America’s constitutional crisis

Some people are saying that Trump’s contestation of election results is just a way to soothe the pain of defeat and raise money for campaign debts, but the statements of high-ranking Republicans show that analysis to be unduly complacent.

Specifically, I mean secretary of state Mike Pompeo promising: “There will be a smooth transition to a second Trump administration” and senate majority leader Mitch McConnell saying Trump is “100% within his rights” to challenge the election.

Trump appointees are hampering the transition process for the Biden administration, likely with the intent to sap their ability to get anything done in the first 100 days which are considered so crucial to any presidency’s ability to implement an agenda. Meanwhile, US COVID-19 numbers are exploding and raising the spectre that, just as much of the promise of reform under Obama was undermined by the need to resolve the Bush-era 2008 financial crisis, Biden will inherit an out-of-control pandemic and a population half-primed to see medical precautions as oppression.

I think it’s already clear that America has been permanently weakened by the Trump administration, both domestically through their erosion of governance norms and self-dealing and internationally through cynical, short-sighted, and transactional diplomacy. That damage has already been badly worsened by threatening the peaceful transfer of power, and may be still more if a Biden administration gets constantly stymied by a hostile Republican senate. America’s strength depends on the norm that the party that gets defeated in elections accepts the legitimacy of the winners. If the country shifts to a pattern where every change of party is rejected by the other as crooked and illegitimate, the foundation of America as one polity will be undermined and fractured.

The nightmare possibility remains that Trump will exhort his supporters to violence during or at the end of the transition period, or that after they turn to violence based on the encouragement so far Trump will support them. The risk of America’s election ending in mass violence persists.

24 thoughts on “America’s constitutional crisis”

  1. How Trump’s transition of power delay threatens national security and public safety

    Trump shows transition will be as turbulent as his presidency

    The newly reelected Kentucky senator is as always plotting several moves ahead in his political power game. While the nation’s interests might dictate a smooth transition, McConnell’s Republicans have no incentive to cross Trump’s fervent supporters. A likely pair of Georgia runoff elections is looming in January that will decide control of the Senate. And looking forward, there remains no option for Republicans, as they contemplate a tough slate of seats to defend in the 2022 midterm elections, but to rely on Trump’s base.
    Still, there is also a sense that Republicans are going out of their way to give the President time to accept reality — just the latest occasion when his ego has dictated the course of governance over the last four years.

    Trump agency tasked with transition process has yet to recognize Biden’s victory

    The Trumpian refusal to accept election defeat is un-American

    Trump team needs to accept reality so transition can work

  2. Why, for example, has Trump fired the civilian leadership of the defence department, including the defence secretary, Mark Esper, filling their posts and others in intelligence with ultra-loyalists? Esper stood up to Trump over the summer, when the president wanted to deploy the military to crush peaceful protests. Does Trump have something similar in mind, a move that would require a yes man to nod it through? Is it possible that Pompeo was not, after all, joking?

    For now, I can accept that a full, tanks-in-the-streets coup is not on the cards. One Capitol Hill Republican tells me he suspects Trump sacked Esper mainly to “make him feel better”, and “to get even with the people who thwarted him”, rather than because he wants a Pentagon boss who will agree to send in the troops. Equally possible, says my source, is that Trump plans to go out with a bang, and wants pliant people in post. What kind of bang? Some talk of a total withdrawal from Afghanistan. Conversely, there’s chatter about a possible attack on Iran.

  3. There is a long-shot legal theory, floated by Republicans before the election, that Republican-friendly legislatures in places such as Michigan, Wisconsin and Pennsylvania could ignore the popular vote in their states and appoint their own electors. Federal law allows legislatures to do this if states have “failed to make a choice” by the day the electoral college meets. But there is no evidence of systemic fraud of wrongdoing in any state and Biden’s commanding margins in these places make it clear that the states have in fact made a choice.

    “If the country continues to follow the rule of law, I see no plausible constitutional path forward for Trump to remain as president barring new evidence of some massive failure of the election system in multiple states,” Richard Hasen, a law professor at the University of California, Irvine, who specializes in elections, wrote in an email. “It would be a naked, antidemocratic power grab to try to use state legislatures to get around the voters’ choice and I don’t expect it to happen.”

    For lawmakers in a single state to choose to override the clear will of its voters this way would be extraordinary and probably cause a huge outcry. For Trump to win the electoral college, several states would have to take this extraordinary step, a move that would cause extreme backlash and a real crisis of democracy throughout the country.

  4. Will Trump Burn the Evidence?

    How the President could endanger the official records of one of the most consequential periods in American history.

