Power Up: Legal teams playing outsized role in 2020 election as Trump’s threats escalate

All of this is happening as Trump reiterated this week he may not honor the results of the election should he lose, jeopardizing the country’s peaceful transition of power. “Get rid of the ballots and you’ll have a very peaceful — there won’t be a transfer, frankly. There will be a continuation,” the president said Wednesday, referencing mail-in ballots. 

The president’s pledge is spawning a slew of conversations, some of them apocalyptic, about the period between Nov. 3 and Jan. 20, when the Constitution mandates the installation of a president.

But the army of lawyers and operatives also say it’s important to remember there are a number of constitutional safeguards and backstops that could ultimately make it difficult for a president to stay in power if they’re legitimately defeated. And they’re urging other to tamp down the alarmism. 

• “A lot of what Trump and his allies would have us do is amplify their disaster scenarios,” Bob Bauer, a former White House counsel under President Obama and now a senior Biden adviser told the New York Times’s Shane Goldmacher last week. “We’re not going to get caught up in alarmist rhetoric they are using to scare voters. ”

Trump’s incendiary comments have also sparked concern among state election officials who said “they were considering what federal resources Trump might seek to deploy before and during the election — such as the president’s statement last month that he would send U.S. attorneys, sheriffs and other law enforcement officers to polling places,” our colleagues Phil Rucker, Amy Gardner and Annie Linskey report. 

Trump’s remarks echoed reporting from The Atlantic’s Barton Gellman about his campaign’s “post-election maneuvers that would circumvent the results of the vote count in battleground states”:

• “ … sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority,” according to Gellman. “With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.” 

But the sentiment was not echoed by his Vice President Pence, who told Milwaukee’s WITI station during an interview that the administration would “accept the results of a free and fair election.”

And within Trump’s West Wing, his team is “carefully developing plans” for a peaceful transfer of power if the president loses, Politico’s Nancy Cook reports: “… assistant to the president Chris Liddell has spent weeks mapping out a possible handover of power to Democrat Joe Biden.”

• “Liddell has met the congressionally mandated deadlines to file two different transition reports in May and August,” per Cook. “He is working closely with a career government official who is serving as the federal transition coordinator — typically the type of worker Trump would label as part of the ‘Deep State.’ And the Justice Department has already agreed to start pre-processing Biden officials’ security clearances just in case he wins, according to people familiar with the planning.”
• “They are very, very focused on implementing the law and doing it by the book, and they are doing a good job,” David Marchick, director of the nonpartisan Center for Presidential Transition at the Partnership for Public Service, told Cook.
• Still, concerns remain about the president’s future actions: “Democrats fear Trump could sabotage it by denying Biden aides access to federal agencies, slow-walking security clearances or, more broadly, questioning and undermining the results of the election for several weeks in November and December,” Cook reports. 

The president’s rhetoric alone is a form of voter suppression, according to some Democrats. The premise of Trump’s charges – that his victory in the November election is imperiled by widespread voter fraud – has been repeatedly debunked.

• “The lack of evidence renders these claims unsustainable,” Republican election lawyer Benjamin Ginsberg, who co-chaired the bipartisan 2013 Presidential Commission on Election Administration, wrote in an op-ed for The Post earlier this month. “The truth is that after decades of looking for illegal voting, there’s no proof of widespread fraud. At most, there are isolated incidents — by both Democrats and Republicans. Elections are not rigged. Absentee ballots use the same process as mail-in ballots — different states use different labels for the same process.”
• “The Trump 2016 campaign, of which I was not a part, could produce no hard evidence of systemic fraud,” he added.

Responding to questions about the Trump campaign’s efforts and the president’s rhetoric, Biden campaign spokesperson Michael Gwin highlighted the campaign’s voter protection program:

• “The Biden campaign has assembled the biggest voter protection program in history to ensure the election runs smoothly and to combat any attempt by Donald Trump to create fear and confusion with our voting system, or interfere in the democratic process. We’re confident that we’ll have free and fair elections this November, and that voters will decisively reject Donald Trump’s erratic, divisive, and failed leadership at the ballot box,” Gwin said in a statement. 

