Blog No. 274. The Poisoning of American Democracy and the Silence of the Lambs

Although the convening of  the Electoral College was marred by threats of violence from Trump supporters, none materialized, and the vote faithfully reflected the results in each of the states. The occasion became the latest milestone in Donald Trump’s uniquely ugly departure from office. It had the salutary effect of leading Senate Majority Leader, Mitch McConnell to recognize from the Senate floor that Joe Biden and Kamala Harris are President-Elect and Vice-President-Elect. Unfortunately, it will probably not quite be Trump’s last gasp. On January 6^th, when Congress convenes to receive and tabulate the electoral votes, some die-hard Trumpists may attempt to mount a challenge of sorts. Nothing will come of that challenge, but it will be yet another stain on the process. Then, at last, we will come to January 20 and Joe Biden and Kamala Harris will be inaugurated.

Whether Donald Trump will follow the long tradition of his predecessors in attending the inauguration remains to be seen. His presence or absence is of no legal consequence, but it may well be important as a symbol of his continuing attempt to deny the legitimacy of the Biden’s election and the Biden administration. That posture may have very real consequences if it is taken as marching orders by his base and by his ovine enablers on Capitol Hill. With few exceptions, Republicans in both the House and Senate have remained terrified of offending Trump and the base they share with him. Some may be liberated by McConnell’s statement today, but some will not be

The challenges facing the incoming administration would be daunting under the best of circumstances. Even a president enjoying wide bi-partisan respect would be hard pressed to deal effectively with the pandemic, the economy, climate change, a neglected infrastructure and more; without such respect, it may be a mission impossible. The situation will be less difficult if Democrats “fill the inside straight” of winning both of the Senatorial runoffs in Georgia on January 5, but even then, opportunities for obstruction and gridlock will abound. And our adversaries abroad will certainly be calculating how they can take advantage of America in the throes of partisan paralysis.

In addition to focusing on the urgent problems at hand, we cannot avoid reflecting on the long term damage that Trump has inflicted on American democracy. Back on August 8, in Blog No. 265, “The Coming Trump Coup?” I warned:

Some scholars have theorized that Republican legislatures in say, Pennsylvania, Michigan or Wisconsin, might assert their authority to appoint electors to replace the Biden electors chosen by the popular vote. This will strike most readers as far-fetched, and it may be, but the possibility cannot be dismissed.

Far-fetched or not, that became Trump’s strategy du jour after the election. And, while it failed this time, that failure left it no less menacing for the future. Why did Republican legislatures lack the stomach for such a gambit? Probably because Biden had a respectable margin of victory in several of the battleground states. In addition, election officials in each state handled the tabulation of ballots efficiently and, despite claims to the contrary, transparently. At the same time, in scores of state and federal courts, judges appointed by Republicans and Democrats alike swiftly dismissed Trump’s bogus claims of fraud.  

Having failed to gain the support of Republican state legislatures, Trump’s hopes lay in the Hail Mary pass represented by a suit from the state of Texas filed in the Supreme Court. That suit alleged various irregularities in seeking to disenfranchise the voters in four states: Georgia, Michigan, Pennsylvania, and Wisconsin. Although the suit was conspicuously lacking in merit, its blatant attack on democracy drew the support not only of Trump, but of 126 members of the House of Representatives and 17 other Republican state attorneys general. When the Supreme Court summarily rejected the lawsuit, the decision was no surprise. Yet in a time where the unheard of is heard from all too often, it came as something of a relief. On the other hand, it was hardly an occasion for the self-congratulation expressed by some observers that our democratic norms and institutions had withstood the assault of Trump and Trumpism.

Yes, we escaped this time, but to some extent we may have just been lucky. What if key election officials in battleground states had borne the instincts of the Texas Attorney General or, for that matter, Senators Lindsey Graham and Ted Cruz, or House Minority Leader Kevin McCarthy? What if the election had been closer, turning on a single state as it did in 2000? What if Trump had assembled in that single state numerous raucous rallies like the one we saw in the District of Columbia on Saturday? The threat of the rogue state legislature has not been dispelled.

