald Trump and an uncertain successor—a second term for Trump or a first for Biden. The transfer of power we usually take for granted has several intermediate steps, and they are fragile.
The Interregnum comprises 79 days, carefully bounded by law. Among them are “the first Monday after the second Wednesday in December,” this year December 14, when the electors meet in all 50 states and the District of Columbia to cast their ballots for president; “the 3 rd day of January,” when the newly elected Congress is seated; and “the sixth day of January,” when the House and Senate meet jointly for a formal count of the electoral vote. In most modern elections these have been pro forma milestones, irrelevant to the outcome. This year, they may not be.
“Our Constitution does not secure the peaceful transition of power, but rather presupposes it,” the legal scholar Lawrence Douglas wrote in a recent book titled simply Will He Go? The Interregnum we are about to enter will be accompanied by what Douglas, who teaches at Amherst, calls a “perfect storm” of adverse conditions. We cannot turn away from that storm. On November 3 we sail toward its center mass. If we emerge without trauma, it will not be an unbreakable ship that has saved us.
Let us nothedge about one thing. Donald Trump may win or lose, but he will never concede. Not under any circumstance. Not during the Interregnum and not afterward. If compelled in the end to vacate his office, Trump will insist from exile, as long as he draws breath, that the contest was rigged.
Trump’s invincible commitment to this stance will be the most important fact about the coming Interregnum. It will deform the proceedings from beginning to end. We have not experienced anything like it before.
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,” Politicowrote, 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.
The ritual that marks an election’s end took its contemporary form in 1896. On the Thursday evening after polls closed that year, unwelcome news reached the Democratic presidential nominee, William Jennings Bryan. A dispatch from Senator James K. Jones, the chair of the Democratic National Committee, informed him that “sufficient was known to make my defeat certain,” Bryan recalled in a memoir.
He composed a telegram to his Republican opponent, William McKinley. “Senator Jones has just informed me that the returns indicate your election, and I hasten to extend my congratulations,” Bryan wrote. “We have submitted the issue to the American people and their will is law.”After Bryan, concession became a civic duty, performed by telegram or telephone call and then by public speech. Al Smith brought the concession speech to radio in 1928, and it migrated to television soon afterward.Like other rituals, concessions developed a liturgy. The defeated candidate comes out first. He thanks supporters, declares that their cause will live on, and acknowledges that the other side has prevailed. The victor begins his own remarks by honoring the surrender.Concessions employ a form of words that linguists call performative speech. The words do not describe or announce an act; the words themselves are the act. “The concession speech, then, is not merely a report of an election result or an admission of defeat,” the political scientist Paul E. Corcoran has written. “It is a constitutive enactment of the new president’s authority.”In actual war, not the political kind, concession is optional. The winning
side may take by force what the losing side refuses to surrender. If the weaker party will not sue for peace, its ramparts may be breached, its headquarters razed, and its leaders taken captive or put to death. There are places in the world where political combat still ends that way, but not here. The loser’s concession is therefore hard to replace.
Consider the 2000 election, which may appear at first glance to demonstrate otherwise. Al Gore conceded to George W. Bush on Election Night, then withdrew his concession and fought a recount battle in Florida until the Supreme Court shut it down. It is commonly said that the Court’s 5–4 ruling decided the contest, but that’s not quite right.The Court handed down its ruling in Bush v. Gore on December 12, six days before the Electoral College would convene and weeks before Congress would certify the results. Even with canvassing halted in Florida, Gore had the constitutional means to fight on, and some advisers urged him to do so. If he had brought the dispute to Congress, he would have held high ground as the Senate’s presiding officer.Not until Gore addressed the nation on December 13, the day after the Court’s decision, did the contest truly end. Speaking as a man with unexpended ammunition, Gore laid down his arms. “I accept the finality of this outcome, which will be ratified next Monday in the Electoral College,” he said. “And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.”We have no precedent or procedure to end this election if Biden seems to carry the Electoral College but Trump refuses to concede. We will have to invent one.
Trump is, by some measures, a weak authoritarian. He has the mouth but
not the muscle to work his will with assurance. Trump denounced Special Counsel Robert Mueller but couldn’t fire him. He accused his foes of treason but couldn’t jail them. He has bent the bureaucracy and flouted the law but not broken free altogether of their restraints.
A proper despot would not risk the inconvenience of losing an election. He would fix his victory in advance, avoiding the need to overturn an incorrect outcome. Trump cannot do that.But he’s not powerless to skew the proceedings—first on Election Day and then during the Interregnum. He could disrupt the vote count where it’s going badly, and if that does not work, try to bypass it altogether. On Election Day, Trump and his allies can begin by suppressing the Biden vote.There is no truth to be found in dancing around this point, either: Trump does not want Black people to vote. (He said as much in 2017—on Martin Luther King Day, no less—to a voting-rights group co-founded by King, according to a recording leaked to Politico.) He does not want young people or poor people to vote. He believes, with reason, that he is less likely to win reelection if turnout is high at the polls. This is not a “both sides” phenomenon. In present-day politics, we have one party that consistently seeks advantage in depriving the other party’s adherents of the right to vote.Just under a year ago, Justin Clark gave a closed-door talk in Wisconsin to a select audience of Republican lawyers. He thought he was speaking privately, but someone had brought a recording device. He had a lot to say about Election Day operations, or “EDO.”
At the time, Clark was a senior lieutenant with Trump’s reelection campaign; in July, he was promoted to deputy campaign manager. “Wisconsin’s the state that is going to tip this one way or the other … So it makes EDO really, really, really important,” he said. He put the mission bluntly: “Traditionally it’s always been Republicans suppressing votes … [Democrats’] voters are all in one part of the state, so let’s start playing offense a little bit. And that’s what you’re going to see in 2020. That’s what’s going to be markedly different. It’s going to be a much bigger program, a much more aggressive program, a much better-funded program, and we’re going to need all the help we can get.” (Clark later claimed that his remarks had been misconstrued, but his explanation made no sense in context.)
Of all the favorable signs for Trump’s Election Day operations, Clark explained, “first and foremost is the consent decree’s gone.” He was referring to a court order forbidding Republican operatives from using any of a long list of voter-purging and intimidation techniques. The expiration of that order was a “huge, huge, huge, huge deal,” Clark said.His audience of lawyers knew what he meant. The 2020 presidential election will be the first in 40 years to take place without a federal judge requiring the Republican National Committee to seek approval in advance for any “ballot security” operations at the polls. In 2018, a federal judge allowed the consent decree to expire, ruling that the plaintiffs had no proof of recent violations by Republicans. The consent decree, by this logic, was not needed, because it worked.The order had its origins in the New Jersey gubernatorial election of 1981. According to the district court’s opinion in Democratic National Committee v. Republican National Committee, the RNC allegedly tried to intimidate voters by hiring off-duty law-enforcement officers as members of a “National Ballot Security Task Force,” some of them armed and carrying two-way radios. According to the plaintiffs, they stopped and questioned voters in minority neighborhoods, blocked voters from entering the polls, forcibly restrained poll workers, challenged people’s eligibility to vote, warned of criminal charges for casting an illegal ballot, and generally did their best to frighten voters away from the polls. The power of these methods relied on well-founded fears among people of color about contact with police.This year, with a judge no longer watching, the Republicans are recruiting 50,000 volunteers in 15 contested states to monitor polling places and challenge voters they deem suspicious-looking. Trump called in to Fox News on August 20 to tell Sean Hannity, “We’re going to have sheriffs and we’re going to have law enforcement and we’re going to have, hopefully, U.S. attorneys” to keep close watch on the polls. For the first time in decades, according to Clark, Republicans are free to combat voter fraud in “places that are run by Democrats.”
