theintercept--2020-09-25--Donald Trump Keeps Saying He Won’t Accept the Election Result. Are People Finally Starting to Listen

Donald Trump Keeps Saying He Won’t Accept the Election Result. Are People Finally Starting to Listen?

stoked by the president ’ s own comments , that he will refuse to peacefully leave office should he lose the election in November .
How concerned should we be , and what can we do to make sure we ’ re prepared ?
Joshua Geltzer , visiting law professor at Georgetown University and a former member of Barack Obama ’ s National Security Council , joins Mehdi Hasan to discuss .
White House Reporter : Will you commit here to a peaceful transfer of power ?
President Donald J. Trump : Well we ’ ll have to see… There @ @ @ @ @ @ @ frankly .
There ’ ll be a continuation .
The polls suggest Joe Biden is on course for victory in November .
But if he loses , is Donald Trump really going to leave without a fight ?
JG : I think we need to have these conversations ahead of time , which can help inoculate against all that stuff that Donald Trump will say , potentially starting November 3 , November 4 , and for weeks to come .
MH : That ’ s my guest today , Joshua Geltzer , Georgetown @ @ @ @ @ @ @ President Obama ’ s National Security Council .
So , how worried should we be that Trump won ’ t accept the result ?
That he won ’ t leave without violence or chaos ?
Is democracy itself really on the ballot this November ?
Picture the scene : It ’ s the morning of November 4 , 2020 , the morning after the election , and it ’ s become clear that Donald Trump has lost both in the Electoral College and in the popular vote to the Democratic candidate , Joe @ @ @ @ @ @ @ rather than calling his Democratic opponent to concede , holds a rally with his supporters at which he declares himself the winner of the election and tells the crowd not to believe what they ’ re seeing or hearing in the news , because it ’ s fake news .
And he tells them that the election was rigged , it was a deep state coup , and millions and millions of people voted illegally for the Democrats , using fake mail-in ballots .
He tells them to take to the streets because @ @ @ @ @ @ @ .
Picture that scene .
It ’ s a scene I first wrote about back in March 2019 , in a column for The Intercept , headlined : “ Yes , Let ’ s Defeat or Impeach Donald Trump .
But What If He Refuses to Leave the White House ?
” I concluded that piece , saying : “ This is not a drill , and there is no reason to believe Trump will go quietly if he is defeated .
There is every reason , however , to believe he and @ @ @ @ @ @ @ violence .
Those who assume otherwise haven ’ t been paying attention.
” Now , a lot of people at the time thought that was hyperbole , that I was exaggerating the risk , the threat ; they poo-pooed the scenario that I outlined there .
This doesn ’ t happen in America .
We have checks and balances .
Yeah — American exceptionalism !
Hubris , more like it .
So what prompted me to write that piece then ?
Well , at the time , two things : number one , @ @ @ @ @ @ @ , his former personal lawyer and fixer Michael Cohen had just told Congress : Michael Cohen : Given my experience working for Mr. Trump , I fear that if he loses the election in 2020 , that there will never be a peaceful transition of power .
MH : And , number two : Trump himself made it clear in 2016 he wouldn ’ t accept the election result .
So why would it be any different in 2020 ?
In fact , even after winning in 2016 , he ’ d publicly @ @ @ @ @ @ @ only got more votes than him because “ illegals ” voted for her .
This man is a bad winner ; of course he ’ s going to be a bad loser !
Over the past 18 months , thankfully , more and more people have come ’ round to my way of thinking .
Now , it ’ s almost conventional wisdom that Trump won ’ t accept the result ; that there ’ s a risk of violence , even .
In fact , the former head of the National Counterterrorism @ @ @ @ @ @ @ would not be surprised if far-right domestic terrorist groups launch attacks across the U.S. , “ particularly if the administration loses.
” People can no longer deny that this is where we ’ re headed , because Trump keeps telling us this is where we ’ re headed .
Asked by Fox News ’ s Chris Wallace whether he ’ d accept the election result , he refused to say yes : Chris Wallace : Can you give a direct answer ?
You will accept the election ?
DJT : I have to @ @ @ @ @ @ @ see .
No , I ’ m not going to just say yes .
I ’ m not going to say — and I didn ’ t last time , either .
MH : At a recent rally , the narcissist-in-chief said he wouldn ’ t accept as legitimate any election result that didn ’ t show him as the winner : DJT : The only way we ’ re going to lose this election is if the election is rigged .
Remember that .
That ’ s the only way we ’ @ @ @ @ @ @ @ MH : And let ’ s not forget his dangerous , dangerous tweets earlier this year : @ realDonaldTrump : “ LIBERATE VIRGINIA , and save your great 2nd Amendment .
It is under siege.
” Tweets that were welcomed by both far-right extremists online and armed right-wing militias on the streets of Michigan , Virginia , and beyond .
So what happens if November sees Trump refusing to concede , contesting the results , urging violence , urging an uprising by his cultish and armed followers ?
Are the Democrats ready for @ @ @ @ @ @ @ the media ?
Are we ready ?
MH : Who better to ask about all of this than my guest today , Joshua Geltzer , who is a visiting law professor at Georgetown University and was a senior director for Counterterrorism at the National Security Council during president Obama ’ s second term ?
Now , I may have been one of the first people in the U.S. media to write about this subject back in March 2019 , but he beat even me .
In February 2019 , he penned an op-ed @ @ @ @ @ @ @ “ What If Trump Refuses to Accept Defeat in 2020 ?
” And he joins me now from his home in Washington D.C.. Joshua Geltzer , thanks for coming on Deconstructed .
JG : Thanks for the invitation .
MH : You wrote your piece in February 2019 .
I wrote a very similar piece a month later , in March 2019 , making the same warning : What happens if Trump won ’ t go ?
It ’ s been 18 months since then .
More and more people — politicians , @ @ @ @ @ @ @ about a scenario where Trump refuses to go .
Why do you think it took so long for so many people to recognize the clear and present danger here ?
Why was it dismissed out of hand a year and a half ago ?
I remember people poo-pooed me when I wrote my column for The Intercept .
But now it ’ s the subject of much ongoing debate , much hand-wringing .
JG : I think this is the Trump dynamic that we ’ ve seen where he says something so outrageous @ @ @ @ @ @ @ as president , that initially the reaction of people , almost understandably , is to say : “ He can ’ t actually do that .
He can ’ t actually deliver on that promise .
He can ’ t actually mean what he says.
” But then when he does , it takes people aback .
They ’ re caught unsure how to respond , because he ’ s actually gone and done it .
And that was my goal — I suspect it was your goal — in providing this warning @ @ @ @ @ @ @ this as a possibility so that we can be ahead of him for once .
And one of the reasons I wrote my piece was Michael Cohen , his , at the time , former lawyer — but had just been his lawyer until very recently , at that time — had gone in front of Congress and said : I don ’ t think there ’ ll be a peaceful transfer of power .
He ’ s not the kind of guy who ’ s gon na do it .
And I @ @ @ @ @ @ @ know , the guy won , and still complained about illegal voters and being stolen .
He was a bad winner ; of course , he ’ s gon na be a bad loser .
There ’ s no debate about it — let ’ s just look at the personality of this man that we ’ re learning more and more about , thanks to even family members now , in recent days .
And what ’ s interesting , Josh , is in recent days people are even going further than @ @ @ @ @ @ @ a half ago in terms of dire warnings .
You now have very serious people warning of major violence .
The former head of the National Counterterrorism Center , Ross Travers , said the other week that he wouldn ’ t be surprised if far-right domestic terrorist groups launch attacks around the country if Trump loses .
I mean , you and I didn ’ t go that far .
JG : No , we didn ’ t .
But someone like Ross , with whom I worked closely when I was in @ @ @ @ @ @ @ hyperventilating .
But he is putting together , I think , some strands of the Trump presidency and Trump ’ s rhetoric .
In particular , he ’ s taking not only what you and I focused on , the idea of refusing to accept the legitimacy of any election in which he loses , but also this — at times tacit , at times rather explicit —encouragement , acceptance , exhortation even , of private militia groups .
Now , Trump hasn ’ t said to do exactly what Ross , and @ @ @ @ @ @ @ , are worrying about , but he ’ s accepted that they might provide security for him at campaign events .
He hasn ’ t denounced them going all the way back to Charlottesville , of course , in August 2017 .
So it ’ s those strands that come together in at least potentially worrisome ways that require us to get ahead of it , rather than to find ourselves in undesirable , rather frightening circumstances .
