Blog No. 272. The Interregnum: Dereliction, Menace, Malice and More

It has been clear since November 7 that Joe Biden is the President-elect of the United States. Nevertheless, during the interregnum, the period between that date and Biden’s inaugural on January 20, our country has been subjected to ugly and dangerous political warfare. The damage to democracy in America has been serious and may be lasting.

Donald Trump’s conduct during the interregnum has been utterly reprehensible. The most charitable explanation for his refusal to concede the election is that it is rooted in mental health problems, possibly exacerbated by his bout with the coronavirus. Such charity, however, is not available to his Republican enablers on Capitol Hill or to grassroots Republicans, some 60 or 70 per cent of whom reportedly claim that the election was not free and fair. In combination, they have banished any qualms I might have felt about my divorce from the Republican Party. Indeed, it has occurred to me that my feeling of liberation might be akin to that of an aggrieved spouse upon a marital dissolution: the ending a relationship that began happily and survived many ups and downs, but ultimately succumbed when one spouse changed so radically as to be virtually unrecognizable to the other.

The Dereliction. While pursuing his feckless attempt to retain the presidency, Trump has shamefully failed to carry out the responsibility of that office by addressing the nation’s major crisis: the massive surge of the Covid-19 pandemic. It is a presidential dereliction of duty that is unparalleled in my memory and perhaps in all of American history. Indeed the precedent that comes first to mind is the legend of Nero fiddling while Rome burned. If Nero fiddled, Trump sulked and golfed.

In the weeks leading up to the election, Trump repeatedly insisted that we were “turning the corner” on Covid-19, proving that he did not have a clue as to the horrifying situation around the corner that was becoming increasingly obvious to anyone paying attention. After the election, Trump had nothing to say about the accelerating pandemic until last Friday when he made a Rose Garden appearance to describe (and take credit for) progress in developing vaccines. That progress does appear remarkable and, if it comes to fruition, it will be something for which Trump will deserve a measure of credit. At the same time, Trump seemed oblivious to the fact that even if things continue to go well with vaccines, it will be many months before they will be widely available to the public. In the meantime, the virus rages and, without significant changes in public behavior—wearing masks, social distancing, avoidance of even small groups indoors—we will suffer staggering numbers of infections, hospitalizations and deaths.

Beyond Trump’s dereliction, one must reckon with actions he has taken during the interregnum. Such actions may appear to some as mere mischief, to be dismissed as “Trump being Trump.” That is apparently the excuse of some of Trump’s Congressional enablers, who say they are “humoring” Trump to give him time to come to terms with his loss. But that lame excuse ignores the serious harm being caused by Trump’s narcissistic myopia.

The Menace. The immediate menace of Trump finding a way to circumvent his electoral defeat appears to have receded. Litigation pursued by Trump’s lawyers across the country has been conspicuously unsuccessful in challenging the electoral results. Trump’s own Infrastructure Government Coordinating Council (IGCC) issued a powerful statement:

When states have close elections, many will recount ballots. All of the states with close results in the 2020 presidential race have paper records of each vote, allowing the ability to go back and count each ballot if necessary. This is an added benefit for security and resilience. This process allows for the identification and correction of any mistakes or errors. There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised. (Emphasis in original)

Other security measures like pre-election testing, state certification of voting equipment, and the U.S. Election Assistance Commission’s (EAC) certification of voting equipment help to build additional confidence in the voting systems used in 2020.

While we know there are many unfounded claims and opportunities for misinformation about the process of our elections, we can assure you we have the utmost confidence in the security and integrity of our elections, and you should too. When you have questions, turn to elections officials as trusted voices as they administer elections.

Similarly, the Washington Post reported that electoral investigations authorized by Attorney General Barr had come to naught:

Sixteen assistant U.S. attorneys specially assigned to monitor malfeasance in the 2020 election urged Attorney General William P. Barr on Friday to rescind his recent memorandum allowing investigators to publicly pursue allegations of “vote tabulation irregularities” in certain cases before results are certified, saying they had not seen evidence of any substantial anomalies.