Voter fraud is a fictitious threat to the outcome of elections, a pretext that Republicans use to thwart or discard the ballots of likely opponents. An authoritative report by the Brennan Center for Justice, a nonpartisan think tank, calculated the rate of voter fraud in three elections at between 0.0003 percent and 0.0025 percent. Another investigation, from Justin Levitt at Loyola Law School, turned up 31 credible allegations of voter impersonation out of more than 1 billion votes cast in the United States from 2000 to 2014. Judges in voting-rights cases have made comparable findings of fact.
Nonetheless, Republicans and their allies have litigated scores of cases in the name of preventing fraud in this year’s election. State by state, they have sought—with some success—to purge voter rolls, tighten rules on provisional votes, uphold voter-identification requirements, ban the use of ballot drop boxes, reduce eligibility to vote by mail, discard mail-in ballots with technical flaws, and outlaw the counting of ballots that are postmarked by Election Day but arrive afterward. The intent and effect is to throw away votes in large numbers.
These legal maneuvers are drawn from an old Republican playbook. What’s different during this cycle, aside from the ferocity of the efforts, is the focus on voting by mail. The president has mounted a relentless assault on postal balloting at the exact moment when the coronavirus pandemic is driving tens of millions of voters to embrace it.
This year’s presidentialelection will see voting by mail on a scale unlike any before—some states are anticipating a tenfold increase in postal balloting. A 50-state survey by The Washington Post found that 198 million eligible voters, or at least 84 percent, will have the option to vote by mail.
Trump has denounced mail-in voting often and urgently, airing fantastical nightmares. One day he tweeted, “mail-in voting will lead to massive fraud and abuse. it will also lead to the end of our great republican party. we can never let this tragedy befall our nation.” Another day he pointed to an imaginary—and easily debunked—scenario of forgery from abroad: “rigged 2020 election: millions of mail-in ballots will be printed by foreign countries, and others. it will be the scandal of our times!”
By late summer Trump was declaiming against mail-in voting an average of nearly four times a day—a pace he had reserved in the past for existential dangers such as impeachment and the Mueller investigation: “Very dangerous for our country.” “A catastrophe.” “The greatest rigged election in history.”
Summer also brought reports that the U.S. Postal Service, the government’s most popular agency, was besieged from within by Louis DeJoy, Trump’s new postmaster general and a major Republican donor. Service cuts, upper-management restructuring, and chaotic operational changes were producing long delays. At one sorting facility, the Los Angeles Timesreported, “workers fell so far behind processing packages that by early August, gnats and rodents were swarming around containers of rotted fruit and meat, and baby chicks were dead inside their boxes.”In the name of efficiency, the Postal Service began de-commissioning 10 percent of its mail-sorting machines. Then came word that the service would no longer treat ballots as first-class mail unless some states nearly tripled the postage they paid, from 20 to 55 cents an envelope. DeJoy denied any intent to slow down voting by mail, and the Postal Service withdrew the plan under fire from critics.If there were doubts about where Trump stood on these changes, he resolved them at an August 12 news conference. Democrats were negotiating for a $25 billion increase in postal funding and an additional $3.6 billion in election assistance to states. “They don’t have the money to do the universal mail-in voting. So therefore, they can’t do it, I guess,” Trump said. “It’s very simple. How are they going to do it if they don’t have the money to do it?”What are we to make of all this?In part, Trump’s hostility to voting by mail is a reflection of his belief that more voting is bad for him in general. Democrats, he said on Fox & Friends at the end of March, want “levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”Some Republicans see Trump’s vendetta as self-defeating. “It to me appears entirely irrational,” Jeff Timmer, a former executive director of the Michigan Republican Party, told me. “The Trump campaign and RNC and by fiat their state party organizations are engaging in suppressing their own voter turnout,” including Republican seniors who have voted by mail for years.But Trump’s crusade against voting by mail is a strategically sound expression of his plan for the Interregnum. The president is not actually trying to prevent mail-in balloting altogether, which he has no means to do. He is discrediting the practice and starving it of resources, signaling his supporters to vote in person, and preparing the ground for post–Election Night plans to contest the results. It is the strategy of a man who expects to be outvoted and means to hobble the count.
Voting by mail does not favor either party “during normal times,” according to a team of researchers at Stanford, but that phrase does a lot of work. Their findings, which were published in June, did not take into account a president whose words alone could produce a partisan skew. Trump’s systematic predictions of fraud appear to have had a powerful effect on Republican voting intentions. In Georgia, for example, a Monmouth University poll in late July found that 60 percent of Democrats but only 28 percent of Republicans were likely to vote by mail. In the battleground states of Pennsylvania and North Carolina, hundreds of thousands more Democrats than Republicans have requested mail-in ballots.
Trump, in other words, has created a proxy to distinguish friend from foe. Republican lawyers around the country will find this useful when litigating the count. Playing by the numbers, they can treat ballots cast by mail as hostile, just as they do ballots cast in person by urban and college-town voters. Those are the ballots they will contest.
The battle space of the Interregnum, if trends hold true, will be shaped by a phenomenon known as the “blue shift.”
Edward Foley, an Ohio State professor of constitutional law and a specialist in election law, pioneered research on the blue shift. He found a previously unremarked-upon pattern in the overtime count—the canvass after Election Night that tallies late-reporting precincts, unprocessed absentee votes, and provisional ballots cast by voters whose eligibility needed to be confirmed. For most of American history, the overtime count produced no predictably partisan effect. In any given election year, some states shifted red in the canvass after Election Day and some shifted blue, but the shifts were seldom large enough to matter.
Two things began to change about 20 years ago. The overtime count got bigger, and it trended more and more blue. In an updated paper this year, Foley and his co-author, Charles Stewart III of MIT, said they could not fully explain why the shift favors Democrats. (Some factors: Urban returns take longer to count, and most provisional ballots are cast by young, low-income, or mobile voters, who lean blue.) During overtime in 2012, Barack Obama strengthened his winning margins in swing states like Florida (with a net increase of 27,281 votes), Michigan (60,695), Ohio (65,459), and Pennsylvania (26,146). Obama would have won the presidency anyway, but shifts of that magnitude could have changed the outcomes of many a closer contest. Hillary Clinton picked up tens of thousands of overtime votes in 2016, but not enough to save her.
