[This is the original version of The War After the Election written in October of 2020 and published on November 2. An update regarding what to do in the immediate aftermath of the Capitol attack follows it below.]
In June of 2020 the Transition Integrity Project ran a series of political scenario exercises (or what the military would call “war games”) on various outcomes for the 2020 presidential election. “We anticipate lawsuits, divergent media narratives, attempts to stop the counting of ballots, and protests drawing people from both sides,” the TIP report summarized. “The potential for violent conflict is high.”
On top of this, Nils Gilman, one of the TIP’s co-founders said in an interview with Vox afterwards, “We’re also concerned, frankly, that the incumbent administration could attempt to do things using … the power of the executive branch, to basically stop the full resolution of a close election.”
Bryan Dijkhuizen in his Medium article “The US Faces an Unprecedented Stress Test of its Democracy” quotes Wilkerson: “The incumbent president pulls all the reins of federal power. The Border Guard and the Department of Homeland Security can hire and uniform contractors, Justice, the armed forces.”
Dijkhuizen says Wilkerson is fearful of a split in the military ranks between high level officers who think the military should stay out of elections, and low level troops who support Trump; as well as of the potential role of the National Guard under the governors, who are Republican in 31 states.
“In those states, guards as semi-professional militias, because that’s what they are, could be mobilized under the ostensible command of the governor. Or Trump can place them under federal authority,” Wilkerson explained, which Dijkhuizen summarized to mean: “If (part of) the army chooses the Biden camp, real soldiers can face guards.”
Gilman described how we could get to this point in the Vox interview: “Things that can happen include states putting forward multiple slates of electors. So, for example, if you look at states like North Carolina, Wisconsin, and Michigan, you have an extremely polarized situation where you have a Democratic governor and a Republican legislature and they can perhaps send separate slates of electors.
This is not just a hypothetical. This actually happened in the election of 1876, between Rutherford B. Hayes and Samuel Tilden. There were three states — Florida, South Carolina, and Louisiana — that sent in competing slates of electors. The parties were said to have planned competing inaugurations.
It was contested until literally the last day before inauguration, when Tilden gave up his claims for the presidency and told his electors to stand down — in exchange for ending Reconstruction. The integrity of the electoral process for presidents was maintained, but it came at the cost of effectively imposing Jim Crow on African Americans.
These mechanical instruments for contesting the result still exist within the constitutional process.”
The Transition Integrity Project was founded by Rosa Brooks and retired Colonel Lawrence Wilkerson (who was Chief of Staff to Secretary of State Colin Powell) and included former Congressmen, United States Senators and previous cabinet members including such prominent figures as Michael Steele (past chair of the Republican National Committee), John Podesta (prior White House Chief of Staff), former Governor of Michigan Jennifer Granholm, Senator Chuck Hagel who was once Secretary of Defense, and former United States Secretary of Homeland Security Michael Chertoff amongst others.
That officials of this stature would play “war games” in case President Trump refuses to leave office peacefully or that we are even TALKING about such scenarios should alarm every American and give this issue the gravity and attention that is not being attributed to it.
But there was one potential major stakeholder the Transition Integrity Project didn’t take fully into account: the American people. By this group I am not talking about hyper-partisans on either side, but rather the vast majority of citizens who will accept the outcome of the election as long as it is decided relatively fairly.
The stronger the victory in the popular vote for President, the less the likelihood that the outcome will be moved to a post-election process and/or the easier it will be to deal with such a progression.
And AFTER the election voters should keep pressure on their representatives in the House and on local levels to abide by modern electoral procedures that bind electors to the popular vote in their respective states — because these offices could possibly determine the outcome of the presidential election. State officials will choose electors if the Electoral College cannot come to a result and the election proceeds into the House of Representatives. Each state will get ONE vote in the House. Before the election the Republicans held a 26–24 advantage there, but the NEW House will make such a decision and its makeup could shift in favor of the Democrats.
Act NOW. The sooner you decide to do so, the greater the likelihood of success (not that your candidate will win or lose, but that we will proceed with a peaceful electoral and constitutional process). Begin by signing The Pledge to Safeguard the Election which attempts to counter electoral fraud by digging deeper into the grit of the electoral process by making sure that electors abide by the popular vote in their respective states (which they are actually bound to do by laws in most states) and that they and other candidates and election officials follow the same electoral rules that have applied in recent modern elections.
But don’t stop there: keep engaged by putting pressure on the relevant electoral actors to ensure that we have a constitutional and peaceful transfer of power.
We Americans don’t fight our domestic “wars” through street violence. We fight in campaigns with ballots and legal action, and if necessary through peaceful demonstrations, all of which makes violence unnecessary when the losing side agrees to peacefully abide by the results.
[What follows is the first update to The War After the Election, which addressed how to handle events between the January 6 attack on the Capitol and the inauguration of Joseph Biden on January 20:]
But there was one potential major stakeholder the Transition Integrity Project didn’t take fully into account: the American people. By this group I am not talking about hyper-partisans on either side, but rather the vast majority of we citizens who will accept the outcome of an election as long as it is decided relatively fairly.
