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If Trump Refuses To Leave (The John Roberts Conundrum)

by Kevin Kelton

Should the results of the 2020 presidential election be contested, Chief Justice John Roberts may determine who becomes the next president. But not because he might be the swing vote in a Supreme Court ruling on the matter. Instead, Roberts might find himself in the awkward position of choosing who to swear in.

Let’s back up a moment to find out how one man might end up deciding a presidential election. For months now, people have been asking, what happens if President Trump loses but refuses to leave? There are several scenarios that could get us to that point. Let’s look at them one by one.

First off, we need to put an end to the silly meme Democrats are spreading that Joe Biden has to “win big” to become president. No, he doesn’t! He just needs to win in the electoral college, even if the popular vote is close – just as Kennedy did in ’60, Nixon in ’68, Bush in 2000, and Trump in 2016. Please don’t create an artificial higher standard for Joe that Trump can then exploit to question the legitimacy of a tight race.

But if there is no clear winner and the matter is still in the courts, with Trump refusing to leave the White House, the Constitution is pretty clear on that point. Per the 20th Amendment, the sitting president’s four year term ends at noon on January 20th. If no one is sworn in as the next president, Trump doesn’t just continue in the job. It’s up to the Congress to determine who would become the 46th president, which opens a whole panoply of scenarios. As of today the GOP controls the 26 state delegations needed to win in the House. But the vote would happen in the next Congress, not this one, and since an overwhelming Biden popular vote win would likely have strong enough coattails to flip a few more state delegations blue, they would surely elect the Democrat.

And if no one is certified by congress as the new president by January 20th, that void in the line of presidential succession would be filled by… wait for it… Speaker of the House Nancy Pelosi.

Yes, if Trump tries to hole up in the White House while chaos reins, Republicans might end up having to swallow a Nancy Pelosi presidency! (At least until the election results were fully resolved.) Wouldn’t that be a delicious plot twist?!

But let’s say we don’t get there. Let’s assume the electoral process works as it’s designed. The votes are counted, and Joe Biden has at least 270 electoral votes, but Trump claims that mail-in ballots were tainted or illegal voters tipped the outcome in one or more pivotal swing states. Each state would still have to certify its outcome, and we can presume that key swing states run by Democratic governors and secretaries of state (Pennsylvania, Michigan, Wisconsin, Colorado, North Carolina, Virginia, and Nevada) would defend the legitimacy of all the votes counted and certify the winner of their state. The right combination of those would give Biden 270 EC votes, even if there were certification shenanigans in the GOP led states of Florida, Georgia, New Hampshire, or Arizona.

So for the purposes of this hypothetical, let’s say 270 or more electoral votes are certified in Biden’s favor, but Trump still claims the vote was rigged.

The next step happens regardless of Trump’s public pronouncements of a fake election. The Electoral College votes (bound by the new SCOTUS ruling to honor the state outcomes) and Congress ratifies Biden as the winner. 

That brings us to January 20th. Let’s say Biden is the certified winner but Trump is still holding out in the White House, claiming the election was a sham. Biden will still show up at the Capitol Building to be sworn in, with the Chief Justice there to perform the oath. At that moment, boom! Joe Biden becomes the 46th president. It doesn’t matter who is living in the White House or who is sitting in the Oval Office. Neither of those locations are mentioned in the Constitution, and neither of them convey the power of the presidency. Trump would simply be an interloper on government property, and he would soon be escorted out by the Secret Service, whether he likes it or not.

Even if Chief Justice Roberts, for some reason, weren’t to show up, the inauguration would still go forward. Because the President does not have to be sworn in by the Chief Justice; any federal judge can perform the presidential oath of office. As has happened at least seven times in history. So Associate Justice Ruth Bader Ginsburg or another willing associate justice could swear him in, or any judge on the DC Circuit. That oath would make Joe Biden the official President of the United States, and he would assume the powers of the presidency and set up a government, while Trump was illegally barricading himself in the White House like a Branch Davidian.

Which brings us to the thorniest of possibilities: the Roberts conundrum.