MH : Yeah .
And we ’ ve even seen him embrace QAnon , which @ @ @ @ @ @ @ domestic radicalization , a domestic extremist group which has also been behind acts of violence .
And even if you go beyond terror attacks , we do know that Trump supporters , armed Trump supporters will take to the streets if he tells them to .
That ’ s not a guess .
They ’ ve done it already .
In Michigan we saw right-wing militias turn up at the statehouse earlier this year as part of the anti-lockdown protests , burning effigies of Democratic governors .
Was that all a warm-up , @ @ @ @ @ @ @ JG : It at least feels like it could be — it feels like it could be a warm-up from groups that go into this election cycle thinking that the system is somehow rigged — in part , of course , because Donald Trump told them way back in 2016 — JG : — that they should see it as rigged , until he kind of dropped that language once he won , but — MH : — although , he said the other day — I should just remind our listeners — @ @ @ @ @ @ @ only way I lose is if it ’ s rigged .
So he made it very clear he ’ s not accepting the result .
JG : Right .
That ’ s the sort of resuscitation of a claim that was hard to resuscitate once , in fact , he won .
And yet Trump has found a way to keep alive the notion that the system is stacked against him .
That ’ s how he phrases the Flynn matter ; that ’ s how he phrases Mueller ’ s investigation .
@ @ @ @ @ @ @ and use them to keep alive the notion that he ’ s the one being treated unfairly , when in fact , to the chagrin of some of us , he nonetheless emerged the victor in the system as we have it in 2016 .
And he ’ s re-injecting that now as 2020 approaches .
MH : So we have these warnings coming out , more and more people worried about this scenario .
And yet , overall , despite , you know , Nancy Pelosi is coming out saying we need @ @ @ @ @ @ @ this happening — we ’ ve heard Facebook say recently they ’ re gon na crack down on misinformation about the result , or about Trump falsely claiming victory on the night , there ’ s been books published on this topic of whether he ’ ll go quietly .
But I still feel , Josh , overall — big picture — politicians and journalists , neither of them are prepared really , fully for what could be coming down the track .
Do you think enough preparations have been made ?
For @ @ @ @ @ @ @ journalist , I look at my colleagues in the media , and I do not think enough preparations have been made for what happens on election night : What are the anchors going to be saying ?
How are the newspapers going to be framing it if Trump does not accept the result , or if he claims victory when all the votes aren ’ t in ?
Do you think people in your world , in the national security world , in the government bureaucracy , on the Democratic side have taken @ @ @ @ @ @ @ ’ ll say a couple of positive things , and then a couple of things I ’ m still concerned about .
Here ’ s where I ’ m positive : I think some of your colleagues in the media have begun to help the public understand some important things .
Those include the idea that there is nothing illegitimate about not knowing the results on election night , that ballots still may need to be counted , that potentially there will even be court cases .
That ’ s a peaceful way @ @ @ @ @ @ @ okay .
It happened in 2000 .
It was unsettling , but , ultimately it was , of course , peaceful — that there are ways in which we might not know the night of and that is just fine .
That ’ s not a rigged election ; that ’ s not illegitimate .
And explaining not only that as a notion , but , in particular , what some of those steps could be after election day , but before January 20 , I think there are at least some signs @ @ @ @ @ @ @ in a helpful way .
But I ’ m also still concerned , and some of those steps that I urged in the piece early last year , that you were nice enough to reference earlier , I wish there was more action being taken on them — the idea that governors who are not up for reelection could all commit to honoring the results of the presidential election , regardless of what those results are ; the idea that members of Congress who are not up for reelection on the Senate side @ @ @ @ @ @ @ commit to approaching their duty on January 6 of holding a joint session and certifying results , and not being deterred by a single candidate ’ s claim of illegitimacy , there ’ s still time to take those steps .
But they haven ’ t been taken yet , unfortunately , MH : Josh , you mentioned a moment ago the governors and the role that they can play .
And in your original CNN piece , I think there were four groups — four actors — where pressure could be brought @ @ @ @ @ @ @ the electoral college , Congress , the governors , and the military .
I wonder if you have confidence in all of those actors , 18 months later ?
I mean , Congress remains a partisan , dysfunctional joke .
And , as for the military , we just saw a few weeks ago , the Chairman of the Joint Chiefs of Staff , General Mark Milley , disgraced himself by going in full combat fatigues on a walkabout with President Trump around Lafayette Square after Trump had cleared it out with tear @ @ @ @ @ @ @ was horrifying , I think , to many across America .
And as people talk about that and other recent disturbing developments as something of a test run for how Trump might behave in November , I guess I , as an optimist , hope that it ’ s also a lesson learned .
Because Chairman Milley came out afterwards and released a video that he knew would be public and , in particular , he knew Donald Trump would see , in which he said he made a mistake .
Now , @ @ @ @ @ @ @ is a mistake before you do it rather than after , but at least realizing after is better than not realizing it at all .
And for him to have realized that what he did there , as someone in uniform with others in uniform , was inappropriate , was contrary to the norms and ideals of American democracy and civilian military relations , the idea that that was a test run from which he learned before November , that ’ s what the optimist in me wants to take away from that @ @ @ @ @ @ @ your list of groups , you didn ’ t mention the courts as playing a potential role .
Is that because you believe they ’ re so stuffed with Trump appointees , and so partisan , including the Supreme Court , that the U.S. judiciary can no longer be relied upon to prevent or adjudicate a potential constitutional crisis of this magnitude ?
I mean , not just no longer — back in 2000 , many would argue it was a biased Supreme Court that helped Bush defeat Gore .
JG : So @ @ @ @ @ @ @ of the Bush v. Gore decision and I ’ m not a fan of every decision I see from the federal courts , but I still see them as a place where peaceful resolution , appropriate resolution of disputes , including electoral disputes can play out .
I didn ’ t mention them in the piece , in part because I was trying to identify actors who could act now — who , in advance , could make certain commitments , certain pledges , that would help ensure a peaceful transfer of power @ @ @ @ @ @ @ to work when there ’ s a concrete case or controversy upon them .
And I think they will find — at least , some of them , around the country — that they ’ re asked to do just that .
But if they do it consistent with the way our courts operate in channeling what otherwise could be hard to resolve disputes into peaceful adjudication , I think that ’ s still an important role .
I also think there are things states can do to try to avoid , for @ @ @ @ @ @ @ .
And we could talk about Bush v. Gore at length but real quickly , part of the problem there was that it wasn ’ t wholly clear exactly what the different pieces of the Florida system thought should happen in terms of ballot counting , if it wasn ’ t resolved past a certain date on the calendar .
Dates could make that totally clear — unmistakably clear — today , before we get to November , and that would leave less wiggle room for a Supreme Court or , frankly , @ @ @ @ @ @ @ come along and make the sort of decision that many of us thought was a mistake back in 2000 .
MH : So you ’ re not just a former senior government official , you ’ re also a law professor at Georgetown ; just legally and constitutionally , just to be clear , what we ’ re worried about here is the period between November 3 , 2020 — Election Day — and January 20 , 2021 — the inauguration of a new president .
Right ?
There ’ s no chance @ @ @ @ @ @ @ Trump could hold on to office past January 20 , or could he , if there ’ s shenanigans or dirty tricks when it comes to certifying Electoral College results , for example , in December ?
What ’ s the process ?
JG : So the Constitution is clear that on January 20 , the term of a current president ends .
And it ’ s also clear that if there isn ’ t someone whose votes have been certified by Congress as the new president , then the line of succession @ @ @ @ @ @ @ has been such a deadlocked Congress , for example , that they don ’ t certify the right results , or they don ’ t reach the necessary thresholds , it actually moves past the president and vice president , whose term will end , one way or another , at noon on January 20 , and go to the next person , who happens to be the Speaker of the House , Nancy Pelosi .
So , if you reach that point , it ’ s not clear that that ’ s @ @ @ @ @ @ @ : Or that the Republicans in Congress love , and they might put pressure on him to avoid that .
Although , I read somewhere that it ’ s not Nancy Pelosi , because it would be the Senate Pro Tempore , Chuck Grassley .
I saw someone claiming that .
JG : That ’ s a — it is an extreme hypothetical .
I think what you may have seen was some people who said : Look , if there really were no federal elections held at all , which is something @ @ @ @ @ @ @ Donald Trump does not have the power unilaterally to do — MH : Yes , yes , OK , yes .
