Trump Loses, Remains President?

Donald Trump, Air Force One
President Donald J. Trump waves as he boards Air Force One at Joint Base Andrews, MD, Friday, July 3, 2020, to begin his trip to the Mount Rushmore National Memorial in Keystone, SD. Photo credit: The White House / Flickr
Reading Time: 18 minutes

Mary Trump, President Donald Trump’s niece, has written a tell-all book that portrays her uncle as a man unhinged, obsessed with winning, and still afraid of what his father might say if he loses. 

Which inevitably raises the question: What might such a man do if he senses his bid for reelection slipping away amid a punishing pandemic with a rising death toll, unemployment in double digits, racial division, and plummeting poll numbers?

In the opinion of Timothy Wirth, former Democratic senator from Colorado and current president of the UN Foundation, Trump could lose both the popular vote and the electoral college — and still find a way to cling to power and the presidency, perhaps taking democracy down with him.

How he might do it, what’s at stake, and what can be done to prevent this coup d’etat is the subject of this week’s WhoWhat Why podcast with Senator Timothy Wirth. 

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Full Text Transcript: 

Jeff Schechtman: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman.

Close presidential elections are nothing new in American history. Back in 1876, Rutherford Hayes beat Samuel Tilden by one electoral vote. In the midst of World War I, Wilson squeaked by Charles Evans Hughes, and certainly in the modern era, Kennedy versus Nixon and Bush v. Gore set the standard for the peaceful transition of power during close elections. Theodore White in his seminal book, The Making of the President 1960 begins by saying “So power passes.” In each close election our institutions held, the losing candidate respected the results and the transition of power prevails as each such act left the political system healthier and more respected. This year though, we face a potential existential crisis as Trump slides in the polls, is already calling the election rigged, and opposing mail-in ballots in the midst of a hundred-year pandemic event.

