Does Mr. Trump Intend to Remain President If He Loses the Election?

Dr. Tim S. Stuart President, Stuart Analytics

Draft: December 14, 2019

Table of Contents

Executive Summary 2

I. Introduction 6

II. Motive, Opportunity and Means 15

III. A Possible “Scheme” 16

IV. Conclusion 31

Appendixes:

A. Discussion of Motivation, Opportunity and Means with a Focus on 36 Three Known Norm-breakers: Mr. Trump, Mr. McConnell, and Mr. Barr

B. Additional Information: Likely Reaction to Scheme Implementation 53

Contact Information: Dr. Tim S. Stuart Phone: 703.850.7478 e-Mail: [email protected] Web: www.stuartanalytics.com © 2019, 2020. This work is licensed under a CC BY 4.0 license.

1 Does Mr. Trump Intend to Remain President if He Loses the Election?

Executive Summary

I. Introduction: This paper describes a number of “actions and inactions” by Mr. Trump and others that indicate Mr. Trump may be preparing a scheme to stay in power if he loses the 2020 election. This description of a possible “scheme’ is my effort to “connect the dots” between certain curious “actions and inactions” by Mr. Trump, Mr. McConnell and their allies, with a focus on foreign election interference. Connecting the dots led to the possible scheme described here. My concern that the possible scheme might indicate an actual scheme was increased by my later reading of Geltzer’s article, including his discussion of Mr. Trump’s tweet implying that Mr. Trump might allege foreign interference in the 2018 mid-term election and how this behavior might preview Mr. Trump’s effort to cast doubt on the results of the 2020 election.

The paper reviews some of the expressed concerns that Mr. Trump may not transfer power peacefully and builds upon this work to suggest a possible scheme that would be very difficult to detect, would only require the cooperation of a few key allies, i.e., Mr. McConnell, and Mr. Barr, and would be very difficult to stop. Based upon their actions to date, discussed in Appendix A, all three of these individuals are known norm-breakers and apparently place party (and the GOP tribe) before country and the Constitution. It appears likely that Mr. McConnell and Mr. Barr would be quite open to participating in a scheme to help Mr. Trump remain in office if he lost the 2020 election. We also know that Mr.Trump will stop at nothing to win a second term.

Recent actions by Mr. Trump and his Republican allies related to impeachment indicate a willingness to both ignore reality and repeat Russian misinformation in an attempt to protect the President. Even though each Senator, as a juror, takes a special oath to “do impartial justice” in an impeachment trial, Mr. McConnell has stated that Mr. Trump, the defendant, will control the design of the trial. Therefore, we appear to be dealing with tribal behavior rather than genuine differences over policy and ideology. The paper discusses how tribal levels of political polarization are incompatible with democracy, since the tribe becomes before the law, and why tribal behavior therefore works against the peaceful transfer of power.

II. Summary of the Scheme: The purpose of the effort is to at least extend his time in office if he loses the 2020 election, the optimal outcome for Mr. Trump would be a new vote tally leading to his “winning” the 2020 election.

The Scheme basically involves the President encouraging (or causing) extensive election interference, and then, if he loses the election, declaring that the election results are invalid due to this same extensive interference.

This “scheme” thus may be an actual scheme or it may be an unplanned series of “actions and inactions,” that set the stage for later possible developments.

A. Preparations for Implementing a Possible Scheme are Almost Complete: These preparations have been underway for some time and all of the preparations should be complete by the 2020 election. The preparations seem to include the following ten items,

2 which can be divided into three broad groups:

1. Assemble the Key Players and Prepare the Ground: This includes build a stronger White House bubble; installing a pliable Director of National Intelligence (DNI); installing a pliable Attorney General; continue to keep the GOP message machine strong and united; continue to install very conservative judges to high levels in the judiciary, including the Supreme Court; continue to endorse and support federal and state efforts to restrict voter participation, including the adoption of voter suppression, and carrying out partisan redistricting (gerrymandering);

2: Prepare for “Scheme” Implementation: Continue to invite or force election interference by other countries, and possibly other organizations in the 2020 presidential election; work with Mr. McConnell to welcome foreign interference in the 2020 election; prevent or undercut work on election security by his Administration; continue to have “off the record” meetings and communications with Mr. Putin and others.

3: Prepare to Avoid Detection and Accountability: Work with Mr. Barr to develop legal strategies to avoid or stop any investigation of Mr. Trump’s activities by Congress or the Courts; also develop legal strategies to stop any investigation, including Congessional oversight that Mr. Trump considers “unfair;” and work with the Supreme Court to end the ability of lower courts to issue nationwide injunctions. The Department of Justice is likely already preparing legal strategies needed if the 2020 election is significantly “compromised” by interference. Some of those strategies just might happen to be consistent with the “scheme” described here. Also, continue to keep the Federal Election Commission inactive.

B. The following six items likely play a dual role: to build support if needed to implement the scheme and also to support Mr. Trump’s reelection campaign, i.e. continue to:

1. Abuse and discredit the independent press; 2. Drive tribalism, division, fear and hate in the electorate; 3. Carry out his disinformation campaign; 4. Provide Republican donors and the wealthy with financial windfalls; 5. Block Congressional oversight; 6. Carry out an aggressive “deterrence” punishment of immigrants and asylum seekers.

C. Initial Implementation Steps:

1. Announce the Scheme: Rather than conceding the election, announce from the Oval Office that the votes are “contaminated” and not suitable for use. To ensure a “fair” election, he will “clean up” the existing votes prior to a necessary recount or, if a “clean up” is not feasible, set up a new election after “improved” voting procedures are in place.

2. Crank up the GOP messaging machine: Move forward with both pushing the scheme and responding to attacks. One can assume Mr. Trump would favor the usual mix of misinformation, lies, distortions, exaggerations, and “alternative facts” mixed in with bits of truth spread using Tweets; right-wing and mainstream social and broadcast media; personal appearances/news conferences/gaggles; written position papers; “technical”

3 reports; endorsements and testimonials from GOP donors, GOP Congressional leaders, business leaders, celebrities, legal “experts,” evangelicals; and right-wing security/cyber- war “experts/conspiracy theorists.”

3. Attempt to Delay the Certification of the Electoral Vote: Before the Joint Session of Congress held for certifying the electoral vote on January 6, 2021, Mr. Trump would likely make another announcement that, as he had announced earlier, the votes in the 2020 election were too contaminated to use. At the same time, his allies in the House and Senate could present information from our intelligence agencies on the amount of “contamination” of votes due to foreign interference and lodge formal objections against counting votes for all or some of the states. Although the House or Senate might not agree with the President’s objections, the objections would allow Mr. Trump and his allies to damage public confidence in the election results.

Also, the President, perhaps joined by the one or both houses in the Congress, would likely file a legal action with the Supreme Court requesting that the certification of the electoral vote be delayed until the existing votes are “cleaned up” or, if necessary, new and improved procedures are implemented and a new election held.

4. Delay the Inauguration of the President and Vice-President: The President would also presumably request a delay of the inauguration on January 20, 2021 pending the result of the vote “cleaning” or, if necessary, a new election.

5. Immediately Proceed with an In-depth Analysis of the Existing Votes: Using the information from the intelligence agencies, do an analysis to determine if the existing votes can be cleaned up and, if this is not feasible, recommend new procedures to reduce voter “contamination” in a “redo” election. Also lay out a detailed schedule showing how all of this work would proceed.

This flurry of activity need not be particularly productive but would likely add weight to any legal action the Congress and Mr. Trump might want to use to delay the certification of the electoral vote and the inauguration of the new President and Vice-President.

D. The Likely Reaction if Mr. Trump Implements the scheme: Appendix B descibes how the Congress, the states, the Supreme Court, and other parties might react if Mr. Trump were to implement the scheme described above.

E. The Result Could be Long-Term Delay and Possibly a Reversal of the Outcome of he Election: If either the delay of the certification of electoral votes or the delay of the inauguration of the new President and Vice-President were successful, Mr. Trump will have extended his stay in office. If he wins approval for the “clean-up” of the existing votes or a “re-do” of the 2020 election (with newly developed and implemented procedures), the extension of time would likely be measured in months if not years. Also, he would also likely be able to influence the results of any “clean-up” or new election using new procedures in a way that would lead to his reelection.

If he is not able to win these delays, then the Nation would be forced to choose between the GOP objection to the use of presumably contaminated votes, or the use of these votes to seat the Democratic Party’s ticket. The choice would presumably depend upon deliberations and

4 decisions by the Congress and/or the Supreme Court as well as the actions of the political parties.

Conclusion: The concluding chapter discusses some possible short term and longer term measures that could help ensure that the US continues to be a representative democracy under the Constitution and the rule of law.

5 Does Mr. Trump Intend to Remain President if He Loses the 2020 Election?

“If conservatives become convinced that they cannot win democratically, they will not abandon conservatism. They will abandon democracy.”1

“The Republican Party has become an insurgent outlier - ideologically extreme, contemptuous of the inherited social and economic policy regime; scornful of compromise; unpersuaded by conventional understanding of facts, evidence, and science; and dismissive of the legitimacy of its political opposition.” 2

Dr. Tim S. Stuart President, Stuart Analytics3 Draft: December 14, 2019

I. Introduction:

This paper describes a number of “actions and inactions” by Mr. Trump and others that indicate Mr. Trump may be preparing a scheme to stay in power if he loses the 2020 election. This scheme is a logical consequence of Mr. Trump’s and Mr. McConnell’s encouragement of foreign interference in the 2020 election.

A. Foreign Interference: We have already seen evidence of two types of 2020 election interference: interference by foreign countries such as Russia; and an apparent attempt by Mr. Trump 4 to force interference by at least one foreign country, i.e., Ukraine. He also may be continuing to solicit help from Ukrainians such as Russian or Ukrainian oligarchs or some of the most corrupt Ukrainians from the old regime.5 Of course, a private party (the Mercer family) set up and used Cambridge Analytica an data from over 87 million US Facebook users in an attempt to assist Mr. Trump in the 2016 election.6

In a reversal of policy from earlier administrations, Mr. Trump has openly solicited foreign

1 Trumpocracy, the Corruption of the American Republic by David Frum, 2018, p. 206.

2 It’s Even Worse Than It Looks, 2nd Ed. by Thomas E. Mann and Norman J. Ornstein, Basic Books, p. xv, 2016.

3 Phone: 703-850.7478, e-mail: [email protected], web: www.stuartanalytics.com

4 Mr. Trump will likely be impeached for this activity. This analysis assumes he will still be in office at the time of the election. As recently noted by Bob Bauer (see Thump Is The Founder’s Worst Nightmare by Bob Bauer, The New York Times, December 2, 2019), “in the politics of our time, a demagogue who gets into the Oval Office is hard to get out.”

5 Rudy Giulianni is Still doing Trump’s Dirty Work in Ukraine by Eric Lutz,Vanity Fair, November 4, 2019; Rudy Not Even Waiting for Impeachment to Resume Ukraine Shakedown by Jonathan Chait, New York Magazine, December 2019 issue; Ukraine lawmaker seeking Biden probe meets with Giuliani in Kyiv by David L. Stern and Robyn Dixon, The Washington Post, December 5, 2019.

6 Mindf*ck, Cambridge Analytica and the Plot to Break America by Christopher Wylie, Random House, 2019; Also see How I Helped Hack Democracy by Christopher Wylie, New York Magazine, Intelligencer, October, 2019; and In New Memoirs, Two Whistle-Blowers Offer Details From Inside Cambridge Analytica by Jennifer Szalai, Oct. 9, 2019.

