IN THE RED ZONE

 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 12^th 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.

We have just had the 2-minute warning, we are on defense in the Red Zone. We have to keep Donald J. Trump and his team out of the end zone or lose the game and, with it, our constitutional democracy