Revolt Against Democracy

The breadth and intensity of the President and his followers’ revolt against the incontestable results of the presidential election represent an extraordinary threat to the American democracy.  The most recent and perhaps most brazen action was the Texas Attorney General’s suit asking the Supreme Court — without providing any evidence of wrong-doing — to overturn the results of the November election.  Twenty-seven other states’ Republican attorneys general and 127 Republican members of the House of Representatives signed on to an amicus brief in support.  This is despite the failure of over fifty legal challenges since the election that have claimed fraud or other reason for rejecting its legitimacy.  The Supreme Court summarily dismissed this one, too.  

This is not a case, as his congressional supporters claim, of assuring that the President is afforded all his constitutional legal rights.  This is a case, rather, of siding with Trump and his supporters’ baseless claims as they subvert the democratic process.  Just three days before the Electoral College met, only 27 congressional Republicans accepted Biden’s win a month earlier.  

The Electoral College has now certified the results of the presidential election.  Senate Majority Leader Mitch McConnell has acknowledged Joe Biden as President-Elect, but anyone who believes that Donald Trump will change his behavior as a result of these events hasn’t been paying attention to the President since November 3 or, actually, long before.  He won’t change that behavior after Joe Biden is sworn in as President on January 20, either.  What will be “interesting” (as an approaching tsunami might be called “interesting”) is how many of his congressional followers will continue to support his claim to the presidency.  At this point, 48 hours after the Electoral College vote, most Republicans in Congress have yet to acknowledge Biden’s victory

What is going on?  I cannot believe that even President Trump now actually thinks he will change the results of the election.  But he does apparently actually believe that the election was stolen from him.  And he appears to be positioning himself to remain the leader of the Republican Party.  Six weeks after the election, according to a Fox News poll, 77% of Trump voters and 68% of all Republicans believe that Trump was robbed of the election.  The President is well positioned to lead a movement that will continue to challenge the legitimacy of the election, the Biden presidency, and the American democratic process.

It’s a time of enormous uncertainty.  What power will citizen Donald Trump have after January 20?  Will the Republican Party continue to follow President Trump down this rabbit hole of rebellion?  If enough people distrust the legitimacy of the election, will that become the rallying cry for nationalists for years?

In the more immediate future, how will our democracy function if over a third of the country refuses to believe that Joe Biden has a legitimate claim to the presidency?  

The President-Elect seems to recognize the danger and is, it seems, making every effort to reach out to the Republicans in Congress and speak to those Americans who distrust him.  Restoring that trust may be the most important task of his presidency. 

The Electoral College Is Anti-Democratic … and Intended to Be So

On December 14, the Electoral College will choose the next president of the United States.  This rather esoteric body has in the last years risen in our consciousness but is often vague in our minds.  I’ve written about the Electoral College before (here and here, for instance), but now might be an appropriate time to review its origin, original purpose, how it works today, and its impact.

Just to be clear from the start, although there have been examples in history of "faithless electors" (who vote against the candidate they’ve been appointed to represent), there have never been enough to change election results.  Indeed, historically, faithless electors usually vote for a third-party candidate rather than the other party.  Furthermore, thirty-two states and the District of Columbia now have laws to prevent faithless electors.  Despite President Trump’s best efforts, the Electoral College will function as it is supposed to on next Monday.  President-elect Biden will be the next president of the United States.

The Electoral College is a decidedly antidemocratic institution … as it was intended to be.  The Founders were afraid that majority rule would give the non-elite (95% of the population) too much control over the government, which could then expropriate wealth from the rich (the 5% of the population who were white, male, property holders and redistribute it more equally.  Given the gross economic inequality of the time, it was not an unreasonable fear.    

In writing the Constitution, therefore, the Founders created institutions that were intentionally antidemocratic.  I’ve reviewed this briefly here.  Of the three branches of government, only half of the legislative branch (the House of Representatives) was actually elected by the people.  The other half, Senators, were appointed by state legislatures (ie the elite); the president was chosen by the Electoral College, to which electors were appointed by the state legislators (ie, the elite).  The Supreme Court judges were appointed by the president.  

How are the appointees to the Electoral College chosen?  Each state is allotted the number of electors equal in number to their representation in Congress, that is, its number of Representatives in the House, plus its number of Senators.  Each state may then decide for itself how it will choose the Electors, although they can’t be a House Representative or Senator.  Originally, those who were doing the choosing, of course, were members of the states’ legislatures (that is, the elite, again).  Historically, states have used many different methods, but today all but two states appoint all of their Electors on a “winner take all” basis from slates chosen by the presidential candidate with the most votes.  Two states—Maine and Nebraska—award the Electors by Congressional District and give their remaining two electoral votes to the statewide winner.  Importantly, the state legislatures could constitutionally choose anyone they wanted to.  (This is why Trump has gone to several states to have them change their electors, which they could according to the Constitution.)

