The Monday that began June followed a weekend of protests in Washington. “What happened to the city last night was a total disgrace”, President Trump fumed. In a heated session in the Oval Office, he argued for invoking the Insurrection Act so as to give him the authority to deploy United States military troops within the United States. “We need to get control of the streets. We need 10,000 troops up here. I want it right now”, said the president according to a Pentagon official in the room.

Trump was apparently dissuaded by Joint Chiefs chairman Mark Milley and Attorney General William Barr not to go to the extreme of decreeing the Act. Perhaps as penance Trump publicly put Milley in charge of confronting protesters and throttling looters. But he announced,

“As we speak, I am dispatching thousands and thousands of heavily armed soldiers, military personnel and law enforcement officers to stop the rioting, looting, vandalism, assaults and wanton destruction of property.”

Approximately 1,600 active-duty federal troops, brought in from Ft. Bragg, N.C. and Camp Drum N.Y.,
Troops at the Lincoln Memorial.

took up positions on the D.C. outskirts making ready should the president change his mind. He told the Army to deploy active-duty military police in the District of Columbia, the one jurisdiction of the country where the president does not have first to consult with a state’s governor.

American vs. american

The Insurrection Act dates from 1807. It provides for sending troops into a state at the request of its governor or into a rebellious state at the president’s discretion to put down “insurrection, domestic violence, unlawful combination, or conspiracy”. Such was the case in 1957 when Arkansas’ governor Orvil Faubus refused to comply with the Supreme Court’s outlawing school segregation in Brown v. Board of Education. President Eisenhower sent in troops from the 101st Airborne division to accompany students to school. Presidents John Kennedy, Lyndon Johnson, and George W. Bush would resort to the Act as well: Kennedy sending in troops when in 1962 thousands of whites rioted in Oxford, Miss., to prevent integration of the University of Mississippi; Johnson deploying the military at the request of governors to quell race riots in Detroit, Chicago and Baltimore in the late 1960s; Bush at the request of the territorial governor of the U.S. Virgin Islands in response to looting after Hurricane Hugo in 1989 and again to control rioting in Los Angeles in 1992. No governor has asked for federal troops today, there being destruction and looting by small groups of miscreants, but no serious riots to mar day after day of peaceful marching by scores of thousands of Americans protesting racial repression and killings. Trump wants to insert troops on his own.

It is objectionable to have U.S. soldiers face their own citizens. During Reconstruction after the Civil War, the Army was stationed in southern states to oversee compliance with the new laws empowering blacks. The South hated army occupation and worked to end it. In 1878, Congress passed the Posse Comitatus Act (Latin for “power of the county”) which restricts the use of federal troops in domestic law enforcement. This principle — impermissibly using the military against one’s own people — dates as far back as Ninth Century England. But it is not in our Constitution, and the law has exceptions, e.g., neither state national guards nor the Coast Guard is restricted from deployment into the streets.

It’s reasonable to think that President Trump had never heard of posse comitatus nor the principle of not using the military against its own citizens. He once threatened he would “send in the Feds!” to end the “carnage” of Chicago’s gang wars and subsequently showed no reluctance to ordering some 6,000 troops to the Mexican border just before the midterm elections when a caravan of migrants from the Central American triangle was on its way to the U.S. to seek asylum. Trump spoke of this as an “invasion” and a “national emergency” without formerly declaring one, an emergency that evaporated immediately after the elections. The troops were not used for law enforcement, but neither was there much public objection to Trump’s deploying the U.S. military within the country, even when there was no emergency. That was a weakening of the legal safeguards long in place, and told the president he could deploy troops in country with impunity.