6 interference.7 Although this new policy will likely encourage foreign interference,8 Mr. Trump’s position on welcoming foreign interference is not surprising for several reasons:

1. Mr. Trump apparently told Russian Officials in 2017 that he wasn’t concerned about Moscow’s interference in the U.S. Election.9 In fact, he has consistently supported Russian denials of interference and has dismissed warnings by our intelligence agencies and the Senate Intelligence Committee.10

2. There is evidence that Russia’s interference in the 2016 election may have been decisive in Mr. Trump’s victory.11 Therefore, as discussed below, he likely continues to actively support foreign interference efforts to help ensure him the same political benefit in 2020.

3. Extensive foreign interference is also be a component of the possible “scheme,” described below, to extend his time in office if he loses the 2020 election.

In order to cover-up his behavior, Mr. Trump apparently obstructed justice in a number of attempts to shut down the Mueller investigation 12 and in an apparent attempt to defend his

7 ‘We absolutely could not do that’: When Seeking Foreign Help Was Out of the Question by Peter Baker, The New York Times, October 6, 2019; ‘Absolutely unprecedented’: Trump upends long-held views with openness to foreign assistance by Rosalind S. Halderman, Tom Hamboourger and Josh Dawsey, The Washington Post, June 13, 2019.

8 US Security Officials Furious After Trump Invites Foreign Powers to Disrupt 2020 Election by Alison Dur, Vanity Fair, June 14, 2019; Senate Intelligence report on Russian meddling sounds alarm for 2020 by Martin Matishak, POLITICO, July 25, 2019; Here’s What Foreign Interference Will Look Like in 2020 by Uri Friedman, The Atlantic, August 12, 2019; ‘They’re Doing It as We Sit Here’ by The Editorial Board, The New York Times, July 24, 2019; Report of the Select Committee on Intelligence, United States Senate, on Russian Active Measures Campaigns and Interference in the 2016 Election, Volume I, July 25, 2019; It’s not just the Russians anymore as Iranians and others turn up disinformation efforts ahead of 2020 vote by Graig Timberg and Tony Romm, The Washington Post, July 25, 2019.

9 Trump told Russian officials in 2017 he wasn’t concerned about Moscow’s interference in U.S. election by Shane Harris, Josh Dawsey amd Ellen Nakashima, The Washington Post, September 27, 2019.

10 From the Start, Trump Has Muddied a Clear Message: Putin Interfered by David E. Sanger and Matthew Rosenberg, The New York Times, July 18, 2019; Trump and Putin: what we know is damming by Ezera Klein, Vox.com ; updated July 16, 2018; What the Mueller Hearing Did Not Tell Us by Caroline Fredrickson, The New York Times, July 25, 2019; Mueller’s report paints a damnning portrait of Trump’s presidency by Dan Balz, The Washington Post, April 4, 2019; Donald Trump Is No Patriot by Peter Beinart, The Atlantic, July, 2018; Russia’s Real Goal: Continue Democracy’s Decline by Gerald F. Seib, The Wall Street Journal, Feburary 19, 2018; Russia and the Threat to Liberal Democracy by Larry Diamond, The Atlantic, December 9, 2016; What Russia Understands about Trump by Michael Welas, NYR Daily, The New York Review of Books, August 2, 2018; ‘Warning Lights are Blinking Red’, /Top Intelligence Officer Says of Russian Attacks by Julian E. Barnes, The New York Times, July 13, 2018; Report of the Select Committee on Intelligence, United States Senate, on Russian Active Measures Campaigns and Interference in the 2016 Election, Volume I, July 25, 2019; Highlights to Robert Mueller’s Testimony to Congress by Julie Hirschfeld Davis and Mark Mazzetti, The New York Times, July 24, 2019; The U.S. Government needs to protect against 2020 election meddling by Editorial Board, July 27, 2019; A brief history of administration officials warning that our elections are at risk from Russia by Philip Bump, The Washington Post, July 25, 2019; Mueller’s Testimony: The Baton Passes to Congress by Scott R. Anderson, et al. , Lawfare, July 24, 2019; Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Volume I and II, Special Counsel Robert S. Mueller, III, Submitted Pursuant to 28 C.F.R. § 600.8©, Washington, D.C., March 2019.

11 Top Senate Democrat Says Russian Hacks, Disinformation Influenced Election Outcome by Alexandra Jaffe , abcnews, January 15, 2017; How Russia Helped Swing the Election for Trump by Jane Mayer, The New Yorker, September 24, 2018; Cyber-War. How Russian Hackers and Trolls Helped Elect a President by Kathleen Hall Jamieson, OxfordUniversity Press, 2018.

12 Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit by Michail S. Schmidt and Maggie Haberman, The New York Times, January 25, 2018; Trump plausibly committed impeachable offenses. A leading expert explains how by Greg Sargent, The Washington Post, April 22, 2019; Mueller’s obstruction of justice case against Trump looks damning by Zack Beauchamp, Vox, updated January 24, 2018; The Mueller Report’s ‘Smoking Gun’ on Obstruction of Justice by Murray Waas, NYR Daily, The New York Review of Books, April 19, 2019; It’s Now Likely Mueller Thinks Trump Obstructed Justice by Ranato Mariotti, January 26, 2018; The Trump team still maintains Trump didn’t try to fire Mueller, Mueller disagrees by Aaron Blake, The Washington Post, April 22, 2019; Feinstein: Seenate Russia probe building obstruction case against Trump by Kailani Koenig, nbc.news.com,, December 3, 2017; Hundreds of former Justice officials assert Trump would be facing felony charges if he were not President by Eli Watkins and Katelyn Polantz, CNN, May 6, 2019.

7 conduct with Ukraine, continues to promote Russian propaganda pushing a false narrative that Ukraine, rather then Russia, interfered in the 2016 election.13 As noted above, he also is likely continuing to gather information from a number of Ukrainians, including oligarchs and some of the most corrupt members of the earlier regime.

Mr. Trump’s demagogic behavior has been rather effective with the GOP base and, as a party, the GOP members of Congress have generally defended Mr.Trump’s behavior,14 even to the point of repeating Russian misinformation 15 and planning a Senate show “investigation” involving a debunked conspiracy theory (apparently circulated by conservative operatives, including Rudy Giuliani 16 ) and a former Vice-President in an apparent attempt to give some cover to Mr. Trump’s behavior with Ukraine.17

B. Domestic vs. Foreign Interference: The line is rather porous between foreign and domestic types of political information, and many “domestic” media messages may contain content and concepts from foreign sources, just as automobiles sold in the U.S. contain components from many different foreign countries.18

C. Domestic Social and Broadcast Media: Domestic social media such as Facebook and Twitter will likely be particularly important in spreading political messages and misinformation and, unfortunately, it will be difficult to readily determine which messages reflect “fake news”

13 Charges of Ukrainian Meddling? A Russian Operation, U.S. Intelligence Says by Julian E. Barnes and Matthew Rosenberg, The New York Times, November 22, 2019; How Russian President Vladimir Putin Emerged as a Winner in President Donald Trump;s Impeachment Hearings by Abby Vesoulis and Vera Bergengruen, Time, November 26, 2019; How Trump Is Helping Russia Help Trump Again by Zack Dorfman, The New York Times, October 28, 2019.

14 Once the party of law and order, Republicans are now challenging it by Philip Rucker and Robert Costa, The Washington Post, February 3, 2018; The Ukraine facts are clear. But does truth still matter? By Editorial Board, The Washington Post, September 27, 2019; Trump’s Defenders Have No Defense by Peggy Noonan, The Wall Street Journal, November 21, 2019; The Republican Plot Against the F.B.I. by The Editorial Board, The New York Times, February 1, 2018; We know what happened. Now it’s time to compel Republicans to refute it or condone it by Jennifer Rubin, The Washington Post, November 22, 2019; Rank partisan solidarity is all Trump’s defenders have left by Eugene Robinson, The Washington Post, November 11, 2019; Paul Ryan Is the Silent Partner in Trump’s War on the Rule of Law by Jonathan Chait, New York, January, 2018; James Madison warned us that Trump is dnagerously un-American by Karen Tumuity, The Washington Post, September 30, 2019; No Bottom: Republicans show they’ll defend just about anything Trump does by Paul Waldman, The Washington Post, April 22, 2019; Historians on Trump: We’ve never seen anything like this by Elizabeth A. Cobbs, Kyle Longley, Kenneth Osgood and Jeremi Suri, CNN, October 2, 2019; GOP leaders’ complicity grows as their members undermine the rule of law by Editorial Board, The Washington Post, January 25, 2018; How the Republican Response to the Mueller Investigation Breaks With History by Tessa Berenson, Time, February 21, 2019; Republicans redefine morality as whatever Trump does by Dana Milbank, The Washington Post, January 26, 2018; If Republicans stay loyal to Trump, they’ll be implicated in the moral decay of our politics by Michael Gerson, The Washington Post, October 7. 2019; Republicans might oppose impeachment, but do they condone what Trump did? by Dan Balz, The Washington Post, September 28, 2019.

15 Republicans buy into Trump conspiracies to blunt impact of impeachment hearings, analysis by Stephen Collinson, CNN, November 25, 2019; GOP embraces a debunked Ukraine conspiracy to defend Trump from impeachment by Robert Costa and Karoun Demirjlan, The Washington Post, December 3, 2019; Of All the Efforts to Defend Trump, This Conspiracy Theory Is the Worst by The Editorial Board, The New York Times, December 3, 2019; Time to call out and remove Putin’s propagandists by Jennifer Rubin, The Washington Post, November 24, 2019; The Invention of the Conspiracy Theory on Biden and Ukraine by Jane Mayer, The New Yorker, October 4, 2019; Devin Nunes’ impeachment defense of Trump - and possible Ukraine collusion - redefines partisan hackery by Charlie Sykes, nbcnews, November 25, 2019.

16 The Invention of the Conspiracy Theory on Biden and Ukraine by Jane Mayer, The New Yorker, October 4, 2019

17 Lindsey Graham gives Trump the Biden investigation he’s been begging for by Alison Durkee, Vanity Fair, November 22, 2019; GOP senators float Biden probe as Ukraine controversy escalates by Jordain Carney, The Hill, August 25, 2019; Graham launches probe of Biden, Burisma and Ukraine by Colby Itkowitz, The Washington Post, November 21, 2019; McConnell once called Biden ‘a rel friend’ and a ‘trusted partner.’ Now he’s quiet as Trump, GOP attack him by Paul Kane, The Washington Post, November 30, 2019.

18 Made in America Auto Index, Research by Frank DuBois, www.american.edu/kogod/research/autoindex/

8 and which are truthful.19 Political campaigns will continue to improve their ability to target those individuals likely to be receptive to their messages by using artificial intelligence models, weaponized algorithms, weaponized cultural narratives, fast computers, and the large amount of readily available personal data available from social media platforms and other sources.20

D. Mr. Trump May Not Peacefully Transfer Power:

1. Previously expressed concerns: The Speaker of the House, Nancy Pelosi,21 has warned that Mr. Trump may not respect the results of a close election. Also, Mr. Trump’s former attorney, Michael Cohen, delivered a warning during his Congressional testimony that he feared that there would never be a peaceful transition of power.22 Additional concerns have been expressed by Mehdi Hasan 23 and others.24 Daniel Block has provided a step-by-step guide to what might happen in such a case.25

Edsall,26 based upon a review of some of the President’s remarks; a recent Pew research

19 It’s not just the Russians anymore as Iranians and others turn up disinformation efforts ahead of 2020 vote by Craig Timberg and Tony Romm, The Washington Post, July 25, 2019; Here’s What Foreign Interference Will Look Like in 2020 by Uri Friedman, The Atlantic, August 12, 2019.