Local and state officials made clear that while they are preparing for the worst-case scenarios, interference by the federal government or a candidate would be difficult to execute: 

• “Several Democratic officials said privately that they were less concerned that the country’s electoral and judicial systems would allow Trump to remain in office if he refused to concede. And they played down the possibility that Trump could somehow subvert the electoral process — such as by declaring victory before counts are complete, seeking a court decision to toss mail ballots or encouraging Republican-controlled legislatures to appoint their own electors — even as they said they were preparing for those possibilities,” per Phil, Amy and Annie. 
• “No candidate can declare that the count is just over,” Wisconsin Attorney General Josh Kaul (D) told Phil, Amy and Annie. “All lawful votes will be counted. It is the voters in Wisconsin who select who the winner of the presidential race is in Wisconsin. Any attempt to interfere with that process would be unlawful.” 
• “His statement is political theater at its most destructive,” North Carolina Attorney General Josh Stein (D) told them. “He and the Republican Party need to respect our democracy instead of trying to undermine it.” 
• “Conceptually, these worst case scenarios all sound plausible,” a Democratic strategist told Power Up. “Because look at [Attorney General William] Barr and what he’s done as of late. But the ballots live in all sorts of places and counties. And if it’s a blue battleground state, they are protected by Democratic governors… the American election system is way too weak and stupid but some are making it look even more weak and stupid than it actually is.”

Ballot security programs: One change during this election cycle was called a “huge, huge, huge, huge deal” by Trump’s deputy campaign manager Justin Clark, according to an audio recording obtained by Gellman. And that’s the expiration of a consent decree, a court order forbidding the Republican National Committee from intimidating voters at the polls.

The RNC and the Trump campaign are recruiting hundreds and thousands of volunteers to join their ballot security teams to observe ballot counting in offices and precincts in battleground states: 

• “The 2020 presidential election will be the first in 40 years to take place without a federal judge requiring the Republican National Committee to seek approval in advance for any ‘ballot security’ operations at the polls. In 2018, a federal judge allowed the consent decree to expire, ruling that the plaintiffs had no proof of recent violations by Republicans. The consent decree, by this logic, was not needed, because it worked,” according to Gellman. 
• “Under a president who is as hostile to voting and whose record on race is so poor, does anyone really believe that they are going to go out and go to the trouble to recruit 50,000 people to stand there like Boy Scouts and Girl Scouts just observing the election?” Marc Elias, who is leading the Biden campaign’s state-level fights over vote counts and ballot rules, told NPR’s Sam Gringlas, Audie Cornish and Courtney Dorning. 
• Democrats are also assembling their own army of poll watchers, “seeking both to maximize Democratic turnout and contest Republican practices they believe improperly challenge or deter voters. One allied group seeking to counter the Republican effort, Fair Fight, plans to have its own representatives in the same swing states Republicans have targeted,” the New York Times’s Michael Wines reported in May. 

Ultimately, several scholars point out there are gaps in the Constitution should Trump, or Biden, contest the election’s outcome.

• “Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office ‘shall end’ at noon on January 20, but two men could show up to be sworn in. One of them would arrive with all the tools and power of the presidency already in hand,” Gellman writes of a potential scenario. 
• “Our Constitution does not secure the peaceful transition of power, but rather presupposes it,” the legal scholar Lawrence Douglas wrote in a recent book, according to Gellman. 
• “For the first time in my life, and maybe for the first time since the Civil War, the fate of constitutional democracy in the United States is on the line, and it’s on the line because the president has put it there,” William A. Galston, chair of the Brookings Institution’s Governance Studies Program, told our colleagues. “It is a clear and present danger.”

LOUISVILLE BRACES FOR MORE UNREST: “Kentucky’s largest city was attempting to heal with two police officers recovering from bullet wounds suffered during a night of unrest and officials pleading for calm amid continued outrage over the failure to charge anyone in connection with Breonna Taylor’s death,” Maria Sacchetti, Derek Hawkins and Griff Witte report.

• “As the city’s 9 p.m. curfew approached Thursday, people holding signs and chanting, ‘Say her name’ and ‘You can’t stop the revolution,’ marched from a protest hub at Jefferson Square Park, despite concerns of a police crackdown.”‘
• Protesters across the country took to the streets in solidarity: “Protesters nationwide said they were feeling despair and outrage that the police officers responsible for the deaths of Black people — such as Eric Garner in New York, Philando Castile in Minnesota and a host of others — would not be held accountable.”

Legal experts say Taylor’s case reveals an unresolved conflict in the law: “A police tactic meant to keep officers safer — raiding homes late at night, giving occupants little or no warning — can conflict with ‘castle doctrine’ laws meant to keep homeowners safe by giving them leeway to use deadly force against intruders,” David A. Fahrenthold reports.

• “In this case, Taylor’s boyfriend saw the police and thought they were intruders. He says he fired in self-defense. The police fired back, in self-defense against his self-defense.”

IT HAS A CERTAIN RE APPEAL: “Trump capped his fruitless four-year journey to abolish and replace the Affordable Care Act by signing an executive order that aims to enshrine the law’s most popular feature while pivoting away from a broader effort to overhaul the nation’s health insurance system,” Toluse Olorunnipa reports.