We ’ re mixing up the different constitutional crises that Donald Trump has broached here .
Fair enough .
JG : They ’ re coming at us too quickly to keep track of .
MH : Yeah .
In the scenario where there ’ s no elections , and yes , Pelosi wouldn ’ t be in Congress , either , that ’ s not on the table .
But in the @ @ @ @ @ @ @ , suggesting that he ’ s the president , has some electors in the Electoral College who switched to him on partisan terms , then Pelosi would be president on January 21 .
JG : That ’ s right .
But as you pointed out before , there is a process .
It ’ s a surprisingly convoluted process that unfolds before we ever get to that point that would hopefully head it off — and zooming out here , you go from the states to the meeting of the Electoral College .
@ @ @ @ @ @ @ January 6 , when the new Congress — presided over , as it were , by Mike Pence , at this point — certifies results .
And it has happened , in our nation ’ s history , that states have had competing slates of electors , different actors that the states have sent .
There ’ s a process — there ’ s even a statute — that specifies how Congress debates and resolves that sort of contest : They break into the House and Senate ; they come back together .
@ @ @ @ @ @ @ really hard questions , really tense questions , there ’ s still a process for sorting that out before we get to a January 20 that is a nightmare scenario .
MH : But there has never been a contested election result in U.S. history , has there ?
JG : Well , I mean , there have been times where Congress has played the role you and I are talking about with a lot of argument and contestation .
So , listeners may be familiar with the epic drama that Alexander Hamilton @ @ @ @ @ @ @ quite as much as the musical suggests , but some role in — resolving where you had basically a tie , ballot after ballot in Congress , you had a tie until an abstention actually broke that tie .
You even had , in a much later election , a commission set up with some Supreme Court justices as part of it , to try to resolve a contested election .
That was later in the 19th century .
You had at one point , Richard Nixon , he was vice president , @ @ @ @ @ @ @ to John Kennedy , having to preside over a session in which he allowed a slate of electors to go against him .
It wasn ’ t determinative .
MH : But to be fair to Nixon , he did go out of his way to say : I accept the result — even though there were dirty tricks on the Democratic side , and our country is all about peaceful transfer of power .
Even Nixon was able to say something that Trump isn ’ t .
What ’ s interesting as @ @ @ @ @ @ @ here in the U.S. , is , as you know , in the UK , Election Day , the Prime Minister leaves the following morning , the moving van is in Downing Street , ready to go .
The problem you have is that you have this weird , you know , nearly three-month period where Trump is still the president and can cause a lot of damage just from the bully pulpit .
People say : Oh , the Secret Service will get rid of him on January 20 .
But it @ @ @ @ @ @ @ , where so much constitutional chaos can happen , and so much violence — God forbid — could happen .
Isn ’ t the problem here , Josh , there ’ s a kind of arrogant U.S. exceptionalism at play here This idea which has been around in some liberal — even centrist — circles since before 2016 , even , that Trump can not do long-term or major damage to the U.S. , because the U.S. isn ’ t some developing country , some banana republic !
It has strong institutions !
@ @ @ @ @ @ @ happens in other countries can ’ t happen here !
That was the mindset for a lot of people , until very recently .
JG : I think there ’ s something to that .
And I think that ’ s where having conversations like the one you and I are having right now , where we take something that , frankly , appeared unthinkable 10 years ago , 20 years ago , even as polarized as American politics was then , felt then , but still seemed unthinkable — and now , @ @ @ @ @ @ @ has forced us to think about it .
And then we take the next step of trying to figure out out the actors who can try to take Trump ’ s abnormal rhetoric , abnormal approach to such things and sideline it , and get us back to where normal is .
I think that ’ s why we need to have these conversations ahead of time and why the public education function , which can help inoculate against that — all those tweets , all that stuff Donald Trump will say , @ @ @ @ @ @ @ for weeks to come , I think that ’ s critical ahead of time .
MH : So last question then , on that note , just throwing forward : If we managed to dodge this bullet — if Biden wins so clearly , that it ’ s not even an issue — and if he takes office with a unified government , with a Democratic-controlled Senate and House , too , are there steps that he and his party can take , in your view , to fix things , to reform @ @ @ @ @ @ @ are counted , slates are approved , to prevent such a scary potential scenario from ever being on the horizon again in the future ?
JG : I think the answer to that is yes and no .
I think there are things that can be done , from abolishing the outdated Electoral College — JG : — which , in some ways , is this whole mess in the first place , to clarifying statutes like the Electoral Count Act , the one I mentioned before that Congress used to specify how @ @ @ @ @ @ @ but is , in fact , very hard to read and interpret .
So yes , they could do some cleanup there .
And , at the same time , I don ’ t want to succumb to the hubris , the American exceptionalism you rightly mentioned a few minutes ago , in which , at some level , this is about human beings , and the choices they make , and their willingness to abide by a system of rules in a system of law .
And I think we both need @ @ @ @ @ @ @ can , but we also need to use this Trump experience as a reminder that there are those who will come along and try , potentially , to break our systems , our institutions , our norms , and we need to stay eyes wide open and aware and resist that when it happens .
MH : Joshua Geltzer , we ’ ll have to leave it there .
Thank you so much for joining us on Deconstructed .
Thanks for your insight !

Fears are growing, stoked by the president’s own comments, that he will refuse to peacefully leave office should he lose the election in November. How concerned should we be, and what can we do to make sure we’re prepared? Joshua Geltzer, visiting law professor at Georgetown University and a former member of Barack Obama’s National Security Council, joins Mehdi Hasan to discuss.
White House Reporter: Will you commit here to a peaceful transfer of power?
President Donald J. Trump: Well we’ll have to see… There won’t be a transfer, frankly. There’ll be a continuation.
[Musical interlude.]
Mehdi Hasan: Welcome to Deconstructed. I’m Mehdi Hasan.
The polls suggest Joe Biden is on course for victory in November. But if he loses, is Donald Trump really going to leave without a fight?
JG: I think we need to have these conversations ahead of time, which can help inoculate against all that stuff that Donald Trump will say, potentially starting November 3, November 4, and for weeks to come.
MH: That’s my guest today, Joshua Geltzer, Georgetown law professor and a former member of President Obama’s National Security Council.
So, how worried should we be that Trump won’t accept the result? That he won’t leave without violence or chaos? Is democracy itself really on the ballot this November?
Picture the scene: It’s the morning of November 4, 2020, the morning after the election, and it’s become clear that Donald Trump has lost both in the Electoral College and in the popular vote to the Democratic candidate, Joe Biden.
The president, however, rather than calling his Democratic opponent to concede, holds a rally with his supporters at which he declares himself the winner of the election and tells the crowd not to believe what they’re seeing or hearing in the news, because it’s fake news. And he tells them that the election was rigged, it was a deep state coup, and millions and millions of people voted illegally for the Democrats, using fake mail-in ballots. He tells them to take to the streets because their Second Amendment rights are at stake.
Picture that scene. It’s a scene I first wrote about back in March 2019, in a column for The Intercept, headlined: “Yes, Let’s Defeat or Impeach Donald Trump. But What If He Refuses to Leave the White House?”
I concluded that piece, saying: “This is not a drill, and there is no reason to believe Trump will go quietly if he is defeated. There is every reason, however, to believe he and his allies will incite hysteria and even violence. Those who assume otherwise haven’t been paying attention.”
Now, a lot of people at the time thought that was hyperbole, that I was exaggerating the risk, the threat; they poo-pooed the scenario that I outlined there. This doesn’t happen in America. We have checks and balances. Yeah — American exceptionalism! Hubris, more like it.
So what prompted me to write that piece then? Well, at the time, two things: number one, one of Trump’s closest confidantes, his former personal lawyer and fixer Michael Cohen had just told Congress:
Michael Cohen: Given my experience working for Mr. Trump, I fear that if he loses the election in 2020, that there will never be a peaceful transition of power.
MH: And, number two: Trump himself made it clear in 2016 he wouldn’t accept the election result. So why would it be any different in 2020? In fact, even after winning in 2016, he’d publicly and falsely claimed that Hillary Clinton had only got more votes than him because “illegals” voted for her. This man is a bad winner; of course he’s going to be a bad loser!
Over the past 18 months, thankfully, more and more people have come ’round to my way of thinking. Now, it’s almost conventional wisdom that Trump won’t accept the result; that there’s a risk of violence, even.
