Donald Trump and the President’s emergency powers

Donald Trump has thrown what should be the last of his “Hail Mary” passes in the courts. On December 11, the Supreme Court summarily rejected the request for a hearing in the case brought by Texas, on the ground that Texas lacked standing to bring the suit because it had no legal interest to protect.

Even in Donald Trump’s desperate mind, he must realize now that he will not succeed in his attempted coup d’état through the use of the courts.

Notwithstanding this defeat, which he may or may not have understood was extremely probable, he is not likely to give up his determination to stay in power by any means.

What is likely to change now are the methods and stratagems employed to continue his coup attempt.

Under the normal electoral process Joe Biden would be elected President by a majority vote of 306 electors when the Electoral College meets on Monday, December 14, 2020.

Trump appeared to be trying to delay the certications of the votes at the state level. Were he to succeed in preventing the casting of a majority of 270 electoral votes on December 14, the election would be thrown to the House under the terms of the 12th Amendment, where in a “contingent election” in which each state has one vote he might be elected President.

Yet not only does Biden have 306 electoral votes, exceeding the requirement of a majority of 270, but these votes have been certified by December 8, the so-called “safe harbor” day after which they are supposed to be presumed valid and not subject to being challenged.

It therefore appears that the only way Trump could prevent the Electoral College from voting for Biden  would be if he could prevent each state’s electors from meeting in their respective capitals (which is what constitutes a “meeting” of the Electoral College), or at least prevent state meetings in states Biden won sufficient to bring the number of Biden electoral votes cast to less than 270.

If Biden is chosen by the Electoral College on December 14, Trump’s remaining recourse under normal procedure would come on January 6, 2021 when the new Congress meets to tally the votes of the Electoral College.

There, he could try to get the Senate and the House to accept slates of his candidates named by Republican-controlled legislatures. This would involve state legislatures violating state laws which provide that the electors selected represent the winner of the popular vote in the state. While this is a long shot, Trump could hope to tie things up, and somehow get a case to the Supreme Court in an effort to prevail with his twisted interpretation of the constitutional language–arguing that the legislatures have plenary power to name electors, regardless of what laws they have passed may provide.

But we are getting ahead of ourselves.

Trump may not want to wager that any of these stragems will succeed on its own, without a boost from his use of the President’s emergency powers.

On the bachground and extent of his emergency powers, including highly secretive powers which are classified and may include authority to declare martial law and/or seize control of communication systems (e.g., the Internet), see,

1) Andrew Cockburn, “The Enemies Briefcase; Secret powers and the presidency,” Harper’s, November 2020 issue.

2) Matt Rothschild, “Trump Has Enormous “Emergency” Powers; 1978 law gives president 123 statutory powers. He could round up a lot of people, a lot of groups,” Urban Milwaukee (urbanmilwaukee.com), July 27, 2020 (10:06 am).

Trump supporters have scheduled a mass demonstration in Washington on Saturday, December 12. Were this demonstration to evolve into violence, arson, and looting, Trump could invoke the Insurrection Act and send in federal troops to restore order.

However, the Washington police have a good record in handling demonstrations, so the predicate for any such action may not arise.

One way of looking at Trump’s absolute demand for House Republicans to sign on to an amicus brief in the Texas case would be to see it as a maneuver that would compromise them, gaining their support for a counter-factual and crazy action.

Trump, who is a brilliant corrupter of politicians, could be using their fealty to soften them up so they support his next outrage.

The takeaway is that Trump is not likely to desist from his attempted coup.

We can expect that his methods will escalate, and that he will justify their use as exercises of his emergency powers, including those which are classified.

This is no time for anyone to relax.

To understand the fascist threat Trump represents, and the nature of the challenge American democracy will face in the next 39 days, just imagine Adolf Hitler in the White House, scheming and plotting to do anything that will enable him to maintain his grip on power.  Anything.

Trump’s attempted coup is continuing. We must pay close attention.  This is no time to lower our guard.

The Trenchant Observer