Wednesday, August 03, 2016

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.  . 


I think Trump is a ridiculous buffoon, but I think comparisons to Mussolini are hyperbolic. It's not as if his supporters are roaming the streets in groups beating up protesters, tying them to chairs and pouring castor oil down their throats. There's been some violence around Trump rallies, but the anti-Trump protesters have probably done more of that kind of thing than pro-Trump people.

A more apt comparison is Berlusconi.

This business of the 25th Amendment sounds rather fantastical (as does the rest of the post), and I don't believe you're interpreting it correctly. The 25th Amendment says that a Vice President and a majority of the principal officers of the executive departments, i.e. the Cabinet, must declare the President incapacitated. If there are no principal officers of the executive departments at the time, because none have been confirmed yet, I don't see how a majority of them have declared anything. You may say that a majority of zero is zero, and that it would be the case in such circumstances that zero Cabinet members had declared Trump's incapacity, and thus that a majority of Cabinet members had declared his incapacity. But that's rather like saying that a majority of dinosaurs eat grapefruit (which may present some nice questions of formal logic, but which most any ordinary English speaker would deem untrue), or that, if a nuclear bomb kills all members of Congress, a majority of Congress has voted for some subsequently proposed bill (bracketing quorum requirements). So, for that provision of the 25th Amendment to be used, you need at least some confirmed members of the Cabinet, and these members, improbably, must declare the incapacity of the very individual who just nominated them to serve in his Cabinet.

In any case, Trump's personality defects and, perhaps, disorders, while problematic, aren't clinical. He's hardly a sociopath or even uncommonly ruthless by the standards of people in his profession. I find it inconceivable that Vice President Pence, a majority of the Trump Cabinet, and ultimately two thirds of both houses of Congress would deem him incapacitated. Impeachment for some blatantly unconstitutional act seems much more plausible, as it wouldn't require the consent of a majority of the Trump White House.

As to the rest, I agree that were voter suppression in Ohio really blatant, i.e. on the order of something you see in Putin's Russia, there would be pressure on Ohio's electors (but only those electors) to vote for Hillary - though I believe the likely outcome of that would be litigation and a re-vote, not votes in the Electoral College premised on the assumption that Hillary would have won the state if not for the suppression. However, the degree of suppression that would be needed for Ohio's electors to defect would never actually occur in Ohio or anywhere else in the country. If you're talking about the sort of stuff that happened or was alleged to have happened in Ohio in 2004 - long lines, some errors in purged rolls, suspicions regarding electronic machines - no electors would react to that. I think you underestimate the degree to which Republicans' objection to Hillary - who is, after all, running on a very liberal platform, is, on the right, the most hated Democratic politician of her generation, and has a shot at filling enough vacancies to create the most liberal Court since the Warren era - dominate over their problems with Trump's personal qualities and deviations from Republican orthodoxy. A bunch of local Ohio Republican politicos - the Electoral College, as I assume you know, is after all comprised of slates of party-affiliated politicians, chosen by popular vote - aren't going to defect to Hillary absent the most extraordinary reasons.

Actually, you're demonstrating Jack's point: Not that Trump himself is going to stage a coup, but rather that so many people are deranged at the mere thought of his taking office, that THEY will react to his election in an unconstitutional manner. He's not the hurricane, he's the eye the hurricane revolves around.

Look at yourself: The mere prospect of somebody you don't like taking office has you gaming different ways to overturn the result of the election. You blame this on Trump?

No, look in a mirror. Seriously, look in a mirror.

Under scenario A, I would imagine that the electors voting for a non-Trump Republican for President would still vote for Pence for VP, so the Senate would not choose the VP. This would especially be the case if the Democrats were get to 50 or more Senate seats (admittedly unlikely with a Trump-wins election) - otherwise the Senate, with Joe Biden casting the tie-breaking vote if necessary, would pick Kaine for VP. That would give the Republican House delegations plenty of incentive to get behind their non-Trump option to prevent Kaine from becoming President. With the Kaine as VP scenario, the Democratic delegations could threaten to support Trump for President if they can't get enough Republicans to support Clinton, and we could progress from there to an alternative to scenario B, where it's Kaine going to Congress to declare the President unable to discharge his duties.

I am not much familiar with Silvio Berlusconi except by reputation.

It just is unclear what will happen if Trump comes President, but his basic inability to handle the job is apparent. And, he has various very troubling characteristics that go beyond mere incompetence. The fear and disgust is well earned if comparisons to Mussolini or whatever exaggerated. I don't want to play a SIMS game to test it.

If Trump is elected by popular vote, the responsibility is on the electorate. All these scenarios are academically interesting, but little more. If Trump wins, there is doubtful to be any special electoral out though if it was very close (like in 2000), I'm not totally sure a few electors might not be faithless.

