Trump’s Coup Attempt
Isn’t Over
December 15, 2020
The longer Republicans contest the result of the
election, the more possible violent escalation seems.
After the Electoral
College cast its votes and affirmed his victory, on
Monday, Joe Biden declared that “democracy prevailed” and “faith in our
institutions held.” And Senate Majority Leader Mitch McConnell finally
congratulated Biden as President-elect and Kamala Harris as
Vice-President-elect. On January 6th, a joint session of Congress will
officially count the votes. The result should be more than assured. But last
week brought the shock of seeing seventeen Republican state attorneys general
and more than half of House Republicans sign amicus briefs supporting Texas’s unsuccessful bid to have the
Supreme Court prevent four states’ electoral votes from being cast. That
astounding show of loyalty to Trump made it imaginable that Republican
lawmakers, having failed to convince the Court to overturn the election result,
would use Congress to attempt it. On December 13th, Representative Mo Brooks,
Republican of Alabama, announced his intent to dispute Biden’s victory by
challenging the votes of five swing states in the January congressional
session. The group he will lead in the effort so far includes
Representatives-elect Barry Moore, from Alabama, and Marjorie Taylor Greene, from Georgia.
This
year’s election and post-election period have felt unprecedented in so many
ways, but there are long-standing rules for challenging electoral votes for
President on the floor of Congress. The Twelfth Amendment to the Constitution
provides that the Vice-President, as President of the Senate, “shall, in the
presence of the Senate and House of Representatives, open all the certificates
and the votes shall then be counted.” But, under the Electoral Count Act of
1887, if a member of the Senate and a member of the House sign and submit
challenges to a state’s electoral votes, then the two bodies must debate the
challenge separately for two hours, and then vote separately on whether to
discard those electoral votes as unlawful. The votes are to be tossed only if a
majority of both houses agree to do so; that has never happened since the law
was passed.
In
recent decades, challenges to electoral votes have come from Democrats, after
their candidate had conceded, and after they recognized the Republican winner
as the President-elect. In 2001, Democratic House members of the Congressional
Black Caucus objected to counting Florida’s electoral votes, but Vice-President
Al Gore, who’d conceded the election in December, 2000, after losing in Bush v. Gore, rejected the challenge because no
senator supported it, and declared his opponent, George W. Bush, the winner. In
2005, Democrats actually succeeded in triggering the mandatory debates and
votes, after Representative Stephanie Tubbs Jones, of Ohio, and Senator Barbara
Boxer, of California, challenged Ohio’s electoral votes for President Bush on
the basis of “numerous, serious election irregularities.” Senator John
Kerry, who’d lost to Bush, made clear that he didn’t support the
effort, and neither the House nor the Senate agreed to discard those electoral
votes. (Tubbs Jones and Boxer said that they were not aiming to change the
result of the Presidential election, but rather to make a point about
significant voter disenfranchisement.) In 2017, several House Democrats
objected to Electoral College votes for Trump, on the grounds of Russian
interference and of voter suppression in Alabama, but Vice-President Biden,
presiding over the session, rejected their effort because no senator signed the
challenge.
A
Republican challenge in Congress will not succeed this January, either. Though
at least one Republican senator may join Representative Brooks to challenge
swing states’ electoral votes for Biden, triggering the two-hour-long debates,
there is no possibility that the Democrat-led House will support discarding the
votes. And because several Republican senators, including Mitt Romney, John
Cornyn, Lisa Murkowski, Susan Collins, and Ben Sasse, have indicated that they
look askance at such efforts, the Senate is also highly unlikely to do so. But
even a guaranteed failure to overturn the election result will still afford
Republicans a loud show of doing something to “stop the steal.”
On
Sunday, Representative Brooks said, of Congress’s part
in Presidential elections, “We have a superior role under the Constitution than
the Supreme Court does, than any federal court judge does, than any state court
judge does.” Perhaps that is so, in the sense that the Constitution directs
Congress to count the electoral votes and declare the winner. But Brooks’s next
statement, “What we say, goes. That’s the final verdict,” was of course gross
hyperbole. Congress’s role, as spelled out in the Twelfth Amendment and federal
law, is limited to the ministerial function of faithfully counting ballots. Any
discretionary ability that Congress may have to discard votes must be grounded
in evidence of fraud—which, in Trump’s abundant lawsuits, courts have already
found wholly lacking. Even after the Electoral College result, Brooks called on
fellow-Republicans to object to electoral votes “from states with such flawed
election systems that they are not worthy of our trust.”
