As President Donald Trump continues to challenge the result of the Nov. 3 election that every credible media outlet has called in favor of Joe Biden, his attempt to illegitimately hold on to power came clearly into view.
Some observers diminished the significance Trump's attempts to attack the legitimacy of the election and throw its results into doubt as a mere emotional outburst, and they claimed that those Republicans who offered support for the disinformation campaign were simply mollifying him. For these people, Trump allegations of voter fraud and rigged elections were nothing more than his previous attempts to cry foul when he didn't get the results he wanted, only to move on. But Trump's assault on democracy, as emotionally driven as it may be, is also a genuine attempt to overturn the results of the election, even if it is ill-fated and poorly thought out.
Before the election, Trump made his strategy clear. He repeatedly said he thought that the election would be decided by the Supreme Court, and he used this point as a justification for rushing through the confirmation of Justice Amy Coney Barrett. Now, his campaign is launching a series of lawsuits — which many serious legal analysts dismissed as frivolous and baseless — hoping that something will stick and enable him to remain president.
And while it initially seemed other Republicans might not stick by him in this fight, they increasingly fell in line. Sens. Ted Cruz and Lindsey Graham appeared on Fox News to support Trump's refusal to concede. On Monday, Sens. David Perdue and Kelly Loeffler of Georgia, both of whom face runoff races against Democrats in early January, wrote a letter demanding their own Republican secretary of state step down, lobbing vague and, again, unsupported allegations of misconduct in the state's election — which Biden appears to have won. Senate Majority Leader Mitch McConnell, on the chamber's floor, defended Trump's refusal to concede and offered support for the president's effort to pursue lawsuits on Monday.
Within the administration itself, the situation looked even worse, as described by the Associated Press. A top official in charge of starting the transition when an Electoral College victor is "apparent" refused to start cooperating with Biden. Trump fired Defense Secretary Mark Esper, and tried to replace him with Christopher Miller, the director of the National Counterterrorism Center, though it's not clear he had the legal authority to do so. Reports indicate other important officials could soon be fired as well.
And on top of all that, Attorney General Bill Barr told prosecutors in a letter released Monday evening that they were authorized to investigate "substantial allegations" of voter fraud after the election, despite the fact that no credible evidence has emerged of these kinds of crimes.
Some argued that Barr's message was mostly about placating Trump, and they noted that the investigations can only be carried out if there a "apparently-credible allegations" that could impact the outcome of a federal election. That's a pretty high threshold to meet. But regardless of how far the potential investigations go, one major point is served: Undermining voters' confidence in the election.
"This is equal parts pathetic and frightening," said Lawfare's Susan Hennessey. "The next 72 days may be some of the most perilous this nation has faced."
Ben Ginsburg, a Republican attorney for George W. Bush during 2000 recount, argued on "60 Minutes" Sunday night that Trump should give in and that his lawsuits were not going to change the results. But they are taking the country down a dark path.
"This could be an instance of trying to slow down counts in individual states, in the hope that those states don't complete their job of certifying election results in time for the Electoral College to meet," Ginsberg said. "And then he would go back to something else he's talked about, which is telling [state] legislators to go and vote Trump slates, even in states that were won by Biden."
He added: "Sir, you need to take a step back, look at the results. It is a democracy. It is a country that has been very good to you. And you need to respect the institutions. And the greatest institution of all is our elections that lead to the peaceful transition of power. And you cannot be destructive of that."
There are, however, several key problems in the plan that it appears Trump is trying to scramble together.
First, in Pennsylvania, one of the key states Biden won and where Trump has ongoing litigation, the Republican speaker for the state legislature has made clear that he doesn't believe the body has the power to appoint an alternative slate of electors to that decided by the election. The state's Democratic governor may also serve as a roadblock to such a plan.
One potential alternative is to get the judiciary, perhaps the Supreme Court, to throw out a slate of electors for some reason. But even if the right-wing justices were willing to go along with this scheme — and that's far from certain, given that their reputations are on the line — it wouldn't necessarily help Trump. As has been explained in Verdict, throwing out the electors of say, Pennsylvania, wouldn't prevent Biden from getting a majority, even if it were the only state to put him over the top to 270 (which it's not). That's because the constitution requires simply that the president will be the person who gets a majority of the electors that are accepted; since Trump is on pace to earn far fewer electoral votes than Biden, probably 232 to Biden's 306, many states' electors would have to be thrown out before Trump would win. That's very unlikely to happen.
Third, though Trump has often said he wants the Supreme Court to decide the election, it's not really up to the judiciary. It's Congress that accepts the slates of electors put forward by the states and ratifies the decision.
And on this point, there's much reason for hope that, whatever chaos Trump tries to stir up, democracy will prevail. The House is expected to continue to have its majority of Democrats. While the Senate should still have a Republican majority by January — with two runoff races outstanding in Georgia — when it meets to accept the slates of electors, at least four Republicans have already congratulated Biden and referred to him as president-elect: Sens. Mitt Romney of Utah, Susan Collins of Maine, Lisa Murkowski of Alaska, and Ben Sasse of Nebraska. That means that there should be a majority of both the House and the Senate who, at the time when it's crucial, acknowledge that Biden is the rightful president.