In fact, the former head of the National Counterterrorism Center said just this month that he would not be surprised if far-right domestic terrorist groups launch attacks across the U.S., “particularly if the administration loses.”
People can no longer deny that this is where we’re headed, because Trump keeps telling us this is where we’re headed. Asked by Fox News’s Chris Wallace whether he’d accept the election result, he refused to say yes:
Chris Wallace: Can you give a direct answer? You will accept the election?
DJT: I have to see. Look, I have to see. No, I’m not going to just say yes. I’m not going to say — and I didn’t last time, either.
MH: At a recent rally, the narcissist-in-chief said he wouldn’t accept as legitimate any election result that didn’t show him as the winner:
DJT: The only way we’re going to lose this election is if the election is rigged. Remember that. That’s the only way we’re going to lose this election.
MH: And let’s not forget his dangerous, dangerous tweets earlier this year:
@realDonaldTrump: “LIBERATE MINNESOTA”
@realDonaldTrump: “LIBERATE MICHIGAN!”
@realDonaldTrump: “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege.”
Tweets that were welcomed by both far-right extremists online and armed right-wing militias on the streets of Michigan, Virginia, and beyond.
So what happens if November sees Trump refusing to concede, contesting the results, urging violence, urging an uprising by his cultish and armed followers? Are the Democrats ready for that? Is Joe Biden? Is the media? Are we ready?
[Musical interlude.]
MH: Who better to ask about all of this than my guest today, Joshua Geltzer, who is a visiting law professor at Georgetown University and was a senior director for Counterterrorism at the National Security Council during president Obama’s second term?
Now, I may have been one of the first people in the U.S. media to write about this subject back in March 2019, but he beat even me. In February 2019, he penned an op-ed for the CNN website, headlined: “What If Trump Refuses to Accept Defeat in 2020?”
And he joins me now from his home in Washington D.C..
Joshua Geltzer, thanks for coming on Deconstructed.
JG: Thanks for the invitation.
MH: You wrote your piece in February 2019. I wrote a very similar piece a month later, in March 2019, making the same warning: What happens if Trump won’t go?
It’s been 18 months since then. More and more people — politicians, pundits, voters — are now warning about a scenario where Trump refuses to go. Why do you think it took so long for so many people to recognize the clear and present danger here? Why was it dismissed out of hand a year and a half ago? I remember people poo-pooed me when I wrote my column for The Intercept. But now it’s the subject of much ongoing debate, much hand-wringing.
JG: I think this is the Trump dynamic that we’ve seen where he says something so outrageous, first as a candidate, then as president, that initially the reaction of people, almost understandably, is to say: “He can’t actually do that. He can’t actually deliver on that promise. He can’t actually mean what he says.”
But then when he does, it takes people aback. They’re caught unsure how to respond, because he’s actually gone and done it. And that was my goal — I suspect it was your goal — in providing this warning, which is we need to accept this as a possibility so that we can be ahead of him for once.
MH: Yes.
And one of the reasons I wrote my piece was Michael Cohen, his, at the time, former lawyer — but had just been his lawyer until very recently, at that time — had gone in front of Congress and said: I don’t think there’ll be a peaceful transfer of power. He’s not the kind of guy who’s gonna do it.
And I remember the 2016 result and, you know, the guy won, and still complained about illegal voters and being stolen. He was a bad winner; of course, he’s gonna be a bad loser. There’s no debate about it — let’s just look at the personality of this man that we’re learning more and more about, thanks to even family members now, in recent days.
And what’s interesting, Josh, is in recent days people are even going further than you and I did a year and a half ago in terms of dire warnings. You now have very serious people warning of major violence. The former head of the National Counterterrorism Center, Ross Travers, said the other week that he wouldn’t be surprised if far-right domestic terrorist groups launch attacks around the country if Trump loses. I mean, you and I didn’t go that far.
JG: No, we didn’t. But someone like Ross, with whom I worked closely when I was in government, he is not prone to hyperventilating. But he is putting together, I think, some strands of the Trump presidency and Trump’s rhetoric. In particular, he’s taking not only what you and I focused on, the idea of refusing to accept the legitimacy of any election in which he loses, but also this — at times tacit, at times rather explicit —encouragement, acceptance, exhortation even, of private militia groups.
Now, Trump hasn’t said to do exactly what Ross, and apparently others who are still in government, are worrying about, but he’s accepted that they might provide security for him at campaign events. He hasn’t denounced them going all the way back to Charlottesville, of course, in August 2017. So it’s those strands that come together in at least potentially worrisome ways that require us to get ahead of it, rather than to find ourselves in undesirable, rather frightening circumstances.
MH: Yeah. And we’ve even seen him embrace QAnon, which the FBI considers to be a potential domestic radicalization, a domestic extremist group which has also been behind acts of violence. And even if you go beyond terror attacks, we do know that Trump supporters, armed Trump supporters will take to the streets if he tells them to. That’s not a guess. They’ve done it already. In Michigan we saw right-wing militias turn up at the statehouse earlier this year as part of the anti-lockdown protests, burning effigies of Democratic governors. Was that all a warm-up, do you think, for November?
JG: It at least feels like it could be — it feels like it could be a warm-up from groups that go into this election cycle thinking that the system is somehow rigged — in part, of course, because Donald Trump told them way back in 2016 —
MH: Yes!
JG: — that they should see it as rigged, until he kind of dropped that language once he won, but —
MH: — although, he said the other day — I should just remind our listeners — he said the other day: The only way I lose is if it’s rigged. So he made it very clear he’s not accepting the result.
JG: Right. That’s the sort of resuscitation of a claim that was hard to resuscitate once, in fact, he won. And yet Trump has found a way to keep alive the notion that the system is stacked against him. That’s how he phrases the Flynn matter; that’s how he phrases Mueller’s investigation. He somehow manages to take these pieces and use them to keep alive the notion that he’s the one being treated unfairly, when in fact, to the chagrin of some of us, he nonetheless emerged the victor in the system as we have it in 2016. And he’s re-injecting that now as 2020 approaches.
MH: So we have these warnings coming out, more and more people worried about this scenario. And yet, overall, despite, you know, Nancy Pelosi is coming out saying we need to win big in order to avoid this happening — we’ve heard Facebook say recently they’re gonna crack down on misinformation about the result, or about Trump falsely claiming victory on the night, there’s been books published on this topic of whether he’ll go quietly. But I still feel, Josh, overall — big picture — politicians and journalists, neither of them are prepared really, fully for what could be coming down the track.
Do you think enough preparations have been made? For example, I can speak as a journalist, I look at my colleagues in the media, and I do not think enough preparations have been made for what happens on election night: What are the anchors going to be saying? How are the newspapers going to be framing it if Trump does not accept the result, or if he claims victory when all the votes aren’t in? Do you think people in your world, in the national security world, in the government bureaucracy, on the Democratic side have taken it seriously enough?
JG: I’ll say a couple of positive things, and then a couple of things I’m still concerned about.
Here’s where I’m positive: I think some of your colleagues in the media have begun to help the public understand some important things. Those include the idea that there is nothing illegitimate about not knowing the results on election night, that ballots still may need to be counted, that potentially there will even be court cases. That’s a peaceful way to resolve things; that’s okay. It happened in 2000. It was unsettling, but, ultimately it was, of course, peaceful — that there are ways in which we might not know the night of and that is just fine. That’s not a rigged election; that’s not illegitimate.
And explaining not only that as a notion, but, in particular, what some of those steps could be after election day, but before January 20, I think there are at least some signs that that is infiltrating the public discussion in a helpful way. But I’m also still concerned, and some of those steps that I urged in the piece early last year, that you were nice enough to reference earlier, I wish there was more action being taken on them — the idea that governors who are not up for reelection could all commit to honoring the results of the presidential election, regardless of what those results are; the idea that members of Congress who are not up for reelection on the Senate side or even those who are up could commit to approaching their duty on January 6 of holding a joint session and certifying results, and not being deterred by a single candidate’s claim of illegitimacy, there’s still time to take those steps. But they haven’t been taken yet, unfortunately,
MH: Josh, you mentioned a moment ago the governors and the role that they can play. And in your original CNN piece, I think there were four groups — four actors — where pressure could be brought to bear, in your view: the electoral college, Congress, the governors, and the military. I wonder if you have confidence in all of those actors, 18 months later?