    Hardly a day passes that Trump does not attempt to suppress evidence, as if all the world were in violation of an N.D.A. never to speak ill of him. He has sought to discredit publications and broadcasts that question him, investigations that expose him, crowds that protest him, polls that fail to favor him, and, down to the bitter end, ballots cast against him. None of this bodes well for the historical record and for the scheduled transfer of materials from the White House to the National Archives, on January 20, 2021. That morning, even as President-elect Joseph R. Biden, Jr., is ascending the steps of the Capitol, staffers from the archives will presumably be in the White House, unlocking doors, opening desks, packing boxes, and removing hard drives. What might be missing, that day, from file drawers and computer servers at 1600 Pennsylvania Avenue is difficult to say. But records that were never kept, were later destroyed, or are being destroyed right now chronicle the day-to-day doings of one of the most consequential Presidencies in American history and might well include evidence of crimes, violations of the Constitution, and human-rights abuses. It took a very long time to establish rules governing the fate of Presidential records. Trump does not mind breaking rules and, in the course of a long life, has regularly done so with impunity. The Presidential Records Act isn’t easily enforceable. The Trump Presidency nearly destroyed the United States. Will what went on in the darker corners of his White House ever be known?

  5. “The nightmare scenario for markets,” according to Cembalest, would be if Senate Republicans declare the ECA unconstitutional, flip three states in Trump’s favor to give him the required 270 electoral votes and Democrats refuse to participate.
    “All of which sets up the prospect of dueling inaugurations,” Cembalest wrote, noting that this outcome was only “narrowly averted” in 1876.

  6. This leaves open the possibility that he will issue pardons in secret to those whose pardons either he or the recipients do not want in the public record. A secret pardon would enable them or others to keep clemency in their back pocket in case of some future “witch hunt,” to quote Trump, while at the same time avoiding the uproar that would undoubtedly come with a public pardon announcement.

  7. House Republicans rush to Trump’s defense over Georgia call as Democrats prep censure resolution – CNNPolitics

    Top national security officials are now worried Trump could try to use the military to stay in power.

    Media should call GOP election fight an attempted coup, historian says – CNN

    All 10 living former defense secretaries declare election is over in forceful public letter – CNNPolitics

    Trump may launch ‘reckless’ attack on Iran, experts fear | Donald Trump News | Al Jazeera

  8. Already we are hearing that these last frantic actions are too Trumpy to carry sober legal penalties or consequences; as Michelle Goldberg observes, there is almost no appetite to prosecute Trump for anything in part because it is virtually impossible to prove that he has sufficient understanding of fact or law to establish he was doing something unlawful. (Goldberg calls this “the psychopath’s advantage”; I have come to think of it as a blanket preemptive and collective insanity defense.)

  9. The real bombshell it contains is not the confidence of the spy agencies that Russia hoped to subvert American democracy. It is that US intelligence experts effectively confirmed that for the second election in a row, Trump acolytes repeatedly used, knowingly or otherwise, misinformation produced by the spies of one of America’s most sworn foreign adversaries to try to win a US election.
    And given the advantage of hindsight, the latest intelligence assessment is not just an isolated example of incriminating evidence against Russia and its efforts to create chaos and discord within the United States

  10. What will the institutions of liberal democracy do when Republican officials simply refuse to concede Democratic victories? The question isn’t as far-fetched as it may seem, and the reckoning may be coming far sooner than most expect.

    The entire left-leaning political world has spent the months after the 2020 election obsessed over the fairness of elections, and conservative attempts to rig the vote through gerrymandering and voter suppression. This is for good reason, of course: Republicans know they lack the support to win majority support in a fair contest, but believe they have the right to rule nonetheless for reasons that ultimately boil down to white supremacy, religious dominionism and antiquated patriarchal beliefs. So Republicans have been busy passing bills to restrict voting among young people and non-whites, while doing their best to ensure that exurban conservative whites continue to be dramatically and unfairly overrepresented in the House, Senate and Electoral College.

    But there’s another even more sinister trend among conservative politicians that deserves greater attention: an unwillingness to concede any electoral victory by a Democrat as legitimate, and an eagerness to punish any Republican elected official who concedes the will of the voters. The Big Lie that Trump really won the election is now canon among a majority of Republican voters. Any Republicans who refuses to toe the line is branded a heretic, and elections officials who dared to certify Biden’s win are being censured or stripped of their power. Arizona Republicans have sponsored a bogus “audit” of the election full of crackpot conspiracy theories, and Republican legislatures have been busy taking control of both running and certifying elections out of the hands of county official in Democratic-run cities and counties. The context of the January 6th insurrection at the Capitol was the attempt by Congressional Republicans to refuse to certify the Electoral College tally, in the hopes of sending the election back to gerrymandered Republican state legislatures, thus handing Trump a win as part of a anti-democratic coup. It was a physical coup attempt designed to intimidate Congress into enforcing a legislative coup. Republicans who refused to back the latter are facing steep primary challenges.

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