Suppose both Biden and Trump claim victory, and each shows up to take the oath on January 20th. At that point, the country would be looking for some form of official validation as to whose inauguration counts. That would put the chief justice in the awkward position of having to decide who to swear in. If Roberts follows the Constitution, he will administer the oath to the congressionally certified winner, Biden.

However, if Roberts, for whatever reason – politics, loyalty, fear – decides to swear in Trump, leaving Biden to be sworn in by a less senior federal judge, an argument would be made that the Roberts inauguration was the more valid one, based on his top position on the federal bench.

Would Roberts really create that type of existential constitution crisis just to protect a Trump presidency? This author highly doubts so. But in the hyper-partisan world of today, it is a hypothetical that cannot be ignored.

So if Trump tries to snatch victory from the jaws of defeat, and he is able to get the public support of Senate and House Republicans, it could come down to John Roberts to decide who will get the imprimatur of the chief justice and, with it, the perceive legitimacy of the oath. Lawsuits would certainly continue for years. But in the meantime Donald Trump might still serve as president, allowing him to pick Ruth Bader Ginsburg’s replacement. Which would all but certainly ensure he would prevail when the matter of the contested election eventually reaches the Supreme Court.

And the question of him voluntarily leaving at the end of a second term becomes ever more in doubt.

Kevin Kelton is a cohost of The More Perfect Union podcast and founder of Open Fire Politics.

 

The Three B’s (Ep. 238)

This episode covers the new hostilities with Iran, whether it’s good for Democrats to have John Bolton testify at the senate impeachment trial, and what it means now that Biden, Buttigieg and Bernie (the three B’s) have risen to the top in Iowa.

The Aaron Sorkin President (Ep. 237)

 

On this week’s podcast, Rebekah and DJ fly solo as they discuss the impeachment standoff, the latest Democratic debate, the person running to be the Aaron Sorkin president, and how the evangelical right has been co-opted by the conservative right (or vice versa).

Dispatch to Democrats: Let’s Impeach Like Mitch McConnell Would

I said something on last week’s podcast and upon further reflection, I was wrong.

I know. It’s a shocker for one of us to call ourselves wrong instead of waiting for Kevin to do it. But here we are.

Anyway, I said that impeachment is a matter for calendar 2019 and I’m pretty sure I’m wrong and I’m going to tell you why. Buckle up.

Every analyst with a functioning knowledge of Congressional procedures can give you the basic rundown of how a traditionally constituted impeachment process of Donald Trump would go. The House would file articles. There would be hearings, There would be a vote, with a likely outcome of referral to the Senate, passed along party lines. Then the Senate would hold further proceedings, presided over by Chief Justice Roberts, and they would vote to acquit, probably along party lines, with a few possible Dem defections.

The whole circus would take about 4 months and at the end, Trump would go on a victory tour for the entirely of 2020. He’d hold rallies and talk about how the Witchhunt 2.0 exonerated him even more bigly than the Mueller report did. In my opinion, Trump basically wins a traditional impeachment process and probably wins the election as well.

Traditional impeachment proceedings, while the morally correct thing to do, are a political minefield for Democrats and could turn into a giant PR victory for Republicans.

But what if we dispense with tradition? What is we take a page out of the Republican handbook and scrap tradition and decorum and political norms? What if we kick all of that in the teeth? What if we, the Democrats, pull a move as lowdown and dirty as the time Mitch McConnell denied a duly elected president his constitutional right to seat a Justice on the Supreme Court? Something as potentially damaging as Jim Comey dropping a letter about Hillary’s emails mere weeks before the election?

What if we impeach a president during an election year?

Here’s what I’m thinking we do. Let’s spend 2019 investigating Trump some more. We already have several committees subpoenaing documents, requesting testimony, and planning hearings about the Mueller report and about irregularities in the way the Trump organization does business. And the administration is already stonewalling like their freedom depends on it. Powerful House committee chairs like Jerry Nader, Adam Schiff and Gerry Connolly are already threatening contempt of congress Citations, fines, and possible referral to the DC US attorney for prosecution for individuals who defy subpoenas. And they’re not out of line: Princeton professor of history Kevin Kruse was on Twitter saying that the same threats were made during Watergate and they were potent enough (and legitimate enough) to compel reluctant witnesses to head to the Hill.


