America appears to have averted a constitutional crisis, no thanks to Supreme Court Justice Neil Gorsuch

Associate Justice Neil Gorsuch

Donald Trump was encouraged by language in an opinion written by Justice Neil Gorsuch to believe that GOP-controlled state legislatures in battleground states could deliver the election to him despite the results of the popular vote in those states. It is only the resounding victory by Joe Biden that appears to have put that constitutional crisis behind us.

In my opinion, there remains the possibility of a coup d’état, and cataclysmic civil disorder resulting from that coup, in our immediate future. Although the likelihood is rapidly diminishing, we should not pretend that the possibility does not exist.

The scheme should be understood and discussed in the hopes that cooler heads prevail and put an end to any thoughts by Donald Trump and his most diehard supporters that they can circumvent the results of this month’s election through direct action by GOP-controlled state legislatures — thoughts that he has not yet abandoned. It also exposes yet another flaw in the process by which we elect presidents that should be fixed and underscores the problem with having a Supreme Court that appears to have a political agenda.

There is a remarkable amount of ignorance about the nature of the threat. Assuming that we dodge this bullet, which I believe that we will, we came a lot closer to a conflagration than most people are aware.

Retired Army general Barry McCaffrey warned this week that we should be “apprehensive” about what Donald Trump is up to by replacing top Pentagon officials, including former Defense Secretary Mark Esper, as Trump supposedly is on his way out of office. “We ought to be worried about this,” according to McCaffrey. I agree and will tell you one reason why.

The coup that would allow Trump to remain in office would be met with rioting and violent resistance by pro-Biden, pro-democracy citizens, which in term would trigger an equally violent reaction from Trump’s base of support. Trump would invoke the Insurrection Act to restore order, and he wants compliant civilian officials in the Defense Department who would not oppose his use of the active duty military to perform that task.

By appointing sycophants to key positions, he has achieved that. Do I believe that one of Trump’s motives for the shake-up was to assure himself that he could draw upon the active duty military to protect him and put down any resistance to such a coup? Yes.

I am not talking about a coup in the sense that Trump simply will refuse to leave the White House and try to persuade the military to keep him from being ousted. That will not happen; Trump knows that would end up with him being escorted out of the White House by United States Marshals. Trump will stay only if his coup gets the blessing of the Supreme Court. I am talking about what Professor Lawrence Tribe of Harvard Law School referred to in a recent article as a post-election judicial coup.

We have Supreme Court Justice Neil Gorsuch to thank for encouraging Trump’s plan. It was his expansive and dubious language in a concurring opinion in Democratic National Committee v. Wisconsin State Legislature issued on October 26th that increased the hope by Trump loyalists that GOP-controlled state legislators could salvage the election and deliver it to Trump regardless of the popular votes in their states, and regardless of state and federal laws.

Trump’s plan involves Republican-controlled state legislatures in places like Pennsylvania, Georgia, and Arizona. Basically, those state legislatures would disregard the election results and appoint a slate of electors to the Electoral College committed to vote for Donald Trump, probably preceded by pretextual findings of voter fraud or other irregularities.

The rogue legislatures need not deliver 270 electoral college votes to Trump for him to prevail; they need only reduce the number of votes for Biden to fewer than 270. That would force a contingent election in the House of Representatives where the GOP has the advantage under the formula set forth in the 12th Amendment.

In a contingent election each state delegation in the House gets a single vote. As of now, Republicans control 26 of the 50 state delegations and the Democrats control 22. One delegation is split evenly, and another has seven Democrats, six Republicans and a Libertarian.

The plan is based on an interpretation of Article II, Section 1 of the Constitution that confers wide discretion in choosing electors for the purpose of choosing a president directly on state legislative bodies, a discretion that cannot be constrained either by state or federal law, or even by judges. Gorsuch suggested that the constitution intended that “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”

Ed Kilgore of the Intelligencer observed: “While [Gorsuch’s] opinion does not specifically refer to the disputed theory that legislatures have the unilateral power to appoint presidential electors even if federal or state laws provide otherwise, it certainly points in that direction.”

I agree, and I am not alone. Do I believe that such an extreme view of the prerogatives of state legislative bodies in choosing electors, putting their decisions beyond review by the courts for compliance with state and federal law, is a correct interpretation of the Constitution? Absolutely not. Am I certain that the current Supreme Court would not adopt it? No, and pundits and legal scholars who assure you otherwise are being overconfident.

Do you remember why Trump told us that it was important to get Amy Coney Barrett quickly appointed to the court? If you do not, I will remind you: To help him win the election. He meant what he said.

Pennsylvania was the key swing state and the epicenter of the planned coup. The plan to circumvent the election results in Pennsylvania by having the legislature appoint electors committed to Trump was in the works well before November 3rd but got little attention. Lawrence Tabas, a Philadelphia lawyer who is the state GOP chairman, mentioned it in September to Barton Gellman, a reporter for The Atlantic.

The efforts by Trump and his henchmen to pressure GOP legislators in Pennsylvania to follow through with the plan were not widely known until a recent story in Politico, followed by a story in Vox. Both stories noted that pressure had been ramped up on legislators to appoint electors committed to Trump.

I hasten to add that, although there continues to be discussion of the scheme among GOP members of the Pennsylvania House of Representatives, there is no apparent support for it in the state senate or among other key GOP leaders in Pennsylvania; retiring United States senator Pat Toomey and former senator Rick Santorum sent a clear message that it was time to accept Trump’s loss and move on. In other words, the threatened coup is all but dead. The point is that it should never have gained any life in the first place.

It is Biden’s resounding victory that sealed the fate of the threatened coup; the recent addition of the electoral votes from Arizona and Georgia to Biden’s margin was anything but meaningless. It is hard to know whether the coup ever would have come to pass — the consequences to American society, including the economy and the stock market, not to mention to the legitimacy of the Supreme Court, would have been catastrophic, with a proclamation of martial law almost inevitable. Few state legislators want to face the anger of their citizens for causing that, knowing that they would never feel safe another day in their lives.

If Biden’s margin had been razor-thin, however, particularly if the race came down to one state like Pennsylvania, I believe that the pressure on GOP state legislators may have been too great for them to ignore; the entire psychology would have changed along with the number of legislators who needed to be turned. That pressure certainly would have included all the ugliness that Trump and his followers have shown themselves capable of, up to and including death threats. A closer election would have produced a truly precarious situation.

Regardless of whether the Electoral College itself survives, any possibility of a rogue state legislature defying the will of its own citizens as expressed in a free and fair election in an attempt to stage what amounts to a presidential coup should be purged from the Constitution. I believe that we came far closer to the abyss than most of us realize. And please do not try to persuade me that a situation like the present one can never happen again. We have learned the hard way to disabuse ourselves forever of “it can’t happen here” thinking.

Retired lawyer, former prosecutor, former social worker, Army vet — former lots of things. Commentary published in Washington Post, Baltimore Sun and elsewhere.

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