4 Important Articles
Why Pence can’t help save Trump
Opinion by
Contributing columnist
Jan. 5, 2021 at 9:47 a.m. CST
President Trump seems to believe that Vice President Pence could overturn the election results when he presides over the congressional counting of electoral votes on Wednesday.
Trump is wrong, but any attempt by Pence to intervene on behalf of himself and Trump, if it comes to that, would be a constitutional travesty. It won’t work, but it would set a dangerous precedent.
“I have to tell you, I hope that our great vice president, our great vice president, comes through for us,” Trump told a crowd in Georgia on Monday night at a rally purportedly for Senate candidates David Perdue and Kelly Loeffler but actually for his own flailing efforts to secure a second term. “He’s a great guy. Because if he doesn’t come through, I won’t like him quite as much.”
Pence has no such authority ― nor would Senate president pro tem Charles E. Grassley (R-Iowa), if Pence doesn’t have the courage to show up and perform his constitutional duty. Not under the Constitution and not under the applicable statute, the 1887 Electoral Count Act. There are reports Pence has told Trump this and will not derail the process.
Still, until Congress declares Biden the winner, American democracy is facing its greatest challenge since the start of the Civil War at Fort Sumter.
Here is what’s supposed to happen when Congress meets on Wednesday. Under the Electoral Count Act, Congress has promised to accept as “conclusive” any state’s “final determination” of litigation over the appointment of its electors. Consequently, this year the process should be straightforward: There is no doubt about how any state resolved the lawsuits that the Trump campaign and its allies filed to challenge the appointment of electors. Trump lost. Joe Biden’s wins were certified. All that remains — or should — is the ceremonial tallying of those votes.
Even so, Trumpian loyalists in the House and Senate have said they will object to at least some of the state submissions. The law provides for challenges, but only under very limited circumstances, when the electoral vote was not “regularly given” or the electors were not “lawfully certified” under state procedures.
Such objections are supposed to involve the correct identification of the state’s official appointment of the electors under state law — in other words, are the electoral votes being considered by Congress cast by electors the states appointed? They are not supposed to be about the kind of underlying fraud along the lines that Trump has claimed resulted in the election being stolen from him. Even if Trump had such proof — and there has been no such indication in the blizzard of lawsuits challenging the results — the joint session is not the right place to resolve the objections. They are flatly improper under the statute.
Republicans claim they are only doing what Democrats have done in the past. So what? These shenanigans were wrong when the Democrats tried them, albeit on a far smaller and less disruptive scale, and they remain wrong. Is it really too much to ask of the nation’s lawmakers that they follow the law they have written?
There is no reason to panic, because this stunt is doomed to fizzle. The law provides that any objections fail as long as one house of Congress rejects them. It is clear that the challengers lack a majority in either house.
How long this will take remains unclear — because we don’t know how many states Republicans will object to. But with two hours of debate permitted for each objection, plus the time it takes for moving between the joint session and separate debates and votes in each chamber, the whole process could stretch well into Thursday.
Could Pence introduce another monkey wrench, perhaps by presenting “rival” packages of electoral votes for some states? Any such rival slates of electors lack any official pedigree and should be discarded, as required by the law. But Pence — if he is inclined to do Trump’s bidding — might try to force Congress to debate the official and unofficial packages simultaneously. Either way, the two chambers control the outcome; it’s just a question of how to get there.
The remaining wild card would be for Pence to try to make the unconstitutional move of ordering electoral votes for Biden disqualified. The two chambers separately can vote to overrule him. If Pence then says that he is disregarding their action and asserting his supposed power as president of the Senate, the Senate can insist upon its right as a parliamentary body to control the conduct of its presiding officer.
As a last resort, Congress could suspend the counting of electoral votes until Pence relents and abides by its decision. In that extraordinary case, Pence’s term would still end at noon on Jan. 20. The counting would resume with the Senate’s president pro tempore in the chair. Messy, yes, but Biden still would become president.
In this way, Congress can withstand whatever Trump and his allies — including, potentially, Pence — might do in a last-ditch effort to subvert the election.