• He’s sticking with the preexisting law for now: Trump signed an executive order saying it is the “policy of the United States” to protect people with preexisting conditions. 
• Caveat: The Affordable Care Act, which his administration is fighting to dismantle in court, already protects people with preexisting conditions. The issue has taken on added urgency because the Supreme Court – possibly with a new Trump nominee freshly appointed to it – is set to consider in the week following the election a lawsuit that might eliminate the ACA.
• Bigger picture: “The failure to repeal and replace the ACA has not stopped Trump from repeatedly promising a soon-to-come health-care plan in a repetitive cycle of boastful pledges and missed deadlines that intensified in recent weeks ahead of the November election.”

What the order means: “The declaration comes while the administration is supporting a Supreme Court challenge to Obamacare, to be argued days after the election, that would strike the law’s consumer protections without offering an alternative,” Politico’s Susannah Luthi and Rachel Roubein report. of Trump’s largely symbolic order to protect pre-existing conditions.

• In all seriousness, Trump has consistently undermined the very protections he promises to protect: “Some of the efforts to weaken protections have been successful — like an expansion of cheap, lightly regulated health plans that insurers are not required to offer when customers are sick,” the New York Times’s Margot Sanger-Katz points out.

 University of Michigan law professor Nicholas Bagley says the order is also legally dubious:

TRUMP ALSO ANNOUNCED SUPPORT FOR SENIORS: “He unexpectedly announced that his administration will send $200 discount cards to 33 million older Americans to help them defray the cost of prescription drugs — appealing to a significant voting constituency weeks before the November elections,” Amy Goldstein, Yasmeen Abutaleb and Josh Dawsey report.

• Where’s the money coming from?: “White House officials said the price tag, about $7 billion, could be paid for through an experimental program to lower Medicare drug prices that remains merely a proposal.”

Actually, this might not be ready for prime-time: “The savings that the White House says would cover the expense of the discount cards do not exist, and it remains unclear whether they will in the future,” our colleagues write. 

• The reason the money doesn’t exist is that it’s linked to an experimental program that’s yet to start and is not expected to take effect before the election. The pharmaceutical industry is also likely to legally challenge the program.

PELOSI ABRUPTLY RESTARTS RELIEF PUSH: “House Speaker Nancy Pelosi shifted course and moved to assemble a new coronavirus relief bill to form the basis for renewed talks with the White House, amid mounting pressure from moderates in her caucus and increasingly alarming economic news,” Erica Werner and Rachael Bade report.

• “The new proposal is significantly narrower in scope than the $3.4 trillion Heroes Act the House passed in May. Pelosi has more recently focused on an additional $2.2 trillion in aid — a figure Republicans say is still too high. But in a meeting with House Democratic leaders she said the new bill would be around $2.4 trillion, because of urgent needs arising from restaurants and airlines.”

Behind the change: “Pelosi’s stance has become increasingly problematic as endangered House Democrats have demanded action, with some threatening to sign on to a Republican-led procedural move to force a vote on a small-business relief bill,” our colleagues write.

• But is it too late for a deal?: “Negotiations involving Pelosi, Senate Minority Leader Charles E. Schumer (D-N.Y.), White House Chief of Staff Mark Meadows and Treasury Secretary Steven Mnuchin collapsed in August and never really resumed. Congress is supposed to adjourn at the end of next week through the election, although lawmakers could be called back to vote on a deal.” Mnuchin said he wants to restart talks, but House Minority Leader Kevin McCarthy called Pelosi’s revised proposal ‘insincere.’”

WHAT ELSE YOU NEED TO KNOW:

Ruth Bader Ginsburg will become the first woman and first Jewish person to lie state at the U.S. Capitol later this morning: “Ginsburg’s casket will be brought to the Capitol for a private ceremony in Statuary Hall attended by her family and lawmakers, and with musical selections from one of Ginsburg’s favorite opera singers, mezzo-soprano Denyce Graves. Biden and his wife, Jill, planned to attend,” the Associated Press reports. You can watch the ceremony live at 9 a.m.

• Trump paid tribute to the late justice, but faced an unfamiliar sight for someone who is rarely surrounded by non-adoring crowds: The president was met by chants of “vote him out” as he visited Ginsburg’s casket on the steps of the Supreme Court on Thursday.

“Remember the Titans” 20 years later: “Part history lesson, part action, part heartwarming family drama with a dash of humor and a killer soundtrack, the film transcends genres. That same fluidity, however, made the script a near impossible sell for writer Gregory Allen Howard in the 1990s,” Ashley Spencer writes in The Post about how the movie finally got made.

After a rough week, this is how TR tried to ease the ride: We’re busted. President Teddy Roosevelt may have not ordered a traditional mint julep, but trust us that his twist is the real square deal that you won’t be speaking softly about.  As always, our colleague Mary Beth Albright is here to help you recreate the latest commander-in-chief cocktail.