The blue shift has yet to decide a presidential election, but it upended the Arizona Senate race in 2018. Republican Martha McSally seemed to have victory in her grasp with a lead of 15,403 votes the day after Election Day. Canvassing in the days that followed swept the Democrat, Kyrsten Sinema, into the Senate with “a gigantic overtime gain of 71,303 votes,” Foley wrote.It was Florida, however, that seized Trump’s attention that year. On Election Night, Republicans were leading in tight contests for governor and U.S. senator. As the blue shift took effect, Ron DeSantis watched his lead shrink by 18,416 votes in the governor’s race. Rick Scott’s Senate margin fell by 20,231. By early morning on November 12, six days after Election Day, Trump had seen enough. “The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged,” he tweeted, baselessly. “An honest vote count is no longer possible—ballots massively infected. Must go with Election Night!”Trump was panicked enough by the blue shift in somebody else’s election to fabricate allegations of fraud. In this election, when his own name is on the ballot, the blue shift could be the largest ever observed. Mail-in votes require more time to count even in a normal year, and this year there will be tens of millions more of them than in any election before. Many states forbid the processing of early-arriving mail ballots before Election Day; some allow late-arriving ballots to be counted.
Trump’s instinct as a spectator in 2018—to stop the count—looks more like strategy this year. “There are results that come in Election Night,” a legal adviser to Trump’s national campaign, who would not agree to be quoted by name, told me. “There’s an expectation in the country that there will be winners and losers called. If the Election Night results get changed because of the ballots counted after Election Day, you have the basic ingredients for a shitstorm.”
There is no “if” about it, I said. The count is bound to change. “Yeah,” the adviser agreed, and canvassing will produce more votes for Biden than for Trump. Democrats will insist on dragging out the canvass for as long as it takes to count every vote. The resulting conflict, the adviser said, will be on their heads.
“They are asking for it,” he said. “They’re trying to maximize their electoral turnout, and they think there are no downsides to that.” He added, “There will be a count on Election Night, that count will shift over time, and the results when the final count is given will be challenged as being inaccurate, fraudulent—pick your word.”The worst case for an orderly count is also considered by some election modelers the likeliest: that Trump will jump ahead on Election Night, based on in-person returns, but his lead will slowly give way to a Biden victory as mail-in votes are tabulated. Josh Mendelsohn, the CEO of the Democratic data-modeling firm Hawkfish, calls this scenario “the red mirage.” The turbulence of that interval, fed by street protests, social media, and Trump’s desperate struggles to lock in his lead, can only be imagined. “Any scenario that you come up with will not be as weird as the reality of it,” the Trump legal adviser said.
Election lawyers speak of a “margin of litigation” in close races. The tighter the count in early reports, and the more votes remaining to count, the greater the incentive to fight in court. If there were such a thing as an Election Administrator’s Prayer, as some of them say only half in jest, it would go, “Lord, let there be a landslide.”
Could a landslide spare us conflict in the Interregnum? In theory, yes. But the odds are not promising.
It is hard to imagine a Trump lead so immense on Election Night that it places him out of Biden’s reach. Unless the swing states manage to count most of their mail-in ballots that night, which will be all but impossible for some of them, the expectation of a blue shift will keep Biden fighting on. A really big Biden lead on Election Night, on the other hand, could leave Trump without plausible hope of catching up. If this happens, we may see it first in Florida. But this scenario is awfully optimistic for Biden, considering the GOP advantage among in-person voters, and in any case Trump will not concede defeat. This early in the Interregnum, he will have practical options to keep the contest alive.
Both parties are bracing for a torrent of emergency motions in state and federal courts. They have already been skirmishing from courthouse to courthouse all year in more than 40 states, and Election Day will begin a culminating phase of legal combat.Mail-in ballots will have plenty of flaws for the Trump lawyers to seize upon. Voting by mail is more complicated than voting in person, and technical errors are commonplace at each step. If voters supply a new address, or if they write a different version of their name (for example, by shortening Benjamin to Ben), or if their signature has changed over the years, or if they print their name on the signature line, or if they fail to seal the ballot inside an inner security envelope, their votes may not count. With in-person voting, a poll worker in the precinct can resolve small errors like these, for instance by directing a voter to the correct signature line, but people voting by mail may have no opportunity to address them.During the primaries this spring, Republican lawyers did dry runs for the November vote at county election offices around the country. An internal memo prepared by an attorney named J. Matthew Wolfe for the Pennsylvania Republican Party in June reported on one such exercise.Wolfe, along with another Republican lawyer and a member of the Trump campaign, watched closely but did not intervene as election commissioners in Philadelphia canvassed mail-in and provisional votes. Wolfe cataloged imperfections, taking note of objections that his party could have raised.There were missing signatures and partial signatures and signatures placed in the wrong spot. There were names on the inner security envelopes, which are supposed to be unmarked, and ballots without security envelopes at all. Some envelopes arrived “without a postmark or with an illegible postmark,” Wolfe wrote. (Watch for postmarks to become the hanging chads of 2020.) Some voters wrote their birth date where a signature date belonged, and others put down “an impossible date, like a date after the primary election.”Some of the commissioners’ decisions “were clear violations of the direction in and language of the election code,” Wolfe wrote. He recommended that “someone connected with the party review each application and each mail ballot envelope” in November. That is exactly the plan.Legal teams on both sides are planning for simultaneous litigation, on the scale of Florida during the 2000 election, in multiple battleground states. “My money would be on Texas, Georgia, and Florida” to be trouble spots, Myrna Pérez, the director of voting rights and elections at the Brennan Center, told me.There are endless happenstances in any election for lawyers to exploit. In Montgomery County, Pennsylvania, not far from Wolfe’s Philadelphia experiment, the county Republican committee gathered surveillance-style photographs of purportedly suspicious goings-on at a ballot drop box during the primary. In one sequence, a county employee is described as placing “unsecured ballots” in the trunk of a car. In another, a security guard is said to be “disconnecting the generator which supplies power to the security cameras.” The photos could mean anything—it’s impossible to tell, out of context—but they are exactly the kind of ersatz evidence that is sure to go viral in the early days of the Interregnum.The electoral combat will not confine itself to the courtroom. Local election adjudicators can expect to be named and doxed and pilloried as agents of George Soros or antifa. Aggressive crowds of self-proclaimed ballot guardians will be spoiling to reenact the “Brooks Brothers riot” of the Bush v. Gore Florida recount, when demonstrators paid by the Bush campaign staged a violent protest that physically prevented canvassers from completing a recount in Miami-Dade County.Things like this have already happened, albeit on a smaller scale than we can expect in November. With Trump we must also ask: What might a ruthless incumbent do that has never been tried before?Suppose that caravans of Trump supporters, adorned in Second Amendment accessories, converge on big-city polling places on Election Day. They have come, they say, to investigate reports on social media of voter fraud. Counter-protesters arrive, fistfights break out, shots are fired, and voters flee or cannot reach the polls.Then suppose the president declares an emergency. Federal personnel in battle dress, staged nearby in advance, move in to restore law and order and secure the balloting. Amid ongoing clashes, they stay to monitor the canvass. They close the streets that lead to the polls. They take custody of uncounted ballots in order to preserve evidence of fraud.
“The president can’t cancel the election, but what if he says, ‘We’re in an emergency, and we’re shutting down this area for a period of time because of the violence taking place’?” says Norm Ornstein of the American Enterprise Institute. If you are in Trump’s camp and heedless of boundaries, he said, “what I would expect is you’re not going to do one or two of these things—you’ll do as many as you can.”
There are variations of the nightmare. The venues of intervention could be post offices. The predicate could be a putative intelligence report on forged ballots sent from China.