This time proved different. Active duty military are to take no sides in politics, and traditionally do not speak out against presidents even when they have left the service, but this president’s willingness to flout laws and arrogate power to himself has worried the military, sworn as they are to protect the Constitution, not a president, and not this president with authoritarian yearnings. This time the military alumni spoke out.

to resume

That Monday would be a full day. Mr. Trump went on to berate the nation’s governors in a conference call:

“You have to dominate. If you don’t dominate, you’re wasting your time. They’re going to run over you. You’re going to look like a bunch of jerks. You have to dominate. And most of you are weak. We’re going to clamp down very, very strong. You got to arrest people, you have to try people, you have to put them in jail for 10 years, and you’ll never see this stuff again.”

Smarting from the impotence of his having been taken to a bunker under the White House on Friday night when the secret service experienced difficulty holding back protesters, he claimed, “I was there for a tiny little short period of time, and it was much more for an inspection”. He tweeted that any incursion onto White House grounds, already barricaded behind concrete slabs, would “have been greeted with the most vicious dogs, and most ominous weapons, I have ever seen”. Aides said it was to counteract Friday’s appearance of weakness that caused the president to stage on Monday evening what was meant as a display of courage by his taking an entourage on a theatrical walk through Lafayette Park across from the White House to St. John’s church.

But first he went to the Rose Garden to call himself “your president of law and order” but “an ally of all peaceful protesters”. Yet, at the same time, a wall of police in riot gear, some on horseback, was not peacefully abiding the protesters in the park. On Barr’s order to “expand the perimeter” by moving it one block further from White House grounds a phalanx pushed the crowd back using flash-bang grenades, rubber pellets, smoke bombs, and what some thought was tear gas. Barr later insisted in an interview that they were “pepper balls” and not a chemical irritant (but they are). In a military technique designed to intimidate demonstrations, a National Guard helicopter hovered overhead at treetop level in a show of force, its prop wash so strong that it tore signs off buildings and caused falling tree limbs that threatened the demonstrators.

The New York Times called it “a burst violence unlike any seen in the shadow of the White House in generations”. “They were not peaceful protesters,” Bill Barr said. “And that’s one of the big lies that the media seems to be perpetuating at this point.” The U.S. Park Police said they had issued three warnings from loudspeakers; reporters and demonstrators said they heard no warnings. The police said protesters were throwing bricks, frozen water bottles, and that there were cast-off baseball bats and metal poles on the street; the Times said “eyewitness reports from religious leaders, activists, bystanders and journalists from multiple news organizations ” reported seeing none of that. Who’s right?

The din and tumult seemed to be swept away when Trump walked along a line of police in formation to the church where he would hold up a Bible in a defiant photo op that was intended to show his evangelical backers that their freedom of religion would not be impaired. Aides called it a Churchill moment.

Video of the march on the church was immediately folded into the White House Twitter account on Trump’s return. The next morning he would savor what he thought was a successful operation, tweeting,:

“D.C. had no problems last night. Many arrests. Great job done by all. Overwhelming force. Domination. Likewise, Minneapolis was great (thank you President Trump!).”

The protests did not end.

It was Barr, lacking any such authority, who had ordered the assault on the protesters. He thought it “entirely appropriate”. The president “should be able to walk outside the White House and walk across the street to visit the church”. In addition to the 1,600 federal troops, the attorney general had called to D.C. some 3,300 National Guard troops from 10 states. By far most arrests around the country were for violating curfews, which arguably are a violation of rights without justification when assembly is peaceful. Barr, however, seems to see only the violent element raiding by night and not the peaceful protesters who outnumbered them by the multiples of thousands across the country. “Such senseless acts of anarchy are not exercises of First Amendment rights, they are crimes designed to terrify fellow citizens and intimidate communities” was his emphasis. He cited unexplained “foreign actors” without explanation. His head of the FBI, Christopher Wray, sees the other side: “Nonviolent protests are signs of a healthy democracy, not an ailing one”, he said.

acts of contrition

The Pentagon said that neither Milley nor Esper knew when summoned to the Oval Office that they were there to backstop a photo op mission. Why, then, did Milley show up in combat fatigues? Because Trump had put him in charge? Former ambassador to Russia Michael McFaul said on Twitter, “Ridiculous. General Milley, who I respect, is embarrassing himself. I worked 3 years at the White House at the National Security Council. I never once saw Admiral Mullen come to the building ready for war”.