In one sense, the Electoral College is democratic: the state legislatures choose the slate of electors selected by the winner of the popular vote in that state.  In two other senses, however, it is antidemocratic:

• Each state receives one electoral vote for each of its delegates to the House of Representatives (each delegate across the country thus represents approximately the same population).  But each state also gets an Electoral College member fort each senator, (two per state regardless of population size).  This means that voters of less populated states have much more power per voter than residents of more populated states.  For instance, California has 53 Representatives and two Senators for 55 electoral votes, one for every 400,000 voters; Wyoming has one member of the House and two Senators for three electoral votes, one for every 90,000 voters.  That gives each Wyoming voter over four times the power of the California voter in electing the president … nothing close to “one person one vote.”  In today’s political environment, small states tend to vote Republican and large states Democratic.  This is a significant part of the reason why Democrats can win the national popular vote yet still lose presidential elections.  Of the three presidents chosen in elections between 2000 and 2016, Democrats won the popular vote in all but Bush’s second term but only Obama became president.
• Technically, state legislators make the final decisions.  According to the US Constitution, they can choose whomever they want regardless of who wins the presidential election in their state.  They don’t, but they could!  This year, President Trump tried unsuccessfully to convince state political leaders in Michigan, Pennsylvania, and Georgia to award their electoral votes to him despite Biden’s unequivocal victories in each state.
• The electoral college is also antidemocratic because almost all states choose their Electors in a “winner-take-all” fashion.  So, one party can win an election by just a few votes and yet win the entire slate of electors.  Since most states are either reliably Republican or reliably Democratic, a small number of “battleground states” decide the winner of the presidential election.  If the election is close in any of those states, just a few votes can determine the electors.  In 2000, a switch of less than five hundred voters from Republican to Democrat would have given the election to Gore.   In 2016 Hillary Clinton defeated Donald Trump in the national election by three million votes but lost in the electoral college; if (out of 137,000,000 voters nationwide) a total of 80,000 people in the states of Michigan, Wisconsin and Pennsylvania had changed their votes that year, Clinton would have won the election.  This year if 44,000 of Trump voters had gone to Trump, the Electoral College would have been tied.  (One practical result of this is that the people in the non-battleground states are effectively disenfranchised.  Candidates are essentially guaranteed victory in those states, so they don’t need to campaign in or bend their platforms in response to the opinions of people in the non-battleground states.)

As anti-democratic as the Electoral College is, it would take a constitutional amendment to change it, and, of course, the smaller states (with a high Senator-to-House-Representative ratio) have little incentive to change the process.  There is another possibility, however.  

Former US Attorney General Eric Holder and the National Popular Vote Interstate Compact are pursuing an agreement among states to bypass the Electoral College.  In this compact, individual state legislatures would award all of their electors to the winner of the national popular election.  Once the number of electors under the control of compact states reaches 270, the agreement will go into effect making the winner of the national popular election the winner of the Electoral College.  At present, states controlling 181 electoral votes have signed the compact, leaving only 89 votes to put it into effect.

Opponents of this project have maintained that it would give one party an advantage over the other but statistical studies have disputed this:

there’s almost no correlation between which party has the Electoral College advantage in one election and which has it four years later. It can bounce back and forth based on relatively subtle changes in the electorate.

For instance, John Kerry lost the popular election in 2004 by three million votes (about the same as Clinton over Trump) but came close to winning the electoral vote 251-286 .

The Electoral College is an archaic, antidemocratic institution that distorts American politics.  It does not consistently reward one party or the other.  It deserves to be eliminated or at least by-passed.

The Rearview Mirror

Donald Trump has finally allowed the transition to the Joe Biden presidency to begin; he has acknowledged that he will leave the White House after the Electoral College votes Biden President.  These are important political developments that appear to rule out the most feared, although remote, possibilities: full-blown rebellions in places around the country and/or the need to forcibly remove the President from the White House.  Yet the President still does not formally concede the election, still persists in his lawsuits, and still trashes any Republican who does not support his resistance.

The President still denounces a “rigged” election.  “This was a stolen election,” he recently tweeted.  Similar claims have run rampant on social media.  So, Trump has set his supporters up to reject even the formal election results for a long time after his departure from the White House.

What’s he doing?  Any reading of Trump’s speeches, tweets, and press conferences makes it clear he is preparing his base and the politicians they support to keep him installed as the leader of the Republican Party.  

Why should we care?  There are some chilling possibilities.

• Trump’s continuing challenge to the legitimacy of the election may cause American partisanship to increase even further in breadth and intensity.  The right-wing violence that has begun — along with the sometimes-violent left-wing response it inspires — may spread.
• In a nation where high percentages of people do not trust the government, Trump’s refusal to accept his defeat may shatter what little remains of that trust.  
• Depending on Trump’s response to the vaccine’s distribution campaign*, there could be wide-spread refusal to accept actual vaccination.
• Congress will most likely remain stymied as most attempts at action will be interpreted, by one side or the other, as partisan.  Cooperation with even moderate Biden proposals will be interpreted by the radical right as betrayal and will not be tolerated.  The fact that Senate Majority Leader Mitch McConnell has still not acknowledged Biden’s election gives us some idea of the possibility of future congressional cooperation and action.

There are some long-shot possibilities that might make positive action in the Senate possible.  In the unlikely event that the winners of the up-coming senatorial elections in Georgia are Democrats, that would flip the Senate to Democratic control.  It is also possible that several of the Republican senators who have sometimes shown independence from Trump — Mitt Romney from Utah, Ben Sasse from Nebraska, Susan Collins from Maine and Lisa Murkowski from Alaska — could join the Democrats on particular issues: immigration, prison reform and the DACA program (Deferred Action for Childhood Arrivals), but past history does not bode well for any substantial cooperation.