This is speculation, of course. But none of these scenarios is far removed from things the president has already done or threatened to do. Trump dispatched the National Guard to Washington, D.C., and sent Department of Homeland Security forces to Portland, Oregon, and Seattle during summertime protests for racial justice, on the slender pretext of protecting federal buildings. He said he might invoke the Insurrection Act of 1807 and “deploy the United States military” to “Democrat-run cities” in order to protect “life and property.” The federal government has little basis to intercede during elections, which are largely governed by state law and administered by about 10,500 local jurisdictions, but no one familiar with Attorney General Bill Barr’s view of presidential power should doubt that he can find authority for Trump.
With every day that passes after November 3, the president and his allies can hammer home the message that the legitimate tabulation is over and the Democrats are refusing to honor the results. Trump has been flogging this horse already for months. In July he tweeted, “Must know Election results on the night of the Election, not days, months, or even years later!”
Does it matter what Trump says? It is tempting to liken a vote count to the score at a sporting event. The losing coach can bellyache all he likes, but when the umpire makes the call, the game is over. An important thing to know about the Interregnum is that there is no umpire—no singular authority who can decide the contest and lay it to rest. There is a series of lesser officiants, each confined in jurisdiction and tangled in opaque rules.
Trump’s strategy for this phase of the Interregnum will be a play for time as much as a concerted attempt to squelch the count and disqualify Biden votes. The courts may eventually weigh in. But by then, the forum of decision may already have moved elsewhere.
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.
Jake Corman, the state’s Senate majority leader, preferred to change the subject, emphasizing that he hoped a clean vote count would produce a final tally on Election Night. “The longer it goes on, the more opinions and the more theories and the more conspiracies [are] created,” he told me. If controversy persists as the safe-harbor date nears, he allowed, the legislature will have no choice but to appoint electors. “We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law.”
Republicans control both legislative chambers in the six most closely contested battleground states. Of those, Arizona and Florida have Republican governors, too. In Michigan, North Carolina, Pennsylvania, and Wisconsin, the governors are Democrats.
Foley, the Ohio State election scholar, has mapped the ripple effects if Republican legislators were to appoint Trump electors in defiance of the vote in states like Pennsylvania and Michigan. The Democratic governors would respond by certifying the official count, a routine exercise of their authority, and they would argue that legislators could not lawfully choose different electors after the vote had taken place. Their “certificates of ascertainment,” dispatched to the National Archives, would say that their states had appointed electors committed to Biden. Each competing set of electors would have the imprimatur of one branch of state government.
In Arizona, Secretary of State Katie Hobbs, who oversees elections, is a Democrat. She could assert her own power to certify the voting results and forward a slate of Biden electors. Even in Florida, which has unified Republican rule, electors pledged to Biden could meet and certify their own votes in hope of triggering a “controversy or contest” that would leave their state’s outcome to Congress. Much the same thing almost happened during the Florida recount battle of 2000. Republican Governor Jeb Bush certified electors for his brother, George W. Bush, on November 26 of that year, while litigation of the recount was still under way. Gore’s chief lawyer, Ronald Klain, responded by booking a room in the old Florida capitol building for Democratic electors to cast rival ballots for Gore. Only Gore’s concession, five days before the Electoral College vote, mooted that plan.
In any of these scenarios, the Electoral College would convene on December 14 without a consensus on who had legitimate claims to cast the deciding votes.
Rival slates of electors could hold mirror-image meetings in Harrisburg, Lansing, Tallahassee, or Phoenix, casting the same electoral votes on opposite sides. Each slate would transmit its ballots, as the Constitution provides, “to the seat of the government of the United States, directed to the President of the Senate.” The next move would belong to Vice President Mike Pence.
This would be a genuine constitutional crisis, the first but not the last of the Interregnum. “Then we get thrown into a world where anything could happen,” Norm Ornstein says.
Two men are claiming the presidency. The next occasion to settle the matter is more than three weeks away.
January 6 comes just after the new Congress is sworn in. Control of the Senate will be crucial to the presidency now.
Pence, as president of the Senate, would hold in his hands two conflicting electoral certificates from each of several swing states. The Twelfth Amendment says only this about what happens next: “The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.”
Note the passive voice. Who does the counting? Which certificates are counted?
The Trump team would take the position that the constitutional language leaves those questions to the vice president. This means that Pence has the unilateral power to announce his own reelection, and a second term for Trump. Democrats and legal scholars would denounce the self-dealing and point out that Congress filled the gaps in the Twelfth Amendment with the Electoral Count Act, which provides instructions for how to resolve this kind of dispute. The trouble with the instructions is that they are widely considered, in Foley’s words, to be “convoluted and impenetrable,” “confusing and ugly,” and “one of the strangest pieces of statutory language ever enacted by Congress.”
If the Interregnum is a contest in search of an umpire, it now has 535 of them, and a rule book that no one is sure how to read. The presiding officer is one of the players on the field.
Foley has produced a 25,000-word study in the Loyola University Chicago Law Journal that maps out the paths the ensuing fight could take if only one state’s electoral votes are in play.
If Democrats win back the Senate and hold the House, then all roads laid out in the Electoral Count Act lead eventually to a Biden presidency. The reverse applies if Republicans hold the Senate and unexpectedly win back the House. But if Congress remains split, there are conditions in which no decisive outcome is possible—no result that has clear force of law. Each party could cite a plausible reading of the rules in which its candidate has won. There is no tie-breaking vote.
How can it be that Congress slips into unbreakable deadlock? The law is a labyrinth in these parts, too intricate to map in a magazine article, but I can sketch one path.
Suppose Pennsylvania alone sends rival slates of electors, and their 20 votes will decide the presidency.
One reading of the Electoral Count Act says that Congress must recognize the electors certified by the governor, who is a Democrat, unless the House and Senate agree otherwise. The House will not agree otherwise, and so Biden wins Pennsylvania and the White House. But Pence pounds his gavel and rules against this reading of the law, instead favoring another, which holds that Congress must discard both contested slates of electors. The garbled statute can plausibly be read either way.
With Pennsylvania’s electors disqualified, 518 electoral votes remain. If Biden holds a narrow lead among them, he again claims the presidency, because he has “the greatest number of votes,” as the Twelfth Amendment prescribes. But Republicans point out that the same amendment requires “a majority of the whole number of electors.” The whole number of electors, Pence rules, is 538, and Biden is short of the required 270.
On this argument, no one has attained the presidency, and the decision is thrown to the House, with one vote per state. If the current partisan balance holds, 26 out of 50 votes will be for Trump.
Before Pence can move on from Pennsylvania to Rhode Island, which is next on the alphabetical list as Congress counts the vote, House Speaker Nancy Pelosi expels all senators from the floor of her chamber. Now Pence is prevented from completing the count “in the presence of” the House, as the Constitution requires. Pelosi announces plans to stall indefinitely. If the count is still incomplete on Inauguration Day, the speaker herself will become acting president.
Pelosi prepares to be sworn in on January 20 unless Pence reverses his ruling and accepts that Biden won. Pence does not budge. He reconvenes the Senate in another venue, with House Republicans squeezing in, and purports to complete the count, making Trump the president-elect. Three people now have supportable claims to the Oval Office.
There are other paths in the labyrinth. Many lead to dead ends.
This is the next constitutional crisis, graver than the one three weeks before, because the law and the Constitution provide for no other authority to consult. The Supreme Court may yet intervene, but it may also shy away from another traumatizing encounter with a fundamentally political question.
