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the coup

Court Cases Failed, Trump Allies Try Overthrow

Donald Trump's campaign to reverse his loss to Joe Biden is without precedent in U.S. history.

The President had been working all summer to implant in the minds of his followers that voting machines were programmed to switch votes to Biden, that mail-in ballots were susceptible of fraud, that because of "the new and unprecedented massive amounts of unsolicited ballots" election results "may NEVER BE ACCURATELY DETERMINED". On Fox News he said, supplying no particulars, "There are reports that, when people vote for Republicans, the entire ticket switches over to Democrats".

As soon as early voting opened in certain states in October, the president began complaining about poll watchers. In Philadelphia, "They were thrown out, they weren't allowed to watch…because bad things happen in Philadelphia". The nature of the bad things seemed to lie with the watchers, judging from a city commissioner's admonishment about "rules and decorum that poll watchers must follow".

Attorney General Bill Barr had spoken of far-left extremists posing a threat to a peaceful election, regularly citing leftist antifa, which is more of an attitude that lacks an organization, when a dozen right-wing extremists were arrested for plotting to kidnap Michigan's Governor Gretchen Whitmer and "taking" Virginia Gov. Ralph Northam, both Democrats. Whitmer had often been a target of Trump tweets for damaging, by her shutdown measures, the booming economy the president was counting on for re-election.

Trump had said "Man, it's going to be embarrassing if I lose to this guy", which at least suggested a fair fight, but months before he had begun priming his base with doubt saying, “the only way we can lose…is if cheating goes on”. Before the election he had regularly said he would sue to undermine the electoral process. "As soon as that election is over", he said to reporters, "we're going in with our lawyers".

Republicans already had. In Texas, they attempted to have 127,000 votes thrown out that had been cast at drive-through polling places set up around Houston to minimize human contact in the pandemic. They lost in state, then federal, court.

Over 350 voting rights lawsuits had been won around the country having to do with extending the use of mail-in ballots, only to see a number of victories stayed by appellate courts. Democrats felt the effects of the Republican Senate stocking those courts with conservative judges. For arch right-wing columnist Kimberly Strassel at The Wall Street Journal these were Democratic efforts to "juke the rules — on deadlines, on curbside voting, on ballot collection boxes, on mask mandates at polls."

unleash the lawyers

Election Day arrived and the Trump campaign filed over 55 lawsuits in the month to follow, winning only one, when a court ruled that observers in Pennsylvania — so-called vote challengers — could stand closer to poll workers. Many of the suits involved observers' proximity to workers or claims that too few Republican-designated observers were allowed in the rooms where votes were counted, and that some had been expelled. These grievances were disproven by actual counts or cases where observers were shown the door for being over the allowed count.

A lawsuit in Pennsylvania sought to throw out over 8,000 ballots with minor errors (Biden won the state by over 81,000 votes). In about half, the voter signed and dated the ballot but forget to then enter his or her printed name. The state's Court of Common Pleas denied eleven challenges and the Trump lawyers did what they have routinely done when denied: appeal.

Another suit challenged the Pennsylvania Supreme Court's allowing ballots postmarked by Election Day to be received as many as three days after the election. The state Supreme Court rejected the challenge saying the plaintiffs had waited too long to file their case — over a year. The countersuit said the Constitution vests state legislatures with authority over elections, that the state court had no business stepping in.

When Biden's totals grew relative to Trump's as mailed ballots were counted after Election Day, the Trump campaign filed suits in Pennsylvania, Michigan, and Arizona asking the courts to stop the counting. Democrats said this was a deliberate plan to make so-called "blue drift" seem fraudulent. In states such as Pennsylvania, they had tried and been rebuffed by Republicans in state legislatures to allow mailed ballots to be counted before Election Day so there would not be blue drift and lies about fraud. There have always been absentee ballots and a few states have for years used only mailed ballots, so these unprecedented court challenges to the democracy were shown the courtroom door.

Affidavits cited any number of "irregularities", such as voters who forgot to enter the date alongside their signature. An affidavit from a Michigan woman claimed Detroit employees instructed her to predate absentee ballots, but a state court judge said that, while the allegations were serious, she had asserted "behavior, with no date, location, frequency or names of employees".