I mean, Congress remains a partisan, dysfunctional joke. And, as for the military, we just saw a few weeks ago, the Chairman of the Joint Chiefs of Staff, General Mark Milley, disgraced himself by going in full combat fatigues on a walkabout with President Trump around Lafayette Square after Trump had cleared it out with tear gas.
JG: So that scene was horrifying, I think, to many across America. And as people talk about that and other recent disturbing developments as something of a test run for how Trump might behave in November, I guess I, as an optimist, hope that it’s also a lesson learned. Because Chairman Milley came out afterwards and released a video that he knew would be public and, in particular, he knew Donald Trump would see, in which he said he made a mistake.
Now, it’s better to know something is a mistake before you do it rather than after, but at least realizing after is better than not realizing it at all. And for him to have realized that what he did there, as someone in uniform with others in uniform, was inappropriate, was contrary to the norms and ideals of American democracy and civilian military relations, the idea that that was a test run from which he learned before November, that’s what the optimist in me wants to take away from that.
MH: Okay. And in your list of groups, you didn’t mention the courts as playing a potential role. Is that because you believe they’re so stuffed with Trump appointees, and so partisan, including the Supreme Court, that the U.S. judiciary can no longer be relied upon to prevent or adjudicate a potential constitutional crisis of this magnitude? I mean, not just no longer — back in 2000, many would argue it was a biased Supreme Court that helped Bush defeat Gore.
JG: So, I’m not a fan of the Bush v. Gore decision and I’m not a fan of every decision I see from the federal courts, but I still see them as a place where peaceful resolution, appropriate resolution of disputes, including electoral disputes can play out. I didn’t mention them in the piece, in part because I was trying to identify actors who could act now — who, in advance, could make certain commitments, certain pledges, that would help ensure a peaceful transfer of power.
Courts, of course, tend to work when there’s a concrete case or controversy upon them. And I think they will find — at least, some of them, around the country — that they’re asked to do just that. But if they do it consistent with the way our courts operate in channeling what otherwise could be hard to resolve disputes into peaceful adjudication, I think that’s still an important role.
I also think there are things states can do to try to avoid, for example, the Bush v. Gore problem. And we could talk about Bush v. Gore at length but real quickly, part of the problem there was that it wasn’t wholly clear exactly what the different pieces of the Florida system thought should happen in terms of ballot counting, if it wasn’t resolved past a certain date on the calendar. Dates could make that totally clear — unmistakably clear — today, before we get to November, and that would leave less wiggle room for a Supreme Court or, frankly, even a lower federal court, to come along and make the sort of decision that many of us thought was a mistake back in 2000.
MH: So you’re not just a former senior government official, you’re also a law professor at Georgetown; just legally and constitutionally, just to be clear, what we’re worried about here is the period between November 3, 2020 — Election Day — and January 20, 2021 — the inauguration of a new president. Right? There’s no chance, is there, that a defeated Trump could hold on to office past January 20, or could he, if there’s shenanigans or dirty tricks when it comes to certifying Electoral College results, for example, in December? What’s the process?
JG: So the Constitution is clear that on January 20, the term of a current president ends. And it’s also clear that if there isn’t someone whose votes have been certified by Congress as the new president, then the line of succession kicks in. Which means if there has been such a deadlocked Congress, for example, that they don’t certify the right results, or they don’t reach the necessary thresholds, it actually moves past the president and vice president, whose term will end, one way or another, at noon on January 20, and go to the next person, who happens to be the Speaker of the House, Nancy Pelosi. So, if you reach that point, it’s not clear that that’s an outcome Donald Trump loves.
MH: Or that the Republicans in Congress love, and they might put pressure on him to avoid that. Although, I read somewhere that it’s not Nancy Pelosi, because it would be the Senate Pro Tempore, Chuck Grassley. I saw someone claiming that.
JG: That’s a — it is an extreme hypothetical. I think what you may have seen was some people who said: Look, if there really were no federal elections held at all, which is something, to be totally clear, that Donald Trump does not have the power unilaterally to do —
MH: Yes, yes, OK, yes. We’re mixing up the different constitutional crises that Donald Trump has broached here. Fair enough.
JG: They’re coming at us too quickly to keep track of.
MH: Yeah. In the scenario where there’s no elections, and yes, Pelosi wouldn’t be in Congress, either, that’s not on the table. But in the scenario where Trump is contesting the result, suggesting that he’s the president, has some electors in the Electoral College who switched to him on partisan terms, then Pelosi would be president on January 21.
JG: That’s right. But as you pointed out before, there is a process. It’s a surprisingly convoluted process that unfolds before we ever get to that point that would hopefully head it off — and zooming out here, you go from the states to the meeting of the Electoral College. But the really crucial step occurs on January 6, when the new Congress — presided over, as it were, by Mike Pence, at this point — certifies results.
And it has happened, in our nation’s history, that states have had competing slates of electors, different actors that the states have sent. There’s a process — there’s even a statute — that specifies how Congress debates and resolves that sort of contest: They break into the House and Senate; they come back together. And ultimately, even if there are really hard questions, really tense questions, there’s still a process for sorting that out before we get to a January 20 that is a nightmare scenario.
MH: But there has never been a contested election result in U.S. history, has there?
JG: Well, I mean, there have been times where Congress has played the role you and I are talking about with a lot of argument and contestation. So, listeners may be familiar with the epic drama that Alexander Hamilton played some role in — maybe not quite as much as the musical suggests, but some role in — resolving where you had basically a tie, ballot after ballot in Congress, you had a tie until an abstention actually broke that tie.
You even had, in a much later election, a commission set up with some Supreme Court justices as part of it, to try to resolve a contested election. That was later in the 19th century. You had at one point, Richard Nixon, he was vice president, he was outgoing because he had lost to John Kennedy, having to preside over a session in which he allowed a slate of electors to go against him. It wasn’t determinative.
MH: But to be fair to Nixon, he did go out of his way to say: I accept the result — even though there were dirty tricks on the Democratic side, and our country is all about peaceful transfer of power. Even Nixon was able to say something that Trump isn’t.
What’s interesting as a Brit, watching all of this here in the U.S., is, as you know, in the UK, Election Day, the Prime Minister leaves the following morning, the moving van is in Downing Street, ready to go. The problem you have is that you have this weird, you know, nearly three-month period where Trump is still the president and can cause a lot of damage just from the bully pulpit. People say: Oh, the Secret Service will get rid of him on January 20. But it’s the period before January 20, where so much constitutional chaos can happen, and so much violence — God forbid — could happen.
Isn’t the problem here, Josh, there’s a kind of arrogant U.S. exceptionalism at play here This idea which has been around in some liberal — even centrist — circles since before 2016, even, that Trump cannot do long-term or major damage to the U.S., because the U.S. isn’t some developing country, some banana republic! It has strong institutions! It has strong democratic norms! What happens in other countries can’t happen here! That was the mindset for a lot of people, until very recently.
JG: I think there’s something to that. And I think that’s where having conversations like the one you and I are having right now, where we take something that, frankly, appeared unthinkable 10 years ago, 20 years ago, even as polarized as American politics was then, felt then, but still seemed unthinkable — and now, we think about it because Donald Trump has forced us to think about it. And then we take the next step of trying to figure out out the actors who can try to take Trump’s abnormal rhetoric, abnormal approach to such things and sideline it, and get us back to where normal is. I think that’s why we need to have these conversations ahead of time and why the public education function, which can help inoculate against that — all those tweets, all that stuff Donald Trump will say, potentially starting November 3/November 4, and for weeks to come, I think that’s critical ahead of time.
MH: So last question then, on that note, just throwing forward: If we managed to dodge this bullet — if Biden wins so clearly, that it’s not even an issue — and if he takes office with a unified government, with a Democratic-controlled Senate and House, too, are there steps that he and his party can take, in your view, to fix things, to reform the way elections are run, results are counted, slates are approved, to prevent such a scary potential scenario from ever being on the horizon again in the future?
JG: I think the answer to that is yes and no.
I think there are things that can be done, from abolishing the outdated Electoral College —
MH: Oh, yes.
JG: — which, in some ways, is this whole mess in the first place, to clarifying statutes like the Electoral Count Act, the one I mentioned before that Congress used to specify how it should resolve certain election disputes, but is, in fact, very hard to read and interpret. So yes, they could do some cleanup there.