One of the dangerous possibilities discussed in Blog Nos. 265 and 269 was that Republican legislatures in some states might “go rogue” by claiming a constitutional right to appoint their own electors in derogation of the popular vote. While that strategy had little merit as a matter of law, it could not be entirely dismissed. Indeed, such a maneuver was reportedly raised by Trump as recently as last Wednesday. Now, however, it seems quite unlikely that any Republican legislature would have the stomach for such a brazen assault on democracy.

Although a crack in Trump’s public facade could be detected, Trump has remained defiant. In his Rose Garden remarks concerning the pandemic on Friday, he did acknowledge that responsibility for dealing with the pandemic might soon fall to a successor administration. Still, on Sunday, Trump tweeted:

I look forward to Mayor Giuliani spearheading the legal effort to defend OUR RIGHT to FREE and FAIR ELECTIONS! Rudy Giuliani, Joseph diGenova, Victoria Toensing, Sidney Powell, and Jenna Ellis, a truly great team, added to our other wonderful lawyers and representatives!

It is hardly credible that this new team will discover a trove of legitimate evidence that has somehow eluded scores of Trump lawyers, the IGCC and the Department of Justice.

Privately, Trump has seemed adrift. As reported in the New York Times on Thursday:

“He knows it’s over,” one adviser said. But instead of conceding, they said, he is floating one improbable scenario after another for staying in office while he contemplates his uncertain post-presidency future.

There is no grand strategy at play, according to interviews with a half-dozen advisers and people close to the president. Mr. Trump is simply trying to survive from one news cycle to the next, seeing how far he can push his case against his defeat and ensure the continued support of his Republican base.

The measure of the damage Trump has inflicted, and continues to inflict, on American democracy remains to be seen. A gloomy appraisal was offered in the Washington Post by a respected observer, Fareed Zakaria:

Trump is attacking, defaming and delegitimizing U.S. elections in a manner unprecedented in the country’s history. His obstructionism won’t keep him in power, but it will deeply wound America’s democratic culture. He is whipping his base into a frenzy about a stolen election, and few of them are going to change their minds because of court decisions and recounts. The conspiracy theory of the stolen election of 2020 is here to stay.

* * * *

It is a cliche to say, but it’s true: Democracy is above all about the peaceful transfer of power. Trump is shredding those norms for his own egotistical needs. But his actions today will have a large and lasting effect on this country’s politics for decades, creating a cancer that will metastasize in gruesome ways.

Did Zakaria exaggerate? Perhaps, but I wouldn’t bet on it.

The Malice and More. Apart from legal maneuvers to contest the election, Trump and his minions have taken a number of other actions to disrupt an orderly transition to the incoming administration. It is not clear whether these actions are designed to serve some strategic purpose or simply reflect malice toward the Biden administration or Trump appointees deemed insufficiently loyal, or both. Whatever their motivation, these actions have been, and continue to be, clearly contrary to the national interest.

Transition Resources. Trump has withheld access to the Presidential Daily Briefing on intelligence. In addition, acting through the Administrator of the General Services Administration, Trump has denied the incoming administration the funding, facilities and access to personnel that the law clearly demands. This will clearly handicap the Biden Administration in its ability to deal with challenges that will be its responsibility on and after January 20. Those challenges include not only the pandemic but current threats posed by foreign adversaries. Trump has been urged to cease his mindless obstruction by not only Democrats but several prominent Republicans including Senators Chuck Grassley, Lindsey Graham, John Cornyn, John Thune and James Lankford.

As John Kelly, Trump’s former Chief of Staff, and former Secretary of Homeland Security, put it:

The delay in transitioning is an increasing national security and health crisis. It costs the current administration nothing to start to brief Mr. Biden, Ms. Harris, the new chief-of-staff, and ALL identified cabinet members and senior staff as they are identified over the days and weeks ahead. That said, the downside to not doing so could be catastrophic to our people regardless of who they voted for.

But such urgent pleas have fallen on deaf ears in the Oval Office.