A cybersecurity worker serving as an expert witness in a Georgia case claimed his company had uncovered evidence of inconsistencies in voting machines, but the districts he cited were in Michigan and Minnesota.

A poll watcher in Delaware County Pennsylvania claimed 47 USB cards used in the election "are missing, and they're nowhere to be found". No evidence by definition, but the chief election clerk in that county called the claim false because, "All votes on all scanners have been accounted for".

Some objections were foolish, such as the claim in Arizona that ballots marked with Sharpie pens had been disallowed, that brand of pen being Trump's affectatious writing instrument. They had not. And, in fact, the manufacturer of the vote tabulation machines advised Sharpie use. Typically, the courts do not allow minor errors to disenfranchise voters. None of these, even those that did invalidate ballots, even the challenged late-accepted ballots in Pennsylvania, added up to anything approaching the number needed to flip the vote to Trump in any state.

ex machina

On Election Day plus nine, Trump tweeted that machines from Dominion Voting Systems had "deleted 2.7 million Trump votes nationwide". He lost The Wall Street Journal on that one in an editorial titled "Rage Against the Voting Machine" which asked "Where's the evidence?" and passed along Dominion's point that more votes in Pennsylvania were allegedly deleted than there were voters in counties running Dominion machines.

The conspiracy-minded inexplicably tried to link the company to prominent Democrats, pertinence unknown; others, most notably Michael Flynn's attorney Sidney Powell (more on her later) tried to link Dominion with Smartmatic, a company that has supplied voting systems to Venezuela where the ruling regime manipulates its elections. Smartmatic says it “has never provided Dominion Voting Systems with any software, hardware or other technology.”

John Poulos, Dominion's CEO, wrote an op-ed for the Journal which shredded the absurd accusations mostly by outlining the security of how U.S. election systems actually work. His message from the real world in part:

" There is no secret 'vote flipping' algorithm. Third-party test labs, chosen by the bipartisan Election Assistance Commission and accredited by a program of the National Institute of Standards and Technology, perform complete source-code reviews on every federally certified tabulation system. States replicate this process for their own certifications. Post-election canvassing and auditing also exist to provide additional assurance of the vote totals’ accuracy."

No single company in the American electoral systems could surreptitiously change votes, said Dominion in a 15-point rebuttal of Powell's conjurings. Such a plot would require “collaboration of thousands” of Republicans, Democrats, poll workers, auditors and contractors that support state information technology and voting systems.

But Trump, Giuliani and others constantly cried "fraud" in their press conferences and television appearances. They would then go to court and make different arguments, a claim of fraud unaccompanied by evidence being hazardous for a lawyer. So in a Philadelphia court we heard Giuliani pointedly stating, "This is not a fraud case". Yet he and others would emerge from court and asserting fraud again.

Lawsuits bearing any serious assertions were uniformly turned away because the lawyers brought no evidence, just claims. The Trump strategy seemed more intended to impress upon his base that no matter how hard they tried, the campaign was corruptly turned away by a Democratic conspiracy to steal the election, that the system is rigged, that Biden is an illegitimate president to match Donald Trump's phobia that he was viewed as an illegitimate president for reasons of Russian election interference.

At the end of November the Pennsylvania case that Trump's lawyers had appealed was denied as lacking proof and merit with Trump-appointed Judge Stephanos Bibas at the U.S. Circuit Court of Appeals writing:

"Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here…Voters, not lawyers, choose the president. Ballots, not briefs, decide elections."

Four days into December, Justice Brian Hagedorn of the Wisconsin Supreme Court issued an equally strong opinion rejecting a Republican attempt to overturn that state’s elections results. “Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election”, he wrote. “This is a dangerous path we are being asked to tread.”

hand to hand combat

Georgia had undertaken a hand count of the entire state's vote of five million ballots, mandated by state law when the difference between candidates is less than 1%. The second look unearthed about 2,800 ballots on a memory card that had never been uploaded from one county and 2,600 from another county that had never been rescanned after a machine failed. Those trimmed Biden's lead somewhat, but he was still in the lead by close to 12,000 votes. As to recounts, it was interesting to see that in 73% of Georgia's 159 counties the margin from the original count varied by 10 votes or less. In a quarter of the counties the recount exactly matched the original.