But the graver danger is how many in Congress support Trump’s subversion. The only solace is that their numbers are not larger — at least not this time. That’s hardly the same as the United States’ great experiment in self-government being safe from serious peril.
Trump’s final unhinged rally exposes the real stakes in Georgia
Opinion by
Columnist
Jan. 5, 2021 at 9:42 a.m. CST
It is fitting that at his final rally in Georgia as president, Donald Trump offered perhaps his most corrupt display yet, openly calling on Republicans to nullify his election loss — and explicitly attacking officials for following the law and upholding democracy — in numerous ways.
Sen. Kelly Loeffler, who faces one of two Georgia runoffs on Tuesday, dutifully answered Trump’s call. Appearing with him on Monday night, she vowed to object to Joe Biden’s electors in Congress, carrying forward Trump’s effort to overturn the votes in numerous states.
The question now is whether there will be any electoral penalty for this appallingly corrupt effort to subvert democracy and nullify the will of millions of American voters. If not, it will have been validated as just another tool for political mobilization.
At the rally, Trump falsely claimed he had won the state of Georgia. Trump vowed to support primary challenges to Georgia officials who did their official duty and certified his loss. Trump threatened to keep fighting to overturn the results.
Trump attacked the Supreme Court for refusing to hear the Texas lawsuit that tried to invalidate voting in four states. And Trump called on Vice President Pence to somehow use his ceremonial role presiding over the electoral vote count in Congress to deliver him a win.
In one way or another, Loeffler — along with David Perdue, whose Senate term expired Sunday and who’s also facing a runoff — has actively validated and supported just about all of these efforts and sentiments.
Georgia senators are in on the con
Loeffler and Perdue continue to refuse to say Trump lost Georgia. They demanded that Secretary of State Brad Raffensperger resign for attesting to the integrity of the election — the election in their own state.
Incredibly, after it emerged that Trump vaguely threatened Raffensperger to get him to “find” nearly 12,000 votes, even though Raffensperger explicitly told him this would overturn the legitimate outcome, Perdue attacked Raffensperger for leaking the audio.
The real sin, you see, wasn’t Trump’s potentially criminal effort to fraudulently overturn the election. It was the act of bringing that effort to light. Meanwhile, Loeffler and Perdue supported the Texas lawsuit — even though it sought to invalidate the votes of their own state’s residents.
Now Loeffler has pledged to join dozens of other Republicans in objecting to Biden’s electors. At the rally, Loeffler shouted: “I have an announcement, Georgia. On Jan. 6, I will object to the electoral college vote. That’s right. We’re going to get this done!”
Loeffler is lying in the faces of her voters. They are not going to “get this done.” The objection to Biden electors will be voted down by the Democratic House, and even by the GOP-controlled Senate, when some Republican senators join Democrats.
The electoral college votes will be counted. Pence will not do anything to stop it. Biden will be sworn in on Jan. 20th.
But this lie — that the fight to keep Trump in power is still alive — is necessary to boost turnout among the Trump base. Indeed, in a key tell, Loeffler pivoted from this false promise to calling on voters to show up on Tuesday, yelling: “Are you ready to show America that Georgia’s still a red state?”
In other words, all this is necessary to create the deceptive impression that Trump’s electoral fate is still unsettled, keeping their voters engaged. Telling Georgia Republicans the truth — that Trump lost; that it’s over — will depress energy and turnout.
No more euphemisms
The true nature of all this continues to be shrouded in euphemism. We’re told that Republican leaders are just helping Trump come to terms with his loss; that the fact that Trump voters “really believe” the election was stolen from him has trapped them in a difficult situation; that GOP lawmakers are mere “cowards” who would stand up for the integrity of our election if only they didn’t fear Trump’s angry tweets.
In reality, Republican lawmakers are actively manipulating Trump voters in an extraordinarily cynical manner, deliberately feeding their state of delusion about Trump’s loss and his prospects for overturning it for their own crassly instrumental purposes.