The sight of Milley, head of the military, willingly participating in Trump’s photo stunt is apparently what triggered Gen. James Mattis, a former four-star Marine general, a combat commander in Iraq regarded by military peers
Gen. James Mattis.

as one of the best field commanders the U.S. has produced since Korea and Trump’s first defense secretary, to write a scorching statement that reminded the military who they are supposed to be, namely, not props in “a bizarre photo op for the elected commander-in-chief, with military leadership standing alongside”.

“We must reject any thinking of our cities as a ‘battlespace’ that our uniformed military is called upon to ‘dominate.’ At home, we should use our military only when requested to do so, on very rare occasions, by state governors. Militarizing our response, as we witnessed in Washington, D.C., sets up a conflict — a false conflict — between the military and civilian society. It erodes the moral ground that ensures a trusted bond between men and women in uniform and the society they are sworn to protect, and of which they themselves are a part.”

He then castigated Trump directly, calling him…

“the first president in my lifetime who does not try to unite the American people — does not even pretend to try. Instead, he tries to divide us. We are witnessing the consequences of three years of this deliberate effort. We are witnesses the consequences of three years without mature leadership”.

It caused others in the defense or military establish to speak out.

 Mark Esper, Secretary of Defense, broke with the president. “I do not support invoking the Insurrection Act”, he said. The military should be used only as a “last resort and only in the most urgent and dire of situations. We are not in one of those situations now”. Trump was livid, had to be talked out of firing his fourth defense secretary immediately, there being next to none left who could qualify as a replacement, which would leave a key post empty a few months before the election. “As of right now, Secretary Esper is still Secretary Esper”, said Kayleigh McEnany, White House press secretary. Esper’s position was a reversal. It was he who, as a West Point graduate who served with the 101st Airborne, his warrior spirits aroused just days before, referred to the country as a”battlespace” to be cleared. He was on the church walk and said later, “I didn’t know where I was going”.

 Late in the week, Joint Chief head Milley had to make an apology for his bad judgment in participating in the photo op. He released a message to top military commanders: “Every member of the armed forces swears an oath to support and defend the Constitution and the values embedded in it” which “gives Americans the right to freedom of speech and peaceful assembly” and in an addendum wrote by hand, “We all committed our lives to the idea that is America — we will stay true to that oath and the American people”.

 Gen. Martin Dempsey, chairman of the Joint Chiefs for four years until 2015, wrote in Twitter that “America is not a battleground. Our fellow citizens are not the enemy”.

 Gen. Tony Thomas, former head of special operations of all branches of the service, tweeted,”The ‘battle space’ of America??? Not what America needs to hear…ever, unless we are invaded by an adversary or experience a constitutional failure..ie Civil War”.

 Adm. Sandy Winnefeld, a retired vice chairman of the Joint Chiefs of Staff, said “We are at the most dangerous time for civil-military relations I’ve seen in my lifetime”. The military should be reserved for the “most dire circumstances that actually threaten the survival of the nation”.

 John Allen, four-star Marine general: “The last thing the country needs — and frankly the military needs — is the appearance of U.S. soldiers carrying out the president’s intent by descending on American citizens. This could wreck the high regard Americans have for their military, and much more”.

 Marine Gen. John Kelly, former White House Chief of Staff, was appreciative: “He’s quite a man, Jim Mattis, and for him to do that tells you where he is relative to the concern he has for our country. I agree with him”.

 Adm. William McRaven, a Navy four-star, a SEAL and former commander of the United States Special Operations Command: “Trust me, every man and woman in uniform recognizes that we are all Americans and the last thing they want to do is stand in the way of a peaceful protest. Great to see the voices raised and hopefully a little bit of sanity coming back to this very tragic situation.”