Trump nevertheless came back demanding another recount, this time by voting machine, and after the state certified the vote for Biden. The count was completed December 7th with no change, as should have been obvious, with Georgia Secretary of State Brad Raffensperger commenting that "disinformation regarding election administration should be condemned and rejected".

Where not mandated by a state's rules, a candidate must pay for a recount. The Trump campaign had to wire $3 million to Wisconsin for a partial recount. Trump wanted to double-check only certain counties there and in Michigan's Wayne Country especially, which encompasses Detroit. In both states the chosen counties are predominantly Black.

Simultaneously, federal judges dismissed lawsuits that attempted to overturn results in Michigan and Georgia. Where a suit in a state court failed, Trump would try federal courts, often with the same case, and where that failed, recounts.

the odd couple

Rudy Giuliani, acting as Trump's personal lawyer, had been caroming about the country looking for skullduggery. A week before Thanksgiving he appeared at the Republican National Committee headquarters to announce his discovery of a centralized plot "to execute voter fraud in big cities run by Democrats". To shield identities he could neither provide evidence nor specifics of other allegations he made which "at this point, I really can't reveal".

Alongside Giuliani was Sidney Powell, mentioned above, who told of Venezuela, Cuba, other countries, and of course George Soros in a plot to steal votes from Trump using software that Hugo Chavez commissioned for stealing votes from opponents before his death in 2013. She had also warned of "dead people" who voted "in massive numbers".

Powell did not stop there. At conservative Newsmax, she said she had evidence — which she said she could not disclose — that Trump ally Brian Kemp, Republican governor of Georgia, had taken bribes and conspired to bring about Trump’s defeat. And "thousands" of elections officials had been part of a nationwide scheme to tamper with ballots.

upending democracy

With court cases failing, Mr. Trump openly called for state legislatures to reverse the votes in their states, imagining fraud and tweeting his reinterpretation of how America should work...

“Hopefully the Courts and/or Legislatures will have the COURAGE to do what has to be done to maintain the integrity of our Elections, and the United States of America itself”.

Republican-majority legislatures in states Biden had won should pick a Trump slate of electors to replace the Democratic slate is his proposition. Article II of the Constitution says that the states must appoint electors to the Electoral College “in such manner as the Legislature thereof may direct.” That constitutional loophole notwithstanding, most states have passed laws that require their legislatures to honor the majority vote, but for a president concerned only for retaining power, the tradition of legislatures to follow the will of their people is just another norm to trample.

Talk radio listeners heard Mark Levin advocate that legislatures should flip the slate. So even did Florida governor and avid Trump fan, Ron DeSantis. The president brazenly invited two Michigan legislators to the White House two-thirds into November on a Friday. The state's senate majority leader and house speaker did not succumb to the pressure. That Sunday Trump tweeted, "I concede NOTHING! We have a long way to go".

For Thanksgiving, Trump praised his attorneys and allies for their “tremendous service to our country.” Biden praised front-line health-care workers “who have risked their lives .?.?. in the heroic battle.” Biden was repelled by Mr. Trump's conduct blocking certification and suborning legislators . "It's going to be another incident where he will go down in history as being one of the most irresponsible presidents", was his verdict. Longtime election lawyer and expert Ben Ginsburg, a Republican, said "It's totally unprecedented for any candidate, let alone a sitting president, to interfere with a state's certification process".

Trump and crew went after the certification boards of large counties, asking them to withhold their vote. Detroit's Wayne County was key to Biden's win in Michigan. The two Republicans on the four member board of that county at first declined to certify, then changed their mind, then rescinded again, with eyebrows raised that the final recision was delivered to reporters by a public relations firm employed by the Trump campaign.