Personnel. Trump’s personnel actions have been highly questionable in both firings and hirings. The most prominent actions have been at the Pentagon, where Trump has replaced not only the Secretary of Defense, Mark Esper, but three other top officials. Each of their replacements has questionable qualifications and in one case a record that should have been affirmatively disqualifying. Esper’s replacement, Chris Miller, has a respectable but notably modest record, having started his service in the Trump administration two years ago as an advisor in the National Security Council. As to the others, the New York Times summarized:

Kashyap Patel, Anthony J. Tata and Ezra Cohen-Watnick — three aides whose promotions were announced in a Pentagon statement on Tuesday — are viewed as highly ideological Trump foot soldiers. Mr. Patel has a long history of trying to discredit the investigations into Russian interference, Mr. Tata’s nomination was withdrawn over the summer in part because he had called President Barack Obama a “terrorist leader,” and Mr. Cohen-Watnick was quietly eased out of the National Security Council in 2017 after clashes with Lt. Gen. H.R. McMaster, then the national security adviser.

It is not clear whether the appointments were in aid of any strategic goal, but observers have speculated that they would be supportive of Trump’s controversial plan to remove all American troops from Afghanistan. That suspicion was heightened by the subsequent appointment of Douglas Macgregor, a retired Army colonel and fierce proponent of ending American involvement in Afghanistan, as a senior adviser. (The removal of all troops from Afghanistan is a subject too complex for discussion here, but my own view is that execution of Trump’s plan would be a national security, diplomatic and humanitarian disaster.)

Nicholas Kristof, writing in the New York Time, reported the comments of James Stavridis, a retired admiral and supreme allied commander of NATO, to the Pentagon personnel moves:

Trump has figuratively decapitated our operational civilian leadership in the Pentagon. Jubilant high-fives are the order of the day in Beijing, Moscow, Tehran and Pyongyang. I worry about a North Korean or Iranian miscalculation, thinking the U.S. is too distracted to respond appropriately to a fresh tanker seizure in the Arabian Gulf or a new long-range ballistic missile test — something either might do to gain leverage in negotiations with the incoming administration. Similarly, China could move even more aggressively on Hong Kong or even worse Taiwan, while Russia might be tempted to launch a significant cyberattack.

Outside the Pentagon, the administration’s most troubling personnel move may have been the appointment of Michael Ellis as a general counsel at the National Security Agency over the objections of the director, Gen. Paul M. Nakasone. Ellis is a fierce political partisan, formerly an aide to Rep. Devin Nunes, and his appointment is in some ways more troubling than the Pentagon appointments. As explained by Susan Hennessey, writing in Lawfare:

The firings at the Defense Department involve political appointees, nearly all of whom will be gone as of Jan. 20. By contrast, selecting Ellis as NSA general counsel appears to be an attempt to improperly politicize an important career position. Relatedly, it appears to be an effort to “burrow,” or improperly convert a political appointee into a career position. And to make matters worse, the ample public record suggests that Ellis is particularly ill-suited to discharge the essential functions of the office.

Hennessey went on to detail the myriad job protections that complicate the removal of a nominal “career” official. Presumably, the Biden administration will be able to solve the problem through reassignment, if not removal, but it will be headache they don’t need. And it may be that the implantation of other Ellises is underway as Trump attempts to establish his own version of a Deep State.

Other troubling personnel moves included the replacement of two senior officials at the Department of Homeland Security. In addition, the Department’s top cybersecurity official, Christopher Krebs, told colleagues he, too, expected to be fired by the White House at any moment. In fact, since Krebs had principal responsibility for the statement of the IGCC attesting to the validity of the election results, it is something of a mystery how he has survived this long. The only apparent answer appears to be his strong bipartisan support on Capitol Hill.

Finally, speculation abounds as to whether Trump will fire FBI Director Christopher Wray and CIA Director Gina Haspel. I will not hazard a guess as to the prospects of either individual, but if Trump does fire one or both of them, it will be yet another triumph of presidential pettiness at the cost of national security.