20 They Know Everything About You by Robert Scheer with Sara Beladi, Nation Books, 2015; I Got Access to My Secret Consumer Score. Now You Can Get Yours, Too by Kashmir Hill, The New York Times, November 4, 2019; You’re Tracked Everywhere You Go Online. Use This Guide to Fight Back by Tim Herrers, The New York Times, November 24, 2019; False Attacks on Facebook could bring ‘a Titanic-sized disaster’ in 2020 by Mark Scott, Politico, November 6, 2019; Facebook Isn’t Just Allowing Lies, It’s Prioritizing Them by Tim Wu, The New York Times, November 4, 2019; Your Taste in Jeans May Have Influenced the Election by Emilla Petrarca, thecut.com, November 29, 2019; Mindf*ck, Cambridge Analytics and the Plot to Break America by Christopher Wylie, Random House, 2019; How I Helped Hack Democracy (excerpt from Mindf*ck) by Christopher Wylie , New York Magazine, October, 2019; How Facebook’s Embed in the Trump Campaign Helped the President to Win - But Switched Sides for 2020 by Deepa Seetharaman, The Wall Street Journal, Updated November 24, 2019; “The Capabilities Are Still There’: Why Cambridge Analytica Whistleblower Christopher Wylie Is Still Worried by Billy Perrigo, October 5, 2019; CR Researchers Find Facebook Privacy Settings Maximize Data Collection by Allen St. John, Consumerreports.com, June 27, 2018; Trump is Winning the Online War by Thomas B. Edsall, The New York Times, October 16, 2019; The Oligarch Threat by Tamsin Shaw, New York Review of Books, August 27, 2019; The New Military-Industrial Complex of Big Data Psy-Ops by Tamsin Shaw, The New York Review of Books, March 211, 2018; Beware the Big Five by Tamsin Shaw, The New York Review of Books, April 5, 2018; Democracy and the Machinations of Mind Control by Anthony Barnett, The New York Review of Books, December 14, 2017; For the role of Cambridge Analytica in the Brexit elections, see also: The great Brisish Brexit robbery: how our Democracy was hijacked by Carole Cadwalladr, The Guardian, May 7, 2017 and Why Britain Needs Its Own Mueller by Carole Cadwalladr, the New York Review of Books, November 16, 2018; This mix of fiction and a bit of fact seems to be working will in the impeachment proceedings, e.g., see: Fact-based impeachment can’t penetrate the pro-Trump Web by Issac Stanley-Becker, The Washington Post, December 13, 2019.

21 Pelosi Warns Democrats: Stay in the Center or Trump May Contest Election Results by Glenn Thrush, The New York Times, May 4, 2019; also see The Serious but potentially overblown fear that Trump won’t leave office, explained by Aaron Ruper, www.vox.com, May 10, 2019.

22 Michael Cohen: ‘I fear” Trump won’t peacefully give up the White House if he loses the 2020 election by Kevin Breuninger and Dan Mangan, www.cnbe.com, February 27, 2019.

23 If Trump loses, we know what to expect: anger, fear and disruption by Robert Reich, The Guardian, March 3, 2019. Also see Yes, Let’s Defeat or Impeach Donald Trump. But What If He Refuses to Leave the White House? by Mehdi Hasan, theintercept.com, March 6, 2019.

24 Also see: Why November 4, 2020 could be a very bad day by Chris Cillizza, CNN, August 28, 2019; Trump’s Going to Manipulate the Government to Stay in Power by Jeff Hauser, www.thedailybeast.com, Updated September 11, 2019; President Trump will stop at nothing to win a second term by Jilian Zelizer, CNN, October 25, 2019.

25 How Trump Could Lose the Election and Remain President by Daniel Block, Washington Monthly Magazine, April-May-June, 2019; Also see: Let’s Defeat or Impeach Donald Trump. But What If He Refuses to Leave the White House? by Mehdi Hasan, www.theintercept.com , March 6, 2019.

26 Will Trump Ever Leave the White House? by Thomas B. Edsall, The New York Times, October 2, 2109.

9 report27 and discussions with a number of knowledgeable analysts; found a wide variety of opinions ranging from optimistic (peaceful transfer) to very pessimistic (armed conflict) and noted that, while he would like to be optimistic, he found himself more worried about strains within the American electorate than atleast one of his optimistic sources. As recently discussed by Chait,28 in a tight 2020 Presidential race the President could perhaps “win” by using a souped-up version of the 2000 recount:

Suppose the election produces a Florida-style deadlock and the decisive electoral votes belong to Pennsylvania, or Wisconsin, or (just because history has a sense of humor) Florida. Key cities report irregularities in their vote totals, seemingly caused by as-yet-undetermined problems with their voter-registration lists or ballot counts. Some intelligence officials suspect Russian hackers, but federal-government agencies, now controlled by Trump loyalists, refuse to confirm any such finding, and Trump dismisses such accusations as more “deep state” sabotage. Fox News is aflame with reports of fraudulent Democratic votes cast by the millions.

Trump insists he is the legitimate victor. No do-overs! CNN is consumed with inscrutable arguments about alleged irregularities. Angry demonstrators scream at each other on the street. And while chaos erupts everywhere, the man in the Oval Office follows a well-known principle of real-estate disputes: Possession is nine-tenths of the law.

Finally, Geltzer29 noted that Mr. Trump could allege foreign interference with the vote tally to cast doubt on the validity of the results. The groundwork for this action has been laid by his declaration of an unjustified national emergency; his attempted undermining of the Mueller investigation and other parts of the Department of Justice; his unrelenting assaults on the media and the intelligence community, his unwillingness to commit to honoring the 2016 election results; and his baseless insistence on widespread voter fraud.

Geltzer also discussed and referenced a tweet 30 by Mr. Trump implying that he might allege foreign interference in the 2018 mid-term election to cast doubt on the validity of the results and how this behavior might “preview” Mr. Trump’s effort to cast doubt on the results of the 2020 election.

2. The Peaceful Transfer of Power is Less Likely with High Political Polarization.

a. The U.S. level of political partisanship has dramatically increased over the last

27 Looking to the Future, Public Sees an America in Decline on Many Fronts, Pew Research Center, March 2019.

28 Russian Election Hacking in 2020 Could Easily Be Much Worse Than 2016, Jonathan Chait, New York Magazine, August 5, 2019.

29 What if Trump refuses to accept defeat in 2020? by Joshua A. Geltzer, www.cnn.com, updated 4:39 PM ET, February 23, 2019.

30 Tweet from @realDonaldTrump: I’m very concerned that Russia will be fighting very hard to have an impact on the upcoming Election. Based on the fact that no President has been tougher on Russia than me, they will be pushing very hard for the Democrats. They definately don’t’ want Trump! 11:50 am, Jul 24, 2018.

10 several decades 31 to the point that we tend to live in different political universes.32 Our political discourse has been damaged 33 to the point that Democrats and Republicans now tend to view each other in a negative light.34

b. This increased level of partisanship has led to an increase in a hostile and confrontational style of politics know as “negative partisanship” 35 in which, as described by Abramowitz and Webster: 36

supporters of both major parties, including independents that just lean toward one party or the other, have grown to dislike the opposing party and its elected leaders more than they like their own party and its elected leaders. An judging from opinion polls, that trend reached a new hight in 2016 - an election dominated by negative feelings toward both major-party candidates.

c. As discussed by Edsall,37 a debate is underway concerning the deepening animosity between Democrats and Republicans, i.e., is the deepening animosity “based upon genuine differences over policy and ideology or is it a form of tribal warfare rooted in an atavistic us-versus-them mentality?” Edsall also notes: 38

This debate has both strategic and substantive consequences. If left and right are split mainly becauses of policy, the chances of achieving compromise and overcoming gridlock are higher than if the two sides believe that their values, their freedom, their right to express themselves, their very identify, are all at stake. Its easier to bend on principle than to give up a piece of yourself.

While the academic debate is not settled, the recent actions by Mr. Trump and his Republican allies in the Administration and the House and Senate indicate a willingness

31 Key takeaways on Americans’ growing partisan divide over political values by Carroll Doherty, pewresearch.org, October, 2017; Far more Americans say there are strong conflicts between partisans than between other groups in society by John Gramlich, pewresearch.org, December 19, 2017; The Partisan Divide on Political Values Grows Even Wider, Pew Research Center, October 5, 2017; ‘It’s just messed up’: Most think political divisions as bad as Vietnam era, new poll shows by John Wagner and Scott Clement, The Washington Post, October 28, 2019; It’s Official: Partisan Rancor Worst in Over a Century by Mike Dorning, Bloomberg, October 9, 2014; Political Divisions in U.S. Are Widening, Long-Lasting, Poll Shows by Janet Hook, The Wall Street Journal, September 6, 2017.

32 Americans now live in two worlds, each with its own reality by Philip Bump, The Washington Post, October 15, 2016; Americans are losing faith in democracy - and in each other by Nathaniel Persily and Jon Cohen, October 14, 2016; In polarized era, fewer Americans hold a mix of conservative and liberal views by Jocelyn Kiley, pewresearch.org, October 23, 2017; Trust and Distrust in America by Lee Rainie, Scott Ketter and Andrew Perrin, Pew Research Center, July 22, 2019; With impeachment, Amerida’s epistemic crisis has arrived by David Roberts, Vox, November 16, 2019.

33 Public Highly Critical of State of Political Discourse in the U.S., Pew Research Center, June 19, 2019.

34 Partisan Antipathy: More Intense, More Personal, Pew Research Center, October 10, 2019; Fear and Loathing across Party Lines: New Evidence on Group Polarization by Shanto Lyengar and Sean J. Westwood, American Journal of Political Science, Vol. 59, No. 3, July 2015, Pp.690-707; The Strengthening of Partisan Affect, Shanto Iyengar and Masha Krupenkin, Advances in Political Psychology, Vol. 39, Suppl. 1, 2018.

35 The rise of negative partisanship and the nationalization of U.S. elections in the 21st Century by Alan I. Abramowitz and Steven Webster, Electoral Studies, Vol. 41, March 2016, Pp 12-22; The Power of “Negative Partisanship” by Charlie Cook,, cookpolitical.com, April 19, 2019; Is Politics a War of Ideas or of Us Against Them? By Thomas B. Edsall, The New York Times, November 6, 2019.

36 “Negative Partisanship” Explains Everything by Alan Abramowitz and Steven Webster, Politicio, September/October, 2017.

37 Is Politics a War of Ideas or of Us Against Them? By Thomas B. Edsall, The New York Times, November 6, 2019.

38 Is Politics a War of Ideas or of Us Against Them? By Thomas B. Edsall, The New York Times, November 6, 2019.

11 to both ignore reality and repeat Russian misinformation in an attempt to protect the President, to the point that the Mr. McConnell, who as Senate Majority Leader is primarily responsible for planning the trial, has stated that Mr. Trump, the defendant, will control the design of the trial 39 even though each Senator, who acts like a juror, takes a special oath to “do impartial justice” in an impeachment trial. Therefore, we appear to be dealing with tribal behavior rather than genuine differences over policy and ideology.40

Since we apparently are dividing into two tribes,41 we should expect to see a continuing decline in our national unity. Per Amy Chua,42 this involve the:

fracturing of our country into two (or more) Americas in which people from one tribe see others not just as the political opposition, but as immoral, evil and un-American.

These two tribes are increasingly living in different universes with different information sources and thus different “facts.” These facts (or “alternative facts” or “fake news” ), as amplified by our tribe’s source of information: social media, the press, television networks, talk radio, tribal leaders, etc., define our positions not just on political issues such as the proper role and size of government but are now influencing our beliefs on a wide range of topics including religion, gun ownership, the role of science, immigration, financial inequality, climate change, free markets, the minimum wage, fossil fuel production, alternative energy including wind power, abortion, worker safety, environmental protection, and whether we say “Merry Christmas” vs. “Happy Holidays.”

d. Mr. Trump has been a major factor in the rise of negative partisanship and partisan tribes and has focused on dividing Americans based upon whether we live in an urban or rural area 43 and whether we suffer from “white anxiety.”44 As the leader of the GOP “tribe,” he exhibits demagogic behavior, including vague threats of violence

39 McConnell’s vow of ‘total coordination’ with White House on Senate impeachment trial angers Democrats by Mike DeBonis, The Washington Post, December 13, 2019; Panel Approves Impeachment Articles and Sends Charges for a House Vote by Nicholas Fandos, The New York Times, December 13, 2019.