Alternatively, measures were taken to delay certification of the votes of Biden-won states to prevent him from having the needed 270 votes on the December 14th deadline when delegates must meet and turn in their Electoral College votes. A state judge in Michigan had to halt Trump's bid to stop certification of Detroit's election results calling it "an unprecedented exercise of judicial activism for this court to stop the certification process". The Arizona Republican Party made the same attempt in Maricopa County, home to Phoenix, but the lawsuit was dismissed by a state court judge. The county's board of supervisors voted to certify unanimously. Its chairman said there was no evidence of fraud or misconduct "and that is with a big zero".

As mailed ballots were being counted, team Trump and a conservative legal group sued to stop the certification of Detroit's vote, citing election workers engaged in wrongdoing. Black workers complained of the hostility of White election challengers. A state judge rejected the Republican claims as unfounded. Post-certification, they would go on to seek an injunction to have their entire state's results decertified but the request was denied by a federal judge who, given the weak or missing evidence that characterized so many of the pro-Trump suits, would state in her opinion,

"In fact, this lawsuit seems to be less about achieving the relief Plaintiffs seek and more about the impact of their allegations on People’s faith in the democratic process and their trust in our government. Plaintiffs ask this Court… to ignore the will of millions of voters. This, the Court…will not do."

Had the strategy of blocking certification been successful, it would throw the election to the House where, by Constitution, each state has a single vote. With more red than blue states, that would hand Trump the win. With the Electoral College thus sidelined along with America's democracy that would pit the House against a popular vote in which Biden won by a bit over seven million, and virtually guarantee protests and riots without end. But this is a president caring only for self yet who has managed to persuade supporters to speak of Trump as loving America with no clue that he is in fact destroying it.

Lawyers and their firms began to withdraw from filing suits on Trump's behalf, their reputations at risk for proceeding with such weak cases and serving as accomplices in undercutting the integrity of the electoral process.

why fraud claims are so dubious

Fraud sufficient to sway an election would have to overcome a battery of hurdles. In order to produce the ballots that supposedly provide such rich opportunity for fraud, the conspirators would have to know in advance which state or states would prove to have the thinnest margins and best targets. The perpetrators couldn't count on the anomaly of another Florida when in 2000 the final vote between Bush and Gore was a mere 537 votes apart. In 2020 they'd never have guessed the most vulnerable, Georgia and Arizona with 11,800 and 10,500 margins. Even if they had, they'd need to produce a few tens of thousands of phony ballots.

The biggest hurdle of all, how to introduce the ballots into the system. If phony people are on the phony ballots, they won't be on the voter roles. If real people, they'll bump up against the real people; tens of thousands of attempted double votes would blow up the scheme. Trump cannot be stupid enough to believe such a fantasy, but he knows his easily duped flock in the hinterlands is another matter.

the sound of silence

With the election a month past, the great majority of Republican "leaders" still would not acknowledge that Trump lost. GOP members of Congress cower in fear of his wielding Twitter to excommunicate them, trembling already that they will be primaried in the 2022 reelection campaign should they acknowledge Biden's win. Even GOP governors are evading answering the question.

House Minority Leader Kevin McCarthy said, "We need to make sure every legal vote is counted, every recount is completed, and every legal challenge should be heard". It should be "then, and only then, that America will decide who won the race". Mitch McConnell, the Senate majority leader, said “President Trump is 100% within his rights to look into allegations of irregularities and weigh his legal options”, and then snidely remarked,

“Let’s not have any lectures about how the president should immediately, cheerfully accept preliminary election results from the same characters who just spent four years refusing to accept the validity of the last election.”

No, Mitch, not the validity of the last election, the coup that Republicans prefer to think, but whether the Russians had Trump compromised in some way. McConnell pretended to forget that in the tighter 2016 race, with Trump taking 46 Electoral College votes in three states with a combined margin of 107,000 votes, Hillary Clinton conceded the morning after Election Day. President Obama called Trump before sunrise that day to congratulate him, and invite him to the White House "to talk about making sure there is a successful transition".

There has been no concession, nor invitation to the White House from the boorish Trump, so lacking in grace that he is expected not even to attend Biden's inauguration. He is planning to depart the White House on chopper Marine One, and then to Florida on Air Force One for a rally at a time meant to conflict with the inauguration where he may announce his candidacy for 2024.

unbudging?