This manipulation is doubly self-serving. Sen. Josh Hawley of Missouri has defended his plan to object to Biden electors by claiming his constituents “do not believe” the election was fair, and piously insisting he’s doing his “duty” by allowing their objections to be heard. This, even though the election’s fairness has already been litigated and upheld in dozens of court cases.
As Julian Sanchez and Yuval Levin have pointed out in different ways, all this amounts to not just feeding voters’ delusions, but also using that to reverse justify continued efforts to do the same. That’s a staggering show of contempt for the voters themselves.
As always, simply telling Trump/GOP voters the truth is not viewed as an option. After all, it might depress turnout.
Because Georgia is a red state, Loeffler and Perdue could very well win this way. If so, it will validate all of this as just another mobilizing tool. The lon- term ramifications of that are unpleasant to contemplate.
Of course, there’s always the chance that all this could further galvanize turnout on the Democratic side, enabling challengers the Rev. Raphael Warnock and Jon Ossoff to win.
If they do, it would show there’s a cost to this kind of depraved, contemptuous manipulation, possibly making it less likely that Republicans will rely on it as a tool in the future. Let’s hope so.
What Republicans Might Gain if They Lose Georgia
They have survived Trump for the last four years. But disentangling from him might get easier if his latest sabotage succeeds.
By Ross Douthat
Opinion Columnist
- Jan. 5, 2021
At this time of year, normally a sleepy, unremarkable period, I often write a column summing up the things that I got wrong in the previous year’s worth of punditry. Given that everything is rather more harrowing than usual this year, the habit feels a little self-indulgent — except that one important and mostly falsified hypothesis that I once held, not just for 2020 but across the entire Trump era, is about to be put to one last test.
The hypothesis was that by nominating Donald Trump for the presidency and lashing itself so closely to his unique mixture of corruption, incompetence and malice, the Republican Party set itself up for a sweeping political repudiation — on the order of what it faced in 1964, after Watergate and in the last two elections of the George W. Bush era.
I was wrong about this in 2016, but after the pandemic arrived in 2020 and Trump responded so Trumpishly, I suspected that the reckoning had finally arrived — that the president was sinking himself and that his party would likely go down with him.
Trump did sink, but not as deeply as I anticipated — and meanwhile, the G.O.P. kept bobbing, its House caucus actually increasing, its hold on a few crucial Senate seats surprisingly maintained.
Where did I go wrong? Despite making it a frequent theme, I probably underestimated the public’s reluctance to hand a self-radicalizing liberalism full control of government, given its matchless power in other institutions. I also probably underestimated the stabilizing effect of the economic relief efforts on people’s finances, which made the pandemic year less devastating and the anti-incumbent mood less intense. And I suspect there was more lockdown fatigue, more wariness of the Democratic Party’s preferred public-health regime, than the coronavirus polling captured.
Add up all those factors, and you have a decent explanation for both the slightly higher-than-expected Trump vote and the voters who wanted to be rid of him but preferred divided government, in numbers that helped keep the Republican Party afloat.
Pundits are supposed to learn from the past, and learning from the Republican overperformance in November 2020 would lead one to expect that the G.O.P. will keep its two Georgia Senate seats in today’s runoffs. After all, Trump himself has been defeated (his unwillingness to admit as much notwithstanding), the Georgia suburbs boast plenty of the kind of mildly conservative voters who voted for Joe Biden but also might like to see his presidency held in check, and David Perdue, one of the two Republican senators on the ballot, ran ahead of the president nine weeks ago. A Republican Party that survived the Trump era without the kind of shellacking I kept expecting should surely be able to win the first Senate races of the Biden era.
Except that this isn’t the Biden era, is it? Not for two more weeks; for now, it’s still the Trump era, the Trump show, the last crazy act (until he runs in 2024, that is), with everything dialed up as far as he can take it: the wildest conspiracy theories, the most perfect phone calls to beleaguered state officials and the most depressing sort of voter-fraud pandering from the irresponsibility caucus among congressional Republicans. And all of it happening while the Covid curve bends upward, a new strain spreads and the vaccine rollout falls well short of Trump administration predictions — not that the president shows any evidence of caring.
