“So, I’m here on behalf of the Trump campaign,” Rudy Giuliani announced, “as an attorney for the president, to describe to you the first part of a situation that is extremely troubling.” Hours earlier his client, the president of the United States, was in the White House tweeting “I WON THIS ELECTION, BY A LOT!” Now the president’s representatives were hastily assembled in a parking lot nestled among a crematorium and a sex shop, making the president’s constitutional case against America’s election results. “And these lawsuits will be brought starting on Monday,” Giuliani said—that is, two days after Joe Biden was recognized as the winner of this election.
Four years ago, the second day after Donald Trump’s own electoral victory, we witnessed a very different scene. President Obama welcomed President-elect Trump to the White House, to move the country from election to transition. President Trump had spent a year campaigning against the Obama administration, and years before that spreading a racist conspiracy theory about President Obama’s American citizenship. And President Trump’s solicitous attitude toward foreign political interference, combined with his eccentric advisers’ outreach to Russia and WikiLeaks, had set off alarms in the Obama administration. Yet President Obama welcomed his victorious political nemesis to the White House for a 90-minute conversation to help prepare him for the awesome responsibilities of the office he would soon assume.
“My number one priority in the coming two months is to try to facilitate a transition that ensures our president-elect is successful,” President Obama told reporters in a joint appearance in the Oval Office. “I believe that it is important for all of us, regardless of party and regardless of political preferences, to now come together, work together, to deal with the many challenges that we face.”
And President-elect Trump, to his credit, treated the moment with an equal measure of gravity and generosity:
Well, thank you very much, President Obama. This was a meeting that was going to last for maybe 10 or 15 minutes, and we were just going to get to know each other. We had never met each other. I have great respect. The meeting lasted for almost an hour and a half. And it could have—as far as I’m concerned, it could have gone on for a lot longer. . . .
So, Mr. President, it was a great honor being with you, and I look forward to being with you many, many more times in the future.
Needless to say, it seems unlikely that we will witness such a statesmanlike scene any time soon. Rather, President Trump is geared up to delay the peaceful and orderly transition of presidential power, with one of his favorite tactics: messy litigation.
“Beginning Monday, our campaign will start prosecuting our case in court,” he announced, reiterating the campaign’s shadowy and yet-unsubstantiated allegations about wrongdoings. In his business career, Donald Trump often wielded threats of litigation to fend off the creditors for his bankrupt business ventures and the adversaries in his sordid personal life. Now he seems ready to do the same to cling to his presidency.
President Trump is counting on his supporters to not understand the difference between those two situations—between a businessman launching dubious legal and factual allegations in a last-ditch effort to delay bankruptcy, and a president launching dubious legal and factual allegations in a last-ditch effort to delay the peaceful transition of presidential power. But the country that elected him, and which then elected his successor, must keep that difference firmly in mind.
It remains to be seen what specific arguments President Trump will actually make not just on Twitter and in landscape-company parking lots, but in court. Still, he and his lawyers have already given us some indications.
In his Saturday press conference outside Four Seasons Total Landscaping, Rudy Giuliani focused on allegations that Republicans were denied their legal right under Pennsylvania law to observe the counting of mail-in ballots:
What I’m saying to you is, not a single one was inspected as the law required. Even when a court order was obtained to allow the Republican inspectors to get six feet closer, they moved the people counting the ballots six further feet away. . . . There’s got to be a pattern. As a friend of mine says, I don’t believe in conspiracies, but I also don’t believe in coincidences.
Giuliani brought two election observers who complained that they were kept fifteen or twenty feet away from the ballots, instead of the six feet required by federal law. This was already the subject of litigation: On Thursday morning a Philadelphia judge ordered that “all candidates, watchers, or candidate representatives be permitted to be present for the canvassing process” and “be permitted to observe all aspects of the canvassing process within 6 feet, while adhering to all COVID-19 protocols, including, wearing masks and maintaining social distancing.” Later that day a federal judge rejected the campaign’s effort to stop counting votes in Philadelphia.
