Jack Goldsmith on why fears of a Trump coup are nonsense
RSS 最後由 編輯
Nov 19th 2020
by Jack Goldsmith
LONG BEFORE DONALD TRUMP became president it was widely believed that he would spark a “constitutional crisis” if elected. And during his term in office there were panicked claims that he was just on the verge of destroying the American constitutional order: when Mr Trump threatened to defy judicial orders related to the Muslim ban, and to fire or stop Special Counsel Robert Mueller; and when he made absolutist executive-power claims in defying congressional subpoenas for his tax returns and urged prosecution of his political enemies.
In these and many other contexts, Mr Trump’s verbal assaults and threats, incessant norm-defiance and claims of absolute power provoked four years of vertiginous panic. Mr Trump was so discombobulating that relatively few noticed that these and many other worst-case scenarios never played out.
Mr Trump has left enormous damage in his wake—to the psyche of many Americans, to many institutions of American democracy and to beaten-down citizens’ confidence in these institutions. There is much repair work to be done. Yet the most remarkable fact about his presidency is how well the American constitutional system stood up to and survived it.
This was true, most importantly, in the recent presidential election. Hundreds of stories and reports warned about foreign hacking, domestic and foreign disinformation, violence, insecure voting machines, voter suppression and pandemic-related problems. Yet more Americans than ever (approximately 150m) voted for president. And the election “was the most secure in American history,” according to federal election infrastructure experts; was free of foreign governmental disruption, said the administration’s chief cybersecurity czar, Christopher Krebs (whom Mr Trump later sacked); and was “one of the smoothest and most well-run elections that we have ever seen,” according to the Democratic appointee to the Election Assistance Commission, Ben Hovland.
This is the background against which to assess the latest and most significant round of panic—that Mr Trump will pull off a coup in the next nine weeks and remain in office past January 20th, when his constitutional term is supposed to end.
The panic flows from Mr Trump’s mendacious claims that he won the election and that it was characterised by widespread fraud; from the administration’s refusal to allow the formal transition process to begin; from lawsuits challenging the results of the election; from the failure of many Republicans to acknowledge Joe Biden’s victory; from worries that Republican state legislators will replace Biden electors with Trump electors in the states’ byzantine presidential-selection process; and from recent firings in the Defence Department and replacements with yes-men, which many see as preparation to keep Mr Trump in power.
This is not going to happen, as Benjamin Wittes of the Brookings Institution has explained. Despite Mr Trump’s appalling, deeply unpatriotic behavior, there is every reason to believe that firm legal processes in place will ensure that Mr Trump leaves the Oval Office by January 20th. Mr Biden clearly won a majority of electoral votes, even if that conclusion is not yet official. The lawsuits are failing, thanks to the integrity of state and federal judges.
While there is still work to be done, states are on track to certify the election, thanks to the integrity of state election officials of both parties. The feared state legislative gambits to get electoral-college electors to alter the candidate whom they vote for—which would have to take place in numerous states to be successful—are probably illegal and in any event are not materialising.
The electors will meet on December 14th and vote for Mr Biden to be president, and certificates of their votes will be sent to Congress. A joint session of Congress on January 6th will count the electoral votes and declare the results. And on January 20th, Chief Justice John Roberts will swear in Mr Biden as the 46th President of the United States.
Mr Trump cannot prevent this outcome. But he can and surely will cause enormous destruction along the way, just as he has for four years. He could, most worrying, order the military into the streets. But this is unlikely to work. Mr Trump has been remarkably inept at wielding the complicated levers of the federal government to achieve his most controversial aims. No president in American history has ever suffered so much defiance from senior political appointees, including in the Pentagon. It is highly doubtful that career military brass, or Mr Trump’s appointees in the Pentagon or White House, would follow his illegal order—though the order, if made, would indeed constitute high constitutional drama.
And yet America is still in a very dangerous period during the presidential transition—the most dangerous one yet. Mr Trump retains enormous discretion to do great damage, and he perceives that he has little to lose, and perhaps much to gain personally, from doing so.
Thus we should worry that Mr Trump’s conspiracy about the election will become the new “birther” claim that spoils the legitimacy of his successor’s presidency for many Americans; that he will not co-operate during the transition with Mr Biden’s incoming team, leaving it underprepared for office; that he will attempt to incite violence more aggressively than in the past; that he will abuse the pardon power in unprecedented ways to protect himself and his family, friends and businesses from criminal exposure; that he will disclose vital national-security secrets to serve his interests or to harm his political adversaries; and that he will wield the president’s essentially unchecked war and emergency powers to spark a global crisis that Mr Biden’s administration will inherit.
The fact that the very worst fears about Mr Trump have not yet materialised does not mean that the four-year panic about him was unwarranted. For some, the panic had a wolf-crying effect that inured the populace to some of the president’s worst behaviour. But on the whole, the panic sparked the institutions that Mr Trump challenged into being vigilant and keeping him in check, even if these institutions—the press, the bureaucracy, the courts, and other elites—sometimes themselves overstepped and violated norms.
After all, panics about executive overreach have been a salutary feature of the American psyche, and the hidden key to checking executive branch abuses, ever since the Declaration of Independence exaggerated the “repeated injuries and usurpations” of King George III.
Jack Goldsmith is a professor at Harvard Law School and a senior fellow at the Hoover Institution. He served as the Assistant Attorney General in the Office of Legal Counsel in 2003-04 under President George W. Bush. He is the coauthor with Bob Bauer of "After Trump: Reconstructing the Presidency" (Lawfare Press, 2020).