I say these threats, and more, are all good. Let’s turn the whole thing into a street fright. Lob subpoenas at the administration in a steady stream and start fining the hell out of anyone who refuses to appear. If the administration sues, so what? Let them take it to court. It doesn’t make them look any more innocent or any more cooperative if they’re willing to burn tax dollars defending their refusal to answer to Congress’s enumerated powers of oversight.

We can run the clock out on 2019 with these kinds of ugly little fights and at the same time, non-oversight committees can keep writing bills that deal with healthcare and education and stopping ICE from putting babies in cages. Show the country exactly how well Nancy Pelosi’s caucus can walk and chew gum. Meanwhile, the 2020 Dem candidates can all stay above the fray by saying “Speaker Pelosi is trying to do her job and I support her. Too bad the White House won’t cooperate. But have you seen my latest proposal on universal pre-k? It’s great, if I do say so myself!”

Then, on February 4, 2020, file articles of impeachment.

Why February 4? I’m so glad you asked! That’s the day after the Iowa Caucus. While Trump spends the morning on Twitter wanking to FoxNews’s slavering coverage of his victory, we slap with him impeachment.

Then we play as dirty as we can and schedule every hearing to coincide with a primary. Take every Trump primary win and steal the media attention by bringing in a major witness to testify against him.

Trump will be furious. He will investigate the investigators. He will spend hours on social media calling everyone with a D next to their name horrible things but you know what? He’ll be out of line. The Democrats in the House will just be doing their jobs. It won’t be their fault they had to wait so long to start this process. If the administration had cooperated in 2019, this all could have been over by Thanksgiving.

The key will be keeping it going until after the conventions in August. We do not want to refer to the Senate until after Trump has accepted the nomination because the optics of him accepting the nomination after being acquitting by Putin’s gang of bitches from the Senate will hurt the Dems. McConnell-ski and (Russian) company have to be forced to decide whether to take the vote in the early fall or not take a vote at all.

This would be the ugliest political campaign since Aaron Burr went door to door against Jefferson. But literally nothing I’m proposing is against the law or outside of the role of Congress. Pelosi has a right and a duty to do all of these things. Nothing in the Constitution says she can’t do them during an election year. And I think we all know traditions and norms don’t – can’t – matter in the era of Trumpian politics. 

Republicans have lied, cheated, and used stolen materials to rig the system in their favor. We can’t be afraid of paying them back in kind.

We Need to Talk, Yet Again, About Joe Biden

We need to talk, yet again, about Joe Biden.

Only this time we’re not really talking about Joe Biden. Joe Biden is just an object lesson for all of us in the on-going dialogue about bodily autonomy and consent for physical contact.

For most of history as written by men of European descent, we have followed a sort of chattel-based idea of what behavior is appropriate between men and women; the gold standard of male behavior had to do with treating women the way you would want your wife or daughter treated. We still see that mindset now whenever a man responds to allegations other men committing acts of abuse or harassment by saying “I’m the father of daughters so I would never want guys to say that stuff to them!”

That’s wrong headed-thinking, as many before me have pointed out, because it values women only in their relationship to men, not as beings with inherent worth and dignity of their own. The correct response to mistreatment of women is “I am a human being and I would not want another human being treating me that way so I cannot accept any human being being treated that way.” Gender and relationships should be utterly irrelevant in how you treat people.

While that idea sounds logical and simple, it’s almost brand new. And no one is quite sure how to use it in practice.

The idea of every human being having inherent worth and dignity just by virtue of drawing breath is so controversial that we have never, ever, in all of human history managed to get it right. We see failures to acknowledge it at every turn: Unequal pay. Chattel slavery. Chattel marriage. Unfair divorce law. Legalized martial rape. Locker room talk. Dismissed claims of workplace harassment. Unfair criminal sentencing practices. Domestic abusers walking free.

We get it wrong at every turn and it’s why we have needed so many waves of civil rights movements to alter the landscape of society just to establish basic fairness. These movements and these changes don’t come without turmoil and the wise person welcomes all the messy discussion of what has happened in the past and what should happen in the future.