And, at the same time, I don’t want to succumb to the hubris, the American exceptionalism you rightly mentioned a few minutes ago, in which, at some level, this is about human beings, and the choices they make, and their willingness to abide by a system of rules in a system of law. And I think we both need to shore up our laws where we can, but we also need to use this Trump experience as a reminder that there are those who will come along and try, potentially, to break our systems, our institutions, our norms, and we need to stay eyes wide open and aware and resist that when it happens.
MH: Joshua Geltzer, we’ll have to leave it there. Thank you so much for joining us on Deconstructed. Thanks for your insight!
JG: Thank you.
[Musical interlude.]
MH: That was Joshua Geltzer, law professor and former member of Barack Obama’s National Security Council, sounding the alarm bell, but also sending a signal of hope — what still can be done to prevent an absolute disaster come Election Day and beyond? However, since we recorded that interview, Donald Trump said this on Wednesday.
Reporter: Will you commit to making sure that there is a peaceful transferal of power after the election?
DJT: Well, we’re going to have to see what happens. You know that. I’ve been complaining very strongly about the ballots. And the ballots are a disaster. And — and —
Reporter: I understand that, but people are rioting. Do you commit to making sure that —
DJT: Oh, I know. I know. Yeah, no, we want —
Reporter: — there’s a peaceful transferal of power?
DJT: We want to have — get rid of the ballots and you’ll have a very trans- — we’ll have a very peaceful — there won’t be a transfer, frankly; there’ll be a continuation.
The ballots are out of control. You know it. And you know who knows it better than —
Reporter: No, sir. I don’t know that.
DJT: — anybody else? The Democrats know it better than anybody else.
Reporter: No, sir. Mr. President, the second question is, will you also —
MH: The President of the United States refusing, unlike his 44 predecessors, to guarantee a peaceful transition of power and suggesting he’s going to win if you get rid of all the votes that go to the Democrats.
I’m joined now to discuss this latest aspect of the crisis that we’re already in by The Intercept’s D.C. bureau chief, friend of the show, who’s been hosting the show in recent weeks while I’ve been away, Ryan Grim. Ryan, welcome.
RG: Thanks for having me here, Mehdi.
MH: Ryan, when you listen, you’ve been covering presidents and American politics for many, many years now. Not that I’m saying you’re old. But when you listen to a president say that in the White House to a reporter 40, 41 days out from an election, it’s chilling, isn’t it?
RG: It really was. And far beyond his refusal to promise this peaceful transition was the part that you highlighted where he said, “Well, look, you know, I have this problem with the ballots. You know, you get rid of the ballots. You’re not even going to need to have a transition, because I’m just staying in office.”
And, you know, you could have The Washington Post fact checker dig into that statement, and you’d say, yes! No Pinocchios. If you do away with the election, then yes, the dictator stays in office.
But to have him so brazenly put that out there is certainly unlike, you know, anything we’ve seen in, you know, 200-plus years.
MH: Yes, the Republicans have perfected the art of voter suppression for many years now. But this is the first time I’ve heard a sitting president for the Republican Party say, “Just don’t count lots of votes. Those votes don’t count.” And it’s going to be a real problem, because on election night, he might be leading. Of course, when the rest of the votes come in, he won’t be leading. And that is the crisis we’re in right now, which I’ve been trying to sound the alarm bell about for 18 months now.
Joshua Geltzer was very strong on it earlier in the show, Bernie Sanders, this week, also gave a speech saying this is a nightmare scenario, Democrats need to take it seriously. Do you think the Democrats have what it takes to kind of really be ready for this and fight back? If he tries to steal the result? As he says he will?
RG: It depends on what you mean by Democrats.
If you mean some of the Democratic leaders in Washington? Probably not. But if you mean —
MH: The Party’s presidential candidate. The candidate himself, Mr. Biden?
RG: No. No. But if you mean kind of Democrats nationally, then I think you are going to see a furious response. And I think the protests we saw in June, in the wake of George Floyd’s murder, were partly related to a general anger at the system more broadly. And that system includes, you know, people who are stuck at home and angry but also angry at Donald Trump, angry at all of the kind of racial and gender inequities that he has exacerbated. And he’s become a focal point for a lot of that fury. And so I do think that Democrats across the country will take to the street if they believe that he’s trying to steal the election.
Now, the way to prevent that, of course, is a landslide by the win. But absent that, I think the answer to the question is, Democrats themselves might be ready for it; Democratic leaders might not be.
MH: Crazy times ahead. A crazy election coming. It is a very rare, you know, there’s that old Chinese curse, which isn’t really a Chinese curse that says, “May you live in interesting times.” We definitely do live in interesting and, in many ways, depressing times.
Ryan, thanks so much for joining me on Deconstructed.
RG: Well, thank you for having me.
[Musical interlude.]
MH: That’s our show.
Deconstructed is a production of First Look Media and The Intercept. Our producer is Zach Young. The show was mixed by Bryan Pugh. Our theme music was composed by Bart Warshaw. Betsy Reed is The Intercept’s editor in chief.
And I’m Mehdi Hasan. You can follow me on Twitter @mehdirhasan. If you haven’t already, please do subscribe to the show so you can hear it every week. Go to theintercept.com/deconstructed to subscribe from your podcast platform of choice: iPhone, Android, whatever. And if you’re subscribed already, please do leave us a rating or review — it helps people find the show. And if you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much!
See you next week.


theintercept--2020-09-25--Trump Taps Amy Coney Barrett -- Memo Lays Out Tactics for Opposition

Barrett , who was previously named to the 7th Circuit Court of Appeals by Trump , is an outspoken social conservative , broadly hostile to abortion rights , and a strong supporter of corporate rights .
Her confirmation would give conservatives a 6-3 majority on the Court , making Justice Brett Kavanaugh the swing vote , and would be the culmination of a decades-long strategy on the right to marry the pro-corporate , anti-worker , and anti-consumer movement with social conservatism .
President Donald Trump has nominated Judge Amy Coney Barrett to replace the late Ruth Bader Ginsburg on the @ @ @ @ @ @ @ confirmation battle as votes are already being cast for the November 3 election .
Amy Coney Barrett wrote the 7th Circuit opinion last month siding with Grubhub to say drivers can not press for minimum wage and overtime pay as a class action , they must use arbitration agreements , a decision that limits gig workers across the country .
https : //t.co/WG5DOaQk9g Dozens of Indivisible chapters recently sent Schumer a letter demanding he do everything in his power to block McConnell and President Donald Trump from filling the seat left vacant by @ @ @ @ @ @ @ week before a new president is sworn in .
On Sunday evening , Rep. Alexandria Ocasio-Cortez , appearing alongside Schumer at a press conference , urged him to do the same .
A memo circulating on Capitol Hill , put together by several people with knowledge of congressional procedure and obtained by The Intercept , lays out some of the options that could be available to Schumer even in the face of a determined Majority Leader Mitch McConnell .
Senators looking to obstruct in the Senate have a dizzying array of opportunities , @ @ @ @ @ @ @ , plus a tie-breaking vice president , also has an extraordinary amount of power in the upper chamber .
Elements of the memo were first published earlier Thursday by the Daily Poster .
Senate Minority Leader Chuck Schumer faces increasing pressure from Democrats around the country to use every tool at his disposal to oppose the Republican effort to push through a Supreme Court nominee before the election , one question has bedeviled activists : What exactly is possible ?
Trump had been urged by his political advisers to pick Judge Barbara Lagoa @ @ @ @ @ @ @ a Cuban-American , could help tip the balance of the presidential election in Florida and perhaps elsewhere .
But Trump , as he has done repeatedly through his time as president , retreated to the embrace of social conservatives .
Trump has pledged to nominate a new justice by Saturday , and McConnell has vowed to move quickly forward on the nomination .
The memo does not claim that victory would be guaranteed by engaging in these dilatory tactics , but lays out why the scenario is different than the confirmations of Neil @ @ @ @ @ @ @ which came long before the presidential election .
The memo : Democrats must act to delay action by Leader McConnell to fill Justice Ginsburg ’ s Supreme Court seat .
Denying action before the election could markedly increase the probability that the results of the election would change the vote in the Senate and thereby allow for the seating of a more progressive Justice .
Failing that , moving forward with confirmation during a lame duck session , if consent of the governed had been denied , would buttress the case for structural @ @ @ @ @ @ @ the broad electorate will want to see Congressional Democrats fighting to protect the Court and their Constitutional rights .
Mere capitulation to what Washington insiders see as the inevitable will be viewed by many as abandonment of the Democratic base and could undermine enthusiasm .
