Last March, after President Trump declaimed that the only way he could lose the election was if there was fraud, Seth Waxman couldn’t sleep. A member of the tiny, élite club of litigators who have served as Solicitors General of the United States, Waxman is not a mellow guy. An obsessive runner with the wound-up energy of a twisted rubber band, he often wakes up at three in the morning agitated by something or other. Typically, he makes a cup of tea, works for an hour, and goes back to bed. But the insomnia last March, he said, “was, like, five nights in a row!”
The proximate cause was what he calls “the Doomsday scenarios,” which he feared could unfold if Trump tried to subvert the 2020 election. Could the President order the election postponed because of the pandemic? he wondered. Could he call a reunion of the ICE agents he sent into Portland to intimidate minority voters in urban centers?
Night after night, Waxman tabulated every possible thing that could go wrong. Having advised several Democratic Presidential campaigns, he was familiar with the pitfalls. But none of the nightmares conjured by Trump “corresponded with anything I’d worried about in earlier campaigns,” he said. He ended up with a three-and-a-half-page single-spaced list of potential catastrophes.
Eleven months before the Senate impeachment trial exposed an unprecedented level of political savagery, Waxman quietly prepared for the worst. He reached out to two other former Solicitors General, Walter Dellinger and Donald Verrilli, who served as the Clinton and the Obama Administrations’ advocates, respectively, before the Supreme Court. By April, they had formed a small swat team to coördinate with the Biden campaign. They called themselves the Three Amigos, but the campaign referred to them as SG3. Their goal: safeguarding the election.
“They were phenomenal,” Bob Bauer, a legal adviser to the Biden campaign, said. “Our preoccupation was to do everything we could to address the potential that the electoral system would just collapse.” To describe the trio’s special area of legal assistance, the Biden campaign avoided using Waxman’s term, “Doomsday scenarios,” in favor of the less apocalyptic term “unconventional challenges.”
“It was an unreal exercise,” Waxman said of his under-the-radar strike force. “I kept shaking my head and asking, Why, in a mature democracy, am I even worrying about the President federalizing the National Guard to intimidate voters?” He knew that safeguarding the system would be an enormous legal undertaking, requiring hundreds of lawyers in as many as eighteen states, far more volunteers than his firm, WilmerHale, could provide. Coördinating with the Biden campaign’s lawyers, each of the Three Amigos headed up a separate task force. Verrilli rounded up volunteer legal teams to address the ways in which Trump might try to use his executive powers to disrupt voting. Dellinger focussed on what could go wrong after the electors cast their ballots, in December. Waxman handled everything else, including potentially rebellious state legislatures, which they considered the most likely threat. By May, he had twenty legal teams on it.
Bauer said that the squads of lawyers “produced thousands of pages of legal analysis, and what I call ‘template pleadings,’ ” in preparation for every conceivable kind of breakdown in the democratic system. “Some of these scenarios were beyond unlikely, such as federal marshals seizing ballot boxes, and federal troops at polling places. But we had to game out what someone of Trump’s ruthlessness and lack of concern for the law would do.”
Even before the Capitol riot, the group had prepared Supreme Court pleadings in case Trump strong-armed Vice-President Mike Pence into rejecting the certification of the Electoral College votes. “We were fully prepared to go to the Supreme Court by nightfall,” Dellinger said by phone from North Carolina, where he teaches at Duke Law School. “We had paper filed and ready.” By then, the Biden campaign had sent the trio hoodies emblazoned with a special “Team SG3” logo. “Even though we planned for every possible loony scenario we could think of,” he went on, none of them foresaw the Capitol riot.
“We watched in horror as it unfolded,” Waxman said. For months, people had been teasing him about being paranoid. Verrilli recalled, “Seth said in December that we needed to make sure people could get to the building on January 6 to meet.” But an armed insurrection, in which five people died, was beyond the imagination of even the legal profession’s best and brightest.
“The lesson we learned,” Waxman said, “is that the state of our democracy is perilous—even more so than we thought. I am very, very worried.” ♦