Aside from the immediate impact, Could the long-term impact of Trump’s defiance threaten democracy?

• As above, partisanship and mistrust of government will most likely grow, at least in the short range. 
  
• A large portion of the vast swath of broken norms that the President will leave will be almost impossible to restore.
• Because the inability of Congress over the last four years to check presidential abuse of power, even the capacity of the Senate to fulfill its Article I responsibilities is in question.  Will the Senate have the power to limit the president when the next emergency arises?
• Perhaps the greatest danger is that Trump’s presidency will inspire and create models for future authoritarian presidents:
• Presidents may use the pardon to encourage cooperation by the high-level government staff.
• If the co-optation of the Justice Department were repeated, it could be used to extend the potential reach of the president’s threats and would almost certainly discourage future whistleblowers.
• Trump is unlikely to be legally prosecuted for even the most brazen abuses, reinforcing future autocrats’ assumptions that they are free to do almost anything without fear of retribution, especially since removal from office by Congress is so unlikely.  

Trump and Trumpism are not going away.  The myths of the stolen election and others “will probably persist for years or even decades,” says Kate Starbird, a University of Washington professor and online misinformation expert.

Whatever Donald Trump’s legal or political future, his impact upon American democracy will be profound.  The future looks better under Joe Biden, but we, or at least some of us, must also keep our eye firmly on the rear-view mirror.  Donald Trump and his progeny will be with us for a long time.
_________________________

*So far, the President has trumpeted and appropriately taken much credit for the astonishingly rapid development of several highly-efficient vaccines and will be sure to recommend their use.  But unless the world continues to publicly acknowledge his contributions, it seems likely he will find a way to disparage the further development, production and distribution of the vaccine and begin to speak against it.

Protection from the Majority

The 2016 election of Donald Trump and his 2020 near-election confront the United States with a most basic question of democracy: What would happen if the majority of the voters in the country were not particularly concerned about the basic freedoms, rights and responsibilities of democracy?

We have come too close to the answer to that previously unthinkable question.  We must face it head-on.

A “democracy” is usually defined as a country run by the will of the people.  In its simpler form — direct democracy — those eligible decide by vote upon the issue.  This might work well in a town of 500 but less well in a country of 330 million.  Twenty-three states, however, currently allow for popular referenda on particular issues: A minimum number of signatures is generally required on a petition to place the issue on the ballot, which is then voted upon directly by the electorate.  

For the most part, however, we are a democratic republic in which the people elect representatives who decide upon the issues facing the country.    

The most serious challenge to either of these forms of straightforward democracy is that there is no protection for the rights of the minority nor is there a guarantee of individual human liberties, such as freedom of speech.  In other words, majority rule does not make a country a real democracy nor a place we’d want to live in.  In addition to majority rule, a true democracy — as most of us conceive it — also guarantees:

• the rule of law and fair legal procedures,
• free and fair elections,
• freedom of speech,
• freedom of the press,
• the right to assemble,
• freedom of religion and
• the protection of property.  

The term “liberal democracy” has traditionally been used to refer to such government.  In this context, the term “liberal” refers not to the current “liberal” vs “conservative” political divide but to the 18th and 19th century English philosophical systems based on liberty, consent of the governed and equality before the law.  Democracies that do not guarantee these rights are called “illiberal democracies.”

How does a liberal democracy keep the majority from changing those requirements when they become inconvenient … yet still remain a democracy?  Ordinarily, we create a constitution that guarantees those basic rights.  How do we prevent the majority from changing the constitution?  We create a constitution that makes spur-of-the-moment, in-the-heat-of-strong-emotions decisions impossible.  We write a constitution that makes itself very difficult and time-consuming to change.

Within two years of passing the American Constitution, the Founders added the Bill of Rights, ten amendments that became part of the Constitution, and they were ratified by the states almost immediately.  Those amendments enshrine individual rights in the American Constitution, and they are difficult to change.  

The process for amending the Constitution requires that

• upon a two-thirds vote of both houses, Congress submits the proposed amendment(s) to the states and
• three-fourths of state legislatures then ratify the exact wording of the text.

As Trump works to destroy our liberal democracy and we seek to save it, we can be grateful to our Founders who — for all their faults — left us a Constitution that — with all its faults — remains firmly on our side and genuinely supports our struggle. 

When Many Believe the Election Was Rigged

Following his recent defeat at the polls, President Trump has taken the only consistent path forward: to persist in claiming loudly and passionately he was cheated at the polls and is the rightful president of the United States.   Prior to and even after the election, he maintained, “the only way we are going to lose this election is if the election is rigged.”  

So, what can we expect from here on out?

1. We can assume from his history of never acknowledging an error in judgment that Trump will continue his claims, refuse to concede and leave the White House insisting that he was cheated.
2. It’s likely that after the election has been certified, many congressional Republicans will eventually acknowledge the President’s defeat.  But what is also clear is that long into the future a large segment of Trump’s base will still believe he was cheated.  
3. Said one senior Republican official naїvely, “What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change.”  Ask the transition teams in intelligence agencies what the downside is!.
4. It’s likely, therefore, that many congresspeople will give ongoing support to the ex-President, ignoring reality and claiming that President’s Biden’s presidency is illegitimate.  They will have every reason to obstruct his presidency at every turn.

