Imagine raiding Versailles with a herd of bulls. You probably won’t make it past the gates, and you certainly won’t wind up King of France, but you would irreparably trample the gardens and might well erode the foundation. That’s more or less how I view Donald Trump’s current assault on the election.
Let’s begin with the obvious: Joe Biden will become the 46th president of the United States on 20 January 2021. As Benjamin Wittes recently explained, “It is exceedingly difficult to steal an election in the United States.” I encourage interested readers to look through his analysis, which I believe is spot on. I’ll quickly sum up the legal arguments.
Trump’s lawsuits will not award him the presidency. To win, Mr Trump must prove systemic fraud, with illegal votes in the tens of thousands. There is no evidence of that so far, and evidence of widespread fraud is unlikely to arise in an election that Trump’s own Department of Homeland Security just labeled “the most secure in American history”. His lawsuits are, as one commentator aptly put it, “too absurd to be even dignified as frivolous”. As of this writing, he is 0-12 in court, a batting average that would shame even a little league baseball player.
His lawsuits are also mathematically useless. He has focused on 2,000 ballots in Michigan where, at the time of this writing, Biden leads by 148,645 votes. He’s challenging a whopping 180 ballots in Arizona, a state recently called for Biden with a lead of 11,434. Georgia’s short-lived lawsuit sought to shave 53 ballots off a 14,057-vote lead. Elsewhere, the math is much the same.
Nor will any recounts move the needle. The largest recount swing in history – Florida’s 2000 recount – changed only 1,247 votes. Recounts currently under way in Wisconsin and Georgia should look more like Wisconsin’s 2016 recount, where the margin shifted by 571 votes. Neither number even approaches Biden’s margins.
More far-fetched scenarios are, well, far-fetched. State and local election officials, who do not report to Trump, are on track to certify Biden’s electors in the next few weeks. State legislatures are understandably reluctant to bypass their own constituents by certifying Republican electors, which would in any case be ineffectual and might well be unconstitutional. And the possibility of Trump mobilizing military resources to barricade himself in the White House on 20 January is almost certainly fanciful.
Many Americans are laughing at Trump, joking that he’ll take the fight from the Four Seasons Total Landscaping building next to a porn shop all the way up to the Supreme Courtyard by Marriott. The man is a clown and deserves every ounce of ridicule thrown his way.
But Republican leaders aren’t laughing. Not even close. They’re backing the president step by frivolous step. What began with exhortations to let legal challenges run their course seems to be escalating, withMike Pompeo giggling about a “smooth transition to a second Trump administration” and the House minority leader saying he doesn’t know if Biden will be president on 20 January.
Donald Trump is a clown and deserves every ounce of ridicule thrown his way
Most materially disturbing is a memo from the attorney general, Bill Barr, that opens the door for politically motivated federal investigations. The memo lowers the bar for new investigations, allowing the DoJ to investigate “irregularities” instead of only “potential crimes”. It also explicitly permits investigations before election results are certified, a departure from the department’s longstanding practice of avoiding electoral interference. Barr’s memo promises a steady drip of misinformation to gloss Trump’s legal claims with a veneer of plausibility.
Consciously undermining democracy by elected officials should be shocking. Shockingly, it isn’t.
Republicans have spent four years engaged in a kind of performance art to stroke the fragile ego of their “Dear Leader” and appease his base. This time around, Republican politicians dance on Trump’s command to secure control of the Senate in this January’s runoff elections and extend their majorities in 2022 and 2024. Maybe some Republicans feel stuck, unable to do anything but play along with Trump’s latest delusion and hope that the federal judiciary will be a bulwark against tyranny, saving them from themselves. It’s an uncomfortable position, but not unexpected in a party that, data shows, has taken a hard turn toward authoritarianism in recent years. (To Republicans bristling at the characterization: you know you’re tilting authoritarian when Turkey’s strongman recognizes the results of a US election before you do.)
Or perhaps the Republicans just wanted a distraction. The Senate’s ramming through unqualified judicial nominations has been bumped below the fold. Trump’s recent purge of the military’s high-level civilian leadership, while concerning to some, has met only mealy-mouthed displeasure from Republicans committed to backing his electoral posture. Commentators predict that Trump hopes to shield himself from future federal prosecution or selectively declassify information that undermines the Russiagate investigation with his new Pentagon personnel. And stoking election conflict is providing cover for the White House conman to fleece his loyal followers once again. A fundraising campaign promised to “stop the steal” but actually lined the pockets of Trump’s personal Super Pac.
