World War T
At 2:37 am on November 4, 2020, campaign manager Roger Lau leaned back in his knock-off Aeron chair at Warren headquarters in Charlestown, Massachusetts and exhaled with relief. CNN had just called Wisconsin for Warren, and though Florida and Ohio once again seemed to be slipping away from the Democratic presidential column, it looked like it wouldn’t matter. The “Rust Belt strategy” had paid off, as the campaign’s internal polling and precinct tracking numbers seemed to indicate that Elizabeth Warren would also eke out victories in Pennsylvania and Michigan, as well as a surprise in Arizona. After splitting the congressional district-based single electoral votes up for grabs in Nebraska and Maine, President-Elect Warren appeared en route to a 289-249 Electoral College victory.
Twelve minutes later, a tweet emerged from @realDonaldTrump. “American Election STOLEN. Reports flooding into my HQ all day, massive voting by illegals. Dems bussed them to key precincts. FRAUD.” Lau wasn’t surprised: President Trump had been asked in the second debate a month earlier whether he would accept the election results if he lost, and had dodged even more than in 2016. But along with the rest of America, Lau had grown used to Trump’s fulminations. This was just a last gasp.
Except by 8:01 am, it wasn’t. CNN had called the election for Warren, but Fox had refused. Recounts were underway in two states. Trump had not only refused to concede, but had spoken to a screaming crowd, declaring himself the “real” winner. Claims surfaced throughout the morning on social media, always secondhand, that witnesses had seen busses of what they said were Latino voters arriving at polling locations in center city Philadelphia.
Then, at 4:08 pm, a video emerged, sent anonymously to conservative media organizations, purporting to show young men with Warren t-shirts distributing cash at a polling location. Video analysis experts quickly denounced the video, pointing to telltale markers of a deep fake.
But other video clips and photos stormed the Internet in the following hours, two emerging from Twitter accounts linked to the Russian military. Experts similarly batted them down, but by that evening, Mitch McConnell had cited the “visual and eyewitness evidence” in an address on the Senate floor, declaring that the entire election was in doubt and that Trump was likely the “true” winner. After days of continuous dissection on cable news, polling showed the American public confused and divided both over who had won and whether the election was even legitimate.
In the following weeks, both campaigns mobilized an army of legal volunteers to Pennsylvania and Arizona, where recounts continued to unfold, while Trump also initiated a barnstorming tour of massive rallies focused on the need to “protect the votes of real Americans.” These were paired with a nonstop spin cycle of tweeted accusations and Fox News analysis on the same theme.
Inside the White House, the Trump team knew that they would likely lose both recounts. But prevailing there was not the real goal. Advisers to Trump (who would later claim that he alone had devised the strategy) clearly saw that they had several pathways to victory, and all of them relied on first seeding doubt about who had won.
The first such chance, perhaps the best, was to flip votes of “faithless electors” in the Electoral College, set to convene on December 14. In 2016, 7 such flips had occurred, 5 of them from electors pledged to Hillary Clinton. The Trump people knew that they did not need to flip Warren electors to Trump – that was unlikely – they just needed to talk 20 electors into any kind of switch, which would reduce her total from 289 to 269, under the 270 needed to win.
In 2020, 20 states still had no provision to bind electors to vote as pledged, so there were many potential targets, but Republicans concentrated on Pennsylvania’s electors. Right-wing activists started to bombard them with the claim that Pennsylvania was stolen and so it should be treated as a “tie.” Fox News branded this the “Constitutional Compromise.” Under the US constitution, the way to resolve elections where neither candidate reaches 270 electoral votes is for a vote to occur in the US House of Representatives in a “contingent election.” This had happened twice before in American history. Of course, Republicans were well aware that contingent elections are settled by a quirky process where each state delegation gets a single vote, and Republicans held the majority in 26 state delegations (the new Congress would not yet be sworn in), with Michigan and Pennsylvania tied. Such an election would lead to a sure-fire Trump win.
While this approach seemed to be gaining some traction, the Trump team knew that if the faithless elector gambit failed, there were fallbacks. They could take advantage of the official counting of the electoral votes, set for January 6, 2021. There would first be the opportunity to nullify the 20 electoral votes from Pennsylvania by having a member of congress from each chamber object to including them. Even though that ploy was unlikely to work, since it would require the Democratically-controlled House to vote in favor along with the Republican-controlled Senate, it would serve as a useful setup for a second bite at the apple: the result of the count of the electoral vote needs to be announced by the President of Senate, who happens to be the sitting Vice President of the United States. Republicans realized that Mike Pence could cite the controversy and simply refuse to declare the result, creating murky constitutional waters at best.
This led to a fourth winning pathway for Trump: adjudication in the Supreme Court. The Trump campaign had already launched lawsuits in several states, and a controversy in the congressional vote-tally process would only add to the momentum for a legal resolution, as in 2000. With its 5-4 Republican-appointed majority, any ruling was widely presumed to favor Trump.
Cleverly, in the runup to the electoral college meeting, the Trump campaign did not hide these scenarios. They shouted them. The message was clear – we will take this to a constitutional standoff, and there would be only two possible outcomes: a dissolution of the Republic under the shadow of two claimants to the presidency and/or Democratic refusal to adhere to a Supreme Court decision, or a Trump victory via a recognized constitutional pathway like a contingent election in the House.
On December 7, Pearl Harbor Day, Democratic leadership convened in Washington faced with what amounted to a no-win hostage crisis. Some of them focused on internal recriminations. But savvy party elders, led by Nancy Pelosi, quashed that talk as a waste of time: they recognized that no matter the nominee, no matter the campaign tactics, absent a totally crushing victory, the Trump maneuver had been inevitable from the start.
Some advocated a fight to the bitter end, preferring to let the crisis unfold, and accede only in the face of a Supreme Court loss. But others argued that the political system might not survive such a bitter fight, and already, in early December, incidents of violence by Trump activists had become more frequent and brazen. Democrats concluded that both the long and short term potential for damage to the country was mounting. Among terrible options, one was the least bad: as Roger Lau looked on, appearing years older than he had just a month before, the assembled leaders placed a call to 20 electors.
And that is how, on January 6, 2021, President Trump emerged victorious in a vote in the US House of Representatives, winner of the first American constitutional coup.