[To get some idea of how long Trump could keep this lie going, consider that he was one of the early proponents of “birtherism,” the false claim that Barack Obama was not born in the United States and therefore not eligible to be president.  Only after incontrovertible proof from a longform birth certificate presented eight years later did Trump grudgingly acknowledge that Obama was born here.  But by that time, 72% of Republicans still believed that the birther lie.]

5. Given the persistence of such an obvious lie as birtherism, it’s almost inconceivable that the “rigged-election” lie will disappear, considering especially the large number of die-hard Trump supporters who will be unable to deal with the cognitive dissonance of a Biden victory. 

6. If they are dependent on those supporters for re-election, some Republican legislators will continue to maintain that Trump was cheated.   Trumpism will not go away.

7. Will even the Republican leadership strongly and publicly denounce the lie?  Given their unwillingness to accept the evidence in the impeachment hearings, it is doubtful.

When government becomes that dysfunctional, when large numbers of politicians propagate the lies, why would anyone have faith in democracy?

 

I realize how speculative this sounds.  None of us knows the future.  Our democracy survived the Civil War, and we could survive this.  But we have also never had a president so incompetent, so deceitful, or less committed to our democracy.

The election of President-elect Joe Biden certainly gives us reason to hope.  This 244-year old democracy has been enormously resilient.  But we are in new territory.  It will demand something new from us.

How Could This Happen?

I was working at my desk four days after the election when I heard noise on 16th St a few hundred feet from our apartment.  I knew what it meant — the networks had called the election for Vice-President Joe Biden.  My wife Marja and I began walking down 16th toward the White House.  It was a carnival!  People cheered, cars honked … for hours.

We walked down to Black Lives Matter Plaza, the half-mile portion of 16th St leading to the White House that was renamed by the mayor during the George Floyd protests.  People filled the streets; the crowd seemed huge.  (Almost everyone was masked.) We walked back home up 15th St and people were pouring past us going downtown.

We were celebrating and with good reason.

But through my head runs the repeated question: How could this election have been even close?  Switch 100,000 votes in a few swing states, and Donald Trump would be president for the next four years.  How could this not have been a landslide for Biden?  How could such large numbers of people have voted for a person who

• refused to (and continues to refuse to) commit himself to accepting the results of any free election,
• encouraged violence among his supporters,
• labeled the free press the “enemy of the people,
• attacked political opponents as “treasonous” and threatened to “lock ‘em up,”
• told well over 20,000 lies, many despite incontrovertible proof, and
• expressed admiration for some of the world’s worst dictators.

After four years as president, Donald Trump has proved that he has no commitment to democracy or to the Constitution.  

How could so many people not care about that?

I am not writing here about issues or policies.  They’re bad enough, but I can imagine that sincere people would have different opinions about immigration, race, court appointments and so on.  But how is it possible to want as a leader of our democracy a person who is indifferent to democracy?

My shock over the election is about what it portends for our democracy.  It’s not merely that all the other issues that compose our divisiveness outweigh the concern for American democracy.  My shock is that democracy doesn’t seem to matter much at all.

In the election exit polls the impact on our democracy isn’t even mentioned as important … whether on either side.  In the coming weeks the pundits will most likely discuss the Hispanic vote, the less-than-expected Black vote, Trump’s extraordinary ability to convince others that the COVID-19 epidemic has almost passed, abortion, the country’s worsening financial inequality and so on.  Those are those crucial discussions.  But so far, I haven’t read a single article, seen an opinion piece, or heard any public discussion about how unimportant democracy has become to vast portions of the American electorate … right or left.

I suppose all this should come as no surprise.  I have written before about studies that reveal the stunning American indifference to democracy, especially among younger people.  I am 75-years old.  The polls indicate that over 70% of my generation finds democracy maximally “essential” But one reliable study, confirmed by several others, less than one-third of Americans millennials believe that democracy is essential to their lives.  Other studies show that if the US government weren’t working well (as it isn’t currently), over half of Americans would support one of the following:      

• military rule,
• a strong leader who does not have to bother with Congress and elections, or
• another form of non-democratic rule.      

Right now, I don’t want to think about how to respond to all of this.  It’s just too difficult for me to understand.

It is important, of course, that Joe Biden won this election.  It will give us a breather, opportunity to understand and respond.  We can celebrate … and get back to work.

Collecting Power

As the election nears, President Trump has been giving us an ever-clearer picture of what his second Administration would look like, especially if a Republican Senate continued to show no interest in stopping his march toward autocracy.  The President’s ongoing attempts to bring the Cabinet and their departments under his personal control, subject to his personal needs have been accelerating.

A recent example has been the President’s attempts to use “my” Attorney General to discredit the family of his political adversary, Joe Biden.  Citing alleged improper business dealings between Biden’s son, Hunter, and a Ukrainian company, Trump said recently:

“We have got to get the attorney general to act. He’s got to act and he’s got to act fast …  "This is major corruption and this has to be known about before the election.”