Sixty-four days have passed since the election. Stalemate reigns. Two weeks remain until Inauguration Day.
Foley, who foresawthis impasse, knows of no solution. He cannot tell you how we avoid it under current law, or how it ends. It is not so much, at this point, a question of law. It is a question of power. Trump has possession of the White House. How far will he push boundaries to keep it, and who will push back? It is the same question the president has posed since the day he took office.
I hoped to gain some insight from a series of exercises conducted this summer by a group of former elected officials, academics, political strategists, and lawyers. In four days of simulations, the Transition Integrity Project modeled the election and its aftermath in an effort to find pivot points where things could fall apart.
They found plenty. Some of the scenarios included dueling slates of electors of the kind I have described. In one version it was the Democratic governor of Michigan who first resorted to appointing electors, after Trump ordered the National Guard to halt the vote count and a Trump-friendly guardsman destroyed mail-in ballots. John Podesta, Hillary Clinton’s campaign chair in 2016, led a Biden team in another scenario that was prepared to follow Trump to the edge of civil war, encouraging three blue states to threaten secession. Norm-breaking begat norm-breaking. (Clinton herself, in an August interview for Showtime’s The Circus, caught the same spirit. “Joe Biden should not concede under any circumstances,” she said.)
A great deal has been written about the proceedings, including a firsthand account from my colleague David Frum. But the coverage had a puzzling gap. None of the stories fully explained how the contest ended. I wanted to know who took the oath of office.
I called Rosa Brooks, a Georgetown professor who co-founded the project. Unnervingly, she had no answers for me. She did not know how the story turned out. In half of the simulations, the participants did not make it as far as Inauguration Day.
“We got to points in the scenarios where there was a constitutional impasse, no clear means of resolution in sight, street-level violence,” she said. “I think in one of them we had Trump invoking the Insurrection Act and we had troops in the streets … Five hours had gone by and we sort of said, ‘Okay, we’re done.’ ” She added: “Once things were clearly off the rails, there was no particular benefit to seeing exactly how far off they would go.”
“Our goal in doing this was to try to identify intervention moments, to identify moments where we could then look back and say, ‘What would have changed this? What would have kept it from getting this bad?’ ” Brooks said. The project didn’t make much progress there. No lessons were learned about how to restrain a lawless president once a conflict was under way, no alternative moves devised to stave off disaster. “I suppose you could say we were in terra incognita: no one could predict what would happen anymore,” Brooks told me in a follow-up email.
The political system may no longer be strong enough to preserve its integrity. It’s a mistake to take for granted that election boards and state legislatures and Congress are capable of drawing lines that ensure a legitimate vote and an orderly transfer of power. We may have to find a way to draw those lines ourselves.
There are reforms to consider some other day, when an election is not upon us. Small ones, like clearing up the murky parts of the Electoral Count Act. Big ones, like doing away with the Electoral College. Obvious ones, like appropriating money to help cash-starved election authorities upgrade their operations in order to speed up and secure the count on Election Day.
Right now, the best we can do is an ad hoc defense of democracy. Begin by rejecting the temptation to think that this election will carry on as elections usually do. Something far out of the norm is likely to happen. Probably more than one thing. Expecting otherwise will dull our reflexes. It will lull us into spurious hope that Trump is tractable to forces that constrain normal incumbents.
If you are a voter, think about voting in person after all. More than half a million postal votes were rejected in this year’s primaries, even without Trump trying to suppress them. If you are at relatively low risk for COVID-19, volunteer to work at the polls. If you know people who are open to reason, spread word that it is normal for the results to keep changing after Election Night. If you manage news coverage, anticipate extraconstitutional measures, and position reporters and crews to respond to them. If you are an election administrator, plan for contingencies you never had to imagine before. If you are a mayor, consider how to deploy your police to ward off interlopers with bad intent. If you are a law-enforcement officer, protect the freedom to vote. If you are a legislator, choose not to participate in chicanery. If you are a judge on the bench in a battleground state, refresh your acquaintance with election case law. If you have a place in the military chain of command, remember your duty to turn aside unlawful orders. If you are a civil servant, know that your country needs you more than ever to do the right thing when you’re asked to do otherwise.
Take agency. An election cannot be stolen unless the American people, at some level, acquiesce. One thing Brooks has been thinking about since her exercise came to an end is the power of peaceful protest on a grand scale. “We had players on both sides attempting to mobilize their supporters to turn out in large numbers, and we didn’t really have a good mechanism for deciding, did that make a difference? What kind of difference did that make?” she said. “It left some with some big questions about what if you had Orange Revolution–style mass protest sustained over weeks. What effects would that have?”
Only once, in1877, has the Interregnum brought the country to the brink of true collapse. We will find no model in that episode for us now.
Four states sent rival slates of electors to Congress in the 1876 presidential race between Democrat Samuel Tilden and Republican Rutherford B. Hayes. When a special tribunal blessed the electors for Hayes, Democrats began parliamentary maneuvers to obstruct the electoral count in Congress. Their plan was to run out the clock all the way to Inauguration Day, when the Republican incumbent, Ulysses S. Grant, would have to step down.
Not until two days before Grant’s term expired did Tilden give in. His concession was based on a repugnant deal for the withdrawal of federal troops from the South, where they were protecting the rights of emancipated Black people. But that was not Tilden’s only inducement.
The threat of military force was in the air. Grant let it be known that he was prepared to declare martial law in New York, where rumor had it that Tilden planned to be sworn in, and to back the inauguration of Hayes with uniformed troops.
That is an unsettling precedent for 2021. If our political institutions fail to produce a legitimate president, and if Trump maintains the stalemate into the new year, the chaos candidate and the commander in chief will be one and the same.
This article appears in the November 2020 print edition with the headline “The Election That Could Break America.”
Why do Trump supporters ignore the ruin he inflicts on the country? Try viewing it through the lens of addiction.
By Neil Steinberg September 20, 2020
Drug use on Lower Wacker Drive in late 2016. Using drugs on a street off Lower Wacker Drive in late 2016. Neil Steinberg/Sun-Times
Almost four years ago I was tagging along with medical workers from the Night Ministry. We found ourselves standing before three people sprawled in a nest of blankets and sleeping bags off Lower Wacker Drive.
At first I held back. Then, I gingerly nudged forward, afraid they’d clam up as soon as I took out my notebook. But they didn’t. They answered whatever question I asked — their names, what drugs they were taking. I could take pictures. They weren’t embarrassed. They didn’t care about anything except getting those drugs inside themselves.
Addiction does that. You are locked into feeling that pleasure, or relief, or passing sense of normality. End of the story. You don’t care about the damage you’re inflicting upon yourself or others. You don’t care that the addiction is killing you. You could shake this emaciated woman and ask what her younger self would think of what she’s become. She’d stare back at you, hollow-eyed and uncomprehending. She doesn’t bother to eat food; what does she care about lost dreams?
That’s why I have to laugh when my somehow still idealistic friends wonder when Donald Trump’s base will abandon him. When they will finally see the ruin his presidency has caused this country and regret their role in supporting it. That’s easy: never. They’ll never give him up, just as many addicts never quit their substances, except by dying.
