The country is one week away from an election that likely will come down to the wire. If (when?) the Democrats win the White House and Senate and maintain their majority in the House, there will be several key issues that need immediate intention and others that may fundamentally change our system of government.
Of immediate concern is the ongoing pandemic. The Trump Administration threw in the towel and surrendered to the inevitable spread of Covid-19. Indeed, the administration surrendered back in March when the president refused to take responsibility for any actions to mitigate the spread of the disease. With his super-spreader events held daily all around the country, we are wasting our time expecting him to do anything positive to reduce the death toll that is expected to approach 400,000 dead Americans by Inauguration Day. In my view, win or lose, Mr. Trump will do nothing in the coming months to change the course of the disease.
Senate Majority Leader Mitch McConnell (R-KY) adjourned the Senate yesterday without addressing the economic impact of the pandemic. Several relief bills, starting last May, passed the House but Mr. McConnell refused to take them up in the Senate. Likely, he failed to do his job for two reasons. First, there was widespread disagreement within his caucus as to whether or not to spend more money. Mr. McConnell did not want to put any of his Senators in a politically precarious position by forcing them to vote one way or another on helping the average working person in the United States. Second, Mr. McConnell probably sees the writing on the wall that Mr. Trump will not be re-elected. Senator McConnell will do all in his power to make life miserable for a President Biden, including trying to keep the economy struggling so that Mr. Biden cannot take credit for succeeding where the current ruling party failed.
The pandemic will be the first and most important issue for a Biden Administration to address. Economic relief will be the first order of business for a Democratic Congress. Those plans are ready for implementation as soon as the new president and Congress are sworn in. Only time will tell if they are effective, but it seems that any attempt to improve the situation is better than none. We cannot sit around and wait for a vaccine or for effective therapies to help patients in the hospital. Those are important, but don’t yet exist. The real issue is what can be done now to stop the spread of the disease. We already know that masks, social distancing and good hygiene go a long way. For some misguided reason, those successful strategies have become politicized by Mr. Trump. It will take time, and a coordinated effort to overcome that mind set and to restore what has been lost over the last seven months.
Longer term, a Democratic administration and Congress have fundamental issues to address as to how government works. Legislation to institutionalize norms that have been respected in the past but ignored over the last few years are necessary. Trust in the character of the president is a charming relic of the past that we now know is too dangerous. Put it into law.
In addition, there are three dilemmas that Democrats will face. These are whether to:
- Investigate and prosecute any crimes committed by the president and/or members of his administration.
- End the filibuster in the Senate.
- Change the number of Justices on the Supreme Court.
Revenge and retribution will be on many minds come January. That feeling will not only color the views of politicians in Washington but also those of many of the citizens that voted them into office. The current administration and their enablers in the Senate ran roughshod over all of the norms and courtesies that traditionally applied in the government and especially in the Senate. Look no further than the court packing that occurred with the refusal to take up President Obama’s nominee to the Court eight months before an election, and the subsequent rush job to put Mr. Trump’s nominee on the Court eight days before Election Day after nearly 60 million Americans had already voted.
Constitutionally, the Republicans were well within their power to do both of those deeds, no matter how much it reeks of hypocrisy. It was legal. However, one of my guiding principles has been that just because you can do something doesn’t mean that you should. In my view, that idea should apply to the Democrats as well.
With that in mind, let’s look at the three dilemmas facing a Democratic government.
Investigate and Prosecute. What to do about Mr. Donald J. Trump who has abused just about every principle in the book and enriched himself and his family throughout his term? My nuanced answer is “it depends.” There is a precedent. Following President Nixon’s resignation, President Ford pardoned him of all crimes. The argument was that the country had already been through very rough times so do not protract it. Move on and start over. As President Ford said “our long national nightmare is over.”
I am not sure that we can do that with Mr. Trump. No president can be prosecuted for bad policy, the voters take care of that. However, if evidence comes to light that Mr. Trump was knowingly aiding and abetting a foreign adversary, for example, then an investigation and possible prosecution are very necessary. We now know that no counter-intelligence or national security investigation was ever conducted to look into Mr. Trump’s activities. The Mueller Investigation did not touch on those issues. The impeachment process did not look into that either.
We have also learned that federal and New York state District Attorneys are looking into Mr. Trump’s finances and possible crimes (like racketeering) prior to his entering office — and maybe while in office.