The Trump Administration and congressional Republicans have investigated such charges against Hunter Biden several times before, most recently in a Senate committee looking into similar allegations.  Trump’s “new” allegations follow unsubstantiated reports that a laptop purportedly belonging to the younger Biden contains incriminating emails.  Follow-up by mainstream media has found no basis for these reports. 

These allegations are not just wrong, are not just lies.  They are clear steps on the President’s path toward autocracy.  This is how the President thinks his power should be used.  Indeed, it may be just a foretaste of how it will be used if he were to be reelected.

In normal times, a president’s effort to pressure a member of his Cabinet to investigate the family of his political opponent would be extraordinary, especially since the President explicitly invoked the election as reason to do so.  In normal times such a breach of norms would threaten to bring a president down.  But these are not normal times.

A more widespread effort to bring the Executive Branch under the President’s personal control is an executive order issued in October that would remove job security from thousands of civil servants in the federal bureaucracy.  The order

strips long-held civil service protections from employees whose work involves policymaking, allowing them to be dismissed with little cause or recourse, much like the political appointees who come and go with each administration.

On its face, the order seems like a simple corporate attempt to weaken an employee union. 

Civil Service employees saw the ruse immediately.  Ronald Sanders, Trump’s appointee as director of a key advisory council on the civil service, resigned in protest, writing that

[the order] is nothing more than a smoke screen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process. …

Sanders continued that this Administration seeks

to replace apolitical expertise with political obeisance. Career Federal employees are legally and duty-bound to be nonpartisan; they take an oath to preserve and protect our Constitution and the rule of law … not to be loyal to a particular President or Administration

I order to understand the importance of Trump’s order, one must understand the difference between civil servants and political appointees.  The former are long-term government employees hired in a competitive process to do the ongoing, day-to-day work of government.  They are expressly nonpolitical and generally maintain their positions from administration to administration.  Their job is safe from political pressure; under normal circumstances they are fired only for inadequate job performance.  They have full union protection. 

Political appointees, on the other hand, serve at the pleasure of the president and generally change with every new administration.  They are expected to bend to the president’s political needs.  They have no union and no job protection.  Trump has, quite legally, used his power to hire and fire at will as a cudgel to keep his political appointees in line.  Cross the President, and you’re in danger of dismissal!

Trump’s order could affect tens of thousands of positions involved in making or carrying out policy.  The new executive order does not actually transform these high-level civil servants into political appointments.  Rather, it subjects these career Federal employees under to political pressure.  Their job as nonpartisan policymakers involves questioning and challenging every step of the policy-making process in order to find the best solutions.  That process, of course, can create tension with their supervising political appointees, who are under pressure from the President.  This has been most recently noticeable in the tension between the professionals at The Centers for Disease and Prevention (CDC) and the Trump-appointed director of the department, Robert Redfield, as he has had to walk a narrow line between CDC professional advice and the President’s needs.

As another example, supposedly objective reports about climate change have sometimes been “edited” before becoming available to the public.

It is appropriate for politically appointed senior staff to try to bring their advice in line with the president’s policy.  It is not appropriate to pressure career civil servants to give false or misleading opinions.  It is doubly inappropriate to threaten their job protections. 

The practical implication of this order for Trump’s (highly unlikely) second term would be frightening.  The President is clearly signaling his intention is to continuing to remove dissenting voices from his administration.  Like any tin-pot “democracy,” the United States’ government and citizens themselves would have less and less access to the truth behind government thinking and actions.  Some whistleblowers, for instance, could find their job at risk this executive orders unlikely to have much practical effect

It is true is that this executive order is unlikely to have much practical effect. The technical details of the order delay possible implementation until the day before the Inauguration, after which Biden would presumably reverse it.  It serves primarily as another example of how low our democracy has descended. 

To be clear, a Trump election victory seems highly unlikely now two days before the election, so the issues may seem irrelevant, but

1. Regardless of the election results, Donald Trump will still occupy his office for the two-and-one-half more months that he is still in office.
2. Many of Trump’s worst offenses are not specific orders or actions but offenses against the unwritten norms of American government.  In too many places, these offenses have seeped down into the political rungs below, for instance, the tendency to demonize political opponents.  (A joint ad by opposing Republican and Democrat candidates for Utah governor is a welcome relief and give us, in contrast, some idea of how far our norms have fallen.)
3. A norm is not a law.  It is not reversed with the stroke of a pen.  Norm-building takes years of decisions in the interest of the country rather than of the “other side.”  It also takes courage to make oneself vulnerable.  To the extent possible public needs to be educated about the importance of norms and reestablishing

After the election, even assuming Trump is defeated, it will important for us as citizens to recognize how far off course our country has deviated.  Reversing all of the changes that the President has wrought will be both extraordinarily difficult and absolutely essential.

Department of Justice takes on justice … and justice is losing

In late September, the US attorney for central Pennsylvania, David Freed, released details of an investigation into nine discarded mail-in ballots.  Freed’s announcement directly violated Justice Department (DoJ) policy that prohibited initiating a voter fraud investigation just before an election (much less publicizing it).  The purpose of the policy had been to avoid “chilling legitimate voting and campaign activities” or “interjecting the investigation itself as an issue” for voters.

