Why Michigan’s Top Legislators Should Cancel that Meeting with Trump

By Richard Primus
·8 min read

In his continuing quest to remain president despite having lost this month’s election, President Donald Trump has been trying to wrest electoral votes away from Joe Biden in states that Biden won. Among the most aggressive tactics that the president might use is a direct appeal to the Republican-controlled legislatures of Michigan, Wisconsin and Pennsylvania to hand him those state’s electoral votes.

On Thursday, the post-election narrative seemed to edge further down that path, as the Republican leaders of Michigan’s two legislative chambers—Senator Mike Shirkey and Representative Lee Chatfield—agreed to take a meeting with the President in Washington tomorrow. Until that point Shirkey and Chatfield were signaling that they didn’t intend to second-guess Michigan’s voters, who chose Biden by more than 150,000 votes. But by taking the White House meeting, they indicated their possible openness to changing their minds.

Politically, it’s possible that they see taking the meeting as a smart move, showing unhappy Michigan Republicans that they’re on the president’s side.

But as a matter of statesmanship—and, legally, for their own sakes—they’d be smarter to cancel it.

The scheduled meeting threatens two kinds of danger. At the largest level, it threatens the system of democratic presidential elections: If state officials start claiming the right to overturn elections because of vague claims about “fraud,” our democratic system will be unworkable. But in a more specific and immediate way, it threatens the two Michigan legislators, personally, with the risk of criminal investigation.

The danger to democratic elections is well understood. The Constitution authorizes state legislatures to decide how states choose presidential electors. For more than a century, every state legislature has chosen to do so by popular election. According to one school of thought, though, a state legislature could choose to set aside a popular vote if it doesn’t like the result and choose different electors instead. This is a pretty undemocratic idea, as well as one that misreads the history of election law: the National Review recently described it as “completely insane.” (State legislatures have the power to change the system for choosing electors in future elections, but not to reject an already conducted election just because they don’t like the result.) Nonetheless, the president is pushing for it. By so far refusing to go along with Trump, Republican state legislators have been standing up for the idea that fair, democratic elections are more important than any individual president. If Shirkey and Chatfield are reconsidering that view, they are playing with the possibility of throwing out the results of a free and fair election. That’s not something that the system comes back from easily.

The scheduled White House meeting also poses another kind of danger—one hanging specifically over the two Michiganders whose minds Trump seeks to change. Consider: Why, exactly, does Trump want to see these two men in person, in his office? It isn’t to offer evidence that Michigan’s election was tainted and should therefore be nullified. If he had any such evidence, his lawyers would have presented it in court, rather than abandoning their Michigan lawsuit as they did today. It’s also unlikely that Trump is planning to persuade the Michiganders through subtle legal arguments about their constitutional role. Subtle argument isn’t really Trump’s way of doing things.

The president is a deal-maker, and it’s far more likely that his agenda is transactional. When considering a course of action, he doesn’t think about principles; he thinks about what’s in it for whom. So it makes sense to think that he is inviting Shirkey and Chatfield for a private meeting to offer them something. If they help throw the election to him, he can offer a lot. Give me Michigan’s electoral votes, he might say, and I’ll give you a Cabinet post or make you ambassador to Spain. Trump is also not above offering cash: Give me the votes, and I’ll see to it that lots of money flows to places where you want it—to your state, or to you personally. (That would be an outrageous allegation to have made about Barack Obama or George W. Bush. But the president who paid illicit cash to Stormy Daniels to protect his first presidential run shouldn’t be presumed to scruple at paying more illicit cash to protect his second one.)

The danger for Shirkey and Chatfield, then, is that they are being visibly invited to a meeting where the likely agenda involves the felony of attempting to bribe a public official.

Under Michigan law, any member of the Legislature who “corruptly” accepts a promise of some beneficial act in return for exercising his authority in a certain way is “forever disqualified to hold any public office” and “shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years[.]”

To be sure, there’s lots of horse-trading in politics that doesn’t amount to bribery. There’s nothing legally wrong with “You vote for my turnpike project, and I’ll vote for your dam.” But the prospect before Shirkey and Chatfield isn’t legislative logrolling, with representatives negotiating policy or even pork barrel spending. It’s the prospect of a promise to deliver something of value to the officeholder personally. In other words, we aren’t talking about Trump’s saying, “Here’s what’s in it for your constituents.” The prospect, in a one-on-one meeting with this president, is Trump’s saying, “Here’s what’s in it for you.”

Shirkey and Chatfield are already on record—admirably—as being against a legislative intervention to ignore the popular vote and reallocate Michigan’s electors. If they take a meeting with a man who desperately wants them to change their minds, and who has no scruples about what kind of leverage he might use to get it, and then they do change their minds and try to send Michigan’s electors to Trump, the possibility that they were bribed will be screamingly obvious.

To be sure, it might not be true: Maybe Shirkey and Chatfield fear Trump’s supporters in the next election so much that they’d change their minds without a direct bribe on the table. But the bribery possibility is strong enough that a responsible prosecutor might feel compelled to pursue it. And the relevant prosecutor—Michigan Attorney General Dana Nessel—is a straight-shooting Democrat who does not pal around with Shirkey and Chatfield. If she thought the facts justified an investigation, Shirkey and Chatfield would be investigated.

If the risk of prosecution were federal, the two men might figure they had little to worry about: Trump, in his second term, would tell the Justice Department to lay off. But the president can’t stop a state prosecution, and he can’t pardon a state crime. Nor would the president’s conversations with Shirkey and Chatfield be shielded from investigation by any sort of executive privilege: Shirkey and Chatfield are not members of the president’s federal policymaking team. So if the Michigan attorney general decided to proceed, Shirkey and Chatfield would be looking—in the best-case scenario—at the pain and disrepute of subpoenas and a criminal investigation. In a less-good case scenario for them, they’d be looking at the loss of their office and their liberty.

The point here is not that Shirkey and Chatfield are shady characters who might be involved in bribery. Let’s assume that they are honorable and upstanding public servants. But one thing that people who try to stay clean know is that it’s unwise to put yourself in a situation where it will look like you’ve broken the law—or, worse yet, where you might be induced to do so. “Lead us not into temptation” is well known as a religious precept: it’s also excellent legal advice.

The Trump administration is nearing its end. Any other president who got these results on Election Day would have conceded gracefully and now be cooperating in a peaceful transfer of power—giving his successor’s team the information it needed so that from the stroke of noon on January 20, it could begin protecting American national security, fighting the Covid pandemic, and so forth. Trump is choosing to block all of that constructive work so that he can avoid admitting that the other guy won. He is doing a fair amount of damage on his way out. That damage is hurting the country in general, and it will also hurt specific people.

A drowning man grabs at anything, and a strong drowning man brings other people down with him. To this point, Republican legislators in Michigan—and in other states where Trump might try to tip the scales, like Wisconsin and Pennsylvania—have wisely kept their distance. That’s good for them, personally, and it’s also good for democracy. If they’re smart, and the country is lucky, that’s how things will stay.