The concept of addiction is the best way to make sense of our country today. Trump makes his followers feel good. He soothes the ache in their broken parts. Like heroin, he makes them feel safe and secure even while doing the exact opposite. They’re not safe and secure, but on the street, endangered, living in a country wracked by a pandemic that their drug of choice trivializes and ignores. They’re teetering on an economic cliff, while shivering at pipe-dream fears about socialized medicine.
What do they care of deterioration of American democratic institutions? They’re in denial. That’s like asking a drunk driver whether his tires are properly inflated. All he cares about is how much is left in the half pint.
Sure, change is possible. I got sober 15 years ago next week, for those keeping score. But it took a life-jolting crisis. As to why 200,000 Americans dying from presidential incompetence isn’t such a crisis, and why his supporters don’t turn from his confused chaos, well, they’re still lost in their addiction. Anything can be rationalized away. Your friend shoots up, walks into the bathroom and dies. You’re sorry, but you’re still going to shoot up yourself in two hours, because that’s what you do.
Crowd members cheer toward cameras before the arrival of President Donald Trump to a Make America Great Again rally on September 19, 2020 in Fayetteville, North Carolina.
A crowd waits for President Donald Trump to arrive for a rally Saturday in Fayetteville, North Carolina. Getty
Trump fans can still brush away the whole pandemic: no worse than the flu, numbers exaggerated, whatever Fox News told them last night, lodged in their brain and vibrating. I don’t try to tell Trump fans they’re dupes suckered by a fraud. Why bother? Interventions usually fail. Al-Anon teaches relatives of the addicted to disengage. Let the sufferer figure it out. The addict has to want to change, and for that, they usually have to hit bottom.
Has our country hit bottom yet? I sure hope so, though hope is of very little value here. There are hells below this one, and we may be heading there.
Unless we’re not. If Joe Biden manages to both win the election and keep Trump from holding onto power anyway — and I can’t say which is the greater challenge — Trump supporters won’t automatically reform. Just the opposite. They’ll spend years smearing their faces against liquor store windows, gazing at their lost passion, licking their lips and wishing for just one more slug of Make America Great Again. Hating those who took away the man who made them feel alive. Give them time. Meanwhile, we must care for ourselves, and the United States, and look forward to the day when our fellow citizens may recover clear-eyed love of country and rejoin us at dinner. That day may never come.
Trump supporters will howl, but I’ll share a secret: When you’re an addict, you stop mattering, eventually. That’s the worst fate. You sit there with your barfly friends, complaining about the raw deal you got, or take your drugs huddled in some grimy lower rung of hell, while your far-off family picks itself up and goes on without you.
Sedition Laws Are the Last Resort of Weak Governments
(Bloomberg Opinion) — Attorney General William Barr can’t seem to get out of the headlines. Maybe he doesn’t want to.
Just this week, the Wall Street Journal reported that Barr suggested to federal prosecutors that they consider charging protesters with sedition — an archaic criminal charge that hasn’t been regularly used by federal authorities since the McCarthy era. Barr also reportedly mused about finding a way to prosecute Seattle Mayor Jenny Durkan for establishing a police-free protest zone in her city. Then, in a speech at Hillsdale College, Barr defended his penchant for overruling prosecutors, comparing them to children in a Montessori school.
For any normal attorney general, this week’s controversies would have marked a crisis accompanied by demands that he resign and serious speculation that he would be forced to do so. Not so for Barr, who clearly enjoys President Donald Trump’s support. Barr, more than any attorney general in memory, is inserting himself into the business of criminal prosecution by proposing unorthodox strategies that serve the president’s political ends.
Start with the sedition prosecution proposal. To my mind, it’s the most shocking of Barr’s statements. Sedition is, roughly speaking, the crime of either rebelling against the government or inciting other people to do so. It’s the sort of crime that weak governments enforce against their citizens when the government is facing an existential threat — or thinks it is.
Sedition prosecutions in the U.S. have a particularly shameful history. The 1798 Sedition Act was used in a nakedly partisan manner by John Adams’s Federalist administration to prosecute Republican newspaper editors. Dozens were jailed and fined. Although the law was never formally struck down by the courts, it has come to be a model of the kind of law that violates free speech.
The Sedition Act of 1918 was not much better. Passed under conditions of wartime hysteria, it was used to prosecute more than 2,000 people, most of whom spoke against World War I. As a result, we got some of the earliest modern free speech opinions issued by the U.S. Supreme Court, most notably from the pen of Justice Oliver Wendell Holmes.
The current version of sedition law is the Smith Act, which became law in 1940 and was used well into the 1950s. It prohibits advocating for the violent overthrow of the federal government. Its targets were mostly communists, with the occasional anarchist or fascist prosecuted, too. The law generated a highly problematic Supreme Court precedent, Dennis v. U.S., in which the justices upheld the law as applied to the senior leadership of the Communist Party USA. The really important lasting opinion from that case is a dissent by Justice William O. Douglas pointing out that the Communists were being punished for espousing ideas.
To prosecute protesters for sedition today would require showing that they engaged in conduct aimed at the overthrow of the government and was likely to cause imminent harm. Even if that could somehow be proven in court — highly doubtful — the implicit message would be that people protesting racial injustice are trying to overthrow the U.S. government. It would be hard to imagine a more outrageous attempt to politicize the criminal justice system.
As for the Seattle mayor, it is clearly within the discretion of local authorities to create free-speech zones in which the dangers of confrontation between police and protesters are reduced. To be sure, if a government official knew that private citizens were doing violence to other private citizens and told the police to stand down, that would be highly problematic. It might even possibly violate civil rights, to the extent that the government might be implicated as a cooperative actor in the suppression of speech. But there is no reason to believe that anyone’s civil rights were being violated by virtue of the Seattle zone. Barr’s comments look like an attempt to get the Department of Justice to engage in naked, partisan political intimidation.
As for his remarks on overruling prosecutors, Barr is certainly correct that, as a matter of formal law, he has the authority to intervene in any prosecution brought under the auspices of the Department of Justice. Yet the tradition of the department, hard won in the years since Watergate, has been to respect the independent judgment of U.S. attorneys and career prosecutors. The reason for this is precisely to avoid the appearance or reality of partisan political interference in criminal justice investigation and prosecution. Barr’s comments fly in the face of this Department of Justice tradition.
It seems highly unlikely that anyone will actually be prosecuted for sedition by this Department of Justice, and Durkan can rest assured she won’t be, either. But the harm to the independence of the criminal justice system has already been done.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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Trump said ‘there will be no God’ if Biden is elected
John L. Dorman September 20, 2020
At a campaign rally in Fayetteville, N.C., President Trump said that “there will be be no God” if Joe Biden is elected.
Trump has increasingly used religion as a wedge issue to attack Biden, despite none of the claims being true.
Biden, a lifelong Catholic, has spoken openly for years about the role faith has played in life, especially during times of enormous tragedy.
President Trump on Saturday railed against Democratic presidential nominee Joe Biden in his latest series of faith-based attacks at a campaign rally in Fayetteville, North Carolina.
After reveling in the potential installment of another Supreme Court justice, Trump went on a diatribe against Biden on a range of issues, from energy production to gun rights, before pivoting to religion.
“The sleepy campaign has joined forces with those trying to tear down America and our way of life,” Trump said. “He comes out with a platform…There will be no oil. There will be no God. There will be no guns.”