Although Attorney General William Barr had himself reiterated the policy just last spring, reversed himself last week and lifted those restrictions.  On the same day, the DoJ announced charges against a New Jersey postman for dumping 1,875 pieces of mail that included 98 blank mail-in ballots ready for delivery; there was no evidence of fraud.

Both President Trump and Attorney General Barr have continually hyped the danger of mail-in balloting (as Trump did again in his first debate with Biden.)  Although there is virtually no evidence of absentee ballot fraud or any other electoral fraud, the announcements of even a few such DOJ investigations (especially when reported repeatedly on Fox and other right-wing media) can make it appear to the general public that electoral fraud is rampant … even if, eventually, no actual fraud is found in the investigations.

Already the President has contended that the only way he will lose the election will be through voter fraud; he has also said he will not accept the results of a fraudulent election.  It doesn’t take a degree in logic to know that, when defeated, he will claim electoral fraud and attempt to throw the election results into chaos.  Despite straightforward questioning, he has refused to commit himself to accept the results of the election.  

For those of us with highly limited logics capacity, former U.S. attorney in Alabama Joyce Vance makes it explicit that Barr and the Justice Department could “build a narrative — despite the absence of any evidence — of fraud in mail-in voting so Trump can challenge the election results if he loses.”

Legal challenges and their appeals, along with the expected delays in counting mail-in ballots, may delay verification of some states’ election results for weeks or even months.  The confusion and dismay following the disputed Florida results in the 2000 presidential election are only a pale reflection of the events and responses we are likely to see next month.  In 2000, there were certainly confusion and anger, charges and counter-charges, court challenges.  In 2000, however, the recount process was not exactly orderly, but there were few serious accusations of bad faith toward the other candidate; neither candidate attacked the other personally and there were certainly no accusations of criminal behavior; we could be confident that the losing side would ultimately accept the election results as legitimate.  Even after a final Supreme Court decision (that many accused of partisan bias), the losing candidate Al Gore accepted the result, graciously conceded and immediately called for national unity under a new President-elect Bush.  Whatever their ideology, the vast majority of Americans could be confident in a peaceful transition of power.

This year, our extraordinary American partisanship will create a much greater challenge for the losing side to maintain confidence in our election process, threatening a fundamental structure of our democracy.

I have never been concerned that the Secret Service will have to physically remove the President from the White House.  Despite the statistical probability giving Trump a 10% chance of winning, I am no longer concerned that he might pull off an electoral college, much less a popular, victory.  Trump will not win re-election, yet in the midst of his re-election campaign’s train-wreck, he does have the power to destabilize our country’s election process and shatter the country’s trust in it.  

What can we do?  How can we prepare ourselves for what is coming?  

The answer to those questions will get more complicated after the election depending on the possible combinations of results: Biden landslide, simple Biden win; closely contested results for either candidate, Trump win, etc.  The results of the Senate re-election will also create alternative strategies.  But for the next three weeks, the answer is clear: Work like hell to get Biden and Democratic Senators elected.  For the next three weeks, it will be just the old hard work of writing and calling to get out the vote and to campaign for Biden.  

One of the blessings of the pandemic is that even those of us who live in places like Washington DC (where a Democratic victory is guaranteed) can work via Zoom “in” Pennsylvania or Wisconsin or South Carolina.  Even though we know that the odds of Biden winning are overwhelming, working to attain a Biden landslide will make it more difficult for Trump’s claims of fraud to hold up.

We must also work to assure a Democratic Senate.  This is obviously more difficult and much less certain than defeating Trump, but polls are beginning to favor a Democratic majority.  Again, between now and November 3, the traditional political tools are available to us.  You can choose to work from home in whatever Senate campaign that seems most important to you.

There are lots of groups we can join.  Google out “get out the vote” or “campaign for Biden” or your favorite political organization and you’ll find more possibilities than you can use.  All proceed only after a training session.

• Weekly Biden phone banks : (you pick your state): training: https://joebiden.com/call/
• Women’s March has multiple texting and phoning efforts here.
• North Carolina is doing great non-partisan work: https://www.youcanvote.org/
• From Chesapeake Climate Action Network (CCAN). Lots of possibilities.

Discrediting His Own Agencies

[Note to readers: This post was written two weeks ago before I went on vacation during which time I had no Internet access.  Clearly things of greater importance to our democracy (eg the President's threats to nullify the elections) have happened while I've been away, but now that I'm almost back I thought I'd share this anyway and get to the more recent issues as soon as I can.]

Throughout the coronavirus pandemic, President Trump has sought to contradict or delegitimize medical opinion about various aspects of the virus. 

• As he has acknowledged in the Bob Woodward interview tapes, he has deliberately downplayed the danger of the pandemic from the very beginning.
• He has touted various unproven treatments (hydroxychloroquine, ingestion of bleach, ultraviolet light), several of which were bizarre from any point of view, none of which has been proven effective; he even pressured the Food and Drug Administration (FDA) for emergency use authorization (EUA) for hydroxychloroquine, which was later withdrawn because of safety considerations.
• He has refused to recommend strongly or even model mask-wearing or social distancing.
• He has been pushing to re-open schools and the general economy, even in parts of the country with high infection rates.
• He has removed the acknowledged expert on the coronavirus and its epidemiology Anthony Fauci from press briefings and blocked some of Fauci’s other media appearances.
  