If no one received a majority of electoral votes, it would go to the House. Gary Johnson might be a compromise pick if it came to that, the House delegations controlled by Republicans. Don't think there will be much 'rioting in the streets.' We aren't there. I would counsel you to calm down.

Anyway, the concern now should be to have Hillary Clinton win. The polls and Trump's incompetence suggest this is more probable as not. There is a long time to go. That, not role playing scenarios should be our concern. Doing so will include promoting overall constitutional values all the same.

What Joe said.


The 25th Amendment and military coups?

You need to take a deep breath and calm down.


Joe: It just is unclear what will happen if Trump comes President, but his basic inability to handle the job is apparent.

We will have a replay of the past eight years.

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SPAM I AM! apparently continues to be enamored with the 8 years of Bush Cheney, or The Gilded Age, whichever came first as SPAM I AM! dwells in the past. Apparently SPAM I AM! has a short term memory loss of the Great Recession that Bush/Cheney dumped on President Obama.

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Before taking office, Obama had zero executive experience and almost no governing experience. Even as a legislator, Obama never assumed a leadership position or assembled a coalition to enact legislation. The inexperience showed over the past eight years.

Trump has a great deal of executive experience, but no governing experience. If the voters hire him in November, the Donald will have similar problems over the next four to eight years.

Clinton's problem is not her lack of governing experience, but rather a history of demonstrated governing incompetence. She is little more than Wall Street's paid representative.

Consider what George W's executive experience gave America, furthered with an MBA, culminating in the 2007-8 Great Recession. And 6 bankruptcies for Trump demonstrate good executive experience?

Consider William F. Buckley:

Joe, good link on Buckley's views on Trump, a short worthwhile read. I wonder if Trump responded to Buckley back then?

And, twelve years before that:

See, e.g.:

"Mr. Schwartz, guided here with some care one judges by Mr. Trump, has also a way of dressing up failures, misjudgments, and disasters in a more than slightly improbable way so that the reader, instead of ignoring them or accepting them as part of the game, has a mean pleasure in removing the disguise."

Joe, I enjoyed Galbraith's review of "The Art of the Deal" not because he was a progressive's progressive, but that he apparently influenced his sometimes debating protagonist the conservative Bill Buckley's views, bipartisan putdowns of the Donald.

I wonder if Schwartz responded to Galbraith or heeded Galbraith's method of silence in "response" to a bad review. But since Schwartz recently "confessed" with his OpEd in the NYTimes on his views of Trump in the process of writing the book, perhaps he might reveal how he reacted to Galbraith's review.

So, Joe, what else you got?

A personal story: Some years back, probably in the early 1970s in the course of furnishing a newly designed law suite, in additional to the standard office desk befitting a lawyer, I decided to also get a stand-up desk to use primarily for long-hand drafting of documents, such a desk being uncluttered compared to my standard desk. I went to Charles Webb in Cambridge to check out what his firm had to offer. He asked me why I wanted to add a standup desk and I told him why.. Webb made a standard size standup desk. He told me that Prof. Galbraith came to his shop interested in a standup desk but being close to 7 feet tall, the standard standup desk would not work for him and suggested a design change. And Webb accommodated Galbraith. I don't kow if that standup desk is still around; I've never seen it. Maybe Galbraith wrote his review of Trump's book on that standup desk. In any event, I now have my standup desk at home and would you believe it, it became cluttered in my semi-retirement. Webb's firm eventually went out of business. But I think of Webb everyday in my kitchen eating meals at his pre-Charlie Rose round table that's going much stronger than I am after all these years. And I often think of the soft spoken Galbraith slaying conservative dragons.

"Everything was arranged around a massive writing desk, meticulously neat, yet laden with mementos from the Democratic presidents whom he had served."

"Moguls, Monsters, and Madmen: An Uncensored Life in Show Business"

Not sure if its the same one; reference to meeting Galbraith at 90.

Well, Sandy, I've read that debate between you and Jack.

I'd have to say he got in a palpable hit against you, in noting that you seem to regard both progressives not being able to advance their agenda, and conservatives being able to advance their agenda, as dysfunctional.

You can't measure dysfunction by whether the government does what YOU want, rather than by whether the government can do things. Sometimes what you want is unpopular, and the government doing unpopular things is supposed to be hard in a democracy.

You need to learn to disentangle your understanding of whether the government and political system are functional, from whether you're getting your way on things. Even the most functional government can't make everybody happy. Functional democracies, especially, are going to leave people with outlier preferences unhappy.

Speaking as a person who has long known himself to hold outlier beliefs, it's important to recognize that something being obviously true to yourself doesn't mean most people agree with you... If you hold outlier beliefs, you have to get used to not getting your way.

A system that gave you what you wanted, despite most people not wanting it, would be broken indeed.

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