Writing in Dorf on Law Professor Ronald J. Krotoszynski reviewed the array of constitutional norms breached by Trump throughout his term and observed:

Joe Biden’s victory was perilously narrow – the Electoral College turned on just under 125,000 votes, out of over 155 million votes cast, distributed across four states (namely Arizona, Georgia, Pennsylvania, and Wisconsin). And, even after leaving office, Donald Trump will be running a shadow government—with his 74 million supporters telling anyone who cares to listen that Joe Biden isn’t really the lawfully elected President of the United States. The 2020 presidential election has secured a stay of execution – not a full commutation of sentence – for our governing national institutions.

Experts in election law have suggested a variety of reforms in the electoral process to avoid our going off the rails in the future. For example, in a New York Times op-ed titled “There’s Still a Loaded Weapon Lying Around in Our Electoral System,” Professor Richard H. Pildes focused on the need to revise an 1845 federal statute addressing “failed” elections, which a state legislature might seize upon to appoint electors. And, in a Washington Post column, “Congress must fix this election law–before it’s too late,” Professor Edward B. Foley explained the need to rewrite an 1887 law, the “antiquated and opaque” Electoral Count Act. The need for revision of these ancient laws may seem obvious. As a practical matter, however, reform is unlikely to arrive any time soon unless Democrats prevail in the Georgia runoffs or in the 2022 Congressional elections. In any case, the poison that Trump has introduced into our system will not be easily expelled.

It is too early to know whether Donald Trump will be the nominee of his captive “Republican Party” in 2024, or whether we will be presented with one of his disciples. In the meantime, however, Trump seems intent on inflicting as much damage as possible—before and after January 20–on the administration of his successor and the democratic process that removed him from office. In that context, it may be significant that on Monday, Attorney General Bill Barr wrote Trump that he would be leaving office on December 23. Why now?

It had been widely reported that Trump was furious at Barr and was actively considering firing him. Trump had been provoked by Barr’s statement to the AP on December 1 that the Justice Department had found no evidence of widespread fraud that would change the result of the election. That statement contradicted, and seriously undermined, Trump’s incessant claims of massive fraud in the election. It had also been reported that Trump was considering the appointment of a special counsel to investigate the 2020 election. Such an appointment would have to be made by the Attorney General and it was open to serious question whether, given his recent observation, Barr might refuse to do so.

The exchange of communications between Barr and Trump on Monday attempted to paper over the issue. Barr’s letter dutifully praised the Trump presidency, but notably began by stating:

I appreciate the opportunity to update you this afternoon on the Department’s review of voter fraud allegations in the 2020 election and how these allegations will continue to be pursued. At a time when the county is so deeply divided, it is incumbent on all levels of government, and all agencies acting within their purview, to do all we can to assure the integrity of elections and promote public confidence in their outcome.

Barr neither referred to nor disavowed, his previous statement that no evidence of widespread fraud had been found. For his part, Trump merely tweeted blandly that he had a “very nice meeting” with Barr, saying nothing about the debunked fraud claims. He added that “Our relationship has been a very good one, he has done an outstanding job!”

I have long believed that Barr’s resignation as Attorney General was called for. See Blog No. 248, “Donald Trump and William Barr: A Perfect Storm.” Ironically, however, coming at this juncture, when Barr had finally stood up to Trump, it is a matter of some regret. Trump’s tweet indicated that the Deputy Attorney General, Jeffrey A. Rosen, would serve as Acting Attorney General. Whether Rosen is amenable to appointing a special counsel to investigate the election remains to be seen. Reportedly Trump would also like a special counsel appointed to investigate Hunter Biden. Appointment of special counsels in those cases is unlikely to have the impact on the Biden administration that the Mueller appointment had on Trump. It would, however, be a headache for Biden’s Attorney General—along with the headache Barr had already created when he appointed John Durham as a special counsel to continue his investigation of the investigation of the 2016 Trump campaign. It is almost certain to be a bumpy road ahead and it will take an Attorney General of skill and courage to navigate it.