There has been a lot of breathless worries here and elsewhere over all the moves that the Trump campaign has been making in their (pseudo)fight to try and overturn the election of Joe Biden. Many pundits and commentators have postulated ways in which Trump might try to overturn the election well beyond the ridiculous legal actions that have been taken so far. There’s been much made of the analysis Van Jones offered in his TEDtalk, for instance. Now, with the summoning of the top GOP legislative leaders from Michigan to the White House, this kind of speculation has reached a fever pitch. It’s frightening to even think that we might see our democracy subverted by underhanded moves that use the machinery of the state (and the Electoral College in particular) to change the loss of Donald Trump into a victory.
But we all need to breathe, relax a moment, and remember that Trump and his enablers do not have control of all the mechanisms that would allow a “soft” coup of this kind to actually succeed. There are numerous Democratic officials in key places that can and will block any avenue by which such a thing could be done. Don’t believe me?
Well, don’t take my word for it. Take the word of constitutional lawyer T. Greg Doucette, who has explored these issues extensively. As Doucette himself says, he heard so much of this kind of talk on his Twitter feed and elsewhere, he felt compelled to try and lay it to rest, which he’s done with a fantastic (and fairly funny) video:
Be warned that the video is 50 minutes long, but I assure you it will be the best 50 minutes you spend on anything all week.
Doucette’s argument is that, essentially, every possible path to a soft coup runs up against the hard wall of the US House of Representatives and its Democratic majority and their authority under the The Electoral Count Act, 3 USC §1-17. There is simply no way for the actions of the state legislatures that might try to flip slates of electors without the consent of the Democratic governors of the critical states (Michigan, Wisconsin, Pennsylvania) to produce even a situation where we have the 12th Amendment apply, much less where Trump comes out with a win in the Electoral College. He lays out the case in fantastic detail and with a solid grounding in the work of other legal scholars that I have listed below. Basically, Trump may be trying a soft coup, but it is one that is doomed to failure. He might even manage to push things far enough to prevent Joe Biden from becoming president on Jan. 20th, 2021, but even that will only get the country…Acting President Nancy Pelosi (not exactly the preferred outcome for the GOP.) Watch the video for his whole argument, and then breathe a bit and go enjoy your Thanksgiving. Goodness knows, we have a lot more to be thankful for than we might have this year.
References from T. Greg Doucette’s video:
EXPERTS TO READ
Congressional Research Service on counting electoral votes (published 15 November 2016)
Law Professor Edward Foley on disputed presidential elections (published Winter 2019)
Scott Anderson on resolving contested presidential elections (published 23 October 2020)
CONSTITUTION AND STATUTES TO READ
By the way, just in case anyone thinks that there might be a “hard” coup using the Insurrection Act or other action by the military…you can relax about that too. The military leadership has already made it as clear as serving officers can that they will not obey an order from Donald Trump to invoke the Insurrection Act, nor will they otherwise act to keep him in power against the will of the voters. Simply put, they hate Trump and will be (quietly) glad when he’s gone and a man they actually trust (Joe Biden) is their Commander-in-Chief.
And now the Michigan legislators who met with Trump today have made it clear that they will not appoint their own slate of electors to favor him. And that, as they say, is the whole ballgame.