Testing
the waters, Senator Ron Johnson, Republican of Wisconsin, has scheduled a
hearing of the Homeland Security and Governmental Affairs Committee, this
Wednesday, in order to examine “the irregularities in the 2020 election.”
Johnson has claimed that his goal is “to restore confidence in the system”—and
to determine whether he and other senators should join the challenge to states’
electoral votes. The witnesses will be Republican attorneys including Kenneth
Starr, who was Trump’s impeachment defense lawyer. Senate Minority Leader Chuck
Schumer has urged cancellation of the hearing and said, “To use a Senate
committee to spread misinformation about our own elections, it’s beyond the
pale.”
As
Election Day approached, many worried about the possibility of significant
violence at polling places or in the streets. Thankfully, that did not come to
pass. But, in the weeks since, we had new and developing reasons for alarm
stemming from the harmful notion, promoted by Trump and key Republican leaders,
that exerting pressure on officials could change the result of the election.
Election officials in Georgia, Arizona, Nevada, Vermont, Pennsylvania, and
Michigan have become targets of harassment, intimidation, and threats of
violence. Last month, the Trump campaign attorney Joe diGenova declared on
Newsmax that Christopher Krebs, the former director of the Department of
Homeland Security’s Cybersecurity and Infrastructure Security Agency, whom
Trump fired because he was working to debunk election disinformation, “should
be drawn and quartered, taken out at dawn and shot.” Last week, Krebs filed a
defamation lawsuit against diGenova, Trump, and Newsmax, describing the
threatening tweets and messages that Krebs has received, which, according to the lawsuit,
prompted one of his children to ask whether “Daddy’s going to get executed.”
The Arizona Republican Party recently sent a tweet asking supporters if they are
willing to die to overturn the election results. And, this past weekend, after
the Supreme Court declined to hear Republicans’ case, four people were stabbed
in clashes between pro-Trump protesters and counterprotesters in Washington,
D.C., and one person was shot in a similar clash in Washington State. On
Monday, the Electoral College voted without incident, but, after threats to
many electors’ safety, electors in Arizona had to vote in a secret location,
and electors in Wisconsin were directed to enter their meeting place through an
unmarked side door.
Violent
unrest around elections is unfortunately common in emerging democracies. This
year, more than fifty people were killed in post-election violence in Côte
d’Ivoire, and state police killed civilians and assaulted and arrested
political rivals in Tanzania. In the United States, the longer our
representatives contest the result of the election, the more possible violent
escalation seems. The threats against U.S. election officials are particularly
chilling in light of examples such as that of Kenya, where, three years ago, a
top election official was murdered, and Belarus,
where, last year, a former police officer revealed that he was involved in the 1999
abduction and murder of the former head of the central election commission.
House
Minority Whip Steve Scalise said on Sunday that “if you want to restore trust
by millions of people who are still very frustrated and angry about what
happened, that’s why you’ve got to have the whole system play out.” But it
remains unclear how pursuing the goal of overturning election results, simply
because one’s own side lost, bodes at all well for what happens when the legal
process finally runs out. Michael Flynn, Trump’s former national-security
adviser, who received a pardon from his former boss, insisted at a rally over
the weekend, “We decide the election,” after having tweeted out, two weeks ago,
a petition warning that “the threat of a shooting civil war is imminent,” and
urging Trump to declare martial law,
suspend the Constitution, and order a new Presidential election under military
supervision. Those calls were swiftly condemned as dangerous by military
leaders. That puts into relief the overarching question about what the Trump
Presidency has meant for our laws and legal institutions. Are they weathering a
particularly bad storm while doing what they’re supposed to do—namely, to
channel the potential for violent conflict into peaceful if begrudging
resolution and coexistence? Or are they truly beginning to crumble around us in
Trump’s final weeks in office? We likely won’t know for years whether the
emerging norms of today are merely testing democracy or destroying it.