I say to let the chips fall where they may. If Mr. Biden is president he should have absolutely no involvement in any investigation or prosecution of Mr. Trump or his associates. Let the District Attorneys finish their investigations and decide whether or not to prosecute. This will be difficult to do as many in this country will readily assume that such action is merely one more thing on the list of “persecutions” Mr. Trump has “endured.” I think that in the current era it is necessary to show that no one is above the law if they knowingly commit crimes. Even if Mr. Trump is pardoned (there are multiple scenarios that might apply to make that happen) it would only apply to federal laws. State laws fall under a different jurisdiction and can only be pardoned by the respective governors. Just follow the money. If it leads to Mr. Trump, his children, any of his associates or Trump, Inc. just play it straight as the justice system would pursue any other citizen. If there is nothing there, then so be it.
End the Filibuster. The Senate was designed to be different than the House of Representatives. Until just over one hundred years ago with the passage of the 17th Amendment, Senators were not directly elected by the people. They were separate from the rabble that elects the House (also why we have an Electoral College) and therefore would be more deliberate, thoughtful and statesmanlike. One of the great Senate rules that helped to promote that atmosphere and to provide an opportunity for compromise is the filibuster. While one Senator could theoretically hold up the works, in practice it often resulted in compromises in order to get the two-thirds (later changed to 60) votes required to move legislation and Senate confirmed nominees.
There are now calls to end the filibuster. Such calls are nothing new, especially when one party or the other feels shut out or stymied in moving their projects forward. Then Minority Leader McConnell used the filibuster to stop the confirmation of federal judges under President Obama, leading then Majority Leader Harry Reid (D-NV) to go “nuclear” and change the Senate rules to require only a simple majority to confirm federal judges. Anticipating President Trump’s Supreme Court nominees, now Majority Leader McConnell knew that his narrow majority would not likely be able to get Supreme Court nominees confirmed following his dirty trick blocking Merrick Garland from the Court, so he changed the rules to only require a simple majority for confirmation of Supreme Court Justices. Both actions were huge mistakes.
Without the filibuster, the Senate becomes a small House of Representatives. The majority can ram through any legislation they want on a simple majority. The Senate is already way too partisan, ending the filibuster will only make it more so. There will be no need to compromise on anything.
The Democrats know that Mr. McConnell will do anything in his power to move his agenda. They run the risk of him, or another Republican Majority Leader, doing away with the filibuster in the future. It is a risk they should take. There can be little to no progress in regaining civility in government and consequently in the country if all of the rules go out the window and only pure partisan politics is in play. The Senate will cease to be the body it was envisioned to be if the rules change to favor only one party.
Change the Number of Justices. Likewise, I think the same way about the Supreme Court. The number of Justices is determined by law, not by the Constitution and can be changed. It can reasonably be argued that the Republicans already packed the federal justice system. When in the majority they blocked nearly every nominee of President Obama to every federal court. They stopped the nomination of Judge Garland. It could be reasonably argued that two of the three seats filled by Mr. Trump were stolen seats. Regardless, I think it a mistake to add three or more (as has been suggested) Justices to create a more “balanced” judiciary. Follow the current rules and make them work. The Democrats got outmaneuvered by Mr. McConnell. He plays hard ball and will use every trick in the book to get what he wants. Use the rules to get to where the country needs to be, but do not change them for partisan reasons.
The political partisan vibe needs to change. Mr. Trump has been many things including the worst president ever. He also exacerbated the divisions in our country for his own egomaniacal and profit making reasons. Let’s change that atmosphere. Besides, if the Republicans refuse to go along and restore a measure of compromise, then you can change the rules.
There is of course another remedy. That is through legislation. Pass laws to institutionalize the norms of government that we expect. Pass laws that provide health care that can pass review by the courts, for example, should the Affordable Care Act be overturned. Pass a law explicitly institutionalizing same sex marriage. And so forth. Use the existing rules through legislation to overcome any interpretation made by nine citizens.
I look forward to the new era that will dawn at noon on 20 January 2021. We all need to work together to move out from under the pandemic — to me a symbol of all that is wrong with the current administration. When we defeat the virus through national cooperation and neighbor helping neighbor, let’s keep that spirit and apply it to our political discourse.
“When people show you who they are, believe them the first time.”
