It’s Not Just Trump’s War On Democracy Anymore

The streets are still quiet in Washington, nine months into a pandemic that is reaching yet another deadly peak. Most of the offices remain closed, and even outdoor sports have been cancelled by the mayor once again. The dog-walkers and joggers passing by our house wear masks, though there is rarely another person anywhere near them. A couple of miles away, at the White House, First Lady Melania Trump announced this week the official unveiling of a new tennis pavilion, completed by “talented craftsmen” during the pandemic, and there have been packed holiday events every night. A Hanukkah gathering on Wednesday—the worst day yet of this unparalleled public-health crisis—featured hundreds of attendees, many unmasked, jammed together, according to a grainy leaked video. The crowd chanted “Four more years!” as President Donald Trump said, “We’re gonna win this election in a landslide,” more than a month after losing the election. In a sign of the mordant times, Thursday night’s Congressional Ball, also hosted at the White House, was dubbed the “COVID Ball,” and hundreds more revellers were expected to attend. Even before all this entertaining, more than fifty people in Trump’s orbit have come down with the coronavirus—including, this week, the lawyers who have been flying around the country challenging the election on his behalf, Rudy Giuliani and Jenna Ellis. Welcome to late-stage Trumpism: defiant decadence with a potentially deadly edge.

After four years of the unthinkable becoming reality under Trump, I thought I was prepared for the various unprecedented scenarios that might unfold in this post-election, pre-Inauguration period. We knew, because Trump told us, that he would not accept a loss to Joe Biden, no matter what. We knew, because Trump told us, that he would not suddenly get serious about the pandemic after hundreds of thousands of Americans died from it. We knew, in other words, that the country had to brace for an alarming confluence of virus denialism and election denialism between November 3rd and January 20th. As devastating as it is for American democracy, it is no longer news that the President insists, as he did in a tweet the other day, that he is the victim of the “greatest Election Fraud in the history of the United States.”

In the days immediately following the election, Trump said that his goal was to “STOP THE COUNT.” Then it was to “stop the steal,” or to demand recounts, or to discover evidence of fraud. During this period, one senior Republican official said there was no real harm in letting Trump have his temper tantrum; it would not affect the outcome anyway. “What is the downside for humoring him for this little bit of time? No one seriously thinks the results will change,” the Republican told the Washington Post. “He went golfing this weekend. It’s not like he’s plotting how to prevent Joe Biden from taking power on January 20. He’s tweeting about filing some lawsuits, those lawsuits will fail, then he’ll tweet some more about how the election was stolen, and then he’ll leave.”

But, rather than merely taking a few days to come to terms with his loss, and then sulk off to Florida once the courts threw out his lawsuits, Trump has escalated and escalated, culminating on Wednesday with a single-word tweet announcing his new goal: not to win the election but to “#OVERTURN” the results. Even more strikingly, while his allies have lost fifty-plus cases since the election, Trump has convinced millions of Americans to believe that the election was rigged against him—seventy-seven per cent of Republicans now say massive fraud occurred, according to a new Quinnipiac poll out Thursday—and enlisted virtually the entire national leadership of the Republican Party in his concerted attack on the legitimacy of the results.

This week, twenty-seven House Republicans asked the Justice Department to appoint a special counsel to investigate the election—the same number as House and Senate Republicans who, as the Post found in a survey, will publicly recognize Biden’s victory. Not only have both Senate Majority Leader Mitch McConnell and House Minority Leader Kevin McCarthy refused to recognize his win; they both voted against a ceremonial motion of the committee organizing the January 20th handover of power to “notify the American people” of plans to inaugurate Biden. In the immediate aftermath of the election, McConnell said that Trump “has every right to look into allegations and request recounts under the law.” Now that Trump has lost the recounts and lost the lawsuits, now that the results have been certified and Trump is openly talking about overturning them, McConnell has been silent.