Which brings us to the question of whether Joe Biden is a wise person.

We all know Uncle Joe is a hugger. There are a million photos of him hugging people at public events, probably dating back to his earliest campaigns. And under the old rules, his hugging was no biggie. Would you be ok with the Vice President hugging your wife, in front of a million people? Sure! He’s Uncle Joe! He doesn’t mean anything by it. It’s cool.

But you – and he – forgot the part where you check with your wife about whether she wanted the hug. And women for generations forgot to ask themselves if they wanted the hug. We all just went with the unspoken idea that it was fine because it wasn’t anything illicit. It’s just a hug, right? Men can hug women and it’s fine, right?

And it was fine. For many years, that was considered fine. Today, however, in 2019, it is no longer fine and several women have spoken out to say just how not fine they found Biden’s hugs. We need to have a conversation about how to deal with the once-fine becoming the not-fine. This conversation is hard because we are literally standing on the border between the past and the future as it applies to this issue.

We are mere steps into a new phase of history, a phase where women are, for the first time, actively defining what is acceptable in terms of how others conduct themselves in relation to our bodies. If I had to draw a bright line between the Before and the After, I would paint it right up the crack of Harvey Weinstein’s ass. He is the tipping point between what was ok and what will be ok next.

Not that I’m comparing Weinstein’s level of violence and depravity to Joe Biden’s overzealous application of hugs. They aren’t the same thing at all. What is the same is the years of silence from women who were the objects of those wrongs, both large and small.

Just as everyone in politics knew Biden was a hugger, everyone in Hollywood knew Weinstein was a sexual predator. It went on for years, half in shadow, half in plain sight, and it took until 2017 for it all to come under the scrutiny we are seeing right now. In the case of men like Weinstein and Matt Lauer and Bill Cosby, the reckoning has been dramatic and suitably punitive. What they did was clearly wrong by any metric.

In the case of guys like Joe Biden, well. That’s different. His actions weren’t criminal. They were simply presumptuous and inconsiderate. They didn’t violate the law or even the rules of conduct that applied for most of his public career. How do we deal with that? What reckoning should men like Biden face when we confront them with their past and their future?  That’s the conversation we have to have.

Nancy Pelosi hit the nail on the head when she was asked about Joe Biden this week. She said  “He has to understand in the world that we’re in now that people’s space is important to them, and what’s important is how they receive it and not necessarily how you intended it.”

Joe Biden needs to apologize for not knowing better in the past, because he really didn’t seem to know. And he needs to pledge to do better now that he does know. He needs to show us he’s doing better by going in for the handshake, not the hug.

It’s not only Biden who will be grappling with this in the days and years to come. We all need to be thinking about how we treat others and how they want to be treated. While I don’t envy Biden the public scrutiny as he undergoes his personal period of reflection, I am pleased that we as a society are having this conversation at last.

Shutdown Showdown Hoedown (Ep. 188)

This MPU episode looks at the ongoing showdown between President Trump and the new Democratic congressional majority over his demand for $5.7 billion for his border wall/steel slats/fence/drones/security/whatever, watching Alexandria Ocasio-Cortez dance on the top marginal tax rate, and Elizabeth Warren’s first week on the presidential campaign trail.

Rebekah Womansplains It All (Ep. 187)

This week we present a special New Year’s mini-episode where Rebekah takes on the guys without interruptions or mansplaining. If 2018 was the year of the woman, this is the MPU podcast of the woman.

Trump Train Wreck (Ep. 185)

This episode looks at the legal assault on Obamacare, the looming government shutdown, the continuing tragedy on the southern border, and the latest in the Robert Mueller Russia probe. Plus check out our Number 1 ranking on Podranker.com.

Looking Back: An MPU Retrospective (Ep. 184)

This special retrospective episode looks back at the early days of The More Perfect Union podcast from our very first podcast in September of 2015 through the end of 2016, with clips that cover the rise of Trump, chaos in the GOP primary campaign, and the Hillary-Bernie battle for the soul of the Democratic party.