— Maya Angelou
Following Tuesday’s national embarrassment, a disgusting display of attempted bullying, there is a lot to think about. Probably, Donald J. Trump acted the role of the out of control drunk at the end of the bar because he knew he could not win a debate. He does not have control of the facts, has barely put together a complete sentence in his entire term, and knows that former Vice President Joe Biden has plenty of experience in such a format. Mr. Trump was probably not concerned about criticism for telling more lies — he has already accumulated over 20,000 documented lies since his inauguration — but he was concerned about losing. The answer was to blow it all up, burn the place down, and attempt to look “strong” in an attempt to make Mr. Biden look weak. He failed in every respect and in the process broke the rules of democracy and decorum and deprived the American public of the chance to assess both candidates, their policies, and their fitness for the job.
With all of the outrageous statements and shenanigans, two stand out above all and should alert every one of us to the clear and present danger to our country that exists in the persona of Mr. Trump. We need to look no further than his two statements near the end of the debate. When given the opportunity to clearly and forcefully condemn the antics, tactics and goals of white supremacists, he demurred. (“The Proud Boys: stand back and stand by.”) Indeed by all accounts by those that follow such things, the white supremacist groups took his answer as a call to arms. (Several incorporated the words into their new logos and one leader tweeted out “Standing by sir!”) Even on Wednesday as Mr. Trump claimed he did not know, then or now (really? c’mon man!), who the Proud Boys were, he still passed up the opportunity to publicly condemn white supremacists.
The second issue was his continued declarations that if he lost the election it was only because it was rigged against him. In other words, he will accept no other result than his own victory and explicitly said that he didn’t know if he would allow for a peaceful transition of power should he lose. Tuesday night he said that he is “urging his supporters to go into the polls and watch very carefully.” If Mr. Trump sees “thousands of ballots being manipulated, I can’t go along with that.” When asked about what he meant by that he said “it means you have a fraudulent election.” When asked specifically if he would warn his supporters against “civil unrest” and tell them to keep calm if the vote counting goes on longer than Election Day, he refused.
So let’s put this all together and then see what he, and unfortunately Attorney General William Barr have been saying over the last few weeks.
First, on Tuesday night Mr. Trump gave a green light to white supremacists and other supporters to use violence if the election goes for Mr. Biden. Additionally, he told his supporters to engage in voter intimidation by going to polling places to keep people from voting or to claim voter fraud if they are not allowed into the polls (in most states poll watchers have to be certified and there are rules about their behavior).
Please do not say that Mr. Trump did not really mean what he said or that his words are being overly exaggerated. He knew exactly what he was doing. More importantly, the folks on the receiving end of his message know what he meant and will act on it, regardless of what “he meant to say.” He encourages vigilantes and is a major league fearmonger. There are people that believe him. So get real. The threat to a fair and open election is staring us in the face.
As I have written in this space before, autocrats tell you exactly what they are going to try and do before they do it. Mr. Trump is no exception.
Here is the playbook as I see it.
Mr. Trump’s goal is to make things look so bad that he can claim, as he already has, that he alone can fix it. As the pandemic continues to spread, the economy is ready to take another hit (today alone 35,000 airline employees are set to be laid off), schools are mostly still remote, demonstrations continue across the land, and golly, no one can even rely on the Postal Service anymore. All of this and more creates a sense of crisis.
In a crisis, people want action. By demonstrating that he is not afraid to break the rules — be it holding a political convention on the White House lawn or not abiding by debate rules — he is attempting to demonstrate that he is willing to do anything. Anything. Rules, norms, laws do not apply in a crisis and he is not afraid to throw all of them out the window to achieve “results.” Without a bit of shame as to the illogical nature of his argument, he now tends to claim that things are so bad now (remember, he has been the president for the last four years and precipitated many of these crises himself), he needs a second term to restore order. He argues that Democrats are the real problem and that they want anarchy. “Law and Order” is required to bring back the America you love (read: white male Christian dominated society). Contempt for the law is part of the message. It is necessary to get things done. Straight textbook Autocracy 101.
He knows he is losing, so now he needs to bring it all home by suppressing the vote for Mr. Biden, and claiming that the election was a fraud.
In recent weeks he has railed against any and all mail-in ballots as being rigged. He continually claims that all vote counting must stop on Election Night. The Attorney General went on CNN and claimed that foreign entities were going to counterfeit absentee ballots and other cheaters were going to pay people for their votes, buy up blocks of blank ballots and fill in Mr. Biden’s name. Indeed he even implied that postal workers might do that.
And on and on. The point? They are trying to lay the ground work for a legal challenge to the election results when Mr. Trump loses. I suspect that they will have people try to forge ballots and pay for ballots and send in lots of crudely duplicated ballots in order to prove their point. They are telling us what they are going to do. Add to that some nut cases or groups of nut cases (I’m looking at you white supremacists) that hear that a county election office threw out some ballots (does not have to actually happen, just put it out over social media and they will come) and they storm the building to confiscate the “illegal” ballots.