40 The GOP impeachment wall: Why Republicans won’t walk away from Trump by Alex Seitz-Wald, nbcnews.com, December 9, 2019.

41 Political Tribes by Amy Chua, Perguin Press, 2018; Rethinking Polarization by Jonathan Rauch, National Affairs, No. 41 - Fall, 2019; Tribalism triumphs in America by Michael Gerson, The Washington Post, September 18, 2017; America Wasn’t Built for Humans by Andrew Sullivan, New York, September 2017; Jim Mattis: Duty, Democracy and the Threat of Tribalism by Jim Mattis, The Wall Street Journal, August 28, 2019; The midterm elections revealed that America is in a cold civil war by Jack Beauchamp, Vox, November 7, 2018; The American Civil War, Part II by Thomas L. Friedman, The New York Times, October 2, 2018.

42 The Destructive Dynamics of Political Tribalism by Amy Chua, The New York Times, February 20, 2018.

43 The historical roots of the US rural-urban divide run deep by Eliza Griswold, The Guardian, July 4, 2018; A new theory for why Trump voters are so angry- that actually makes sense by Jeff Guo, The Washington Post, Novermber 8, 2016.

44 White threat in a browning America by Ezra Klein, Vox, July 30, 2018; The White Nationalists are Winning by Adam Serwer, The Atlantic, August 10, 2018; White House backs Stephen Miller amid white nationalist allegations by Brett Samuels, The Hill, November 16, 2019; Stephen Miller’s Affinity for White Nationalism Revealed in Leaked Emails by Michael Edison Hayden, splccenter.org, November 12, 2019; The far-right agenda of Trump’s most controversial aide by Ishaan Tharoor, The Washington Post, November 25, 2019; The Great White Culture War by David French, National Review, August, 2018; Explaining White Polarization in the 2016 Vote for President: The Sobering Role of Racism and Sexism by Brian F. Schaffner, Matthew MacWilliams and Tatishe Nteta, Paper prepared for presentation at the Conference on The U.S. Elections of 2016: Domestic and International Aspects, January 8-9, 2017 IDC Herzliya Campus; We Aren’t Seeing White Support for Trump for What It Is by Thomas B. Edsall, The New York Times, August 28, 2019; The White Strategy by Ross Douthat, The New York Times, August 11, 2018; Status threat, not economic hardship, explains the 2016 presidential vote by Diana C. Mutz, PNAS, May 8, 2018.

12 against those not of his tribe,45 and he has moved toward a number of far-right positions at variance with long-term US policy including a “white nationalist” approach on immigration; reducing support for NATO, the UN, and other international organizations; showing friendliness and affinity for “strong man dictators and autocrats; and declining to support free trade and environmental protection, including climate change. He also does not act to support international democracy and freedom. He has focused upon pleasing his tribe, rather than trying to bring Americans together to address critically important questions such as climate change, financial inequality, and the global decline in democracy. Both literally and figuratively, he is building walls rather than bridges. 46

e. Unfortunately, political tribalism is incomparable with a democracy. This is true for a number of reasons including the lack of a shared set of values, particularly with Mr. Trumps hard-right approach; the lack of a shared set of accepted facts 47 necessary to reach a national consensus on important issues; the lack of support or even acceptance of people from another political tribe as national leaders; and the lack of trust between the two opposing tribes. In addition, as discussed by Roberts, 48 apparently “tribal morality is what happens when tribal interestes come to subordinate moral principles.” He goes on to explain: 49

Moral principles are generally, by their nature, cosmopolitan. They are meant to apply across tribal lines, to be “transpartisan.” Take, for instance, the principle “it is wrong to torture.” Interpreted as a principle, it is meant to apply to everyone. Anyone, from any group or nation, who tortures anyone else, from any group or nation, is doing something wrong.

But under tribal morality, principles are subsumed under tribal membership. It becomes, “it is wrong for them to torture us.” It is okay for us to torture them, because our tribe is Good and thus whatever actions we take to prosecute the interests of the tribe are Good. They, however, are Bad, so they are subject to the rules. (Readers of a certain age may recall the US having just this debate in the mid-2000s.)

Tribal epistemology happens when tribal interests subsume transpartisan epistemological principles, like standards of evidence, internal coherence, and defeasibility. “Good for our tribe” becomes the primary determinant of what is true; “part of our tribe” becomes the primary determinant of who to trust.

45 Trump Tweet, Political Divisions Fuel Rising Discourse About New U.S. Civil War by Reuters, The New York Times, October 29, 2019; Roger Stone says there would be an ‘insurrection’ if Trump were impeached. Is he right? By Paul A. Djupe et al., The Washington Post, September 15, 2017; The Vigilante President by Alexander Hurst, The New Republic, November 6, 2019.

46 Trump has a Gift for Tearing Us Apart by Thomas B. Edsall, The New York Times, December 11, 2019.

47 Democracy requires a shared sense of reality. America is failing the test by Brian Klaas, The Washington Post, November 26, 2019; With impeachment, Amerida’s epistemic crisis has arrived by David Roberts, Vox, November 16, 2019.

48 With impeachment, Amerida’s epistemic crisis has arrived by David Roberts, Vox, November 16, 2019; When Two Tribes Go to War by Andrew Sullivan, New York, February 2, 2018: also see: What’s the Matter With Republicans? By Peter Wehner, The New York Times, September 30, 2019 and Impeachment Increasingly Divides Americans by Political Party by Aaron Zitner, The Wall Street Journal, November 3, 2019.

49 With impeachment, Amerida’s epistemic crisis has arrived by David Roberts, Vox, November 16, 2019; Also see: The GOP impeachment wall: Why Republicans won’t walk away from Trump by Alex Seitz-Wald, nbcnews.com, December 9, 2019.

13 A circular logic, which has become quite familiar in the impeachment affair, emerges: Anyone who says anything contrary to the tribe marks themselves as an enemy of the tribe (cough *deep state* cough); enemies of the tribe cannot be trusted, so their testimony or evidence can be ignored. Thus, by definition, nothing that questions the tribal narrative can be trusted.

A decades-long effort on the right has resulted in a parallel set of institutions meant to encourage tribal epistemology. They mimic the form of mainstream media, think tanks, and the academy, but without the restraint of transpartisan principles. They are designed to advance the interests of the right, to tell stories and produce facts that support the tribe. That is the ultimate goal; the rhetoric and formalisms of critical thinking are retrofit around it.

Talk radio and the birth of Fox News in the 1990s were turning points. They eventually expanded to create an entire, complete-unto-itself conservative information universe. It was capable of cranking out stories and facts (or “facts”) in support of the conservative cause 24 hours a day, steadily shaping the worldview of their white suburban audience around a forever war with The Libs, who are always just on the verge of destroying America...... over time this led to a steady deterioration in fealty to norms, epistemological and otherwise, to the point that something like 30 percent of the country is now awash in a fantasia of conspiracy theories and just-so stories.

f. The mistrust between the two tribes is deep, since the two tribes both want to take and keep national and state power and they are now involved in a kind of cold war. The Republicans, with a smaller number of party members, are trying to continue in power using a number of methods to off-set their lower number of voters, including: big money, including staffing and financial assistance from major donors; a network of conservative think tanks; organized conservative legal groups; a majority of conservative judges in the supreme court and many new conservative judges in the lower courts; encouraging foreign interference and voter suppression including voter purges, gerrymandering, making voter registration and actual voting more difficult; building a strong party in the states; and the heavy use of social and broadcast media to spread both real information and misinformation. The Democrats are trying to neutralize these Republican tactics in order to allow them to take advantage of their larger number of voters and thus move more toward a higher level of voter participation. Mr. McConnell apparently once said that “a spending edge is the only thing that gives a Republican a chance to compete” and, during a Senate debate on proposed campaign-finance restrictions, reportedly told colleagues that “If we stop this thing, we can control the institution for another twenty years.” 50

g. The Congress is more polarized now than during past impeachments; 51 and since we are apparently in a tribal situation, the Republican Senate members will, for the most part, likely not act on the basis of facts, law and the Constitution. Instead, they

50 Dark Money by Jane Mayer, Doubleday, 2016, p. 234; The Cynic by Alex Macgillis,, Simon and Schuster, 2014, p. .

51 The Trump card: Congress is more polarized now than during past impeachments by Philip Bump, The Washington Post, November 14, 2019.

14 will act to protect their tribal chief from removal.52 They likely consider impeachment an unfair attack and their vote to acquit as allowing their chief and other tribal members, such as themselves, to continue to protect the Republican tribe from the “immoral, evil and un-American” members of the Democratic tribe.53 As noted by Sullivan: 54

The problem with tribalism is that it knows no real limiting principle.

It triggers a deep and visceral response: a defense of the tribe before all other considerations. That means, in its modern manifestation, that the tribe comes before the country as a whole, before any neutral institutions that get in its way, before reason and empiricism, and before the rule of law. It means loyalty to the tribe — and its current chief — is enforced relentlessly. And this, it seems to me, is the underlying reason why the investigation into Russian interference in the last election is now under such attack and in such trouble. In a tribalized society, there can be no legitimacy for an independent inquiry, indifferent to tribal politics. In this fray, no one is allowed to be above it.

On the face of it, of course, no one even faintly patriotic should object to investigating how a foreign power tried to manipulate American democracy, as our intelligence agencies have reported. And yet one party is quite obviously doing all it can to undermine such a project — even when it is led by a Republican of previously unimpeachable integrity, Robert Mueller. Tribalism does not spare the FBI; it cannot tolerate an independent Department of Justice; it sees even a Republican like Mueller as suspect; and it sees members of another tribe as incapable of performing their jobs without bias.

h. Just as tribalism will likely protect the President from impeachment, it will also make him less willing to peacefully transfer power if he loses the 2020 election.

II. Motive, Opportunity, and Means related to Scheme Development and Implementation.

The President, the Senate Majority Leader, the Attorney General, Congressional Republicans, major Republican donors, Republican operatives and the Republican base, including right-wing evangelicals, would all likely be highly motivated to retain Mr. Trump as President. This motivation would vary for each individual but would likely include a strong motivation to support the Republican tribe.

Please see Appendix A for an additional discussion of the possible motivation, opportunity and means for three key individuals that may have important roles in this scheme: Mr. Trump, Mr. McConnell, and Mr. Barr. Based upon their actions to date, all three of these individuals known Norm-breakers and apparently place party (and the GOP tribe) before country and the Constitution. It appears likely that Mr. McConnell and Mr. Barr would be quite open to participating in a scheme to help Mr. Trump remain in office if he lost the 2020 election. Based upon his earlier behavior, we also know that Mr.Trump will stop at nothing to win a second

52 The GOP impeachment wall: Why Republicans won’t walk away from Trump by Alex Seitz-Wald, nbcnews.com, December 9, 2019; With White House Absent, Impeachment Devolves Into Partisan Brawl by Michael D. Shear, Nicholas Fandos, and Maggie Haberman, The New York Times, December 8, 2019; Impeachment and the lost art of persuasion by E.J. Donne Jr., The Washington Post, December 8, 2019.

