WASHINGTON — President Donald Trump’s attempts to overturn the 2020 election are unprecedented in American history and an even more audacious use of brute political force to gain the White House than when Congress gave Rutherford B. Hayes the presidency during Reconstruction.
Trump’s chances of succeeding are somewhere between remote and impossible, and a sign of his desperation after President-elect Joe Biden won by nearly 6 million popular votes and counting, as well as a clear Electoral College margin. Yet the fact that Trump is even trying has set off widespread alarms, not least in Biden’s camp.
“I’m confident he knows he hasn’t won,” Biden said at a news conference in Wilmington, Delaware, on Thursday, before adding, “It’s just outrageous what he’s doing.” Although Biden dismissed Trump’s behavior as embarrassing, he acknowledged that “incredibly damaging messages are being sent to the rest of the world about how democracy functions.”
Trump has only weeks to make his last-ditch effort work: Most of the states he needs to strip Biden of votes are scheduled to certify their electors by the beginning of next week. The electors cast their ballots on Dec. 14, and Congress opens them in a joint session on Jan. 6.
Even if Trump somehow pulled off his electoral vote switch, there are other safeguards in place, assuming people in power do not simply bend to the president’s will.
The first test will be Michigan, where Trump is trying to get the state Legislature to overturn Biden’s 157,000-vote margin of victory. He has taken the extraordinary step of inviting a delegation of state Republican leaders to the White House, hoping to persuade them to ignore the popular vote outcome.
“That’s not going to happen,” Mike Shirkey, the Republican leader of the Michigan state Senate, said Tuesday. “We are going to follow the law and follow the process.”
Beyond that, Michigan’s Democratic governor, Gretchen Whitmer, could send Congress a competing electoral slate, based on the election vote, arguing that the proper procedures were ignored. That dispute would create just enough confusion, in Trump’s Hail Mary calculus, that the House and Senate together would have to resolve it in ways untested in modern times.
Federal law dating to 1887, passed in reaction to the Hayes election, provides the framework, but not specifics, of how it would be done. Edward B. Foley, a constitutional law and election law expert at Ohio State University, noted that the law only required Congress to consider all submissions “purporting to be the valid electoral votes.”
But Michigan alone would not be enough for Trump. He would also need at least two other states to fold to his pressure. The most likely candidates are Georgia and Arizona, which both went for Trump in 2016 and have Republican-controlled legislatures and Republican governors.
Gov. Doug Ducey of Arizona has said he will accept the state election results, although only after all the campaign lawsuits are resolved. Gov. Brian Kemp of Georgia, where a hand recount reaffirmed Biden’s victory Thursday, has not publicly said one way or another who won his state.
Trump has said little in public apart from tweets endorsing wild conspiracy theories about how he was denied victory. Yet his strategy, if it can be called that, has become clear over two days of increasingly frenetic action by a president 62 days from losing power.
In just that time, Trump has fired the federal election official who has challenged his false claims of fraud, tried to halt the vote-certification process in Detroit to disenfranchise an overwhelmingly Black electorate that voted against him, and now is misusing the powers of his office in his effort to take Michigan’s 16 electoral votes away from Biden.
In many ways it is an even more of an attempted power grab than the one in 1876. At the time, Hayes was governor of Ohio, not president of the United States. Ulysses S. Grant was, and when Hayes won — also by wrenching the vote around in three states — he became known as “His Fraudulency.”
“But this is far worse,” said Michael Beschloss, a presidential historian and author of “Presidents of War.” “In the case of Hayes, both sides agreed that the outcome in at least three states was in dispute. In this case, no serious person thinks enough votes are in dispute that Donald Trump could have been elected on Election Day.”
“This is a manufactured crisis. It is a president abusing his huge powers in order to stay in office after the voters clearly rejected him for reelection.”
He added: “This is what many of the founders dreaded.”
Trump telegraphed this strategy during the campaign. He told voters at a rally in Middletown, Pennsylvania, in September that he would win at the polls, or in the Supreme Court, or in the House — where, under the 12th Amendment, every state delegation gets one vote in choosing the president. (There are 26 delegations of 50 dominated by Republicans, even though the House is in the hands of the Democrats.)
“I don’t want to end up in the Supreme Court, and I don’t want to go back to Congress, even though we have an advantage if we go back to Congress,” he said then. “Does everyone understand that?”
Now that is clearly the Plan B, after the failure of Plan A, an improvisational legal strategy to overturn election results by invalidating ballots in key states. In state after state, the president’s lawyers have been laughed out of court, unable to provide evidence to back up his claims that mail-in ballots were falsified, or that glitches on voting machines with software from Dominion Voting Systems might, just might, have changed or deleted 2.7 million votes.
Those theories figured in a rambling news conference that Rudy Giuliani, the president’s personal lawyer, held with other members of his legal team Thursday. The group threw out a series of disconnected arguments to try to make the case that Trump really won. The arguments included blaming mail-in ballots that they said were prone to fraud as well as Dominion, which they suggested was tied to former President Hugo Chávez of Venezuela (who died seven years ago), and had vague connections to the Clinton Foundation and George Soros, the philanthropist and billionaire Democratic fundraiser.
“That press conference was the most dangerous 1hr 45 minutes of television in American history,” Christopher Krebs, who was fired Tuesday night by Trump as the director of the Cybersecurity and Infrastructure Security Agency of the Department of Homeland Security, tweeted Thursday afternoon.
“And possibly the craziest,” he went on. “If you don’t know what I’m talking about, you’re lucky.”
Krebs has often noted that the purpose of a reliable election system is to convince those who lost elections that they have, indeed, lost.
Even some of Trump’s onetime enthusiasts and former top aides have abandoned him on his claims, often with sarcastic derision. “Their basic argument is this was a conspiracy so vast and so successful that there’s no evidence of it,” said John Bolton, Trump’s third national security adviser, who was ousted last year.
“Now if that’s true, I really want to know who the people are who pulled this off,” he said on Sunday on ABC’s “This Week.” “We need to hire them at the CIA.”
This article originally appeared in The New York Times.
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