Trump is now moving on from delegitimizing specific scientific conclusions to delegitimizing his own administration’s supposedly nonpolitical agencies. 

• In a joint appearance with FDA Commissioner Steven Hahn just before the Republican National Convention, Trump announced that the FDA was approving the use of convalescent plasma from recovering COVID-19 patients because it was a “powerful therapy” with an “incredible rate of success,” claiming that the treatment would save thirty-five out of one hundred COVID-19 patients from dying.  That statement turned out to demonstrate an extraordinary misunderstanding of scientific data.  The President’s statement and especially Commissioner Hahn’s strong defense of it were widely criticized by experts in the field.

This announcement came just after a statement by the President attacking the FDA, stating:

The deep state, or whoever, over at the FDA is making it very difficult for drug companies to get people in order to test the vaccines and therapeutics …  Obviously, they are hoping to delay the answer until after November 3rd [the date of the presidential election].

• Still today he is publicly anticipating the November 1 approval of a coronavirus vaccine, which most experts consider highly unlikely.  Those experts are concerned that the President will exert pressure on the FDA for an early EUA even without adequate data.
• On August 26, the White House coronavirus task force abruptly changed previous government testing guidelines for asymptomatic people who have been exposed to the virus.  The new guidance    

replaces advice that everyone who has been in close contact with an infected person should get tested to find out whether they had contracted the virus. Instead, the guidance says those without symptoms “do not necessarily need a test.”

While there is some disagreement among medical experts about the technical soundness of the advice, most agree that the new guidelines are misleading and can be confusing.  Jennifer Nuzzo, an epidemiologist at the Johns Hopkins Center for Health Security, criticized 

the administration for releasing important recommendations under the CDC [Center for Disease Control and Prevention] name without allowing its officials to discuss them. She also said the White House intervened in the drafting of the CDC guidance about masks and reopening of churches and schools, so “that process has really poisoned people’s view of guidelines.”

• More recently Trump appointed neuro-radiologist Scott Atlas MD as a new medical advisor.  Atlas is neither an epidemiologist nor an infectious disease expert, but his radical, non-scientific views on the virus have been more closely aligned with the President’s “especially in regard to reopening schools, avoiding lockdowns, and resuming some sports.”
• And most recently, Paul Alexander, a political appointee advising the Department of Health and Human services (HHS), has sent repeated emails to the CDC seeking changes in the Morbidity and Mortality Weekly Reports (MMWR) and demanding that they be delayed until he could review and make edits.  In its various manifestations the MMWR has been published weekly on issues in public health since 1878.  Because of its up-to-date reporting on the most significant current issues, its rigorous scientific vetting and accuracy, and its interpretation of difficult data making it accessible to all, it has been one of the most important medical publications since at least … well, at least since I depended upon it repeatedly when I began medical practice in the 1970s.  Not surprisingly, the Trump Administration considers any accurate scientific information about the coronavirus epidemic to be potentially political and therefore must be “reviewed” by political appointees.  As an example, Alexander wrote to CDC Director Robert Redfield asking that the agency modify two already published reports that, Alexander claimed, mistakenly inflated the risks of coronavirus to children and undermined Trump’s push to reopen schools.  In another example, a report that hydroxychloroquine was not effective was delayed for several weeks as it was being “reviewed.”
  

The biggest problem here is not so much the confusion that the President is creating about specific issues; it is, rather, that Trump is undermining confidence in precisely those institutions that the country depends upon for objective information and advice untainted by political concerns.  Without those trustworthy sources, the government is free to spew propaganda without fear of objective refutation.  In this upside-down world, any politically inspired assertion has a claim on the truth equal to scientific fact or logical conclusion. 

The President is taking us to the point where there will be no source of information in the government that we can trust to tell the truth.  If the President is telling us that we can no longer trust the experts to tell us the truth about something objective as medical data, what will be the public reaction when we need leadership about something that is truly controversial?  For instance, especially given the growing fear of vaccinations (due in large part to irresponsible propaganda from the anti-vax movement), how many people will refuse to get the vaccine against the coronavirus when it is available?  The efficacy of the treatment of the pandemic will depend upon the trust we have in the institutions and experts who have studied the matter deeply and objectively.

The strength of our democracy depends upon our ability to work together and, ultimately, to trust one another.  Trust in others whom we don’t know, trust in institutions is incredibly fragile.  To the extent our leaders undermine that trust, they undermine our survival as a democracy.

The Hatch Act

The national media have recently reported on the violations of the Hatch Act by the Republican National Convention and by President Trump’s Administration itself.  The Hatch Act is a 1939 law that, in essence, prohibits federal executive branch employees¬ (except the president and vice-president from political activity while in their official capacity or (in the cases of certain top government officials) even when they were off-duty.  Government employees aren’t supposed to share their political opinions on the job.  From top Cabinet members on down to your average federal bureaucrat, they are to work for all Americans, not just for those from their party.

Secretary of State Mike Pompeo, however, spoke in a pre-recorded video from Israel to the Republican National Convention on behalf of the Trump election effort.  The official explanation was that Pompeo was speaking as a private citizen, not in his official capacity.  This is hard to sustain, however, since he was listed in the program as the Secretary of State and the video was taped while he was on an official, tax-payer sponsored trip visiting several countries in the mid-East.  Further, under the Hatch Act, diplomats face an added set of restrictions that prohibit them and their families from engaging in any partisan political activity while serving overseas, even in their personal capacities.