53 The Destructive Dynamics of Political Tribalism by Amy Chua, The New York Times, February 20, 2018.

54 When Two Tribes Go to War by Andrew Sullivan, New York Magazine, February 2, 2018.

15 term.55

III. A Possible “Scheme.” Expanding upon Geltzer,56 this paper describes a possible “scheme” Mr. Trump may use to extend his time in office, perhaps including at least another term as President:

A. Summary of Scheme:

This “scheme” thus may be an actual scheme or it may be an unplanned series of “actions and inactions,” that set the stage for later possible developments.

1. Preparations for Implementing a Possible Scheme are Almost Complete: These preparations have been underway for some time and all of the preparations should be complete by the 2020 election. The preparations seem to include the following ten items, which can be divided into three broad groups:

a. Assemble the Key Players and Prepare the Ground: This includes build a stronger White House Bubble; Installing a pliable Director of National Intelligence (DNI); Installing a Pliable Attorney General - accomplished; Continue to keep the GOP Message Machine strong and united; continue to work with the Federalist Society and Mr. McConnell in installing very conservative judges to high levels in the judiciary, including the Supreme Court; Continue to endorse and support federal and state efforts to restrict voter participation, including the adoption of voter suppression, and carrying out partisan redistricting (gerrymandering);

b. Prepare for “Scheme” Implementation: Continue to invite or force election interference by other countries, and possibly other organizations in the 2020 presidential election; work with Mr. McConnell to welcome foreign interference in the 2020 election; prevent or undercut work on election security by his Administration; continue to have “off the record” meetings and communications with Mr. Putin and others.

c: Prepare to Avoid Detection and Accountability: Work with Mr. Barr to develop legal strategies to avoid or stop any investigation of Mr. Trump’s activities by Congress or the Courts; also develop legal strategies to stop any investigation, including Congessional oversight that Mr. Trump considers “unfair;” and work with the Supreme Court to end the ability of lower courts to issue “nationwide injunctions. The Department of Justice is likely already preparing legal strategies needed if the 2020 election is significantly “compromised” by interference. Some of those strategies just might happen to be consistent with the “scheme” described here. Also, continue to keep the Federal Election Commission Inactive.

2. The following six items likely play a dual role: to build support if needed to implement the scheme and also to support Mr. Trump’s reelection campaign, i.e.

55 President Trump will stop at nothing to win a second term by Julian Zellzer, CNN, October 25, 2019.

56 What if Trump refuses to accept defeat in 2020? by Joshua A. Geltzer, www.cnn.com, updated 4:39 PM ET, February 23, 2019.

16 continue to:

a. Abuse and discredit the independent press; b. Drive tribalism, division, fear and hate in the electorate; c. Carry out his disinformation campaign; d. Provide Republican donors and the wealthy with financial windfalls; e. Block Congressional oversight; f. Carry out an aggressive “deterrence” punishment of immigrants/asylum seekers.

3. Initial Implementation Steps:

a. Announce the Scheme: Rather than conceding, announce from the Oval Office that the votes are “contaminated” and not suitable for use. To ensure a “fair” election, he will “clean up” the existing votes prior to a necessary recount or, if a “clean up” is not feasible, set up a new election after “improved” voting procedures are in place.

b. Crank up the GOP messaging machine: Move forward with both pushing the scheme and responding to attacks. One can assume Mr. Trump would favor the usual mix of misinformation, lies, distortions, exaggerations, and “alternative facts” mixed in with bits of truth spread using Tweets; right-wing and mainstream social and broadcast media; personal appearances/news conferences/gaggles; written position papers; “technical” reports; endorsements and testimonials from GOP donors, GOP Congressional leaders, business leaders, celebrities, legal “experts,” evangelicals; right- wing security/cyber-war “experts/conspiracy theorists.”

c. Attempt to Delay the Certification of the Electoral Vote: Before the Joint Session of Congress for certifying the electoral vote on January 6, 2021, Mr. Trump would likely make another announcement that, as he had announced earlier, the votes in the 2020 election were too contaminated to use. At the same time, his allies in the House and Senate could present information from our intelligence agencies on the amount of “contamination” of votes due to foreign interference and lodge formal objections against counting votes for all or some of the states. Although the House or Senate might not agree with the President’s objections, the objections would provide Mr. Trump and his allies with an opportunity to damage public confidence in the election results.

Also at this time, the President, perhaps joined by the one or both houses in the Congress, would likely file a legal action with the Supreme Court requesting that the certification of the electoral vote be delayed until the existing votes are “cleaned up” or, if necessary, new and improved procedures are implemented and a new election held.

d. Delay the Inauguration of the President and Vice-President: The President would also presumably request a delay of the inauguration on January 20, 2021 pending the result of the vote “cleaning” or, if necessary, a new election.

e. Immediately Proceed with an In-depth Analysis of the Existing Votes: Using the information from the intelligence agencies, do an in-depth analysis to determine if

17 the existing votes can be cleaned up and, if this is not feasible, recommend new procedures to reduce voter “contamination” in a “redo” election. Also lay out a detailed schedule showing how all of this work would proceed.

This flurry of activity need not be particularly productive but would likely add weight to any legal action the Congress and Mr. Trump might want to use to delay the certification of the electoral vote and the inauguration of the new President and Vice- President.

4. The Likely Reaction if Mr. Trump Implements the above “Likely Next Steps”: Appendix B descibes how the Congress, the states, the Supreme Court, and other parties might react if Mr. Trump were to implement the “likely next steps” described above.

5. The Result Could be Long-Term Delay and Possibly a Reversal of the Outcome of the Election: If either the delay of the certification of electoral votes or the delay of the inauguration of the new President and Vice-President were successful, Mr. Trump will have extended his stay in office. If he wins approval for the “clean-up” of the existing votes or a “re-do” of the 2020 election (with newly developed and implemented procedures), the extension of time would likely be measured in months if not years. Also, he would also likely be able to influence the results of any “clean-up” or new election using new procedures in a way that would lead to his reelection.

If he is not able to win these delays, then the Nation would be forced to choose between the GOP objection to the use of presumably contaminated votes, or the use of these votes to seat the Democratic Party’s ticket. The choice would presumably depend upon deliberations and decisions by the Congress and/or the Supreme Court as well as the actions of the political parties.

B. Detailed Description: Preparation and Implementation:

As noted by Frum, 57 if Mr.Trump is defeated, the twelve weeks between Election Day and inauguration Day will be especially dangerous since his anger “may prompt any number of acts of political and constitutional sabotage.”

This description of a possible “scheme’ is my effort to “connect the dots” between certain curious “actions and inactions” by Mr. Trump and his allies, with a focus on foreign election interference. Connecting the dots led to the possible scheme described here. My concern that the possible scheme might indicate an actual scheme was increased by my later reading of Geltzer’s article, including his discussion of Mr. Trump’s tweet implying that Mr. Trump might allege foreign interference in the 2018 mid-term election and how this behavior might preview Mr. Trump’s effort to cast doubt on the results of the 2020 election.

This “scheme” thus may be an actual scheme or it may be an unplanned series of “actions and inactions,” that set the stage for later possible developments.

Although this type of scheme would involve some preparation, a number of the preparation

57 America After Trump by David Frum, The Atlantic, December 2019 Issue.

18 activities would be masked since they also serve other purposes, e.g., increasing foreign interference. This “dual” nature of some of the preparations; the simplicity of this type of scheme and the small number of individuals needed to devise and implement the scheme makes this type of scheme very difficult to detect.

A scheme of this type could also be adapted to target key states or House districts needed to help the President’s “reelection” and/or help the Republicans to keep control of the Senate and/or help the Republicans to take control of the House of Representatives, particularly with the assistance of a “Trump friendly” foreign country, e.g., Russia, that could concentrate interference activities on particular geographic areas as they apparently targeted specific states and specific Democratic House candidates in 2016.58 As noted by Barz, the 2020 electoral map could be the smallest in years and just four states are likely to determine the outcome. 59

Whether or not there is an actual scheme, the peaceful transfer of power after the 2020 election appears to be in danger. In sum, Donald Trump Is a “Clear and Present Danger” to the 2020 election. 60 This danger could lie in his actions either interfering with, or having others interfere with, the actual voting and/or the tabulation of the votes. The scheme in this paper would involve both foreign interference in the voting and Mr. Trump’s interference in the tabulation of the votes:

1. Preparations for Implementing a Possible Scheme are Almost Complete: These preparations have been underway for some time and all of the preparations will likely be complete by the 2020 election. The preparations seem to include the following ten items, which can broadly be divided into three groups:

a. Assemble the Key Players and Prepare the Ground:

i. Build a Stronger White House Bubble: The President is continuing to surround himself with more pliable aides and officials that accept and support his unusual view of the world. He is discharging officials such as John R. Bolton with independent reputation and credibility within the government and the DC environment (Congress, agencies, press, etc.) and recruiting replacements or “acting” replacements that have little or no governmental experience and/or are political allies that have expressed support for his world view. These lower-level “acting” officials of less than Cabinet status are easily ignored or replaced. The continuation of this effort is resulting in:

a). The President being more protected from staff or administration officials that might “speak truth to power,” question his unusual world view, and focus on protecting the Constitution.

58 Democratic House Candidates Were Also Targets of Russian Hacking by Eric Lipton and Scott Shane, The New York Times, December 13, 2019; Exclusive: Russian-linked Facebook ads targeted Michigan and Wisconsin by Manu Raju, Dylan Byers and Dana Bash, CNN, October 4, 2017; Also see: Will the GOP be the pro-Putin party? By E.J. Dionne, The Washington Post, December 18, 2016.

59 The 2020 electoral map could be the smallest in years. Here’s why. By Dan Balz, The Washington Post, August 31, 2019.

60 Donald Trump Is a Clear and Present Danger to the 2020 Election by Anne Milgram, December 5, 2019; The Trump-Ukraine Impeachment Inquiry Report, Report of the House Permenent Select Committee on Intelligence, Pursuant to H. Res. 66o in Consultation with the House Committee on Oversight and Reform and the House Committee on Foreign Affairs, December, 2019, p. 35

19 b). Pliable “Loyal” Officials more willing to Spread His Message: His cabinet officers and other officials will be more willing to assist him in implementing his unusual and often unconstitutional policies and approaches and will be more willing to push his alternative views and disinformation out to Congress, the rest of the Administration, the public, the press and the international community.

Install a pliable Director of National Intelligence (DNI): The President dismissed the existing Director and Deputy Director of National Intelligence and attempted to replace the DNI with a political ally with little intelligence experience and a questionable resume. Although the nomination of Rep. John Ratcliff was pulled, Joseph Maguire was only selected as the new “acting” DNI, apparently to allow time for the President to find a new pliable DNI nominee.61 Hohmann has pointed out how differently the Ukraine scandal might have played out if the hyper-partisan Ratcliffe had been confirmed and retired admiral Joe Maguire had not been the acting DNI.62

A pliable DNI such as Mr. Ratcliffe would be able to work with the existing Attorney General to support the President’s actions related to the election. For example, the Attorney General and a more pliable Director of National Intelligence (DNI) would be able to work together to push the President’s disinformation and conspiracy theories related to the actions of others, including the supposed “deep state” attacks on him by the intelligence agencies and the supposed lack of evidence for Russian interference in the 2016 election.

They would also to able to help ensure the intelligence agencies are less able to defend themselves from what appears to be a political “investigation of the investigators” now being carried out by the President and the Attorney General to “investigate” the intelligence agencies’ work on Russian interference, including the findings of the Mueller Report.63 This “investigation” might also weaken the intelligence agencies ability and credibility as they work to prevent and document additional foreign interference, from Russia or others, in the 2020 and later elections. The Attorney General has already taken the lead in

61 Top intel official interrupted meeting to urge his deputy to resign, Zachary Cohen, CNN, August 9, 2019. Also see: Trump ‘In No Rush’ to Select Permanent Intelligence Chief, Dustin Volz, Wall Street Journal, August 9, 2019; What if John Ratcliffe got the job? Trump’s felled pick for DNI shows the importance of personnel by James Hohmann with Mariana Alfaro, PowerPost, The Daily 202, September 27, 2019.