While visiting Ohio in August, Trump leveled similar attacks against Biden as he sought to tout improving economic conditions throughout the state.
“He’s following the radical left agenda, take away your guns, destroy your 2nd Amendment, no religion, no anything, hurt the Bible, hurt God,” Trump said, according to the Associated Press. “He’s against God. He’s against guns. He’s against energy, our kind of energy.”
Biden is a lifelong Catholic who has spoken openly for years about the role faith has played in life, most notably during times of enormous tragedy.
In December 1972, a month after he was elected to the US Senate representing Delaware, his first wife, Neilia, and their infant daughter, Naomi, were killed in a car accident. His sons, Beau and Hunter, were seriously injured in the accident but survived. In 2016, Beau, who rose to become Attorney General of Delaware, died at age 46 from brain cancer.
In August, the Biden campaign issued a statement in response to Trump’s accusations.
“Like the words of so many other insecure bullies, President Trump’s comments reveal more about him than they do about anyone else,” Biden said. “They show us a man willing to stoop to any low for political gain, and someone whose actions are completely at odds with the values and teachings that he professes to believe in.”
Sheryl Sandberg, Chief Operating Officer at Facebook.
“Women belong in all places where decisions are being made.”
When Ruth Bader Ginsburg graduated from Columbia Law School in 1959, she was first in her class – and she couldn’t find a job. So she did what brilliant, ambitious women have done throughout history when the doors of power slammed in their faces: she found another way.
Thousands of state and federal laws treated women like second-class citizens. Ruth Bader Ginsburg said, I will change that, even if I have to do it one case at a time.
She argued and won FIVE landmark gender equality cases before the Supreme Court. So many women have been able to pursue our dreams and exercise our rights as equal citizens because of her.
As a Supreme Court justice, she went even further. LGBTQ equality. Voting rights. The rights and dignity of immigrants. Access to healthcare. Protecting the environment. She was principled, passionate – and she fought to the end.
I don’t know what my life would look like without Ruth Bader Ginsburg fighting for me and all women. More than anything else, tonight, I am grateful.
Thank you, Justice Ginsburg.
Democrat’s War Room
When the announcement came that Ruth Bader Ginsburg had passed away yesterday, my iPad went berserk. Over a hundred Facebook friends sent me private messages within the first few minutes. They ran the gamut from “We’re so screwed now,” to “It’s all over for America,” to “It was nice while it lasted.” I read the first few and decided that I needed a few hours of space, lest I lose a few friends. So I played some music. I still haven’t even read most of them, and probably won’t for a few days. I have little appetite for negativity.
Ruth Bader Ginsburg led a life of constantly swimming upstream. Everything from institutionalized sexism, misogyny, ignorance, bigotry, anti-Semitism, and for her final curtain, five bouts with various types of cancer. FIVE.
Throughout it all, never did she throw up her hands and say; “That’s it, I’m so screwed.” or “My life was nice while it lasted.” To the contrary, she never, EVER complained. Instead, she fought. Because she knew the ultimate beneficiaries of her battles weren’t just herself. They were us.
I realize these are depressing times, and I confess that I get depressed too. But I have ZERO tolerance for defeatism. Do *NOT* message me to tell me how bleak your world is. What makes you think I want to hear it?
If RBG showed us anything, it’s that defeatism is for the meek. And the meek are the lambs that conservatives eat for breakfast, lunch and dinner.
Don’t be meek. Be like RBG. Be STRONG. She was all of 5’1” tall, and maybe 110 pounds soaking wet. Yet never in her eighty-seven years did she say to herself or anybody else; “It’s pointless to fight on.”
Now is the time for Democrats to assume the role of the wolf. No more lambs. And Goddamnit, don’t you DARE message me with your “woe is me” attitude.
Be like Ruth. If for no one else’s sake, do it for our daughters.
Doctors alarmed by surge in hospital visits as toxic smoke engulfs west coast
Erin McCormick in Berkeley, California
Photograph: Philip Pacheco/Getty Image
A month after hundreds of wildfires started spewing toxic smoke along the west coast, doctors are seeing the alarming health effects of air pollution.
In northern California’s Stanford Health Care system, hospital admissions have jumped by 12% in recent weeks, including a stunning 43% increase in cerebrovascular conditions such as strokes. In Oregon, health officials reported nearly one out of 10 people visiting the emergency room had asthma-like conditions due to the smoke. And in San Francisco, doctors had to cancel their clinics for recovering Covid-19 patients, because the air was so unhealthy that just getting to their appointments could make patients more sick.
A growing body of scientific evidence paints a dire picture of the effects of wildfire smoke on the human body. Experts told the Guardian earlier this month that the smoke can have an almost immediate effect on people’s health, causing asthma, heart attacks, kidney problems and even mental health issues to surge.
Now, as the west coast reckons with an unprecedented stretch of hazardous air, scientists and health experts are growing even more concerned about the immediate and long-term consequences of continuous exposure to the harmful pollution.
In the Bay Area, despite firefighters gaining control of the nearest blazes started by lightning strikes in August, smoky conditions have persisted, turning the sky orange and keeping people inside their homes.
“We’re on the 30th consecutive day of our ‘Spare the Air’ alerts,” said Kristina Chu of the Bay Area air quality management district on Wednesday. “That’s an all-time record,” she explained; the previous longest was 14 days.
A pedestrian walks past the Willamette Bridge and downtown Portland, Oregon, on Wednesday.Photograph: Don Ryan/AP
After a month steeped in orange-brown air filled with dangerous tiny particles emitted by the wildfires, patients with pre-existing lung or heart conditions were at particular risk for hospitalization or even premature death, health officials in California said.
“We’ve now had a month of severe exposure to smoke and the levels have been very high,” said Dr Mary Prunicki, director of research for Stanford’s Sean N Parker Center for Allergy & Asthma Research.
At Stanford’s health centers, doctors told the Guardian they had seen a troubling rise in overall hospitalizations, as well as an increase in specific conditions.
Bibek Paudel, a postdoctoral researcher at Stanford’s asthma clinic, has been following the rise in hospitalizations. In the first two weeks after smoke pollution permeated the Bay Area’s air, he calculated an extra 500 people had been admitted to Stanford’s hospitals compared with what would normally be expected – 12% more than the two weeks before the fires. After three weeks of bad air, he could detect an 14% increase in the number of heart patients hospitalized, an 18% percent increase in kidney conditions and a 17% increase in asthma hospitalizations.
Fine particles go to the bottom of your lungs, then can cross over to the bloodstream and go anywhere in your body
Mary Prunicki, Stanford doctor
“The smoke and the number of intense fires has gone up and up,” he said, noting that the California fire season has just begun. “I expect it will go up even more.”
The most alarming finding was the 43% increase in strokes and other cerebrovascular hospitalizations, which could be related to inflammation brought on by the pollution, the researchers said.
The research also shows a 15% increase in hospitalizations for substance abuse disorders and a small uptick in other mental health hospital intakes.
“People were already dealing with the stress of Covid-19,” said Prunicki. “And I read that there has been an increase in alcohol use. This just may be a tipping point.”
Prunicki said researchers were just beginning to understand the many detrimental effects that the smoke ingredients, known as particulate matter 2.5, have on the body.