The basic problem with this line of attack, as multiple judges have pointed out in several of the Trump campaign’s cases, is that President Trump and his lawyers simply haven’t produced actual evidence that the election results are fraudulent. “Come on now,” a Michigan judge said in response to the campaign’s unsubstantiated allegations. That judge, assessing the weak evidence mustered by the Trump team, ruled that it was “inadmissible hearsay within hearsay.”
The president’s second major argument has more legal substance. It focuses on the U.S. Constitution’s provision for the states’ role in the Electoral College: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . .” The Trump campaign argues that Pennsylvania violated this provision when the state’s supreme court, rather than the legislature, modified the deadline for receipt of mail-in ballots.
Some background: The Pennsylvania legislature had enacted a statute requiring mail-in ballots to be received no later than 8:00 p.m. on election night. But in September, the state supreme court granted Democratic officials’ and candidates’ request to delay that deadline by three days. Citing concerns raised by Pennsylvania’s chaotic elections in June, and an announcement by the U.S. Postal Service’s general counsel that “certain deadlines for requesting and casting mail-in ballots are incongruous with the Postal Service’s delivery standards,” the court concluded that strict enforcement of the Pennsylvania statute would violate the clause in Pennsylvania constitution guaranteeing “free and equal” elections. As the court explained, quoting a 2018 precedent, that clause is taken to require that “all aspects of the electoral process, to the greatest degree possible, be kept open and unrestricted to the voters of our Commonwealth, and, also, conducted in a manner which guarantees, to the greatest degree possible, a voter’s right to equal participation in the electoral process for the selection of his or her representatives in government”—though, the court added, this constitutional right is subject to “substantial,” “reasonable” regulations. And so the court extended the mail-in ballot deadline not by the seven days that Democrats had requested, but by three.
The Pennsylvania Supreme Court, like any state supreme court, has power to interpret the state’s own constitution and statutes, and the federal courts will not intervene in a dispute over the meaning of state law. But the federal courts do have a responsibility to enforce the U.S. Constitution. And, as mentioned above, the Pennsylvania court’s decision raises an interesting question: The U.S. Constitution requires that electors be chosen “in such Manner as the Legislature thereof may direct,” but are Pennsylvania electors effectively being chosen in a manner directed by the state court?
Two weeks before the election, the U.S. Supreme Court declined (by a 4-4 vote) to block the Pennsylvania court’s decision; a week before the election, the justices issued an order declining to expedite Supreme Court review of the constitutional case. No justices dissented from that decision, but Justice Alito (with Justices Thomas and Gorsuch) observed that this is an “important constitutional issue,” and he added that “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution.” Then, three days after the election, Justice Alito granted a motion to require election officials to segregate mail-in ballots received after the statutory election-night deadline, to ensure that they could be subtracted from final vote totals if someday the federal courts declare the Pennsylvania court’s decision unconstitutional. (Justice Alito was the one to decide that motion because he is the justice responsible for initially handling motions arising from litigation in the Third Circuit, which includes Pennsylvania.)
The president’s lawyers’ reading of the Constitution—giving state legislatures, not courts, complete authority over the selection of electors—is not unreasonable, at least not at first glance. Yet the implications of such a reading are enormous: It would mean that each state legislature’s decisions regarding the Electoral College are categorically immune to any restraints from the state constitutions that create and limit those legislatures, and that state judges are stripped of all their ordinary powers with respect to enforcement of the laws of the state.
Nothing in the records of the 1787 Constitutional Convention (held, ironically, in Philadelphia) suggests any intent to so radically displace state constitutions or state courts. And the genuinely radical implications of this argument can be illustrated with a hypothetical example:
Imagine that in the weeks running up to the election, Democratic activists went through predominantly Republican neighborhoods in Philadelphia, plucking mail-in ballots from mailboxes. They could not know for certain whether the votes were for Trump or Biden, but they had good reason to guess that these were Trump votes. After intercepting thousands of ballots, they held on to them until after the state’s 8:00 pm election night deadline, at which point they brought their truckloads to the election officials, saying, “we took these ballots, and we’re probably going to jail for it, but you are prohibited by state law from counting these ballots.”
