As much as I'm a fan of touting "Yeah but Trump is out automatically on Jan. 20 no matter what! That's the LAW! And he doesn't have the support of officials with the guns! " And dismissing everything else as crazy talk… but...
Here's a scary insane conspiracy theory I saw. Well, I'd say it's insane but, you know what? We have an insane and corrupt president and a corrupt GOP.
Autocracies aren't born in rule of law. They're not even primarily born in violence. Rather they arise despite rule of law—often on the strength of a benighted populism, in fact just the sort of populist movement Trump is building now over false fears of a "rigged" election.
The question isn't whether Trump has legal authority to move Election Day and thereby extend his presidency—he doesn't—but a different question: what happens if he just declares that he does have this power? And what if he can do so with a false veneer of legal legitimacy?
By October 31, Trump's decision not to combat COVID-19 (indeed to worsen the pandemic with every one of his words, actions, and decisions not to act), coupled with an incipient flu season, is likely to send America's COVID-19 data—infections, deaths—into its horrifying nadir.
Meanwhile, Trump has put a crony who's likely a witness in an ongoing federal criminal probe—a man who's a peer of perjurers (and worse) Michael Cohen, Elliott Broidy and Gordon Sondland—in charge of the United States Postal Service. Already, this crony is destroying the USPS.
Today, Mike Pompeo told us Trump lackey Barr—who has never refused the president anything, who appears to be a Trump co-conspirator in the Ukraine scandal, and who has already shown a penchant for violating the law—gets to decide if Trump can announce a change in Election Day.
Note that each time I use the anodyne euphemism "change in Election Day," what I'm describing is in fact apocalyptic—an artificial extension of the Trump presidency corresponding with the end of American democracy and the beginning of Trump's reign as America's first autocrat.
Barr has already instructed OLC (the Office of Legal Counsel) to produce opinions that violate all existing law (for that matter, we saw that during the prior GOP administration, Bush's, as to torture). Barr can get the OLC to crush a CIA whistleblower—or change Election Day.
9/ I ask anyone reading this to simply play out the following hypothetical—the one I offer in the next tweet—which is "hypothetical" only inasmuch as it takes everything we know about Trump, Pompeo, Barr, COVID-19, and the USPS right now and projects it 90 days into the future:
10/ On October 30, Trump announces, with an OLC opinion "granting" him this power in hand, that he is moving the 2020 presidential election 120 days, after which time he will review the nation's ability to safely and securely conduct an election. He announces it via tweet and TV.
11/ Understand that this would be illegal—and wouldn't change election day. But that wouldn't be the point. The point would be to convince Trump voters not to vote.
You may have to read the preceding sentence multiple times—it's counterintuitive unless you're a metamodernist.
12/ This thread isn't on metamodernism. All you need to know is that on the day in June 2015 Trump announced his candidacy, I published a HuffPost essay declaring that what made Trump dangerous was his ability to manipulate reality (in a way theorists connect to "metamodernism").
13/ The way to win an unwinnable election, using the sort of powerful reframing of events a certain way of thinking Trump instinctively (not intelligently or responsibly) employs, is not to turn out your voters… but declare the election invalid once your voters don't show up.
14/ The purpose of the pre-election Trump announcement I am hypothesizing here would not be to help Trump win the 2020 election, but to convince so many Trump voters not to vote that the results of the election favor Biden by so much the election looks wholly illegitimate.
15/ Imagine a scenario in which, with 3 branches of government—executive, judicial, legislative—you have the executive branch declaring the election was moved, the judicial branch (as yet) silent, and the legislative branch in chaos because no one in the GOP knows what to say/do.
16/ By convincing his voters to stay home—because he's "moved the election"—Trump will have caused every GOP member of Congress to lose their reelection, forcing them to back his play and say that the election was delayed and therefore Biden didn't actually win on November 3.
17/ The result: an executive branch that says the election was invalid; half the legislative branch (the GOP half) saying the election was invalid; election results that look invalid (as Biden has won by 50+ points); and a judicial branch that hasn't—and can't—say anything yet.
18/ In that circumstance, what does "rule of law" even mean? You have a separation of powers issue—a conflict between branches of government—that the Supreme Court must hear, and because it's the most complex case ever heard by SCOTUS in US history, it's impossible to expedite.
19/ The mere fact that Trump would have enacted this constitutional crisis just 96 hours pre-election means SCOTUS can't speak on it pre-election, and the complexity of the case would throw into chaos all state election deadlines. Which is basically the point of Trump's plot.
20/ All Trump needs in this scenario is (a) SCOTUS to move at its usual glacial pace, and (b) GOP-run states (states with GOP secretaries of state running their elections) to refuse to certify election results or choose electors until the Supreme Court has acted on the issue.
21/ I'm not even sure Trump would be the plaintiff in this case—as he and his GOP allies in Congress (and GOP secretaries of state) would so adamantly declare the election results invalid they might wait to make the Democrats sue in federal court, making them look desperate.
22/ And how magnanimous Trump will be! He and his GOP allies will offer to negotiate with Democrats in lieu of them filing a federal suit. Trump will say, "We have to wait until this invisible plague is under control. That's all anyone is asking here." It'll sound persuasive!
23/ Know what'll make it more persuasive? Election results so insane-looking—Biden 82%, Trump 15%—they'll make Egypt's el-Sisi blush. Biden will be half-inclined to agree with Trump on a do-over—knowing his term as an "illegitimate monarch" may be marked by historic violence.
24/ Right now I need everyone in media; everyone on "legal Twitter"; everyone who's a professional political analyst to comment on this thread—or on your own feeds, it doesn't matter—explaining why this Trump plan wouldn't work. Why it isn't exactly what he's setting us up for.
25/ Understand that I didn't develop this thread out of some fever dream. All I did was take statements and actions by Trump, Barr, and Pompeo; the current status of COVID-19 and the USPS (and who controls each); and the way of thinking Trump has exhibited since June 2015. /end
PS/ I understand—and empathize with, as a lawyer—those who reply, "Nah, he ceases to be POTUS on January 20th at noon."
Again, that's the view that law determines if a coup is successful, not the brute force of populism and logistics—the logic undergirding Trump's actions now.
PS2/ In the scenario I've described, yes, the law would suggest Biden—having won the election 82% to 15%; with less than 270 electoral votes; and with all GOP politicians and all GOP secretaries of state and most GOP voters saying he won a fake election—is the president. So what?
PS3/ What would in mean—in that scenario—for someone to be "president"? And that's the question the five ultra-conservative justices of the Supreme Court would have to decide, probably on a timeline so glacial it couldn't be concluded effectively until early January 2021 at best.
PS4/ More importantly, that's the question Democrats would have to decide—and would probably be deciding in the midst of historic Republican protests and threats of violence all across the country. Would Democrats consider it their best move to accept that election "victory"?
PS5/ We learned in January '20 that impeachments are about politics, not law—though they're supposed to adhere to rule of law. In January '21 we may learn elections are also about politics, not law. What happens if Dems must allow a do-over to preserve the peace of our Union?
Yeah thats completely insane and impossible and shouldn't put any stock in it. But you know…