Pompeo spoke from the rooftop of a Jerusalem hotel using the overview of the city as backdrop.  Because the President stirred up a political controversy by moving the American embassy to Jerusalem in 2018, Pompeo’s speech could be seen as further blurring the line between his official capacity and his private political role.

It’s not that Pompeo was unclear about the law.  In fact, on Dec 3, 2019, he approved a memo reiterating a

long-standing policy of limiting participation in partisan campaigns by its political appointees in recognition of the need for the U.S. Government to speak with one voice on foreign policy matters. … The combination of Department policy and Hatch Act requirements effectively bars [members of the State Department] from engaging in partisan political activities while on duty, and, in many circumstances, even when [they] are off duty.

The Hatch Act also prohibits political activity within federally owned property.  During the Republican National Convention, however, this section of the law was ignored as Eric Trump, Melania Trump, daughters Ivanka and Tiffany Trump and others spoke from the White House or its grounds.  The President even participated in a taped naturalization ceremony in the White House presided over by Chad Wolf, acting secretary of the Department of Homeland Security, whose participation was also a violation of the law.  The President held a ceremony in the White House pardoning a previously convicted felon.  The President’s acceptance speech was given from the South Lawn of the White House.

While these breaches of the law at the Republican National Convention have been particularly brazen, they are hardly the first times this Administration has done so.  Presidential aide Kellyanne Conway repeatedly violated the Hatch Act in 2018 by disparaging Democratic candidates while in her official capacity as Trump spokesperson.  At that time, the US Office of Special Counsel recommended the President fire Conway for her illegal actions.  When confronted by reporters, Conway responded

Blah, blah, blah.  If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.

When asked, Trump said that the law violated her constitutional right to free speech, ignoring the fact that the Supreme Court has previously upheld its constitutionality in several decisions.  Former administration officials have said the President sometimes jokes with aides that he will pardon them for any Hatch Act violations.  Trump’s Chief of Staff Mark Meadows dismissed concerns about the Hatch Act, saying that “nobody outside of the Beltway really cares” about ethics violations.

While Trump’s contempt for the Act has been noticed in the press, it has hardly become a major scandal.  The press and the public have become so inured to his disdain for the law and the Constitution that it is no longer important news.   

Most of the civil provisions of the Hatch Act are pursued through the Office of Special Counsel (OSC), and punishment for violation is, at the most, firing or suspension.  Given the president’s sensitivity to challenge and his willingness to interfere in the running of supposedly independent arms of the administration, it is perhaps not surprising that the OSC has taken so little notice of the violations.  

What is much less well known is that — while the president and the vice-president are exempt from the civil provisions of the original 1939 law — they are not exempt from its criminal provisions.  In 1993 Congress passed an amendment to the Hatch Act to provide “additional protections against political manipulation of the federal workforce.”  The current law makes it a felony with up to three years in prison for

any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, command, or coerce, any employee of the Federal Government . . . to engage in . . . any political activity.

White House staff were presumably ordered as part of their employment to set up the White House for the campaign.  At the very least, two Marines, in full dress uniform, involved in the pageantry were commanded to be there.  The Presidents willingness to insert himself into Justice Department decisions, makes it highly unlikely that these crimes will be investigated by the FBI or any other part of the Justice Department.

These days, we easily pass over transgression of civil violations; they are simply too common in this presidency.  But when you’re talking about obvious and deliberate violations of criminal statutes, it should be a big story — especially when Hatch Act violations have been so extensively covered previously in the Ukraine inquiry last year and also in the run-up to the convention.  The GOP not only pressed forward with their violations but pushed the envelope even further with the pardon and naturalization ceremonies … almost daring anyone to do something about it.

This time, let’s not pass so lightly over these transgressions.  The President has made it crystal clear he believes he is above the law.  His many egregious violations of the Hatch Act in the Republican National Convention are a conscious and deliberate challenge to our Constitution.

In the Constitutional Convention of 1879, a number of delegates were concerned with the amount of power they were giving to the president.  Their concern was sidelined by Alexander Hamilton’s argument that impeachment would reign an overzealous president in.  But in the Trump Administration we have seen the constitutional provision for impeachment obviated by a Republican party in thrall to the president.  So there is only one option left: voting the President out of office.

Listening to parts of the Republican National Convention, I was reminded of The Silver Chair, one of the volumes of CS Lewis’s children’s series, The Chronicles of Narnia.  In the story, Eustace, Jill, Prince Rillian and the marsh-wiggle Puddleglum are trapped in the subterranean Underworld of the Green Witch.  The witch has kindled a fire whose magic smoke so muddles the children’s minds that they begin to forget what the real world is like, forgetting, almost, that there is a real world, almost convinced that the sun, too, is just a myth, a story told to children.  It’s only after Puddleglum painfully stamps out the fire with his webbed feet that the smoke’s magic dissipates and the web of lies dissolves.

Between Labor Day and the Nov 3 election, the campaign begins in earnest and the magic smoke will thicken.  We must hang on, remember that there is a sun, and work furiously to stamp the fire out.