62 What if John Ratcliffe got the job? Trump’s felled pick for DNI shows the importance of personnel by James Hohmann, Powerpost, The Daily 202, The Washington Post, September 27, 2019.

63 Is Willaim Barr Going After Trump’s ‘Deep State’ Enemies? by Jonathan Chait, New York Magazine, September 2019; Barr Again Casts Doubt on Russia Inquiry’s Origins, Aligning With Trump’s Attacks by Charlie Savage, The New York Times, May 17, 2019; Barr’s probing of Austrail, Britain and Italy suggests a conspiracy focus by Aaron Blake, The Washington Post, October 1, 2019; Barr’s enabling of Trump’s corruption just got more dangerous by Greg Sargent, The Washington Post, October 1, 2019; Did William Barr break any rules? Only the most important one by Harry Litman, The Washington Post, October 1, 2019; Trump Toady William Barr Is Still Trying To Undermine The Russia Investigation by Bess Levin, Vanity Fair, December 3, 2019..

20 providing a distorted and dishonest description of the Mueller investigation,64 and a pliable Director of National Intelligence could help interfere with any attempt by the intelligence agencies to set the record straight.

ii. Select a Pliable Attorney General: This has been accomplished since Mr. Barr is now in place. He apparently holds extreme views on congressional oversight and the separation of powers and does not seem to believe that the President should be significantly limited by the Congress or the Judiciary. To this end, he is working to develop extreme and apparently unconstitutional legal strategies and policies to defend the President from any investigations or oversight by the congress or any other individual or organization, including holding that the President and the Executive Branch may choose to ignore Congressional subpoenas.65 As noted above, he is also apparently working with the President in what may be a political “investigation” to investigate the investigators in the intelligence agencies that were involved in the investigation of Russian interference in the 2016 election. He thus does not seem to respect the norm that the Attorney General is to serve as the attorney for the American people as a whole and not as an attorney only serving the limited interests of the President.66

iii. Continue to keep the GOP Message Machine strong and united: Continue to favor them with interviews, in-side discusssions, etc. so they are able to develop messaging that will appeal to the GOP base and perhaps persuadable voters.

iv. Continue to work with the Federalist Society and Mr. McConnell in installing very conservative judges to high levels in the judiciary, including the Supreme Court: As noted earlier, many are concerned that the Supreme Court is acting in a overly partisan manner.67 The Court has been unusually accommodating to the Republican Party and Mr. Trump on topics such as allowing political gerrymandering, allowing a Muslim travel ban and allowing employees in

64 How Barr’s Excerpts Compare to the Mueller Report’s Findings by Charlie Savage, The New York Time, April 20, 2019; A Side- by-Side Comparison of Barr’s ve. Mueller’s Statements about Special Counsel Report by Ryan Goodman, Just Security, June 6, 2019; Pelosi questions Barr’s credibility, says she’ll no longer address anything he says by John Wagner, The Washington Post, July 9, 2019; Questions for Attorney General Barr by Paul Rosenzweig, Lawfare. April 20, 2019; and Barr’s zealous defense of Trump makes it impossible to trust his legal judgement by Neal Katyal, The Washington Post, June 3, 2019.

65 Bill Barr’s Dangerous Pursuit of Executive Power by Donald Ayer, The Atlantic, June, 2019; The 40-Year War by Representative Brad Miller, The American Prospect, Fall, 2019; No holds Barred: Trump and his troops push for imperial presidency by David Smith, The Guardian, May 19, 2019; Trump has placed himself above the law, His latest eruption confirms it by Greg Sargent, The Washington Post, October 2, 2019; Trumps’s lawyers: does serving the president mean undermining justice? by Tom McCarthy, The Guardian, May 20, 2019.

66 Trump used his office for politcal gain. Now Barr appears to be using his authority to help him by Editorial Board, The Washington Post, October 1, 2019; Independence and Accountability at the Department of Justice by Jack Goldsmith, Lawfare, January 30, 2018; Barr defends Trump’s use of executive authority, slams impeachment hearings by Tal Axelrod, The Hill, November 16, 2019; William Barr, Trump’s New Roy Cohn, Peter Stone, NYR Daily, The New York Review of Books, October 17, 2019; Barr Rejects Complaints That He is Bolstering Trump’s Personal Agenda, The New York Times, October 2, 2019; Barr’s Legal Views Come Under Fire From Conservative-Leaning Lawyers by Katie Benner, The New York Times, Novermber 22, 2019.

67 Partisan gap widens in views of the Supreme Court by Claire Brockway and Bradley Jones, Pew Research Center, August 7, 2019;

21 a unionized public-sector workplace to avoid dues.68 At the Administration’s request, they have also removed lower court’s blocks on the Administration diversion of Congressionally appropriated funds to construct a border wall, and on the Administration’s denial of asylum to migrants.69 This builds upon an earlier decision to basically cripple the 1965 Voting Rights Act, which has allowed a number of states to once again implement barriers against voting by minorities 70 and has also apparently led to an increase in illegal purges of voters.71

v. Continue to endorse and support federal and state efforts to restrict voter participation, including the adoption of voter suppression, attempting to add a question on citizenship to the census, and carrying out partisan redistricting (gerrymandering): As noted above, in an effort to off-set the lower number of Republicans voters, the GOP has a long history of using methods to reduce the number of voters, including voter purges, gerrymandering, and making voter registration and actual voting more difficult.

Partisan gerrymandering, for example, can lead to cases like the situation in North Carolina in which, in 2014, a party with 49% of the vote received 9 of 13 House seats (or about 70% of the seats). 72 We have also seen the existing President make statements about extensive voter fraud, in an attempt to make it harder for voters to vote, but, as noted by the Federal Election Commission Chair, his statements are not based upon data and that there is no evidence for rampant voter fraud.73 Apparently Mr. Trump’s expressed concerns about voter fraud has led to ninety- nine bills designed to diminish voter access being introduced last year in thirty-one state legislatures.74 Also, a recent report documented the widespread use of voting roll purges, with this activity concentrated in counties with a history of voter discrimination.75 Apparently at least 17 million voters were purged nationwide between 2016 and 2018.76

68 The Supreme Court, gerrymandering, and the Republican turn against democracy by Zack Beauchamp, www.vox.com, June 26, 2019; Gerrymandering and the Rising Risk of a Monopoly on Power by Nate Cohn, The New York Times, June 28, 2019; The Supreme Court has failed the Constitution by Michael Waldman and Eliza Sweren-Becker, The Washington Post, June 28, 2019; The Gerrymandering Decision Drags the Supreme Court Further Into the Mud by Richard L. Hasen, The New York Times, June 27, 2019; Is this how American democracy is supposed to work? No it’s not by Justice Elena Kagan, The Guardian, June 27, 2019

69 Supreme Court Lets Trump Proceed on Border Wall by Adam Liptak, The New York Times, July 26, 2019; and Justice Sotomayor warns the Supreme Court is doing ‘extraordinary’ favors for Trump by Ian Milhiser, www.vox.com, September 12, 2019.

70 How ‘Shelby County v. Holder’ Broke America by Vann R. Newkirk II, The Atlantic, July 10, 2018.

71 Purges: A Growing Threat to the Right to Vote by Jonathan Brater, Kevin Morris, Myma Perez, and Christopher Deluzio, Brennen Center for Justice, July 20, 2018.

72 Is this how American democracy is supposed to work? No it’s not by Justice Elena Kagan, The Guardian, June 27, 2019.

73 FEC Chair slams Trump’s ‘baseless’ voter fraud claims by Adam Edelman, nbcnews.com, August 19, 2019.

74 Voter-Suppression Tactics in the Age Of Trump by Jelani Cobb, The New Yorker, October 21, 2018.

75 Just how big a problem is voter suppression? by Jennifer Rubin, The Washington Post, August 1, 2019.

76 Voter Purge Rates Remain High, Analysis Finds by Kevin Morris, brennencenter.org, August 1, 2019.

22 Note: Actions by the states will likely play a strong role in determining the outcome of the 2020 election, particularly if there is significant interference. In addition, at least in theory, partisan state presidential electors and state authorities that appoint such electors could also influence the outcome of the 2020 election. Individual presidential electors in each state apparently may choose to vote for any candidate they choose rather than for the candidate that receives the majority of the votes in their state and such “faithless” votes have apparently been counted in the past.77

b: Prepare for “Scheme” Implementation: Continue to Invite or Force Election Interference by other Countries, and Possibly other Organizations in the 2020 Presidential Election: Foreign interference is likely in 2020.78 The true extent to which Mr. Trump has worked to invite or force election interference by other parties is not and maybe never will be known. Activities “on the radar” include:

i. An impeachment inquiry is now underway concerning the President’s apparent effort to withhold Congressionally-appropriated funds in order to force Ukraine to announce an investigation of Vice-President and Hunter Biden and a debunked fringe conspiracy theory that the Russians did not interfere in the 2016 election. In addition to being an attempt to gain unfair political advantage in the 2020 election, the delay in funding required by Mr. Trump endangered the fight against Russian aggression thus endangered national security for both Ukraine and the United States. Mr. Trump also publically asked Ukraine and China to investigate the Bidens.79 The GOP in the U.S. Senate, led by Lindsey Graham, is proceeding with an investigation of the Bidens.80 An investigation has also called for by Russian allies in the Ukrainian Parliament.81

77 Electoral College Members Don’t Have to Follow the Will of Voters, Appeals Court Rules by Dan Elliott, AP, August 21, 2019. Also see: He tried to stop Trump in the electoral college. A court says his ‘faithless’ ballot was legal by Meagan Flynn, The Washington Post, August 22, 2019.

78 See the Report of the Select Committee on Intelligence, United States Senate, 2019 entitled: Russian Active Measures Campaigns and Interference in the 2016 U.S. Election, Volume 1: Russian Efforts Against Election Infrastructure with Additional Views; Volume I of the Mueller Report entitled: Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Volume I of II, Special Counsel Robert S. Mueller, III, Submitted Pursuant to 28 C.F.R. § 600.8©, Washington, D.C., March 2019, and Special Prosecutor Mueller’s congressional testimony on July 24, 2019. Also see The U.S. government needs to protect against 2020 election meddling by the Editorial Board, The Washington Post, July 27, 2019; It’s not just the Russians anymore as Iranians and others turn up disinformation efforts ahead of 2020 vote by Craig Timberg and Tony Romm, The Washington Post, July 25, 2019; Here’s What Foreign Interference Will Look Like in 2020 by Uri Friedman, The Atlantic Magazine, August 12, 2019; Trump smashed months of FBI work to thwart election interference by Darren Samuelsohn and Natasha Bertrand, Politico, June 13, 2019; Russian Election Hacking in 2020 Could Easily Be Much Worse Than 2016 by Jonathan Chait, New York Magazine, August 5, 2019; A brief history of administration officials warning that our elections are at risk from Russia by Philip Bump, The Washington Post, July 25, 2019; and Russian hackers likely to target Florida again in 2020 election, experts warn by Peter Stone, The Guardian, August 27, 2019; Russia’s efforts to target U.K. elections a stark warning for 2020 by Joseph Marks, Powerpost, The Cybersecurity 202, The Washington Post, December 9, 2019.

79 Trump Says Ukraine, Chian Should Investigate the Bidens by Claire Hansen, US News and World Report, October 3, 2019; Trump raised Biden with Xi in June call housed in highly secure server by Kylie Atwood, Kevin Liptak, Pamela Brown, Jim Sciutto and Gloria Bolger, CNN, October 3, 2019; Trump lays a big bet by repeating act at heart of impeachment investigation by Jonathan Allen, nbc.news, October 3, 2019..