Trump issued an order throughout his administration that none of the agencies was to cooperate with the Biden transition team. Into December, Biden team members were still not allowed to meet with officials at the military intelligence agencies that are controlled by the Pentagon. Trump minions perceived no need for transition briefings according to Mike Pompeo, who said (while on foreign soil), "There will be a smooth transition to a second Trump administration". A full ten days after the election Trump's trade adviser Peter Navarro, standing on the White House lawn, said, "We are moving forward…under the assumption there will be a second Trump term". On Fox Business, Press Secretary Kayleigh McEnany said, "the president would attend his own inauguration". The president added his underscore: "I will not go. This administration will not be going to a lockdown". On Sunday, in reference to Biden, he tweeted: “He only won in the eyes of the FAKE NEWS MEDIA. I concede NOTHING! We have a long way to go. This was a RIGGED ELECTION!”

Not until late November did the woman running the General Services Administration succumb to outrage and sign the "ascertainment" authorizing release of funds to the Biden team to cover transition expenses. Not until early December was Biden allowed by Trump to receive the classified daily presidential security briefings pulled together across the night by the pooled intelligence agencies. The Trump administration still had not conveyed to the Biden camp its plan for delivering the first millions of vaccines so that Biden and crew could begin dovetailing the follow-on months.

When in mid-November pro-Trump supporters clashed with their opposites near the White House, Trump — in full Twitter presidential mode -- lashed out with "ANTIFA SCUM ran for the hills".

In an end-November interview with Maria Bartiromo on the Fox Business channel, Trump declared, lacking any evidence, “Joe Biden did not get 80 million votes”. He claimed that some foreign leaders have been calling and telling him that this was the most “messed-up” election they have ever seen. Foreign leaders know this how? He did not name them. The White House did not release a list of any such calls.

the most secure election

Mr. Trump's months-long foolery about American elections being rigged seemed to have backfired. He drew such attention to the election that we wound up with the most tightly scrutinized electoral process certainly in our lifetimes and likely of all time. A week after the election, The New York Times contacted top election officials in all 50 states, none of whom cited any consequential evidence of fraud or other irregularities. Many were pleased with how the election had gone.

Christopher Krebs, head of the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency (CISA), a unit that has been working all year with the states to improve their systems, quoted a statement from a government-led coordinating council saying "there is no evidence" any voting systems were compromised and that the 2020 election "was the most secure in American history" with no “evidence that any voting system deleted or lost votes, changed votes or was in any way compromised”.

That was not the right answer for Donald Trump who viewed CISA — with its program of "rumor control" that dealt with so many rumors that came from Trump himself — as the "deep state" within his own government. Trump quickly fired Krebs.

But the president had already planted doubt in the minds of his flock. A Politico/Morning Consult poll found that 70% of Republicans said they did not believe the election was free and fair. Known for creating a private reality in which to find comfort, the president seemed to take no notice that his lawsuits had failed for lack of any proof of fraud. Instead, he complained,

"You would think if you're in the FBI or Department of Justice, this is the biggest thing you'd be looking at. Where are they?...But how people are allowed to get away from this stuff…with this stuff is unbelievable. This election was rigged."

Two days later, "To date we have not seen fraud on a scale that could have affected a different outcome in the election", Bill Barr told the Associated Press. With the gentlest choice of words in deference to the president, he thus allowed for some fraud, just not enough and, for that matter, none that he brought to light. He was speaking for the FBI, which had been probing complaints of voter fraud and rigged voting machines. As for the latter, Mr. Barr said Justice "have looked into that, and so far, we haven't seen anything to substantiate that". Fringe elements decided that Barr had been part of a secret anti-Trump cabal all along.

At the beginning of December, Trump gave an unannounced 46-minute speech that he called "maybe the most important speech I have ever made". Pre-recorded at the White House, "he ticked through a slew of statements that have been proved false or that his campaign hasn't substantiated in court", said the Journal unsparingly. Less charitably still, he elsewhere drew comparisons to Lear on the heath.