Jeff Schechtman: All of this begs the question of how worried should we be that our system will not hold, that Donald Trump will find a way to maintain power even while losing the election. This was the subject of a story in this week’s Newsweek coauthored by my guest, former Colorado Senator Timothy Wirth. The article has garnered a lot of attention, has transfixed many on Twitter, and it is my pleasure to welcome former Senator and currently president of the United Nations Foundation, Timothy Wirth here to the program. Senator, thanks so much for joining us here on the WhoWhatWhy podcast.
Timothy Wirth: Well, Jeff, delighted to be with you. Excellent introduction. Let me say, just excellent introduction. I think you have framed the issue very well.
Jeff Schechtman: One of the things that’s so frightening and you and your coauthor point this out in the story is that we are looking at a very real scenario 118 days from now that might have been the work of fiction before.
Timothy Wirth: Well, people don’t understand how complicated our voting is. It always seems relatively simple to go to the polls, cast your ballot, assume that the ballots are going to be counted and the results will be made available that evening or the next day. That’s the standard American practice and has been for a long, long period of time. We’ve trusted the balloting process. We’ve trusted voting and we’ve trusted each other, maybe most importantly.
Timothy Wirth: As you say, after the election is over, people go back to their business and keep working on helping to build a better tomorrow in this country. That is certainly a classic situation. We might look back at that with some yearning as we face the election this November. I happen to think that we’re in a situation where the president who does not respect any of the norms or protocols that have governed and which have made America work. The transition of power peacefully in January is done because you have a Jimmy Carter or a George Bush or whoever it may be, Al Gore, John Kerry in 2004 agreeing that the institutions are terribly important and it must continue and the strength of the institutions are what’s important.
Timothy Wirth: I think our current president neither understands nor respects those traditions of our government, those institutions of our government, the transitions, the norms that make our democratic system work. System works not because of an ironclad set of rules set someplace in the constitution or by law, but because generally, overwhelmingly, because of the goodwill of the people who were involved. Both the people who were running for office and people casting their votes.
Jeff Schechtman: One of the things that undermines this as well is this constant drum beat that we’re hearing from the White House already that the 2020 election is somehow rigged or going to be rigged and the way in which that undermines confidence from the get-go.
Timothy Wirth: Well, I think as I look at this and my colleagues look at this, we think that there’s no question that Trump is going to do everything he possibly can to stay in power. That’s the basic assumption that one has to make. If you just look at his history and his thinking, he does not want to go down being the greatest loser in American political history. That’s a moniker that is absolutely hateful to him and he will do everything that he possibly can to avoid that. So with that in mind, you have to look at the coming election and how might Trump stay in power. Even if Vice President Biden wins a significant popular vote, there are a number of ways that Trump can stay in power. There are two pathways in general that I think we ought to keep in mind.
Timothy Wirth: One is the electoral one to which you refer and the one that is most commonly discussed today, Trump discouraging voting ballots saying that the vote is going to be corrupt and saying there’s got to be outside ballots and that sort of thing. That’s now part of the conventional wisdom unfortunately. People think this is what Trump’s going to try to do. More dangerous even are his invocation of the vast emergency powers, which he holds. This president, like every president, is granted by the Congress over decades vast emergency powers to effectively shut down various parts or all of the United States government. These are powers that are given to the president, first of all, because of a threat of a nuclear emergency, and then biological and chemical attacks, and then various terrorism and now and increasingly because of public health, he can declare national emergencies and use that declaration and use those national emergencies as a way of shutting down the government.
Timothy Wirth: He obviously has had absolutely no inhibition about using those powers. For example, these are minor examples, but he is by comparison to what we’re talking about. The president defied the Congress and the will of the Congress and the appropriations process by finding funding for a wall that is not approved by the United States Congress. The constitution is very clear on the fact that the president may propose, but the Congress disposes. Congress did not dispose, but the president went ahead anyway declaring an emergency and going ahead to build the wall. He did that at the time of the Muslim ban, which the Congress said was not legal, which according to a statute is not legal, but he declared a national emergency and went ahead. The imposition of tariffs. Tariffs are a very broad tool available to the president, but he avoided all of the protocols and went ahead and declared a national emergency.
Timothy Wirth: So there is nothing new to Trump using these emergency powers. In fact, he has said, for example, “I have article two,” he said, “where I have the right to do whatever I want as president.” He believes that, and that’s the framework in which we have to view the election. So, there are two pathways to Trump holding on to power, Jeff. One of those is the electoral pathway in terms of the electoral college and how he can try to warp that and so on. The other is the declaration of emergency powers, which I think he is perfectly capable of doing and for which there are almost no barriers at all. There are no guard rails against this kind of presidential power.
Jeff Schechtman: Part of the reason that there are no guard rails is that there is really no precedent for using those kinds of powers in the context of an election. Because it’s never been done before, there’s the ability to simply sow chaos to the point where nobody knows which end is up anymore.