This context makes prediction a fool’s errand. You can’t use historical case studies to model pandemic-era runoff elections in which the president is making war on the officials of his own party and some of his fiercest online supporters are urging a boycott of the vote.
But since prediction is often just an expression of desire, I’ll tell you what I want to happen. Even though the party richly deserved some sort of punishment, I didn’t want the G.O.P. to be destroyed by its affiliation with Trump, because I’m one of those Americans who don’t want to be ruled by liberalism in its current incarnation, let alone whatever form is slowly being born. But now that the party has survived four years of Trumpism without handing the Democrats a congressional supermajority, and now that Amy Coney Barrett is on the Supreme Court and Joe Manchin, Susan Collins and Mitt Romney will hold real power in the Senate, whatever happens in Georgia — well, now I do want Perdue and Kelly Loeffler to lose these races, mostly because I don’t want the Republican Party to be permanently ruled by Donald J. Trump.
Obviously, a runoff-day defeat won’t by itself prevent Trump from winning the party’s nomination four years hence or bestriding its internal culture in the meantime. (Indeed, for some of his supporters it would probably confirm their belief that the presidential election was stolen — because look, the Democrats did it twice!) But the sense that there is a real political cost to slavishly endorsing not just Trump but also his fantasy politics, his narrative of stolen victory, seems a necessary precondition for the separation that elected Republicans need to seek — working carefully, like a bomb-dismantling team — between their position and the soon-to-be-former president’s, if they don’t want him to just claim the leadership of their party by default.
That kind of Trump-forever future is what Josh Hawley and Ted Cruz and others are making possible, with their ambitious pandering. Hawley and Cruz both want to be Trump’s heir apparent (as though he doesn’t already have several in his family), but the deeper they go into the Trumpian dreampolitik, the more they build up the voter-fraud mythos, the more likely it becomes that they’ll just be stuck serving him for four more years — or longer.
So there needs to be some counterpressure, some sense that dreampolitik has costs. And defeat for two Republicans who have cynically gone along with the president’s stolen-election narrative, to the point of attacking their own state’s Republican-run electoral system, feels like a plausible place for the diminishment of Trump to start.
I don’t think that diminishment is necessary to save the American republic from dictatorship, as many of Trump’s critics have long imagined, and with increasing intensity the longer his election challenge has gone on. Whatever potentially crisis-inducing precedents Republican senators are establishing this month, the forces and institutions — technological, judicial, military — that could actually make America into some kind of autocracy are not aligned with right-wing populism, and less so with every passing day.
But Trump’s diminishment is definitely necessary if the American right is ever going to be a force for something other than deeper decadence, deeper gridlock, fantasy politics and partisan battles that have nothing to do with the challenges the country really faces.
Or to distill the point: You don’t have to see Trump as a Caesar to recognize his behavior this month as Nero-esque, playing a QAnon-grade fiddle while the pandemic burns. We imported at least one of the new variants of the coronavirus from overseas in the past few weeks — like the pandemic itself, the kind of thing a populist-nationalist president is supposed to try to slam the door against — but instead of shutting down flights from Britain or South Africa, he’s been too busy pushing the stupidest election challenge in recorded history, while slipping ever-closer to blaming the lizard people for his defeat.
I don’t know how any of this ends. But somewhere between the wipeout of the Republican Party that I once expected and the 2024 Trump restoration that I fear, there’s a world where the party spends the next four years very gradually distancing and disentangling itself from its Mad Pretender and his claims.
And since that scenario becomes a little more likely if Georgia goes for the Democrats, I think that not only liberals, but also those Republicans who want a conservatism after Trump, should welcome that result.
To Defend Democracy, Investigate Trump
There needs to be a cost to trying to overthrow an election.
Opinion Columnist
- Jan. 4, 2021
According to Title 52, Section 20511 of the United States Code, anyone who “knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a state of a fair and impartially conducted election process” for federal office can be punished by up to five years in prison.