 Adm. Mike Mullen, yet another former chairman of the Joint Chiefs, stated, “Our fellow citizens are not the enemy, and must never become so”. The top military adviser to George W. Bush and Barack Obama told “Fox News”, “We have a military to fight our enemies, not our own people”. He said putting troops into domestic demonstrations risked the trust the Pentagon had worked to regain with the American people after the upheaval of the Vietnam War. “In very short order, should we get into conflict in our own streets, there’s a very significant chance we could lose that trust that it’s taken us 50-plus years to restore”. He wrote in the Atlantic,

“Whatever Trump’s goal in conducting his visit [to the church], he laid bare his disdain for the rights of peaceful protest in this country, gave succor to the leaders of other countries who take comfort in our domestic strife, and risked further politicizing the men and women of our armed forces”.

None of this registered with the president, caught up in the imagery of force and domination. In a roundtable in Dallas, he rhapsodized at length about what he had watched on television about crowd control in Minneapolis:

“I’ll never forget the scene. It’s not supposed to be a beautiful scene, but for me it was, after you watch policemen running out of a police precinct, …but we are very proud of the fact that I called, I said, I’m sorry, but we have to have them go in and they went in and it was like a knife cutting butter, right through. I’ll never forget, you saw the scene on that road wherever it may be in the city, Minneapolis. They were lined up, boom, they just walked straight and, yes, there was some tear gas and probably some other things and the crowds dispersed and by the end of that evening, and it was a short evening, everything was fine.”

Medical experts are certain that Covid-19 will return in the fall, compounded by the regular flu season, setting off a new wave of illness and death if Americans slack off in distancing and masking, the latter a practice they have so far not adopted.

In the midst of this comes the presidential election on November 3rd. A debate rages as to whether it is sensible to require people to gather at polling stations where they must wait on lines, walking through each other’s wake, ultimately to touch screens and devices that others have handled before them. Why not make mail-in ballots available to everyone?

The Republican reaction to that proposition has been apoplectic, with President Trump in the lead. They are waging a battle against voting by
Ballots at the post office

mail using the claim that absentee ballots are subject to fraud. Historically, there has been vanishingly small cheating to back up this claim, but given an election in which the incumbent is either feverishly adored or icily despised, we should perhaps make allowances for an increase this year.

What can be given no allowance is the dishonest claim that voter fraud is the reason for Republican alarm. (If fraud were the problem, wouldn’t that threaten both parties?) Rather, the fear — so obvious that the fraud claim is ridiculed — is increased turnout. The Party has worked doggedly to hinder or prevent access to the polls by blocs that it perceives vote Democratic — blacks, Latinos, college students. And now, suddenly, along comes a threat to make it easier for them to vote by simply mailing in a ballot. Those extra votes from people who would have found it difficult or costly to go to a polling place would, for Trump, who thinks out loud and gives the plot away, cause “levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again”. Other Party members have also let slip that their real fear is the higher turnout made possible by vote-by-mail, denouncing it as “devastating to Republicans”, said the speaker of the Georgia House. “Universal vote by mail would be the end of our republic as we know it,” said Rep. Thomas Massie (R-Ky.).

if it ain’t “fixed”

Nevertheless, herculean steps need be taken to assure a clean election with control of the House, Senate and presidency at stake, not so much because we like the notion that our elections are honest as because with Donald Trump we have the first president ever who, if he loses, will assuredly say the election was rigged and has even made comments suggesting he would incite his followers to take to the streets. In an interview with Breitbart, and not the only instance, he said:

“I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump — I have the toughest people, but they don’t play it tough — until they go to a certain point, and then it would be very bad, very bad”.

In the event of a disputed election, we could see the most violent civil turmoil in our lifetimes and a threat to trust in this democracy — all because Mr. Trump insists on winning. As evinced in many opinion pieces, there is genuine worry that Trump will even resist being removed from office should he lose. He has already begun laying the groundwork, planting in the minds of his base that mail-in balloting means the election results will have been fixed. A California plan to expand mail-in voting would lead to a “Rigged Election”, he tweeted.