Georgia on everyone's mind

It was disputed whether Trump's presence would benefit or harm Republican candidates for Georgia's two open Senate seats, but he went anyway to hold a rally in Valdosta on December 5th. He told the applauding crowd,

"You know, we won Georgia, just so you understand. The swing states that we're all fighting over now? I won them all by a lot, and I have to say, if I lost, I'd be a very gracious loser, but you can't ever accept when they steal and rig and rob...We'll be going up to the Supreme Court very shortly".

He went on, again trying to find someone with courage to upend the election, creating a fantasy world for an audience that seemingly knows only what Fox, and AONN, Epoch Times, and Newsmax tell them, they in turn echoing Trump, who told them…

"We won in those swing states and there was terrible things [sic] that went on...We were rewarded with a victory. Now let's see whether or not somebody has the courage, whether it's a legislator or legislatures or whether it's a justice of the Supreme Court or a number of justices of the Supreme Court . Let's see if they have the courage to do what everybody in this country knows is right "

He is no historian, but one would think Mr. Trump is a protégé of Joseph Goebbels, Hitler's propaganda minister, who said, "If you repeat a lie often enough, people will believe it, and you will even come to believe it yourself."

For the three weeks after the election, the White House public calendar showed mostly empty days. Trump occupied himself with tweeting, not much else, and took no action about the pandemic which took 25,000 lives during the period. But he sent out 550 tweets, more than 400 of them unsupported claims of election fraud. And yet, "I probably worked harder in the last three weeks than I've ever worked in my life", he said at his rally in Georgia.

a port in the storm

Safe harbor day, a congressionally imposed deadline dating from an 1887 law, is the date — December 8th for 2020 — by which states must finish certification and conclude any state court challenges, clearing the way for electoral college delegates to meet in all the state capitols a week later — December 14th in the current instance — to make their final commitment. That accomplished, Congress will presumably accept their certification in January, but it's not a guarantee.

As December 8th approached, President Trump called the speaker of the Pennsylvania House of Representatives twice to request reversing his loss in that state. He had already made the same attempt in two other states, pressuring Republicans in Michigan and Georgia's governor Kemp. “The governor’s done nothing", Trump said about Kemp. "He has done absolutely nothing. I’m ashamed that I endorsed him.”

In Pennsylvania, which Biden won by over 81,000 votes, about 60 Republican lawmakers had sent a letter to Pennsylvania’s representatives in Congress urging them to flip the state’s electoral slate on January 6th, the date when all state legislatures must formally submit their states' elector votes — or they can choose to end democracy by going rogue. Last week, allies of President Trump accused Republican leaders in Pennsylvania of being “cowards” and “liars”, and of letting America down saying they won't rebel.

Trump is often spoken of as transaction oriented, given his business background, and he has several times voiced his assumption that the election will end up in the Supreme Court where, having stocked that pond with three of his own picks, he expected to collect payback. On safe harbor day, the Court weighed in for the first time, dispatching with a single sentence a Hail Mary attempt by Pennsylvania Republicans who asked the Court to overturn that state's election in favor of Trump. It read, "The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied."

Just two days before, Rudy Giuliani lobbied state legislatures in Arizona, Georgia, and Michigan to emphasize to them their power to choose their own electors. "They’re the ones who are supposed to select the president, not the governors, not the board of elections. They’re the ones who have the constitutional obligation to decide on the electors.” He was using a fraud claim in Georgia to try to outrage three Republican-run legislatures. Surveillance film had shown a few poll workers in Atlanta pulling boxes out from under a table after other workers and election challengers had been sent home. It was worthy of investigation, but it certainly had no relevance outside Georgia. Giuliani's hope was to leave both candidates with less than the needed majority of 270 votes and send the election to a Supreme Court that subsequently gave that opening salvo that it wants no part of another Year 2000.

Courts worked to wrap up cases so that certification could be concluded by midnight of safe harbor day. The U.S. Supreme Court ruled in the Pennsylvania case, the Arizona Supreme Court unanimously rejected the GOP's challenge to the vote in that state, saying plaintiffs had failed to show evidence of misconduct, "let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results.”

Game over? Move on to "Court Cases Failed, Trump Allies Try Overthrow".

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