Timothy Wirth: That’s exactly right. There are no rules in the Constitution about how this is to be done. The Congress tried to deal with some of the confusing issues surrounding elections after the election of 1876. They spent 10 years trying to figure out and then wrote a piece of legislation that was so ambiguous, that it’s impossible to figure out what to do in the case of these ballot issues. So, that’s one side of it or all of the complexities and confusion of the ballot, but that’s one pathway. Just keep in mind there are two pathways here for his to stay in power. One of those is the electoral. Sow discord, sow confusion, make it so that the electoral college can’t meet and be carried this out into the new year. Let’s remember that one of the amazing things about the American government is that Trump might lose the election on November 3rd, but he’s still into power. In power, he still holds the presidency until well into January. He has 10 weeks of unaccountable power. The chances are in an electoral way and in a national emergency power’s way, he is bent upon using that power.
Jeff Schechtman: Talk a little bit about the scenario that you lay out in this Newsweek piece about what conceivably could happen.
Timothy Wirth: Well, this is the one we lay out in the Newsweek piece in particular. I did this with Tom Rogers, an old friend of mine, and one of the founders of MSNBC and CNBC. Tom and I have known each other for years and worked together. This grew out of conversations that we had. You get to a time of the … after the elections or at the end of the election. I note the night of November 3rd and at that time say there are very close elections remaining in what we all now know are those key states. Wisconsin, Michigan, Pennsylvania, North Carolina, Florida, Arizona, for example. In some of those or all of those, say there’ve been an enormous number of absentee ballots. Those states are not equipped to count those absentee ballots and have restrictive rules as to when you can count them. They can’t start counting until the election. The polls close on November 3rd.
Timothy Wirth: So, the counting is going on, on November 4th, 5th, 6th, 7th, 8th, and a tremendous certainty in the country remains because those electoral votes are key to the election. The candidates have to get 270 electoral votes. Each of them is pretty well guaranteed if you look at the demographics of the country, something in the neighborhood of 230 to 250 electoral votes. So, there’s a handful of these electoral votes who come down to five or six states that will be at issue during the campaign, and then during the recount process.
Timothy Wirth: In the recount process, the president then can state that these recounts are rigged, that the absentee ballots that have taken so long to count were rigged. They were printed up for example, he might say by the Chinese and flooded those six states or three or four states with these illegal ballots. Those illegal ballots demonstrate that there wasn’t a fair count and that even though on the regular count, it might appear that he won. When it is stated that when those absentee ballots come in, Biden would have won, Trump says: “It’s a fraud, it’s a fake and I actually won.” It becomes then impossible for there to be some kind of a resolution of the electoral college. There’s a deadline on December 8th for resolving the problems in the states, who are the electors and who aren’t the electors. The states at that point decide, and who in the states decide?
Timothy Wirth: Well, is it the governor or is it the state legislature? Many of those key states, the Republicans control the state legislatures and the governors or certainly the state legislatures and say those state legislatures decide that those absentee ballots are fraudulent. They then decide that Trump wins because he had a majority of the votes on election day, not the ones altogether cast in the state, but the ones that were cast by election day. The electors meet. So, there is no decision from the electoral college. Nobody’s got 270 votes yet. The electors meet in the state capitol on December 14th. They’re supposed at that point announce what they’ve done. So, we’ve got then at that point total chaos and people on both sides of the equation saying that they won the election.
Timothy Wirth: On December 23rd, ballots have to go in by … send in by the states and they’re sent into the Senate and to the national archives, which certifies their accuracy. The national archives certifies the accuracy. Well, which ballots do they certify as being accurate? Are those declared by Trump’s people or those declared by a majority of the votes? It then moves into the new Congress being sworn in, in January. Senate has members, House has members. A question is of course, who at that point is going to control the House and the Senate?
Timothy Wirth: On January 6th, the president of the Senate I believe reads his results to the House and to the Senate. If there are remaining issues, the House and Senate return to their quarters to decide who to vote for in the election, who actually has won. If they’re not in agreement, then the final recourse is that the Congress goes into a session and the House goes into session. Each state, whether it’s Wyoming or California has one vote. So, it was one vote and they decide who the president’s going to be.
Timothy Wirth: Now, this is a [inaudible] obviously, and this is what happened in 1876 is they went to this awkward and difficult and questionable procedure. They ended up finally with Hayes becoming president, and in return for that, he agreed to give up reconstruction in the South, essentially. That was the deal that he made with Tilden the Democrat. But this could well happen. I know it sounds confusing. It is confusing. The president in the process can be interfering with the electoral votes all the way along the line and also, overlaying saying this is all a fraud and I am the president. I am a power and this is a national emergency and I’m declaring that I’m going to stay as president until that national emergency is resolved.
Timothy Wirth: So there you go, there you have it. It’s a very dangerous situation and one that the … so, the question of course is, what do we do about it? We can talk about that. But first and foremost, people have to be aware of the fact that President Trump, if you just think of all probabilities, is going to do everything he possibly can to stay in office. He’s going to do everything he possibly can not to have the label “loser” dropped on him for the rest of his life and going to do everything he can to subvert the processes and stay in office after this election.