A straight-as-string election won’t stop him from orchestrating protests and spurring violence, but at least he will be robbed of any believable evidence when he begins planting in the minds of his base in advance of the election that mail-in balloting means the results will have been rigged by the fraud imaginings he is now promoting.

the coming deluge

States are scrambling to prepare for what is expected to be an onslaught of applications for absentee ballots. People fearful of going to polling places are matched by poll workers who will quit rather than be exposed to hundreds of voters who may, in the predicted fall wave, be asymptomatic but unknowingly spreading the disease. Governors who wish to avoid the shambles of Wisconsin’s spring elections need to take notice that in Milwaukee 180 polling places were reduced to 5 because poll workers were too afraid.

Five states — Colorado, Hawaii, Oregon, Washington and even dark red Utah- now have all-mail elections. Ballots are sent to every registered voter without need to request. In 28 others, including most of the swing states, voters can ask for an absentee ballot for any reason. In Arizona and California, voters can add themselves permanently to a list of mail voters. There are cases tilted to the right, like Nebraska, which allows counties of less than 10,000 people to mail ballots to all voters (where Republicans predominate) but forbids mail-in voting in large urban areas (where Democrats predominate). Texas allows no-excuse absentee voting for people 65 or older, another group that skews Republican. It should be recognized that millions of ballots have been mailed in dozens of elections without serious fraud. In the 2016 election, nearly a quarter of all votes were by mail.

safeguards

Absentee ballots are not simply printed sheets of paper anyone can fill out. Different states have developed numerous security methods. Counterfeiting is discouraged because the paper for the ballots and envelopes needs to be of a grade that takes ink so as to scan correctly. Bar codes enable tracking delivery of ballots sent in envelopes that, in turn, contain certified mail return envelopes, also with bar codes. Bar or QR codes assigned to individual registered voters mean ballots cannot be used with conflicting names. Ballots must be signed. Poll workers are trained in comparing them to signatures on file. Signatures evolve over time, so the training looks more at the slant of writing and the shape of pen movements than identical matches.

In Colorado, an all-by-mail state, voters can ask for a text message when their ballot is mailed, when it is returned, and when it has been counted. Suspicious activity in that state in the 2018 mid-terms measured 0.0027%. Oregon tallies that it has sent 100 million ballots by post since 2000 with fewer than a dozen cases of fraud.

These are best practices and, to be sure, are not followed by all states. The weak link is the practice of “ballot harvesting”, whereby nearly half the states allow someone other than the voter to collect and turn in ballots. This is meant to aid the elderly or handicapped who have difficulty going to a post office. Donald Trump foresees that…

“thousands of votes are gathered, and they come in, and they’re dumped in a location, and then, all of a sudden, you lose elections you think you’re going to win.”

Neal Kelley, the registrar of California’s Orange County said that in the 2018 mid-terms “People were carrying in stacks of 100 and 200 of them”, which hardly sounds like a neighbor helping the infirm occupant next door.

The most notorious case in that year was in North Carolina where a Republican operative was convicted for paying workers to collect ballots, even filling in those that had been left blank. It resulted in an election re-run in which the Democrat overturned the Republican “winner”.

There are simple remedies. Limit the number of ballots to a half dozen or so that any one person can turn in. Besides, for conspirators to mount the scenario that Trump pretends to fear, which is to sway an election on anything above a county councilman or sheriff, it would take enormous quantities of forged ballots which in turn require recruiting a virtual army of co-conspirators, not one revealing the caper, all willing to commit a federal crime, each facing a $10,000 fine and five years in prison, and for what — a thank you from some politician?

ballot battle

The illogic of ballot harvesting is thus exposed, as is the falsity of Republicans fighting state measures to expand vote-by-mail for that professed reason. In coming months we will see fights break out and law suits filed over trifles whose real purpose is to stall or block change. Should voters be able to request an absentee ballot online instead of by mail (many states don’t allow this)? In a time of distancing, should ballots need witness signatures (as North Carolina, Wisconsin, and other states mandate)? There’s controversy over whether ballots postmarked by Election Day should count or only ballots received by Election Day — which could really matter if millions more people vote by mail and the underfunded U.S. Postal Service becomes overwhelmed.