Donald Trump certainly seems to have violated this law. He is on tape alternately cajoling and threatening Georgia’s secretary of state, Brad Raffensperger, to “find 11,780 votes,” enough to give him a winning margin in a state that he lost. He may have also broken federal conspiracy law and Georgia election law.
“This is probably the most serious political crime I’ve ever heard of,” Michael Bromwich, a former inspector general for the Department of Justice, told me. “And yet there is the high likelihood that there will be no accountability for it.”
At this point, demanding such accountability feels like smashing one’s head into a brick wall, but our democracy might not be able to stagger along much longer without it. Republicans already often treat victories by Democrats as illegitimate. Their justification for impeaching Bill Clinton was flimsy at the time and looks even more ludicrous in light of their defenses of Trump. Trump’s political career was built on the racist lie that Barack Obama was a foreigner ineligible for the presidency.
Now Trump and his Republican enablers have set a precedent for pressuring state officials to discard the will of their voters, and if that fails, for getting their allies in Congress to reject the results.
It isn’t working this time for several reasons. Joe Biden’s Electoral College victory wasn’t close. Republican state officials like Raffensperger behaved honorably. Democrats control the House, and some Senate Republicans retain a baseline commitment to democracy.
None of those conditions are likely to be permanent, though. Minimally decent Republicans are particularly endangered. Expect Trumpists to mount primary challenges to them and replace them with cynics, cranks and fanatics.
True democracy in America is quite new; you can date it to the civil rights era. If Trump’s Republican Party isn’t checked, we could easily devolve into what political scientists call competitive authoritarianism, in which elections still take place but the system is skewed to entrench autocrats.
Some are trying to constrain Trump’s lawlessness. Two Democratic members of the House, Ted Lieu and Kathleen Rice, asked the F.B.I. director, Christopher Wray, to open a criminal probe. In Atlanta, the Fulton County district attorney has expressed openness to bringing a case, saying, “Anyone who commits a felony violation of Georgia law in my jurisdiction will be held accountable.”
But there is little appetite in the House for impeaching Trump again, though he transparently deserves it. (“We’re not looking backwards, we’re looking forward,” Hakeem Jeffries, chairman of the House Democratic Caucus, said on Monday.) Joe Biden doesn’t seem to want his attorney general to investigate Trump, though he’s also said he wouldn’t stand in his or her way. And experts point to numerous reasons federal prosecutors might decline to bring a case.
The first is what we might call the psychopath’s advantage: Prosecutors would have to prove that Trump knew that what he was doing was wrong. “You’re not dealing with your ordinary fraudster or your ordinary criminal or even your ordinary corrupt politician,” said Bromwich. “He seems to believe a lot of the lies that he’s telling.”
There’s also the sheer political difficulty of prosecuting a former president. “My guess is that in the weeks and months that a prosecutor takes to develop a case like that, they’re at the end of the day going to say, ‘The guy’s not in office, nothing happened, we’re not spending our resources on it,’” the Republican election lawyer Benjamin Ginsberg told me. “Which doesn’t take away from the really immoral nature of the call.”
Taken on their own, most excuses for not investigating or prosecuting Trump make at least some sense. Launching an impeachment less than three weeks before Biden’s inauguration might appear futile. It could even feed right-wing delusions by creating the impression that Democrats think Trump might be able to stay in office otherwise. Both the Biden administration and Democrats in Congress will be fully occupied dealing with the devastation to public health and the economy that Trump is leaving behind. Beyond its legal challenges, a federal prosecution of Trump would maintain his toxic grip on the country’s attention.
Yet if there is no penalty for Republican cheating, there will be more of it. The structure of our politics — the huge advantages wielded by small states and rural voters — means that Democrats need substantial majorities to wield national power, so they can’t simply ignore the wishes of the electorate. Not so for Republicans, which is why they feel free to openly scheme against the majority.
During impeachment, Republicans who were unwilling to defend the president’s conduct, but also unwilling to penalize him, insisted that if Americans didn’t like his behavior they could vote him out. Americans did, and now Trump’s party is refusing to accept it. It’s evidence that you can’t rely on elections to punish attempts to subvert elections. Only the law can do that, even if it’s inconvenient.