The number of scenarios are vast. We already know that Mr. Trump and Mr. Barr have no bottom for shameful and immoral behavior. The only goal is to retain power. Mr. Trump cannot stand the thought of losing — especially since he may end up going to jail in the not too distant future. Mr. Barr is on some bizarre crusade to shape American society in the way that he thinks it should function and Mr. Trump is his blunt instrument to achieve his ends.
All of it sets up the conditions for a legal (yes legal) attempt to steal the election. I am not a Constitutional law expert and I am not an attorney. My understanding is it can work as follows:
- Claim that the results in certain swing states (enough to give Mr. Trump a win) are suspect because of all the “illegal” ballots that were submitted by mail and because of improprieties at voting places. Remember that Mr. Trump and Mr. Barr have already encouraged voters in North Carolina and Pennsylvania to vote twice. Those two men know that is illegal, but if enough people try it, it really gums up the works and they can also claim that legitimate voters were turned away at the polls.
- Go to the courts to invalidate the election results in enough precincts to change the state’s electoral outcome. If that doesn’t work, go to state legislatures and claim that the Electors voted into the Electoral College from that state were illegitimately determined. Under the law, state legislatures determine the Electors and certify their validity to the Congress. Many states have laws that the legislature must certify Electors as voted on by the people, but not all. Additionally, the laws are often vague and some experts believe that the courts could decide in favor of legislatures over those voted on by the people. Reports from Pennsylvania already reveal that members of the Trump Campaign have talked to the leaders of the the Republican controlled legislature to do just that.
- If the courts do not rule as to which slates of Electors are the legitimate ones, or the states decide to send the competing slates to the Congress, the Electors seated in the College are determined by a vote in the Congress. The House and the Senate both vote. Although new Representatives and Senators will be seated by then, Vice President Pence will still be the tie breaker in the Senate.
- Should the House and the Senate vote to seat different slates of Electors, then the vote goes back to the House, but with different rules. In this vote, each state votes as a block. One state, one vote. Thus South Dakota has as much power to decide the president as does New York. Even though the Democrats have a large majority in the House, when decided on a state by state basis, currently 26 have Republican majorities (or only one Representative from that state) and 22 have Democrats. The other two are split.
- Meanwhile a parallel effort will go in in the courts. If it makes it to the Supreme Court the result could go either way. However, Mr. Trump specifically mentions Supreme Court nominee Amy Coney Barrett as the ninth justice he “needs” in order to “win” in the Court. In her pre-hearing submission to the Senate answering a host of questions, she indicated that she would not recuse herself from any 2020 election cases that may come to the court.
Many people compare all of this to the 2000 election and the “hanging chads” in Florida. Historically, it is closer to the election of 1876 where Democrat Samuel Tilden won the popular vote and came up one Electoral College vote shy of winning that over Republican Rutherford Hayes. The electoral slates of three Southern states were in dispute and the decision came to the Congress. After deliberation and the formation of a bipartisan commission comprised of Representatives and Senators, and the departure of the lone tie-breaking independent on the commission, replaced by a Republican, the disputed Electoral College votes were awarded to Mr. Hayes to give him a one vote Electoral College win. In exchange for giving up their candidate, the Democrats secured the end of Reconstruction in the South. It was a shameful and dirty chapter in the history of our country.
I am concerned that we may face another Constitutional crisis in this election. Barring an overwhelming landslide in favor of Mr. Biden, I think that we may be in for a long final three months of the year full of unrest and probable violence.
Mr. Trump makes it abundantly clear that he has no qualms about ignoring the Constitution and bringing the full weight of the Federal Government to preserve his power. One pundit likened it to the old saying that “if I’m going down I’m taking all of you with me.” In his Attorney General he has an accomplice that will help him bend the law if not outright ignore it in the name of allegedly preserving the safety and security of our city streets.
Meanwhile we have a Republican Senate that has lost its backbone, its allegiance to the Constitution and its voice. The president might Tweet about me!
We must all vote. We must all be vigilant. We must all be vociferous in our opposition to such a blatant attack on our Constitution.
I take solace in the fact that there are still good upstanding Americans in our midst. For the scenario to unfold as I’ve sketched it here, an awful lot of people would have to go along with what is clearly a power grab by a budding autocrat and his cronies. I have faith that enough people along the way will stand up to the bully and refuse to compromise or cooperate.
God Bless America.