80 Lindsey Graham gives Trump the Biden investigation he’s been begging for by Alison Durkee, Vanity Fair, November 22, 2019; GOP senators float Biden probe as Ukraine controversy escalates by Jordain Carney, The Hill, August 25, 2019; Graham launches probe of Biden, Burisma and Ukraine by Colby Itkowitz, The Washington Post, November 21, 2019; McConnell once called Biden ‘a rel friend’ and a ‘trusted partner.’ Now he’s quiet as Trump, GOP attack him by Paul Kane, The Washington Post, November 30, 2019.

81 Trump’s Call For Investigation Finds New Support Among Russian Allies in Ukraine by Simon Shuster, Time, November 19, 2019.

23 ii. Welcoming foreign interference in the 2020 election. Rather than warning other countries that they will face strong penalties if they interfere, the President has stated that, as in the 2016 election,82 he would welcome foreign assistance and feels that using data derived from such foreign interference would be acceptable.83 As noted above, he has also apparently tried to force Ukraine to actively interfere in the 2020 election.

iii. Mr. Trump has apparently also been able to prevent or undercut work on election security by his Administration. His welcoming of foreign interference has apparently seriously interfered with the intelligence and law enforcement agencies work in preventing such foreign interference.84 In addition, the President has apparently avoided meetings with his own high level officials on this topic.85 He has also allowed members of his staff to shut down formal coordination mechanisms related to foreign cybersecurity threats, e.g., Mr. Bolton eliminated a Key White House cybersecurity coordinator position 86 and “broke” the National Security Council’s interagency coordination system so that the council became basically the home of an independent national security advisor.87

iv. Even though the voting machines planned for use in the 2020 election are “incredibly insecure,” 88 Mr. Trump apparently has not pushed the Congress for additional financial and technical assistance for the states even though the states are not prepared to provide election security in 2020.89

v. On the Congressional front, the Senate Majority Leader has invited foreign interference in the 2020 election by continuing to block full funding to the states

82 Volume I of the Mueller Report describes the assistance Mr. Trump’s campaign received from the Russians.

83 ‘Absolutely unprecedented’: Trump upends long-held views with openness to foreign assistance, The Washington Post, June 13, 2019.

84 Trump smashed months of FBI work to thwart election interference by Darrne Samuelsohn and Natasha Bertrand, Politico, June 13, 2019 and see: US Security Officials Furious After Trump Invites Foreign Powers to Disrupt 2020 Election by Alison Durkee, Vanity Fair, June 14, 2019.

85 Ex-DHS chief wanted cabinet-level election threat meetings, White House refused: Officials by Katherine Faulders, Lee Ferran and John Santucci, ABC News, April 24, 2019; and Former DHS head took up cyber despite White House aversion by Colleen Long, AP, April 24, 2019.

86 White House Eliminates Cybersecurity Coordinator Role by Nicole Perlroth and David E. Sanger, The New York Times, May 15, 2018.

87 How John Bolton Broke the National Security Council by John Gans, The New York Times, September 10, 2019.

88 U.S. voting machines vulnerable to hacks in 2020, researchers find by Joseph Marks, Powerpost, The Cybersecurity 202, The Washington Post, September 27, 2019; Lawsuit seeks to force Pennsylvania to scrap these electronic voting machines over hacking fears by Joseph Marks, PowerPost, The Cybersecurity 202, December 13, 2019.

89 Election Security in 2020 Comes Down to Money, and States Aren’t Ready by Kartikay Mehrotra and Alyza Scbenium, Bloomberg, August 16, 2019; see also Hillary Clinton accuses Trump, McConnell of ‘abdicating their responsibility’ on election security by John Wagner, The Washington Post, September 17, 2019.

24 and other important provisions of the House election security bills.90 He did recently agree to an additional limited amount of funding, but the amount was less than half of the request by the House and he apparently did not support the other provisions in the House Bills including a requirement for back-up paper ballots and requirements that political campaigns notify the FBI of assistance offers from foreign governments.91 In any case, the expanded funding is apparently still only a small fraction of the funding needed to protect our elections.92

Mr. McConnell has also provided assistance by confirming a large number of conservative judges, including two very conservative Supreme Court justices; has be able to protect the President from action in the Senate; and he could be a very useful ally in implementing the scheme and in avoiding detection and accountability, or, if necessary, helping prevent impeachment.

vi. Mr. Trump apparently continues to have “off the record” meetings and communications with Mr. Putin and others. Some of the meetings between Mr. Trump and Mr. Putin have been very unusual, since they apparently have met alone except for a Russian translator. In at least one case, when Mr. Trump used an American translator, he apparently requested and kept the translator’s notes. It is certainly possible that these communications would involve planning Russian interference that would favor his election campaign and his “winning” the vote count on election day. Since we have known for years that the Trump transition team was working to set up a secret link with the Russians that could not be tracked by the U.S. intelligence agencies, it is likely that there are now secure secret communication links in place, particularly since such links have been used by earlier Presidents.93

c: Prepare to Avoid Detection and Accountability:

i. Develop legal strategies to stop any investigation of Mr. Trump’s activities: Apparently he is working with his Attorney General, the Department of Justice and his private attorneys to devise legal strategies to defend against any investigation of any of his actions by the Congress or any other individual or organization. This could include acting to encourage active interference or otherwise compromising

90 What Will It Take for Congress to Protect America’s Elections? The Editorial Board, New York Times, July 27, 2019. Also see: Mitch McConnell is a Russian Asset by Dana Milbank, The Washington Post, July 26, 2019; McConnell under fire for burying election bills in ‘legislative graveyard’ by Jordan Carney and Maggie Miller, The Hill, July 27, 2019 and Russians tried to hack our elections. Voters overwhelmingly support stronger security measures - So why doesn’t Mitch McConnell? by Evan Crawford, The Washington Post, August 28, 2019; and Hillary Clinton accuses Trump, McConnell of ‘abdicating their responsibility’ on election security by John Wagner, The Washington Post, September 17, 2019.

91 Senate Democrats believe this new funding is not a substitute for passing the comprehensive bipartisan election security legislation that experts say is desperately needed, See: McConnell backs election security amendment after facing criticism by Marianne Levine, Politico, September 19, 2019.

92 $250 Million to Keep Votes Safe? Experts Say Billions Are Needed by Michael Wines, The New York Times, Updated September 26, 2019.

93 ‘Back Channels’ are protocol for a president - but not for a president - elect by David Ignatium, The Washington Post, May 25, 2017.

25 the election. For example, on June 14, 2019, Jonathan Shaub noted that:

Two seminal events have occurred in recent days in the ongoing oversight war between the House of Representatives and the Trump administration—and in the ongoing expansion of the doctrine of executive privilege. Although each incident warrants further individual analysis, together they suggest the"constitutionalization" of what I will call a "prophylactic executive privilege," a view that the executive branch has absolute constitutional authority to protect and further the president's qualified constitutional authority to assert executive privilege. And that absolute prophylactic authority is undiminished by—indeed, is empowered by—Congress's exercise of its constitutional authority and takes no account of Congress's countervailing interests. Although the departures from past precedent may seem subtle, they in fact represent an extreme conception of the president's constitutional authority, one that renders congressional authority immaterial.94

ii. Develop legal strategies to stop any investigation that Mr. Trump considers “unfair:” He has apparently worked with his personal attorneys and the Department of Justice on legal strategies allowing the President to stop any investigation, including Congressional oversight, that he feels is unfair.95 In addition, the Administration is making blanket arguments against Congress’s ability to subpoena witnesses and documents. Thus, the Department of Justice may have fully embraced the Attorney General’s ideology of presidential supremacy.96 Attorney General Barr is also suggesting that the Supreme Court end the ability of lower courts to issue “nationwide injunctions,” which, among other things, would help centralize power in Washington, D.C. and likely reduce judicial actions that block the Administration’s policy initiatives.97

The Department of Justice is likely already preparing legal strategies related to what actions are possible if the 2020 election is significantly “compromised” by interference. Some of those strategies just might happen to be consistent with a “scheme” for Mr. Trump to continue in office after losing the 2020 election and might address arguments to be used to support the President’s scheme in Congressional and/or Supreme Court proceedings.

iii. Continue to keep the Federal Election Commission Inactive. Without a quorum, the Commission apparently will not be able to hold meetings, initiate audits, vote on enforcement matters, issue advisory opinions, or engage in rule

94 The Prophylactic Executive Privilege by Jonathan Shaub, Lawfare, June 14, 2019.

95 The present laws regarding intelligence whistle blowing may have a “loophole” since they did not foresee that the President might be the threat to national security. See: The U.S. has no rules for when the President is a national security threat by Asha Rangappa, The Washington Post, 9/20/19; Whistleblowers Dealing in Classified Information Present Legal Dilemma by Bryon Tau, The Wall Street Journal, September 20, 2019; Why the Whistle-Blowing Process Is Breaking Down by Stephen I. Vladeck, The New York Times, 9/20/19.

96 How the Republicans Built a Presidency Above the Law for Donald Trump by Jonathan Chait, New York Magazine, May, 2019. Also see: Bill Barr’s Dangerous Pursuit of Executive Power. He is using the office he holds to advance his extraordinary lifetime project of assigning unchecked power to the president by Donald Ayer, The Atlantic Magazine, June, 2019. Also see: No Holds Barred: Trump and his troops push for imperial presidency. With his compliant attorney general, the man in the White House is taking aim at the constitutional balance of powers. by David Smith, The Guardian, May 19, 2019 and The 40-Year War, William Barr’s long struggle against congressional oversight by Representative Brad Miller, Preview of the Fall 2019 issue of “The American Prospect.

97 End Nationwide Injunctions by William P. Barr, The Wall Street Journal, September 5, 2019.

26 making. Some of the areas the Commission was unable to agree on included how to handle cybersecurity and foreign election interference. 98 Note that the Federal Election Commission chair directly rebuked Mr. Trump’s decision to welcome foreign interference. 99

2. The following six items likely play a dual role, in that they are a part of the President’s reelection campaign and would also likely build support from his base and/or Republican donors if he should decide to implement a “scheme” to overturn the 2020 election. In short, he would continue to:

a. Abuse and discredit the independent press:100 This is done in order to misinform the Republican base, assist in his reelection campaign and help build support if he decides to implement a scheme to remain in office if he loses the 2020 election. Discrediting the mainstream press helps hide his activities from his base; prevents a shared sense of reality and truth necessary for decision-making in a democracy; prevents rational analysis of his actions by his base; provides space for his alternative universe and his many conspiracy theories; and distracts the press and the public from paying attention to other important stories and events. Continuing to use Twitter, press gaggles, interviews, etc. to sow confusion and to refute embarrassing facts as “fake news” or “alternative facts” and keep building an alternative Trump world where he, as a “stable genius” is “the chosen one” with all the right answers.

b. Drive tribalism, division, fear and hate in the electorate: Fire up the GOP base and encourage them to fear and hate Democrats, non-whites, and non-Christians in an effort to win the election or, if needed, follow his lead in overturning the election results. Having a fall-back scheme lessens the need for the President to appeal to those beyond his base and allows the use of more extreme language designed to divide the country by race, religion , political party and geography. This includes telling his base that Democrats are dirty, subhuman and immoral; do not love America; are traitors; are all socialists, would destroy the economy and their retirement accounts, would allow aliens to steal their jobs and vote illegally; would allow alien invaders that are rapists and criminals; would allow aliens to bring disease and drugs into the U.S.; and would allow immigrants to enter the U.S. that are insects that would infest our country. This also includes stating that certain Democratic congresswomen should go back to where they came from (although they are all American citizens). Mr. Trump has also recently become supportive of rolling back gay and lesbian rights, and his Administration has argued that the 1964 Civil Rights Act does not protect gay workers from discrimination and that transgender people should be barred from

98 The Federal Election Commission Could Be Effectively Sidelined in 2020 by Matt Stieb, New Yorker Magazine, August 8, 2019. Also see: The Election Watchdog That Can’t Bark by The Editorial Board, The New York Times, August 29, 2019.