Jeff Schechtman: One of the things that that scenario doesn’t look at entirely and one wonders what the impact would be from public outrage, arguably even people taking to the streets, the role of the media and all of this and public anger that might emerge from something like this and how that will play out against the scenario you just detailed.
Timothy Wirth: Well, it’s exactly the right question. That gets to a discussion of what can we do about all of this. The most important thing we can do is to remember the forewarned is forearmed. The more we know about it now in advance as a real possibility and probability, the better we’re going to be able to educate the populace, to educate all of our institutions so that they are thinking about this and are ready for this set of possibilities. So, that’s the first and foremost thing. Forewarned is forearmed.
Timothy Wirth: What does that mean? That means getting the information out about this, which is exactly what we’re trying to do through a series of editorials and media appearances and programs like this very one. Jeff, thank you very much. Every means that we can figure out to educate the public about the fact that Trump’s going to do everything he can to stay in power. That can be resisted. The Senate’s not going to do anything about it. There are no rules on the constitution that says he can’t do this. So, it has to be a vast public uprising and public understanding that this is not acceptable. Of course, the best public uprising would be a very big vote for Vice President Biden. That would be the single most important thing to happen, but we can’t be guaranteed either that there will be a very high vote for Vice President Biden or that if there is such a vote, that the president still isn’t going to try to intervene through the electoral college.
Timothy Wirth: So, we have to educate people in every way we can. That means the press. That means in the business community. It’s absolutely critical. For example, we’ve just seen in the state of Georgia, just a terrible, terrible muffling of the vote to keep minority voters, city voters, and so on from voting in Georgia. Now, what else is in Georgia? You have huge concentrations of economic power like Delta Airlines, Coca-Cola, a vast number of very large corporate entities. Are those corporations going to stand by and let their state behave the way that Georgia has behaved in this election? Are they not going to demand that changes be made?
Timothy Wirth: People can always switch to Pepsi Cola. They can always switch to American Airlines. Companies are very sensitive to citizen action and the voter reaction. Look, we’ve seen this with Facebook just in the last few weeks. So, the corporations in America have to set up and say, “Hey, wait a minute, this could well be happening.” and alert their people. They have tens or in many cases, tens of thousands of employees and some very, very important leaders in communities.
Timothy Wirth: State local government. We have a whole group of attorneys general and secretaries of state who are already beginning to write and talk to each other about how to count the votes and how to share experiences and how to work together to avoid problems in November. They are terribly important. Those are other institutions of government at the non-federal level. Of course, civic societies of all kinds, whether that’s a like Tom Steyer’s NextGen or Common Cause or a whole series of grassroots organizations who communicate with their members and who have probably an excellent way of communicating using social media in particular. Social media then becomes probably a potentially very important weapon in defense against Trump staying in office. So, that’s what we call … we call that the citizen’s firewall, a people’s firewall.
Jeff Schechtman: One of the other questions in all of this is the impact, because it’s not just the presidential election here. The impact that this will have down-ballot, the impact it will have on state races, local races, and the responsibility of those office holders and candidates running in those races to help assure a fair election.
Timothy Wirth: Absolutely. I mean, they are the machinery of American government out there. That’s the engine room of American government is people voting at the state, county and local level and it’s terribly, terribly important. The Republicans have gotten themselves into really between a rock and a hard place and their fealty to President Trump, they’re terribly afraid of saying anything that might alienate him and his hardcore supporters to come after them. That’s a rock on one side and a hard place on the other side is the fact that they got to change. They have to recognize that what’s going on in the country. Trump’s racist statements, his unwillingness to recognize the way in which American government works, his total disregard for the environment, his destruction of treaties around the world. They have to deal with that in this election. They’re going to be asked about it.
Timothy Wirth: Are they going to say “Oh, Trump’s doing everything just fine.” or are they going to finally break with the president? That happens all the way down the ballot. These candidates are going to be faced with those choices and have to answer those questions. So, the more of those questions are out there, the more people are asking, the more likely it is that you’re going to find people who are understanding that this is happening and are voting for a peaceful transition and for a change from the current administration.
Jeff Schechtman: The backdrop to all of this is this focus on mail-in ballots, the pandemic that we’re experiencing and even the traditional poll workers who tend to be senior citizens who might not be available in this situation.
Timothy Wirth: Oh, that’s one of the areas in which Trump is obviously trying to stir up as much mischief and misunderstanding and chaos as he possibly can. Obviously, we are in a different time and there are fewer poll workers and the poll workers are older and they’re worried about the virus. That’s a very, very understandable reaction. So, as we saw in Georgia and we’ve seen elsewhere, the numbers have been solid. In Wisconsin the numbers of polling places have shrunk significantly, and the number of poll workers available there has shrunk significantly. The Republican National Committee is training, believe it or not, 50,000 poll workers. These are 50,000 poll workers to help with polling. Well, I don’t think that they’re there for the purpose of helping little old ladies across the street. I wouldn’t think so. They’re there to help spawn whatever the Republican National Committee decides to do and I think to whatever efforts have to be made to keep those polls from being able to accurately reflect the vote or to count the vote rapidly.
