In the run-up to Election Day in 2016, Donald Trump repeatedly and flatly declared that the outcome of the election would be legitimate only if he won. The claim, stripped down to its essence, was that our processes render legitimate outcomes only if he and his people are on the winning side. Any other outcome is illegitimate.
In retrospect, this previewed much of what we are seeing right now, in the biggest stories of the moment: The battles underway over the vote-counting in the Florida and Georgia contests; the appointment of a Trump loyalist as the new acting attorney general; the White House’s promotion of an apparently doctored video to justify punishing a reporter; and the tactics Trump employed to try to retain the GOP congressional majority.
On Thursday night, Trump tweeted:
This “big corruption scandal having to do with Election Fraud” is that Democrats want the votes to be fully counted in Democratic areas. Basically, what’s happening now is that as the vote-counting continues, the leads of the Republican candidates in Florida’s Senate and gubernatorial contests — Rick Scott and Ron DeSantis — have shrunk to within margins that would trigger recounts if they hold. Lawyers have descended.
There are still votes to be counted, and it’s perfectly possible Scott and DeSantis will win. But the president of the United States is declaring the Senate contest over before the vote-counting is done, and declaring that demands for a full count constitute fraud. While it’s true that Broward County has serious administrative problems, no evidence of fraud has been presented. And so, this is simply a repackaged version of what Trump said during the campaign: Election “fraud” is when the opposition wins.
The Trump Ethic, more or less, is that no processes that render verdicts against Trump and whoever constitutes his side at the moment can be legitimate or neutral — by definition. During the campaign, he instructed his supporters to believe this. Now he is continuing this on many fronts, only he’s using official power to broadcast this idea forth and put it into effect. In some cases, Republicans are doing the same. Let’s review:
- In Florida, Republicans aren’t merely declaring themselves the victors. Worse, Scott has ordered state law enforcement to investigate elections officials who are completing vote-counting in Democratic territory. The rationale is highly dubious: As two Florida-based Politico reporters put it, Scott is alleging fraud “without providing evidence of fraud,” and he’s “blurring” his official roles as governor and Senate candidate to do so. The president has now endorsed this act.
- In Georgia, the Republican candidate — Brian Kemp, who doubled as the secretary of state — oversaw his own election. Kemp initiated a massive voter purge and engaged in other disenfranchising activities. He even used his office to baselessly accuse Democrats of hacking the registration system, which elections expert Rick Hasen described as “perhaps the most outrageous example of election administration partisanship in the modern era.” Once again, the Republican used his official role to manipulate an electoral outcome in which he was a candidate.
- On top of all that, Georgia Republicans are already declaring Kemp the winner of the gubernatorial election, even though the vote-counting continues and it’s at least possible that Kemp could slip below 50 percent, triggering a runoff.
- Trump just appointed Matthew Whitaker the acting attorney general, to install a loyalist to oversee special counsel Robert S. Mueller III’s investigation. Trump did this in the full knowledge that Whitaker has already publicly said he does not believe key aspects of the probe are legitimate and has already publicly suggested ways that someone in this position could procedurally debilitate it.
- The Whitaker appointment might be illegal without Senate confirmation, but the key point here is that Trump does not want the neutral process of confirmation to unfold, because it would subject Whitaker to scrutiny of his intentions toward Mueller. It remains to be seen whether Whitaker will solicit a Justice Department ethics opinion on the matter — which also would constitute submitting to a neutral process.
- Most Senate Republicans are perfectly fine with much of this. How many have insisted that they should confirm the new attorney general or pass legislation right now to protect Mueller?
- To be clear on what all this really means, Trump’s efforts to get his former attorney general to obstruct the investigation on his behalf, and his reliance on the former House GOP majority to abuse its oversight role to harass and undermine the probe, both failed. Now that Democrats will control the House and will protect the investigation, he’s personally installed a loyalist to undermine the probe, which, it should be noted, is meant to get to the bottom of the circumstances of his own victory and whether it was partly enabled by foreign sabotage (with or without his campaign’s participation) of our democratic processes.
- Trump engaged in improper official conduct of the highest order to influence the election: He ordered the military to the border, using it as a prop to dramatize the Republican closing propaganda message about the migrant menace, in hopes of reelecting the GOP House to protect himself from accountability. That failed, but the tactic might have helped boost the GOP Senate majority.
- The White House appears to have circulated doctored video that falsely portrayed CNN reporter Jim Acosta manhandling a White House aide, to justify revoking his credentials after he asked the president tough questions. Whatever you think of Acosta’s conduct, this is plainly a grotesque abuse of official power, and it’s reasonable to ask whether it’s meant to chill other aggressive press scrutiny.
- Trump has claimed that if House Democrats investigate his administration, the White House will investigate them back. Whatever he means by this, it’s a threat of official retaliation against Congress for merely exercising its oversight role.
It isn’t just that no processes are legitimate if they don’t render a victorious outcome for Trump and those on his side. It’s also that no processes or institutions that are supposed to hold Trump accountable or subject him to oversight can be operating in a legitimate fashion — again, by definition.
As election law expert Michael McDonald points out, the Florida shenanigans are alarming, because they preview what we might expect from Trump — who has now endorsed the GOP response to them — if his 2020 reelection is procedurally in doubt. All this also previews how Trump — and some Republicans — will respond if either Florida race goes to a recount or the Georgia race goes to a runoff. It generally signals what to expect from Whitaker’s intentions toward the Mueller investigation; from Trump’s reaction if Mueller finds grave misconduct or criminality; and from Trump’s response once House Democratic oversight begins in earnest.
In short: All of this is likely to get much, much worse.