In such a case, would anyone seriously argue that the state constitution’s guarantee of “free and equal” elections would be irrelevant, and that state judges and state election officials would have no power to ensure that voters’ ballots were counted? Of course not. Yet that is the upshot of Republicans’ argument: that the U.S. Constitution’s grant of power to state legislatures for appointing electors implicitly nullifies the state constitutions’ overarching limits on those legislatures—indeed, those legislatures derive their very existence from the state constitutions under which those legislators serve.
Perhaps the U.S. Constitution’s text does require such a counterintuitive outcome; perhaps full briefing of the case could convince the justices, and the country, of the argument’s merits. But the argument seems a long shot, to say the least—especially when the U.S. Supreme Court decided, just five years ago, that the Constitution’s use of the term “legislature” in another provision involving elections should be read more capaciously against the backdrop of state constitutional provisions regarding the writing of state laws. None of the Court’s current conservatives agreed with that decision, but would Chief Justice Roberts or others be quick to jettison the recent precedent in this case?
And as with President Trump’s first argument, this line of argument raises a basic question of fact—or, more precisely, the lack of facts. There is no evidence that the number of mail-in ballots received in the three days after election night would actually suffice to negate President-elect Biden’s ever-growing lead in Pennsylvania.
So Donald Trump finds himself with longshot arguments lacking any serious evidentiary support. Surely there will turn out to be scattered, single examples of impropriety and incompetence in the counting the 150 million presidential votes cast nationwide; but there is unlikely to be anything that can plausibly challenge Biden’s margins of victory.
If Donald Trump were simply a private citizen fending off creditors, then longshot litigation would be a sensible gambit; he could win, or at least extract a better settlement. Like the lottery, you can’t win if you don’t play. And if nothing else, pain delayed is pain denied.
But Donald Trump is not just a private citizen. He is, for at least the next three months, the president of the United States. He does not have the luxury of floating dubious lawsuits—he has the constitutional duty to “take Care that the Laws be faithfully executed.” At his inauguration, with a hand on the Bible, he swore an oath to “faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
“So help me God,” Trump concluded. So help us all. There are moments when a president’s obligations go beyond self-interest to the public interest. We think of those obligations on a presidency’s first day, when our government’s newly inaugurated executive swears his oath on the steps of the Capitol. But the president’s obligations are perhaps never more important than in the presidency’s last days, when he prepares to transfer the office—willingly or unwillingly—to his successor.
The presidency is not the president’s. Our first president knew this, and he emphasized it in his Farewell Address. By its “election of a Citizen, to administer the executive government,” he began, our nation is “designating the person, who is to be cloathed with” an “important trust.” And “in the discharge of this trust,” he added, “I will only say, that I have with good intentions, contributed towards the organization and administration of the government, the best exertions of which a very fallible judgment was capable.”
How lucky we are that George Washington took care to visibly exemplify statesmanship in leaving office, because our constitutional republic simply could not have survived the alternative course of history.
It is easy to forget this fact, especially in an era when presidents are constitutionally limited to two terms, and more often than not presidents get to serve both of them. But our original Constitution imposed no such limits, leaving each president to pursue re-election while clothed with the office’s immense powers, and even to continue to wield those powers for months after his rejection by the people. The Framers knew that this arrangement (like all of our constitutional institutions) could be put to both virtuous and vicious ends; they put their trust in statesmanship, institutions, and the American people themselves.
Those are the stakes now. We surely know how Donald Trump will approach the months ahead. He will treat the White House like an Atlantic City casino, throwing trial lawyers at his adversaries as much as possible, as long as possible, before declaring bankruptcy (perhaps even in the form of pardons) and flying home to Mar-a-Lago.
The longer that President Trump uses dubious litigation to obstruct an orderly transition, the more our country will suffer from the challenges exacerbated by a disorderly one: COVID-19 of course, but also threats and instability abroad, discord at home, and everything else that could come to mark the “dangerous interregnum” that Jeremi Suri and Jeffrey Tulis warn of.
Conservatives and Republicans might find it easy to downplay the costs of Trump’s litigation strategy, as if using longshot litigation to delay an orderly presidential transition—the kind of transition that Barack Obama afforded Donald Trump—entailed no costs other than legal fees.
But conservatives who respect the Constitution, and Republicans who honor the ideal for which our party was named, must not ignore the true costs of Donald Trump’s profoundly anti-constitutional, anti-republican gambit.