At least two contextual considerations make the current circumstance more favorable to the use of dilatory tactics than were the Gorsuch and Kavanaugh confirmations , both of which took place during the 115th Congress : 1 ) The electorate might vote to change control of the Senate and/or @ @ @ @ @ @ @ weeks and 2 ) Democrats control the House of Representatives , which can play a part in compelling certain action in the Senate .
Engaging in such dilatory tactics would also likely force McConnell to keep the entire Republican Conference in the vicinity of the Senate , in order to maintain a quorum and to win various votes .
This might become increasingly untenable because up to a dozen sitting Republicans are defending their seats in close races and will want to return home to campaign — including to participate in debates and @ @ @ @ @ @ @ miss .
As a threshold matter , the Congressional Democrats must enter a war-room posture and convene a group of the people most knowledgeable of Senate ( and House ) procedure who can work together and be mutually generative of relevant tactical ideas .
Suggestions contained herein , even if all acted upon in good faith , might not be dispositive of the outcome of the confirmation process — but we have reason to believe that not all potential options have been thoroughly explored .
Actions Congressional Democrats should consider include the following @ @ @ @ @ @ @ exhaustive .
We do not purport to have considered every possibility , and this document intentionally omits discussion of certain creative tactics that rely upon the element of surprise .
Speaking at Length — In the absence of a unanimous consent agreement governing time to debate or cloture , a Senator who gets recognized to speak can speak at length .
Objecting to Routine Consent Agreements — Any Senator may object to routine unanimous consent agreements , such as those to adjourn , to recess , to approve the Journal , or to @ @ @ @ @ @ @ roll-call votes on routine motions to adjourn or recess would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time that it would take for Senators to come to vote .
New Legislative Day — If the Senate adjourns without a unanimous consent agreement providing for the handling of routine business at the beginning of a new legislative day , a new legislative day starts with the morning hour , a 2-hour period with a number of required procedures .
As part of the @ @ @ @ @ @ @ a non-debatable motion to proceed to an item on the Senate calendar .
Objecting to Lifting Quorum Calls — Any Senator can object to unanimous consent to lifting a quorum call , forcing a recorded vote that would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time it takes for Senators to come to vote .
Motions to Adjourn and Recess — Any Senator can move to adjourn , to adjourn to a day certain , or to take a recess .
All @ @ @ @ @ @ @ motion to proceed to the consideration of a nomination .
Senators could make a series of motions of this sort to force roll-call votes .
Layover Requirements — Senators can raise points of order if measures have not lain over sufficiently under Rule XIV or XVII .
Raising Points of Order — Any Senator who gets recognized by the Presiding Officer can raise a point of order making a procedural objection .
Once the Presiding Officer rules , a Senator can appeal the ruling of the Chair , and Senators can demand a @ @ @ @ @ @ @ extremely large number of procedural questions on which to vote .
Filing Cloture — If the Senate is not governed by a unanimous consent agreement or post cloture , a Senator who got recognized could move to proceed to a measure or series of measures and file cloture on the motion ( s ) to proceed .
Two days later , the Senate would be required to vote on the cloture motion ( s ) .
The number of these motions is limited only by the number of items on the calendar .
@ @ @ @ @ @ @ including the Congressional Budget Act , the Congressional Review Act , the War Powers Act , and the Arms Export Control Act , give any Senator the right to move to proceed to a vehicle and force a roll-call vote and sometimes a period of debate .
For example , any Senator could submit a concurrent resolution on the budget , and by precedent , if action has not yet been taken on a budget resolution for the coming fiscal year , then the resolution would be immediately placed on the calendar .
@ @ @ @ @ @ @ could move to proceed to the resolution , forcing a roll-call vote on the motion to proceed .
Meanwhile , resolutions of disapproval under the CRA can be petitioned out of committee with 30 signatures after 20 calendar days .
Such measures could be filed en masse now .
Utilizing Rule XIV — Any Senator can have any legislative measure placed on the calendar in two legislative days under Rule XIV .
Leader Schumer could ask every Democratic Senator to introduce bills on their favorite subjects en masse and seek to put them @ @ @ @ @ @ @ Once they were on the calendar two legislative days later , if Schumer could get the floor , he could move to proceed to each in turn , file cloture , withdraw his motion to proceed , move to another , file cloture , withdraw his motion to proceed , and continue to repeat , stacking up an almost endless series of votes on motions to invoke cloture on motions to proceed to Democratic priorities , until the Majority Leader shut the Senate down .
To prevent this strategy , the Majority Leader @ @ @ @ @ @ @ down post cloture at all times and prevent the Democratic Leader from getting recognition , or continue to recess the Senate to prevent there ever being another legislative day .
If the Majority Leader did the latter , the Democratic leader could still file serial motions to proceed to bills already on the calendar , so long as he could gain recognition to make the motions .
This strategy requires there being an opportunity for motions to be made .
Impeachment — If the House of Representatives exercised its impeachment power , then @ @ @ @ @ @ @ Senate to immediately address that matter .
Amendments Between Houses — If the House of Representatives passed amendments to Senate-passed bills now pending in the House and sent those over to the Senate , those messages between Houses would be privileged in the Senate .
Thus , in the absence of cloture or a unanimous consent agreement governing the Senate floor , a Senator could ask that such a message be laid before the Senate and make motions in connection with the message that would require immediate roll-call votes or offer a motion @ @ @ @ @ @ @ amendment ) and file cloture , once again forcing a roll-call vote after two days .
Short-Term Funding — The House of Representatives could insist on very short-term funding measures until the Leadership of both Houses came to agreement on proceedings for the balance of the year .
Short-term funding measures would then require more-frequent roll-call votes .
War Powers Resolutions — Generally , within a certain number of days , the Senate has to take up WPRs or any Senator can move to proceed .
There are likely additional measures available that @ @ @ @ @ @ @ would demand action in the Senate .
Time for Review and Hearing — The Judiciary Committee customarily takes time to review the record of Supreme Court nominees .
Democrats should demand that the Committee take this time before a hearing commences .
Objecting to Committees Meeting — Any Senator can object to unanimous consent for committees to meet more than two hours after the Senate convenes on a day in which the Senate is in session .
Full Hearings — Democratic Members of the Judiciary Committee could try to continue the proceedings of @ @ @ @ @ @ @ Hold Over Committee Action — Under Judiciary Committee rule I , paragraph 3 , “ At the request of any member .
.
.
a .
.
.
nomination on the agenda of the Committee may be held over until the next meeting of the Committee or for one week , whichever occurs later.
” A Democratic Senator on the Judiciary Committee should demand that the nomination be held over for the week .
Denying a Quorum — Republicans need to produce the presence of a quorum of Judiciary Committee Senators to report @ @ @ @ @ @ @ not to help produce the necessary Senators .
This story was updated to reflect the nomination of Barrett .

President Donald Trump has nominated Judge Amy Coney Barrett to replace the late Ruth Bader Ginsburg on the Supreme Court, setting up a ferocious confirmation battle as votes are already being cast for the November 3 election.
Barrett, who was previously named to the 7th Circuit Court of Appeals by Trump, is an outspoken social conservative, broadly hostile to abortion rights, and a strong supporter of corporate rights. Her confirmation would give conservatives a 6-3 majority on the Court, making Justice Brett Kavanaugh the swing vote, and would be the culmination of a decadeslong strategy on the right to marry the pro-corporate, anti-worker, and anti-consumer movement with social conservatism.
Amy Coney Barrett wrote the 7th Circuit opinion last month siding with Grubhub to say drivers cannot press for minimum wage and overtime pay as a class action, they must use arbitration agreements, a decision that limits gig workers across the country. https://t.co/WG5DOaQk9g — Lee Fang (@lhfang) September 25, 2020
Trump had been urged by his political advisers to pick Judge Barbara Lagoa, who, they argued, as a Cuban American, could help tip the balance of the presidential election in Florida and perhaps elsewhere. But Trump, as he has done repeatedly through his time as president, retreated to the embrace of social conservatives.
Senate Minority Leader Chuck Schumer faces increasing pressure from Democrats around the country to use every tool at his disposal to oppose the Republican effort to push through a Supreme Court nominee before the election, one question has bedeviled activists: What exactly is possible?
A memo circulating on Capitol Hill, put together by several people with knowledge of congressional procedure and obtained by The Intercept, lays out some of the options that could be available to Schumer even in the face of a determined Majority Leader Mitch McConnell. Senators looking to obstruct in the Senate have a dizzying array of opportunities, but a majority leader with 50 votes, plus a tie-breaking vice president, also has an extraordinary amount of power in the upper chamber. Elements of the memo were first published earlier Thursday by the Daily Poster.