President Trump has weighed in. Hearing that Michigan and Nevada sent vote-by-mail ballots to residents, he called it illegal, without basis, and threatened to withhold federal funds from the states. Trump tweeted,

Republicans should fight very hard when it comes to state wide mail-in voting. Democrats are clamoring for it. Tremendous potential for voter fraud and for whatever reason, doesn’t work out well for Republicans.”

States should eliminate the need to apply for an absentee ballot, cutting a step — and its cost — from the back and forth. That could pay the return postage for ballots in this digital age when younger generations tend not to have stamps and, with the deadline upon them, can’t be bothered. States could eliminate altogether the need to apply for an absentee ballot, cutting a step — and its cost — from the back and forth.

Stanford University just released the most extensive study to date about whether one party benefits disproportionately from voting by mail. Analyzing absentee voting from 1996 to 2018, they found mail-in voting increased turnout but did confer an advantage on one party over the other. Democrats didn’t profit after all, in no small measure because mail boosts participation by rural and senior voters. Both tend to vote Republican.

But Republican minds are made up. House Democrats want $4 billion to help states enable online and same-day voter registration, to pay for prepaid postage on mail-in ballots, to make 15 consecutive days the minimum of early voting. Senate Democrats have proposed a similar, $3.6 billion plan. But standing astride the final gate is Senate Majority Leader Mitch McConnell (R-Ky.) who will say Congress should not dictate state election rules and allow no bill to go to the floor.

all of which is beside the point

With about 150 days remaining until the election, printers say that orders for ballots and envelopes need to be placed sooner than states will enact any legislation to expand mail-in voting. A New York Times magazine piece by Yale Law’s Emily Bazelon reported that printers warned that they were already at capacity for November by serving their regular vote-by-mail states like California and Colorado. To expand would require costly equipment needing months to obtain and underwritten by no orders from slow-moving states and counties. Richard Gebbie, chief executive of Midwest Presort Mailing Services and president of his industry’s national association, told Bazelon:

“For example, the machine that folds and inserts the ballot into the envelope can cost up to $1 million. It normally takes 90 days to order one piece of gear. Then you have to get it installed and check everything, because the security and quality control has to be very, very high.”

And then states will need to train workers to evaluate ballots and buy scanners to handle the increased load.

And as the final coup de grâce, there sits Trump — the enemy of using the Postal Service for voting — insisting that the agency hike package delivery rates to a level guaranteed to destroy its only profitable business (see our “Trump Makes His Move to Cripple U.S. Postal Service”), failing which he will, he says, not authorize $10 billion in pandemic relief to an essential agency that will be bankrupt come September.

game over

Spread on 50 states, all these problems not getting fixed will in sum amount to mass disenfranchisement, and become yet another calamitous outcome of the pandemic. Republicans working to thwart Democratic efforts to reconfigure the election to better fir today’s exceptional circumstances will find themselves strangely in league with a force of nature that measures no more than 120 billionths of an inch.

If that results in a close and contested election, the results could be ruinous. Edward Foley, a law professor at Ohio State University, posed a question to the Times in April:

“Is the nation really ready, 20 years after Bush v. Gore, for President Trump’s re-election bid to turn on a 5-4 ruling from a Supreme Court whose composition is questioned by some because Trump, rather than President Obama, appointed Justice Scalia’s successor after the Senate left that seat vacant for so long?”

Jun 14 2020 | Posted in Politics | Read More »