Timothy Wirth: Counting the vote rapidly becomes really problematic. A lot of these when we have a sudden surge of voting by mail, that puts a huge stress on the secretaries of state and electoral officials at the local level and they have to learn how to do this. How do you count the votes and how do they do that in a timely way? Those are very significant issues. The Senate has been unwilling to provide any financial assistance to state and local governments to make voting go easier. It’s as if the way Mr. McConnell and the Senate don’t want there to be a fair election, which I think is pretty clear.
Timothy Wirth: They want to limit people from voting rather than doing it the other way around, which would be encouraging people. That’s where we grew up thinking Columbus sails the ocean blue in 4th grade, 7th grade and 10th grade and voting is part of your franchise, part of your citizens duty. Well, we ought to be encouraging that in every way we can and not discouraging it. These people just very patently discouraging it, and we’ve got to say, “We’re not going to stand for that. That is not American. That’s not right and that’s not part of our responsibility or privilege as American citizens.”
Jeff Schechtman: Do we need a legislative fix nationally for the voting system in this country?
Timothy Wirth: Oh, no question about it. Longterm, we do, it’s a federal issue. Even though we have a tradition of states implementing elections, they can do so at the state and local level in every way, but certainly for federal office there’s every argument to be made that we need not only standards for voting at the federal election, they’ll be tough to figure out. It’ll take a lot of headbanging, but the Congress has to do that as obviously it can’t be done between now and November 3rd, but for next year, it’s going to be high on the list of what has to be done.
Timothy Wirth: The government groups like Common Cause, Fred Wertheimer, people like that [inaudible] Common Cause have been urging this for a long time and maybe after this election, let’s hope we get through the election and let’s hope that then people awake, and there’s some kind of a major national commission looking at this. The last time we had a real questions of governance was in the early 1970s, after the Vietnam War and Watergate and the lying about the war and so on and that Church Commission got created. Church Commission developed a whole series of recommendations that became law. One of those for example was the establishment of the intelligence committees in the Congress and how those committees were going to be briefed and what their relationship to the executive branch was going to be.
Timothy Wirth: Very important issues of governance, very complicated, in many cases, very obscure, but that’s the kind of question that’s going to have to be addressed by the Congress starting in 2021. Let’s hope we get there, have a peaceful … get through some kind of a peaceful swearing of a new president in January 20th and can get on with the business of governing ourselves and protecting our democracy.
Jeff Schechtman: Finally, before I let you go, one thing that is not part of the scenario that you and Tom Rogers laid out is the courts really making the decision. Talk a little bit about what you see potentially in this mess that we’ve been talking about as the role of the courts and the ways in which they might be dragged into this as they were in Bush v. Gore.
Timothy Wirth: Yeah. Well, that’s an interesting question. People say, “I’ll leave it to the courts.” Well, we’ve just gone through all of these scenarios and the courts haven’t been brought into it by the time of the election in September and October, the courts are not involved. They only become involved in November for the most part when the president, for example, charges the attorney general to issue various orders related to ballot recounts, and the attorney general exercises those. The federal government, they federalized the national guard. They have all these claims of outside voter fraud. Let’s say that’s one of the scenarios. So, who takes that to court? If the Democrats, or Democrats have the groups of lawyers around the country in growing numbers, anticipating some kind of problems on election day, but they take that to the Supreme Court.
Timothy Wirth: Now, they have to go up through the court system somehow, or maybe get a direct ruling as they did during Bush v. Gore, and what does the court then do? At that time, you had a quite gentlemanly sense of how the country was going to operate if you started in the program, though, there was a peaceful transition from Gore agreed to give it up in Florida. Kerry, actually didn’t mention this, but he agreed also in Ohio even though there had been significant voting machine problems, and he at one point was assumed to win the election in 2004. Kerry gave it up both of those as gentlemen. They didn’t have to go through the court at that point. The court agreed and they agreed with what the court was saying. Would the court do that? What would we expect of this court five to four as it currently is? What would we expect of the court?
Timothy Wirth: I mean, that’s a very serious issue if in fact the court would address this at all. So, we really don’t know. I think to say, “Well, let’s depend upon the court” and depend upon this court, it seems to me is not a very strong rate upon which to try to figure out how to solve our concerns.
Jeff Schechtman: Former Colorado Senator Timothy Wirth. Thank you so much for spending time with us today and sharing your thoughts.
Timothy Wirth: Well, good luck and good luck to you. To everybody, be aware of what’s going on. Think about what’s going on around you, be aware and alert, talk to your friends and neighbors. Absolutely essential. We hope to really build this people firewall and build this sense of national concern and national understanding that the chaos that can be sown by the president in staying in power is absolutely unacceptable. We have to do everything we can to understand that’s coming and that we have to be aware of it and resist it and talk about it and make it less possible. Sunshine is the best antiseptic, that’s an old aphorism for our system of government. If we want to keep our republic, we have to keep the sunshine brightly focused on this. Thank you very much for a great program.
Jeff Schechtman: Thank you. Appreciate it. Thank you for listening and for joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.

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