Sen. Judd Gregg, R-N.H., put together a similar document as Republicans were working to block the Affordable Care Act in 2009 and 2010.
Dozens of Indivisible chapters recently sent Schumer a letter demanding he do everything in his power to block McConnell and President Donald Trump from filling the seat left vacant by Ruth Bader Ginsburg’s death last week before a new president is sworn in. On Sunday evening, Rep. Alexandria Ocasio-Cortez, appearing alongside Schumer at a press conference, urged him to do the same.
Trump has pledged to nominate a new justice by Saturday, and McConnell has vowed to move quickly forward on the nomination.
The memo does not claim that victory would be guaranteed by engaging in these dilatory tactics, but lays out why the scenario is different than the confirmations of Neil Gorsuch or Brett Kavanaugh, both of which came long before the presidential election. The memo:
Re: Safeguarding the Court
Democrats must act to delay action by Leader McConnell to fill Justice Ginsburg’s Supreme Court seat. Denying action before the election could markedly increase the probability that the results of the election would change the vote in the Senate and thereby allow for the seating of a more progressive Justice. Failing that, moving forward with confirmation during a lame duck session, if consent of the governed had been denied, would buttress the case for structural Court reform.
Moreover, much of the broad electorate will want to see Congressional Democrats fighting to protect the Court and their Constitutional rights. Mere capitulation to what Washington insiders see as the inevitable will be viewed by many as abandonment of the Democratic base and could undermine enthusiasm.
At least two contextual considerations make the current circumstance more favorable to the use of dilatory tactics than were the Gorsuch and Kavanaugh confirmations, both of which took place during the 115th Congress: 1) The electorate might vote to change control of the Senate and/or the White House in a matter of weeks and 2) Democrats control the House of Representatives, which can play a part in compelling certain action in the Senate.
Engaging in such dilatory tactics would also likely force McConnell to keep the entire Republican Conference in the vicinity of the Senate, in order to maintain a quorum and to win various votes. This might become increasingly untenable because up to a dozen sitting Republicans are defending their seats in close races and will want to return home to campaign — including to participate in debates and other events they will be loath to miss.
As a threshold matter, the Congressional Democrats must enter a war-room posture and convene a group of the people most knowledgeable of Senate (and House) procedure who can work together and be mutually generative of relevant tactical ideas.
Suggestions contained herein, even if all acted upon in good faith, might not be dispositive of the outcome of the confirmation process — but we have reason to believe that not all potential options have been thoroughly explored.
Actions Congressional Democrats should consider include the following — but what follows is far from exhaustive. We do not purport to have considered every possibility, and this document intentionally omits discussion of certain creative tactics that rely upon the element of surprise.
Exercising Rights To Delay Senate Action Generally
Speaking at Length — In the absence of a unanimous consent agreement governing time to debate or cloture, a Senator who gets recognized to speak can speak at length.
Objecting to Routine Consent Agreements — Any Senator may object to routine unanimous consent agreements, such as those to adjourn, to recess, to approve the Journal, or to dispense with the Morning Hour. Forcing roll-call votes on routine motions to adjourn or recess would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time that it would take for Senators to come to vote.
New Legislative Day — If the Senate adjourns without a unanimous consent agreement providing for the handling of routine business at the beginning of a new legislative day, a new legislative day starts with the morning hour, a 2-hour period with a number of required procedures. As part of the morning hour, any Senator could make a non-debatable motion to proceed to an item on the Senate calendar.
Objecting to Lifting Quorum Calls — Any Senator can object to unanimous consent to lifting a quorum call, forcing a recorded vote that would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time it takes for Senators to come to vote.
Motions to Adjourn and Recess — Any Senator can move to adjourn, to adjourn to a day certain, or to take a recess. All of these motions take precedence over a motion to proceed to the consideration of a nomination. Senators could make a series of motions of this sort to force roll-call votes.
Layover Requirements — Senators can raise points of order if measures have not lain over sufficiently under Rule XIV or XVII.
Raising Points of Order — Any Senator who gets recognized by the Presiding Officer can raise a point of order making a procedural objection. Once the Presiding Officer rules, a Senator can appeal the ruling of the Chair, and Senators can demand a roll-call vote. One could imagine an extremely large number of procedural questions on which to vote.
Filing Cloture — If the Senate is not governed by a unanimous consent agreement or post cloture, a Senator who got recognized could move to proceed to a measure or series of measures and file cloture on the motion(s) to proceed. Two days later, the Senate would be required to vote on the cloture motion(s). The number of these motions is limited only by the number of items on the calendar.
Fast-Track Vehicles — Several fast-track statutes, including the Congressional Budget Act, the Congressional Review Act, the War Powers Act, and the Arms Export Control Act, give any Senator the right to move to proceed to a vehicle and force a roll-call vote and sometimes a period of debate. For example, any Senator could submit a concurrent resolution on the budget, and by precedent, if action has not yet been taken on a budget resolution for the coming fiscal year, then the resolution would be immediately placed on the calendar. Once on the calendar, any Senator could move to proceed to the resolution, forcing a roll-call vote on the motion to proceed. Meanwhile, resolutions of disapproval under the CRA can be petitioned out of committee with 30 signatures after 20 calendar days. Such measures could be filed en masse now.
Utilizing Rule XIV — Any Senator can have any legislative measure placed on the calendar in two legislative days under Rule XIV. Leader Schumer could ask every Democratic Senator to introduce bills on their favorite subjects en masse and seek to put them on the calendar via rule XIV. Once they were on the calendar two legislative days later, if Schumer could get the floor, he could move to proceed to each in turn, file cloture, withdraw his motion to proceed, move to another, file cloture, withdraw his motion to proceed, and continue to repeat, stacking up an almost endless series of votes on motions to invoke cloture on motions to proceed to Democratic priorities, until the Majority Leader shut the Senate down.
To prevent this strategy, the Majority Leader would have to keep the Senate locked down post cloture at all times and prevent the Democratic Leader from getting recognition, or continue to recess the Senate to prevent there ever being another legislative day. If the Majority Leader did the latter, the Democratic leader could still file serial motions to proceed to bills already on the calendar, so long as he could gain recognition to make the motions. This strategy requires there being an opportunity for motions to be made.
House Measures Requiring Senate Action
Impeachment — If the House of Representatives exercised its impeachment power, then the rules of the Senate require the Senate to immediately address that matter.
Amendments Between Houses — If the House of Representatives passed amendments to Senate-passed bills now pending in the House and sent those over to the Senate, those messages between Houses would be privileged in the Senate. Thus, in the absence of cloture or a unanimous consent agreement governing the Senate floor, a Senator could ask that such a message be laid before the Senate and make motions in connection with the message that would require immediate roll-call votes or offer a motion to concur (or concur with an amendment) and file cloture, once again forcing a roll-call vote after two days.
Short-Term Funding — The House of Representatives could insist on very short-term funding measures until the Leadership of both Houses came to agreement on proceedings for the balance of the year. Short-term funding measures would then require more-frequent roll-call votes.
War Powers Resolutions — Generally, within a certain number of days, the Senate has to take up WPRs or any Senator can move to proceed.
There are likely additional measures available that, if passed by the House, would demand action in the Senate.
Exercising Rights in the Judiciary Committee
Time for Review and Hearing — The Judiciary Committee customarily takes time to review the record of Supreme Court nominees. Democrats should demand that the Committee take this time before a hearing commences.
Objecting to Committees Meeting — Any Senator can object to unanimous consent for committees to meet more than two hours after the Senate convenes on a day in which the Senate is in session.
Full Hearings — Democratic Members of the Judiciary Committee could try to continue the proceedings of any hearing that the Chairman calls.
Hold Over Committee Action — Under Judiciary Committee rule I, paragraph 3, “At the request of any member . . . a . . . nomination on the agenda of the Committee may be held over until the next meeting of the Committee or for one week, whichever occurs later.” A Democratic Senator on the Judiciary Committee should demand that the nomination be held over for the week.
Denying a Quorum — Republicans need to produce the presence of a quorum of Judiciary Committee Senators to report out the nomination. Democrats might choose not to help produce the necessary Senators.
Update: September 26, 2020
This story was updated to reflect the nomination of Amy Coney Barrett.