And while the Transition Integrity Project addressed what the responses of many institutions should be (for example, how the media should prepare the public for what would be coming), they didn’t address how the public itself should respond.
This crisis is far from over — including the election, in that Biden hasn’t been sworn in. How strong the insurrection will be remains to be seen and for history to record. Handle this as you would if the country had been invaded by a foreign power — stay out of the way and let law enforcement do its job.
There are plans by extremist groups with weaponry to cause disruptions in the nation’s Capitol as well as in all 50 state capitols in the days up to the Inauguration.
As far as I know, the Transition Integrity Project didn’t stress the issue of martial law, which became prominent when Michael Flynn raised it.
Donald Trump doesn’t back down easily. Remember his reactions to the Access Hollywood tapes, the government shutdown and to his impeachment, where in each he came back with some sort of counteraction (especially after the impeachment). Melania Trump once said of her husband, “If you hit him, he will hit you back ten times harder.” Expect Trump to “hit back” hard, however and wherever he can. He has raised the stakes to “all or nothing”, and anybody would be crazy to trust that Trump is “dormant” because he has spoken a few words about a transition to the next (remember: unspecified) administration — he needs to be guarded against like a demon who springs out of nowhere into the center of the screen in a horror film. It’s been said by those around him that he doesn’t act logically, but by rather that he acts on how he feels: and the erratic turbulence of his emotions in these next days will make him extraordinarily dangerous.
The worst way to empower Trump during this crisis would be to give him anything to “strike at.” Let Trumpists battle federal, state and local law enforcement entities — which are far more potent and better equipped forces than they are. If you are an individual, stay away from state capitols or any place there may be trouble before Biden is inaugurated. If you are an organization or any part of one, keep your membership away from dangerous places and don’t stage any events until Donald Trump is out of office.
Nonviolent peaceful demonstrations are not an intelligent option while Trump still retains power so close to Biden’s inauguration. They can too easily be infiltrated by people who want to cause bedlam, which would give Trump excuses to stay in power by declaring states of emergency.
Don’t “rise up in protest” before January 20. Don’t give Trump an excuse to use the military, law enforcement and security forces of the federal government to “hit back” under the guise of “restoring law and order” under emergency and martial law powers. This would trigger the hardest scenario through which to get him out of office. Speaker Pelosi (and most likely others) have talked to the military about the nuclear codes. They have probably also talked to the relevant leaders about resisting any implementation of martial law — especially considering that Trump has consolidated special ops and other forces more under White House control in the weeks since the election.
A “passive resistance” which paralyzes Trump’s authority until January 20 would mean that Trump wouldn’t be removed from office before Inauguration Day, but that the swords of impeachment and the 25th Amendment would be held to his throat for use at any moment.
Remaining cabinet officials or military or security officers should stay at their jobs rather than resign in order to protect the country against what Trump might do in the coming days, as well to keep the option of the 25th Amendment viable should events warrant it. That Secretaries Mnuchin and Pompeo haven’t “ruled it out” means that the 25th Amendment is being held over Trump’s head.
I don’t know the legalities of this, but if possible Trump’s passport should be revoked (which impeachment might enable?) so that he is forced to remain in the United States as he is held to justice — and so that he can’t use social media to stir up insurrectionists from overseas and outside the reach of United States law enforcement.
The House isn’t going to send articles of impeachment to the Senate until after the Biden administration takes power and the new Congress is sworn in. The second stage of sending the articles could be swiftly triggered sooner if Trump were to inappropriately declare a state of emergency (or an invocation of the Insurrection Act or some kind of “limited” martial law) or to defy a Supreme Court order.
A “phased impeachment” would keep the pressure on Trump to leave office with as little disturbance as he can be held to would paralyze Trump’s power; to enable Congress to investigate the national security issues surrounding the January 6 attack on the Capitol, as well as those it was thwarted from investigating regarding the Mueller Report.
The most important reason for passive resistance on the part of the public and a “phased impeachment” is to prevent a constitutional crisis that would play to Trump’s strength. The best way to counter him is to “neutralize” his power by making its use unnecessary. Anything that can be construed as a legitimate emergency would strengthen Trump’s hand, especially if national security is threatened and constitutional lines are blurred.
The Supreme Court would be far more likely to issue a temporary injunction against one of Trump’s orders if he were acting against against a concocted emergency versus a legitimate one, and other actors in impeachment and 25th Amendment scenarios would also be more likely to react in such a case.
This strategy would weaken any legal excuse Trump would have to ignore Supreme Court authority (which he actually claims he has the right to do under his interpretation of the unitary executive theory) — which would be legally strongest during a true emergency. We must not create the foundations for such an emergency in the first place.
But as a public, we do indeed also need to make our voices heard. We can start doing that now by signing The Pledge to Safeguard the Constitution below which is a petition that reaffirms the primacy of the Supreme Court and which demands that Congress curb the presidential powers which led us to just this exact situation we’re in. Click on it, sign it and share it with others and urge them to do the same. Once Donald Trump is out of office on January 20, we need to work on holding him to justice; to find out how deep and where the roots of the attempted insurrection go; and limit the potential of any future President to have the powers to potentially become an authoritarian dictator.