Teddi DiCanio only occasionally writes on political matters, but has a bent towards history. She contributed to a book on American trials.
The election is over, bar run-offs, final certification, and the meeting of the Electoral College. The numbers say clearly Joseph Bidden won. But long before the election, Donald Trump repeatedly indicated that should the votes not go his way, that must indicate voter fraud, and therefore he will fight that. He has complained that in certain places votes suddenly, magically appeared for Joe Biden. Where from? Many came from the absentee and mail-in ballots Trump has been complaining about for weeks and months. In other words, there is nothing magical about their sudden appearance.
But how can Trump continue to insist there has been voter fraud? That subject is a worry to many. But what could he actually do? He can continue to challenge the results in court, but, so far, that has availed him every little. Long before the election, Trump had already lost quite a few battles in court. Some involve his personal finances. Others actually involve government business.
The Courts May Not Help Him
Trump has appointed a number of federal judges with a perceived ‘conservative’ view of the world and of the law. But one of those conservative views tends toward NOT interfering with a state court’s interpretation of its local voting laws unless that interpretation demonstrably contravenes federal laws and the Constitution. Claims of voter fraud need to be rooted in evidence, a question of fact, not an interpretation of law. Without evidence of fraud, the courts are taking a dim view of the legal filings so far. Despite any political views, experienced judges do tend to like hard evidence. No facts, no case. That may be just as true of the new Supreme Court appointee, Amy Coney Barrett.
So, what might happen should Donald Trump continue to be unwilling to concede? We will come back to the court, but, for now, presuming there were no help from the judiciary, what could Trump do? Declare himself victor and hunker down in the White House? He could create a lot of chaos during the months leading up to Inauguration Day, but on Inauguration Day his authority would be gone.
If the Supreme Court Does Not Help, What Next?
Joe Biden could hold cabinet meetings on a street corner, and, from there, give orders, and it would all be legal. All the offices of the executive branch, such as the State Department, USDA, the Attorney General’s office, and the all-important inhabitants of the Pentagon tend to be conservative in so far as protocol is concerned. Protocol says the man elected is the man with authority. The man elected does not have to physically inhabit the White House. The White House is just a building.
Does anyone think that those who work in the nation’s various federal departments are going to suddenly obey a man who is no longer president? Let’s just look at the Pentagon. All the branches of the military are adamant about remaining above partisan politics. Senior officials—and lower ranks—tend to refrain from making political comments. Yet, many retired senior military officials have publicly criticized Donald Trump. (Being retired, they are freer to speak their minds.)
James Mattis, a Marine Corp General and former Secretary of Defense in Trump’s administration, spoke about a major issue troubling military officials. Unpopular is Trump’s advocating use of active military, as well as for calling up unneeded National Guard troops, to quash protests.
Mattis said, “I have watched this week's unfolding events, angry and appalled. The words "Equal Justice Under Law" are carved in the pediment of the United States Supreme Court. This is precisely what protesters are rightly demanding. It is a wholesome and unifying demand—one that all of us should be able to get behind. We must not be distracted by a small number of lawbreakers. The protests are defined by tens of thousands of people of conscience who are insisting that we live up to our values—our values as people and our values as a nation.”
Is it that generals and admirals see any local violence as local, to be dealt with by local officials, rather than as evidence civilization is about to disintegrate before our eyes?
Trump would get no help from the Pentagon and no modern version of Hitler’s Brown Shirts are roaming about. Yes, there are extremist militias, dangerous, but apparently incompetent. Plots to kidnap and perhaps kill two sitting governors were easily detected and easily thwarted. The militias could create a great deal of violence for the new administration—and local officials—to deal with. People could be hurt and/or killed. But the violence would be ineffective so far as keeping Trump in office. Trump has no reliable paramilitary groups to call upon and the Pentagon would never play.
Back to the Supreme Court as Biden Could Turn Off the Lights
All right. Let us say that all the departments are working with the new president, as Trump continues to occupy the White House. What could Joe Biden do next? He could tell all the White House personnel to lock everything up and stay home for now. Donald Trump would have to cook his own meals. I suspect Melania would take Barron and fly off to New York or Florida. Last step. Turn off the gas, water, and electricity. What would there be to stay for?
Trump’s only chance is the United States Supreme Court.
In an op-ed piece for the New York Times, law professor, Stephen Vladeck pointed out an odd, troubling phenomenon. Although the Supreme Court has ruled against Trump administration requests more times than against other presidential administrations, it has also issued an unprecedented number of ‘stays’ of lower court rulings. What that means is the Supreme Court did not actually strike down a lower court ruling against the administration. It simply ordered that the administration could, for the moment, continue doing whatever it was doing. The ‘stay’ delayed, seemingly indefinitely, implementation of a lower court ruling.
The reason for a stay—and they have been sought and granted in the past, though sparingly—is often to allow appeals to wind their way through the federal system. Past administrations generally sought such ‘stays’ only occasionally, for situations they perceived as extreme. The idea is that under special circumstances, real harm to the public interest might occur if a controversial policy were abruptly halted—or halted at all. One example with the Trump administration is that ‘stays’ have allowed the administration to continue pursuing a variety of controversial asylum policies with no real determination as to their constitutionality.
According to Vladeck, over the sixteen years of the Bush and Obama administrations, only eight stays were sought and half of those were denied. But over the past three plus years, the Trump administration sought twenty-nine stays. Seventeen of those were granted. Why do this? It leaves a lot of situations in a long limbo. Vladeck’s opinion is that, at present, the US Supreme Court is issuing such stays more on the basis of a perception that the administration would win its battles in the long run. And such ‘stays’ are not based on any great study of the laws or facts or merits of the cases themselves.
So what might that practice of issuing so many ‘stays’ suggest as to how the nation’s highest court would deal with challenges to election results? That’s anybody’s guess. There is insufficient evidence in the Court’s behavior to issue a strong hypothesis. But, keep in mind two things. One, the Court is mindful of public perception of its legitimacy. And, two, as I said earlier, in cases of fact, judges do seem to favor real evidence—which ties into perception of legitimacy. Can we hope that is the answer?
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
© 2020 Teddi DiCanio