Somehow, that’s the part I was not entirely prepared for, even after all the Republican enabling and excuses of the past four years. The ballots that Trump and his allies are attacking, after all, are the same that elected Trump’s allies, if not Trump himself. The votes that they want thrown out were cast not only by evil Democrats in faraway cities but by their friends and, in some cases, neighbors. They were counted and recounted and certified by Republican officials in many of the places that sealed Trump’s defeat. On Tuesday evening, the Supreme Court rebuffed the Trump team’s Pennsylvania lawsuit, an evidence-free concoction demanding that every single mail-in ballot from the state be thrown out. It did so in a single-sentence order: “The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.” No need even to rule on the merits of such an absurdity.

That should have been the end of the line for Trump. Tuesday, after all, was also, by federal law, the national “safe harbor” date—the deadline by which states certify their election results in advance of the Electoral College’s upcoming meeting, on December 14th. Despite all of Trump’s pressure, in fact, every battleground state met the deadline and certified their results. Under the law, that means they are not subject to any challenge. The law does not appear to give Trump any further room to maneuver.

Undaunted, in the space of a few hours on Wednesday, Trump had his campaign join an even more far-fetched lawsuit, by Texas, asking the Court to throw out millions of votes in battleground states that decided the election’s outcome—Georgia, Michigan, Pennsylvania, and Wisconsin—all of which have already certified their results. A few hours after this news, Hunter Biden, the son of the man who did win the election, announced that Trump’s appointee as U.S. Attorney for Delaware had opened a federal criminal investigation of his tax dealings. Here, too, you could say it was all just a predictable mess. Trump has been obsessed with Hunter Biden for years; he pushed Ukraine to launch a politically harmful investigation of Biden so hard that he got impeached over it. So why wouldn’t the President join the Texas case, even though it is, as the election lawyer Rick Hasen put it, more press release than legal argument? Trump certainly has never minded losing in court.

What came as a gut punch, though, and still, even after all this time, a real surprise to me, was the announcement that seventeen other states—or at least their attorneys general—had filed a brief supporting the spurious Texas lawsuit, representing, from South Carolina to Utah, an array of pro-Trump red states. Eighteen states, in other words, are making the preposterous—and democratically devastating—argument that the Supreme Court should throw out other states’ votes because they do not like the results. So much for federalism and states’ rights and all those other previously cherished Republican principles. Up on Capitol Hill, meanwhile, a hundred and six House Republicans filed an amicus brief of their own supporting the Texas lawsuit. Some of these same Trump supporters in Congress are also now considering objecting to the Electoral College results when they are presented to the House, on January 6th, in what is meant to be a purely pro-forma procedural move. Mitt Romney dismissed the idea as “madness,” but he remains a lonely public voice against Trump, as his fellow-Republicans either fall in line or remain inexcusably silent. This has gone far beyond just humoring Trump for a few days.

In its response to the Texas case, filed Tuesday afternoon, Pennsylvania called the lawsuit’s claims “moot, meritless, and dangerous,” and said that its Trump-inspired assault on results in states where Biden won amounts to a “seditious abuse of the judicial process.” The Supreme Court, Pennsylvania argued, should not only reject the Texas case but in so doing “send a clear and unmistakable signal that such abuse must never be replicated.”

I have every expectation that the Supreme Court will do so. I know that many Republicans are silent precisely because they expect that the courts will put an end to Trump’s groundless attacks on American democracy. That is a positive of sorts to come out of this very negative moment. In filing so many lawsuits and having so many courts across the country reject them, Trump has produced an unintended result: a resounding judicial affirmation of the integrity of our system. Trump appointees have rejected his cases; Obama appointees have rejected his cases. State courts have rejected them. The Supreme Court has, too.

But is that what we will remember of this COVID-and-constitutional-crisis season? I’m quite sure we will remember that Donald Trump is a sore loser; the sorest loser, in fact, who ever was President. But what about the Republican Party—is this the moment when the G.O.P. abandons its belief in democracy and the simple non-negotiable principle that the losing party must accept the results of an election? On Monday, there will be another test, another chance for them to finally, belatedly, get it right. The Electoral College will meet, and it will give Joe Biden a victory, with three hundred and six electoral votes. Will that be enough to end this?