August 18, 2020
In my previous column, PALACE REVOLUTION, written at the end
of June, I argued that the tide had turned and that even Mitch McConnell would
make sure that the man he used for his purposes ( loading the judiciary up with
Federalist Society judges and lowering taxes for business and the rich) will
only be a one term President. That may still happen, but today it looks less
likely than fifty days ago. The GOP convention will be taking place next week
and time is running out for anyone other than the voting public to change the
roster. We may still get a surprise move from Donald J. Trump, who loves to be
the center of attention – good or bad – and we can’t rule out that he will dump
Mike Pence and put Nikki Haley on his ticket for the next four years. He will
find it hard to resist upstaging the Democratic convention taking place this
week by a dramatic move of his own. Would that be enough to turn the tide again
and make it a close contest on November 3? It is hard to predict, we are still
77 days away from the close of the polls and a lot can happen in the
intervening time.
But Donald J. Trump does not take any chances and is already
bracing himself against a losing cause by, without even a shred of evidence,
casting doubt on the nation’s capacity to conduct a fair, orderly and
immaculate election and predicting a rigged outcome. Let that sink in for a
moment: The head of our government, in charge of the constitutional election
process, professes its administration’s inability to bring a about a fair and
free election and casts a priori doubt on the accuracy of the election result,
even before he can know if he is not ultimately declared the winner. This is
not entirely new, of course, because he has never accepted that he lost the
2016 popular vote by more than 2 million voters. That result too was rigged.
Two and a half months away from election day, there is
mounting concern that Donald J. Trump will not accept the election count if it
does not come out in his favor and that he may refuse to leave the White House
on his own accord on January 20, 2021. His objections against mail-in voting,
his disparaging of the United States Postal Service, and his constant efforts
to deny access to the polls for ex-convicts all point to his desire to suppress
the widest possible access to the polls, particularly in likely battleground
States. If these efforts fail to give him a favorable outcome on election day,
he is likely to bring them to bear in his sure to follow contestation of the
election result. Yesterday he confirmed that position by openly declaring that
“The only way we’re going to lose this election is if the election is rigged.”
With the Donald, we would be dangerously naïve to believe
that this President will abide by the constitution and established precedent in
the peaceful transition of power we have come to expect in this country. We can
just take his own words in support of this suspicion. When asked in recent
interviews, he has refused to say that he will accept the outcome of the
election if it shows him to be the loser in the contest. What can he do? Not
much in case of a landslide loss if that becomes evident shortly after the
closing of the polls.
But in a close contest, and with a long delay in the
tabulation of the election results, he can start by contesting particular
results in court with an eye on delaying the certification of the election
result and the vote by the Electoral College beyond the constitutionally
mandated date of December 14. He can further try to prevail over GOP Governors
in battleground States to sway the vote of certain electors. If he could
achieve a tie vote within the Electoral College, the deciding vote will move to
the House of Representatives where, according to the 12th Amendment,
each State will have one vote. That would almost certainly sway the vote in the
incumbent’s favor since the Republicans control more States than the Democrats.
So, we find ourselves in the Red Zone. There is simply too much
room for mischief in our political system. This does not become apparent until
we saddle ourselves with players who do not play by the rules and whose
transgressions are condoned by their partisan supporters in Congress,
Governors’ offices and State legislatures. The timing of this set of
circumstances, within two minutes from the final whistle, is such that the
constitutional remedies of Article II, section 4 and section 4 of the XXVth
Amendment, do not come into play because of lack of time to execute before
inauguration day. It appears that our constitution is only fully functional
when it is interpreted and complied with in good faith. That element has been
sorely missing in the current administration and its sycophants in Congress.
The President simply has too many ways in which he can
create a constitutional crisis and the chaos that inevitably follows and we can
count on the fact that he will trigger such crisis, if he does not book an
indisputable win on election night. What makes this President so dangerous to
our democratic tradition is that he knows that he will almost certainly be
indicted and go to jail if he fails to gain a second term in office. My guess
is that he is speculating on the likelihood that, if he can create a
constitutional impasse and crisis, he will have given himself leverage to
negotiate a ‘get out of jail’ card in exchange for ultimately conceding to his
opponent.