As one commentator put it Trump is orchestrating “not a coup, but a cover-up and a con game”.
Republicans might succeed in holding Trump’s base. They might confirm a few more judges and retain control of the Senate and successfully grift Magaphiles. But they’re playing with fire and we are all in extreme danger of getting burned.
History shows: “When politicians break democracy, they are wrong to think they control what comes next.”
You’d think the modern Republican party would have learned this lesson. After Obama’s election, the neo-conservatives sold their souls for tax cuts. They welcomed birthers and bigots into their big white tent. They expected Paul Ryan would take the Republican mantle. Instead they got Trump. Even the most repugnant Republicans hated him. After Trump denigrated Ted Cruz’s wife, the brave senator shot back, calling Trump a “sniveling coward” and vowing that he would not “go like a servile puppy dog” and support then-candidate Trump.
Fast forward to this week: Cruz rushed to the president’s defense after Don Jr publicly shamed “2024 GOP hopefuls” for failing to lick his father’s boots. Ask Ted whether he’s steering the party, or whether the party is steering him.
If Republicans are telling themselves that “this time it will be different,” that they now know how to harness the explosive cocktail of economic displacement and racial anxiety, they’re flat-out wrong.
Biden’s administration will probably be the first thing burned. In forcing the federal government to delay presidential transition, Trump and the Republicans have denied the president-elect access to transition funds, barred incoming personnel from processing security clearances, and prevented Biden from receiving intelligence briefings. While Biden and some of his senior staff know how to run a White House, they still need a smooth transition to hit the ground running full speed.
Republicans don’t seem to appreciate how the country as a whole could suffer. Early stumbles in an administration can be catastrophic. The 9/11 commission found that delays with President Bush’s transition prevented him from hiring national security personnel, which in turn left us vulnerable to the attacks. President Biden needs every waking moment between now and 20 January to prepare for the known challenges: a raging pandemic, a tanking economy and a fractured country. The Republican party’s obstinance will amplify those threats and probably create new ones.
This election denialism erodes national security in the immediate term, too. With America’s attention directed inward, our allies are worried and our adversaries are emboldened. This president has spilled classified information and permitted Russian bounties on the heads of American servicemen and women. The harm that he is doing to the nation’s defenses as he draws out the election, and the even greater harm he’s capable of doing as long as he has his fingers on the nuclear codes and his hands on the instruments of executive power, is incalculable.
The damage he and the Republicans are doing to democracy may be even worse.
Our system requires legitimate government, which requires legitimate elections. As Senator Chris Murphy put it, if Republicans convince half the country that “those people that got elected were illegitimately chosen, then so must be the actions they take when they get in office.”
America has a long history of violently disobeying allegedly illegitimate governments, stretching from the Revolution through secession to the recent plot to kidnap and execute Michigan’s governor for “treasonous” Covid-19 restrictions.
Even if violence doesn’t ensue this election cycle – and I fervently hope it won’t – the degradation of democracy will reverberate for years to come. Democratic self-government is not a condition, it’s a practice. The colonies practiced for over 150 years before forming a union, and even then they succeeded only on the second try. We practiced poorly for a century before unshackling our fellow citizens, and it took another 50 years of effort to enfranchise America’s women. We have not been perfect, but we have constantly endeavored to embody our ideals, to ensure that government of the people, by the people, and for the people will flourish in our great nation.
When we begin to doubt that government does reflect and represent the people, we begin to doubt that it ever can.
Republicans are sowing those seeds of doubt. And if we allow them to germinate and grow, we’ll soon find thorny disunion where our manicured garden of democracy once bloomed. No, the gates won’t be overrun and yes, the Biden administration will take office on 20 January.
But we should all worry whether that will be enough. To Republican leaders: democracy needs your help to flourish. Please, put patriotism above party loyalty before it’s too late.
Laurence H Tribe is the Carl M Loeb University professor and professor of constitutional law emeritus at Harvard Law School. His latest book is To End a Presidency: The Power of Impeachment. You can follow him on Twitter @Tribelaw