“Fine particles [in the smoke] go to the bottom of your lungs, then can cross over to the bloodstream and go anywhere in your body,” said Prunicki. She co-authored an earlier study that showed even healthy teenagers see an increase in the markers of inflammation in their bloodstreams during periods of wildfire smoke exposure.
“I don’t know that we have it figured out on a cellular level, but we see dysregulation and we know that pollution is causing inflammatory changes throughout your body,” she said.
Scientists are still working to understand the long-term effects of wildfire smoke exposures, but studies of firefighters have shown they face a higher rate of cancer than the general public, despite being otherwise healthier than the average person.
In Oregon, residents were facing air pollution so severe that the air quality index readings were “literally off the charts”, according to Gabriela Goldfarb, a spokesperson for the Oregon health authority, which has been monitoring an increase in people seeking emergency treatment for asthma symptoms. While any air quality index over 300 is considered “hazardous”, numerous communities bordering the wildfires near Salem and the Portland suburbs have experienced readings of over 500, she said.
Smoke from wildfires fills the sky over Pasadena, California, on 12 September.Photograph: John Antczak/AP
Goldfarb says the health authority has spent years studying how to combat the health toll of more frequent wildfires, which have been intensified by the climate crisis. Its recommendations have included proposals to distribute air purifiers to low income families and renters. But this year, legislation to do that was put on hold when the Oregon legislature disbanded early due to the pandemic. Now, she said, it is hard to recommend safe alternatives for the public, other than staying home – and people facing evacuation don’t even have that option.
“Traditionally people could go to their public library or a local shopping center to escape the smoke. But those aren’t available this year because of Covid,” she said.
Dr Neeta Thakur, a University of California, San Francisco, pulmonologist who heads both the chest clinic and the clinic for recovering Covid-19 patients at San Francisco general hospital, said the smoke pollution had presented a catch-22 for those concerned about the risks of the coronavirus.
She said one of her lung patients called the hospital complaining of breathing problems and was told to come immediately to the emergency room. But the patient, an older person, waited, fearing exposure to coronavirus. Two days later, the patient’s lung problems became so severe that they had to be brought in by ambulance and intubated in the ICU, she said.
“There was definitely a delay in seeking care because of fear of the pandemic,” said Thakur, noting that the patient was recovering at home.
“We could see more of this,” added Thakur, who has had to cancel recent clinics for people recovering from Covid and asthma patients because of the poor air quality. “Trying to navigate these two health crises and tell people what to do is very difficult.”
She said residents of low income communities bore the brunt of the health risks because of poor-quality housing.
“I can go inside and get clear air,” she said. “But when you live in poor-quality housing, the bad air outside can come inside.”
On Thursday, air quality experts predicted west coast residents would finally get a break as offshore winds blew the clouds of smoke inland, spreading them all the way to the east coast.
Still, “we do not feel we’re in the clear for this fire season yet,” said Goldfarb. She predicted rain storms might bring lightning and the prospect of more fires to Oregon; California air quality officials noted that the state might not see rain until November and smoke pollution could return as early as this weekend.
“If there are people who need to leave the house and get some fresh air, we recommend they do it now,” said Chu, of the Bay Area air quality district. “It’s a new normal that we’re getting used to.”
As smoke lifts on California’s coast, it lingers in Central Valley, where farm-workers have no refuge
David Knowles, Editor September 17, 2020
Scientists say satellite images show smoke from U.S. wildfires reaching Europe.
Hazardous smoke from wildfires across the West is presenting the latest danger for the men and women who pick America’s fruit and vegetable crops in a year when record heat and the coronavirus pandemic have already put their lives at risk.
On Thursday, while air quality improved in the San Francisco Bay Area, throughout much of California’s Central Valley it remained classified as “unhealthy” or worse. Under those conditions, residents are advised to stay indoors — but farm-workers don’t have that option.
“To be out in the fields, it’s like you can’t breathe,” Herman Hernandez, director of the California Farm-worker Foundation, told NPR.
The United Farm Workers, the nation’s largest farm-workers’ union, has been highlighting the poor working conditions caused by wildfires like the Basin Complex Fire, which has burned more than 162,000 acres near Big Sur, Calif.
The state requires employers to provide particle respirators or face masks when the air quality index reaches the “unhealthy” level of 151 parts per million, but thanks in part to the coronavirus pandemic, personal protective equipment is in short supply and many farm-workers have been going without it.
Oregon has no such mask regulations, but on Sept. 11 the state’s Occupational Safety and Health Administration sent a letter to employers urging them to halt outdoor work when the air quality index exceeds 151 and to allow “workers with underlying health conditions to stay at home.”
On Monday, the air quality index in Oregon topped 500 in many parts of the state, Oregon’s Department of Environmental Quality said, prompting prompting Gov. Kate Brown to order the National Guard to distribute 250,000 Chinese-made KN95 masks to farm-workers and tribal communities, the Oregonian reported.
“Governor Brown’s goal is to make sure agricultural workers are protected from the health impacts of hazardous air quality, which is why she directed Oregon OSHA to issue guidance to employers last week,” Charles Boyle, a spokesman for the governor, told the Oregonian.
The short-term health effects of breathing wildfire smoke include chest pain, headaches, sore throat, fatigue, asthma attacks and an elevated heart rate. The longer-term effects haven’t been studied yet.
“Smoke from wildfires contains chemicals, gases and fine particles that can harm health,” California’s Department of Industrial Relations says on its website. “The greatest hazard comes from breathing fine particles in the air, which can reduce lung function, worsen asthma and other existing heart and lung conditions, and cause coughing, wheezing and difficulty breathing.”
As in California, the majority of farm-workers in Oregon are Hispanic, a population that has been hit especially hard by the coronavirus.
“This makes this important and sizable population of our workforce potentially more vulnerable to the adverse effects of combined wildfire smoke and COVID-19 risks,” Dean Sidelinger, state epidemiologist at the Oregon Health Authority, said in a press release.
Since the wildfires began in Oregon, OSHA has filed 425 complaints on behalf of workers that allege working conditions in the fields are unsafe.
In May, California allocated $125 million in aid to undocumented immigrants, many of whom work in the state picking the nation’s crops.
“Whether it’s wildfire, pandemic, drought or storm, farm-workers are out in the field,” Lucas Zucker, policy and communications director for the Central Coast Alliance United for a Sustainable Economy, told the Guardian. “It’s largely an immigrant workforce, many undocumented. Many are from indigenous communities from southern Mexico who face even greater barriers to accessing services and reporting labor issues.”
According to the United States Department of Agriculture, 57 percent of farm-workers employed in the U.S. are Hispanic and of Mexican origin. The average total yearly income for farm-workers working full time is between $15,000 and $17,499, according to a report published by the U.S. Department of Labor.
In recent months, farm-workers have faced an unprecedented number of health risks, including the coronavirus pandemic and record-breaking heat across much of the West.
A July survey conducted by the California Institute for Rural Studies found that agricultural workers in Monterey County were infected with COVID-19 at rates three times that of the population at large, National Geographic reported.
California, which has more scorched acreage this year than in any year in recorded history, is little more than halfway through what is now regarded as “fire season.” That means farm-workers in the Golden State will likely be dealing with smoke for months to come.