How exactly might the US surrive the 2016 election?

Sandy Levinson

Jack's post on Donald Trump as a one-man constitutional crisis (II) is extremely important.  Among other things, it captures the reality there is no conceivable way that the loser of this election will be willing to offer a gracious concession that calls on the country to rally around the winner.  As Jack notes, Trump is already announcing, though his thuggish Roger Stone, that he's willing to trigger rioting in the streets and to declare the election "rigged."  Should Trump pull it out, I would certainly not want Clinton to offer a gracious concession--to a narcissistic sociopath.  The interesting question (though that considerably understates the point) is what besides rioting in the streets might be considered.  And here, it's worth picking up on some of Jack's tantalizing suggestions in his first posting on the potential forthcoming constititutional crisis:

A.  The revival of the electoral college.  How would this work?  Two potential options:

1.  Trump scores his "victory" because of what is indeed a "rigged election," i.e., voter suppression in Ohio (though, frankly, I am counting on John Kasich to do whatever he can to make sure that Trump loses decisively in Ohio--in spite of the terrible election laws passed by the Republican legislature and enforced by the Republican Secretary of State--, North Carolina, or Wisconsin (in spite of whatever the federal circuit courts are doing to defang at least the worst of the voter suppression laws passed by Republican state legislatures).  He certainly is unlikely to have a majority of the popular vote (because of Gary Johnson), and may not even have a plurality.  So, assuming Clinton actually comes in first, and the vote rigging is sufficiently blatant, there will be great pressure for enough Republican electors to vote for Clinton so that she gets a majority of the electoral vote.  Result:  A Clinton presidency and rioting in the streets by devotees of the would-be Mussolini Donald Trump.

2.  Enough Republican electors vote for someone else (other than Clinton) so that no one has a majority and the election is thrown into the House of Representatives, which will choose the president, on a indefensible one-state/one-vote basis, from the top three electoral vote getters.  So we might call this the Mitt Romney (or Paul Ryan) option, where, if the House in fact has 26 states with majority Republican delegations, at least some (think of Utah or Idaho) will vote for the person who came in third. As happened in 1801, one can imagine a number of ballots before some kind of grand deal would be made so that Democrats would agree to a Ryan or Romney presidency. Result, rioting in the streets by devotees of both Donald Trump and Hillary Clinton.

3.  The House is hopelessly deadlocked.  In that case, the president on January 20 is the person selected as vice president by the Senate, which picks only between the top two (so there can be no deadlock).  If the Democrats have regained the Senate (or even if it's a tie), Tim Kaine would presumably be selected.  If the Republicans retain control, presumably it would be Mike Pence.
 Result: ?  A wild care is that the Vice president/president might have to agree in advance to pick as his own vice president, under the 25th Amendment, someone who has widescale public support, across parties and, who knows, immediately resign and let that political paragon become president.  I have no idea who that might be and who exactly would be doing the rioting..

B.  The 25th Amendment wild care.  For those of you who haven't read the Amendment recently, the operative provision is Section 4:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Readers will of course note that the Amendment provides no guidance whatsoever about the operative meaning of "unable to discharge the powers and duties of his office."  At the very least, one might imagine that the belief that the President is a dangerous narcissistic sociopath who is fully capable of unleashing all sorts of dogs of war might count.  In any event, imagine that on the afternoon of January 20, the Vice President (by stipulation Mike Spence) meets with congressional leaders, since there are literally no confirmed "principal officers of the executive departments," unless Obama's officials refuse to resign.  I am unaware, incidentally, that Congress has in fact passed any implementing legislation to provide for the possibility of decisionmakers other than the cabinet, (That is par for the course, alas.  Congress has made no attempt whatsoever to provide for genuine "continuity in government" should a terrorist attack decimate the House and/or Senate, even though a joint commission organized by the American Enterprise Institute and the Brookings Institution over a decade ago suggested possible solutions.)  In any event, Congress agrees that the President is unable to discharge the duties of office.  Result:  No Donald Trump presidency, but, of course, one might imagine that he would in fact disagree with this invocation of the Amendment, as the Amendment authorizes him to do.  So then what?  Does he take it to Court?  Is Section 4 justiciable, and on what basis?  Or would he simply call, as under earlier scenarios, for rioting in the streets to protest what could easily be described as a coup?  The one thing, incidentally, that we can be assured of is that is that a President Trump will not successfully be able to call upon the military, since this option would save them from having to consider the merits of a coup to save us from a Trump presidency.

Quite obviously, none of these options is remotely attractive, though they present interesting classroom hypotheticals.  But the only way to assure they remain hypothetical is to decisively defeat the sociopathic narcissist.  It might also be useful, of course, given that we are now aware that a sociopathic narcissist could conceivably be elected president, that we actually reflect on whether our 18th century constitution, even as amended in 1965 with the 26th Amendment, is adequate to the occasion. 

(Note, incidentally, that I'm avoiding the secessionist scenarios that I've also played with earlier, inasmuch as most lawyers, rightly or wrongly, would view secession as simply not a legal possibility.  But the electoral college and 25th Amendment options do not require one to behave illegally.  The electoral college scenarios don't even require much by way of creative lawyering.  The 25th Amendment scenario is different.  In any event, we have to be prepared for the possibility that the election will not be truly over on November 10, even if the networks have called a "winner."  One is not a "winner" unless those who "lose" recognize the validity of the result (or, of course, unless there is some institution or group that can simply crush those who challenge the status of the "winner").  But, assuming Clinton wins, how will this occur unless Republicans right now, even if they don't "endorse" her, begin denouncing all of the "lock-her-up" chants and other suggestions that she would simply not be an acceptable President.  If one truly believes that, then one ought to do "whatever it takes" to prevent her from occupying that office, whatever the votes might say, in the same way that I hope that we will explore and act on whatever it will take to make sure that Donald Trump never for even one day actually enjoys all of the powers we place in the hands of our presidents.  . 
 
Posted 3:55 PM by Sandy Levinson [link]