99 US Security Officials Furious After Trump Invites Foreign Powers to Disrupt 2020 Election by Alison Durkee, Vanity Fair, June 14, 2019.

100 Why Trump’s constant attacks on an independent press are so dangerous by Brian Stelter, CNN Business, September 2, 2019; Also see: Trump doesn't believe his own damaging rants about 'fake news' by Margaret Sullivan, The Washington Post, February 4, 2019; How the media should respond to Trump's lies, A linguist explains how Trump uses lies to divert attention from the "big truths." By Sean Illing, November 18, 2018, and Trump and The Enemies of the People by David Remnick, The New Yorker, August 15, 2018.

27 military service.101

Thus, he would continue to use much of the misinformation he is already using on the mass media, in television interviews and in his political rallies to increase division, hate and fear. In the event that Mr. Trump loses the election, keeping his base fired-up would better allow the President to deploy his supporters, including far-right militia groups, for any needed activities (including at least the threat of force) required to help ensure his continuance in office.

c. Implement the disinformation campaign: By providing the electorate with actual fake news and providing alternative “facts,” he apparently feels he will improve his chances of reelection and, if needed, support for his move to overturn the 2020 election. This would likely include continuing to misinform the public and the GOP base that the Russians did not interfere in the 2016 election; that congressional oversight is not a duty required by the Constitution but is “Presidential harassment;” that conspiracy theories show that the intelligence agencies are part of a “deep state” that is biased against the President; and that many parties are working to falsely claim there is danger of an economic recession.102 He is also continuing to spread disinformation about “voter fraud” and “false news” related to the 2016 and 2020 elections and his standing in the polls. This includes references to imaginary “illegal voters,”103 voter “manipulation” in 2016 by Google,104 and recent “fake polls” from Fox News that indicate a low approval rating and his losing to Democratic 2020 rivals.105

d. Provide Republican donors and other wealthy individuals with financial windfalls: This includes the recent tax bill, which favored the wealthy; may include the indexing of capital gains; and deregulation aimed at weakening environmental, worker protection and economic regulations. He also continues to deny the emergency related to the environmental, economic and social impacts of climate change, apparently in order to prevent criticism by the fossil fuel interests and also to avoid bringing attention to his lack of attention to an obvious major danger to the U.S. and the world.

e. Block Congressional oversight to avoid or at least delay the exposure of additional embarrassing information: This includes evidence of earlier possible criminal activity by the President and his associates that might reduce the chances of

101 Trump Needs His Base to Burn With Anger by Thomas B. Edsall, The New York Times, July 3, 2019.

102 Move over, Illuminati. The conspiracy against Trump’s economy is massive By Catherine Rampell, The Washington Post, August 19, 2019. See also: Trump, banking on strong economy to win reelection, frets over a possible downturn by Philip Rucker, Darnian Paletta and Josh Dawsey, The Washington Post, August 15, 2019.

103 For example, he recently retweeted a “nonsense” tweet that claimed that voter registration figures proved voter fraud: see Trump wants to focus on the ‘real threat’ to elections: Not Russia, but imaginary voter fraud by Philip Bump, The Washington Post, August 14, 2019.

104 Trump stumbles onto a new justification for losing the popular vote: It’s Google’s fault by Philip Bump, The Washington Post, August 19, 2019.

105 Donald Trump’s latest conspiracy theory target? Fox News by Chris Cilizza, August 19, 2019. Also see: ‘I’m not happy with it’: Trump hits Fox News over poll results by Bianca Quilantan, Politico, August 18, 2019 and ‘Fox is different’: Donald Trump slams Fox News, questions favored network’s poll by John Fritz and David Jackson, USA Today, August 18, 2019.

28 the President being reelected and of his base supporting his possible overturn of the election. Oversight might also unearth evidence pertaining to his possible efforts to rig the 2020 election.

f. Carry our the aggressive “deterrence” punishment of immigrants and asylum seekers: This effort, know by a key aide now apparently shown to be a White Nationalist, 106 helps excite his base by actions “needed” to block vicious “invaders,” including diverting Congressionally appropriated funds to construct a “wall” that the Congress had previously refused to fund. This has also included efforts to remove sick children receiving medical treatment in the U.S.(perhaps now reversed), as well as efforts to confine families including children for long periods of time, merely because the Administration decided upon an extreme policy but failed to provide the facilities needed to humanely implement the new policy.

3. Initial Implementation Steps:

a. Announce the Scheme: Mr. Trump could simply announce from the Oval Office that the votes from the election are “contaminated” by foreign or other interference and therefore are not suitable for use. To ensure a “fair” election, he would assert that the Administration would work to “clean up” the existing votes prior to a necessary recount or, if a “clean up” is not feasible, a new election would be needed after new “improved” procedures are in place.107

Mr. Trump would be able to announce such a scheme on his own and could likely delay the peaceful transfer of power. For example, he could substitute an announcement of the new action in place of an expected concession announcement.

While such an announcement would be a major violation of norms, this President and several of his allies such as Mr. McConnell, and Mr. Barr have been quite willing to violate norms.108 Since the violation would involve norms as compared to laws or regulations, it is unclear what legal or constitutional constraints would apply, particularly if the President made use of his significant emergency powers.109

b. Crank up the GOP messaging machine: Move forward with both pushing the scheme and responding to attacks. One can assume Mr. Trump would favor the usual mix of misinformation, lies, distortions, exaggerations, “alternative facts” mixed in

106 The far-right agenda of Trump’s most controversial aide by Ishaan Tharoor, The Washington Post, November 25, 2019; White House adviser Stephen Miller remains undaunted after leak of emails tying him to white nationalist talking points by David Nakamura, The Washington Post, November 27, 2019.

107 Note that such new and improved procedures might take some extended time, e.g., years, to put in place and Mr. Trump would therefore likely remain if office for this extended period. This over-all “scheme” could thus be considered a possible scheme to institute one-part rule, i.e. an illiberal democracy.

108 See Appendix A for numerous examples.

109 The President’s emergency powers are significant and wide-ranging and could possibly apply to this type of “emergency” situation: See National Emergency Powers, Congressional Research Service, Updated August 5, 2019: The Alarming Scope of the President’s Emergency Powers by Elazabeth Goitein, The Atlantic, January/February 2019 Issue; Rein In Trump’s Emergency Powers by William A. Galston, The Wall Street Journal, August 27, 2019; State of Emergency: Presidential Power Run Amok by Deborah Pearlstein and Ilya Somin, Cato Policy Report, May/June 2019.

29 with bits of truth: 110

i. Utilize social and broadcast media to sell the scheme or at least lower the amount of criticism via Tweets, personal appearances/news conferences/gaggles, written position papers, “technical” reports describing why the scheme is “necessary,” etc. Media would include social media such as Facebook and perhaps TV and social media ads, etc. and both right-wing media (e.g., Fox prime time commentators, One America News Network, Breithart News, talk radio - Rush Limbaugh Show et al., and main stream media, including the major news organizations such as CNN, MSNBC, ABC, CBS, NBC, Fox News correspondents, et al.

ii. Obtain endorsements and testimonials supporting the scheme from GOP donors, GOP Congressional leaders, business leaders, celebrities, legal “experts,” evangelicals, etc.

iii. Recruit right-wing security/cyber-war “experts/conspiracy theorists” to to build resistance against the use of the existing “contaminated” votes (perhaps use the “uncertainty” arguments successfully used by the tobacco industry (cigarettes) and the oil/gas industry (global warming).111

c. Attempt to Delay the Certification of the Electoral Vote: Before the Joint Session of Congress for certifying the electoral vote on January 6, 2021, Mr. Trump would likely make a formal announcement that, as he had announced earlier, the votes in the 2020 election were too contaminated to use. At the same time, his allies in the House and Senate could present information from our intelligence agencies on the “contamination” of votes by foreign or other interference and lodge formal objections against counting the votes of all or some of the states. Although the House of Representatives or Senate might not agree with the President’s objections, the objections would provide Mr. Trump and his allies with an opportunity to damage public confidence in the election results, even thought this attack on the results would likely anger the state election officials and governors that had forwarded the election results.

Also at this time, the President, perhaps joined by the one or both houses in the Congress, would likely file a legal action with the Supreme Court requesting that the certification of the electoral vote be delayed until the existing votes are “cleaned up” or, if “cleaning” is not possible, new and improved procedures are put in place and a new election held.

d. Delay the Inauguration of the President and Vice-President: The President would also presumably request a delay of the inauguration on January 20, 2021 pending the result of the vote “cleaning” or, if necessary, a new election.

110 This mix of fiction and a bit of fact seems to be working will in the impeachment proceedings, e.g., see: Fact-based impeachment can’t penetrate the pro-Trump Web by Issac Stanley-Becker, The Washington Post, December 13, 2019.

111 Merchants of Doubt by Naomi Oreskes and Erik M. Conway, Bloomsbury, 2010.

30 e. Immediately Proceed with an In-depth Analysis of the Existing Votes: Using the information from the intelligence agencies, do an in-depth analysis to determine if the existing votes can be cleaned up and, if this is not feasible, recommend new procedures to reduce voter “contamination” in a “redo” election. Also lay out a detailed schedule showing how all of this work would proceed.

This flurry of activity need not be particularly productive but would likely add weight to any legal action Mr. Trump and perhaps the Senate might use to delay the certification of the electoral vote and the inauguration of the new President and Vice- President.

Of course, actually cleaning the votes or developing new procedures to reduce vote contamination would require assistance from others in the Executive Branch, e.g., the Attorney General and the intelligence agencies. Congress would also likely be asked to provide funding, but a lack of action by the congress, based upon recent experience, would likely be met by the executive branch simply reprogramming existing funds on an “emergency” basis.

4. The Likely Reaction if Mr. Trump Implements the above “scheme”:

See Appendix B for thoughts on how the Congress, the states, the Supreme Court, and other parties might react if Mr. Trump were to implement the “likely next steps” described above.

5. The Result Could be Long-Term Delay and Possibly a Reversal of the Outcome of the Election:

If either the delay of the certification of electoral votes or the delay of the inauguration of the new President and Vice-President were successful, Mr. Trump will have extended his stay in office. If he wins approval for the “clean-up” of the existing votes or a “re-do” of the 2020 election (with newly developed and implemented procedures), the extension of time would likely be measured in months if not years. Also, he would also likely be able to influence the results of any “clean-up” or new election using new procedures in a way that would lead to his reelection.

If he is not able to win these delays, then the Nation would be forced to choose between the GOP objection to the use of presumably contaminated votes112, or the use of these votes to seat the Democratic Party’s ticket. The choice would presumably depend upon deliberations and decisions by the Congress and/or the Supreme Court as well as the actions of the political parties.

As noted by Professor Paul Quirk,113 At some point, the question would become: whose

112 This interference is of course quite likely due to actions by Mr. Trump and Mr. McConnell’s to avoid implementing defensive measures, and Mr. Trump’s actually invitation to other countries to interference. Although it appears that the Ukraine effort has been slowed, as noted above, the Senate Judiciary Committee and Russian oriented members of the Ukrainian Legislature may also become active in trying to involve foreign individuals and/or information in the 2020 election.

113 Quoted in What would happen if Trump refused to leave office after 2020 election loss? by Clark Mindock, June 16, 2019. Link: https://www.independent.co.uk/news/world/americas/us-politics/trump-impeachment-refuse-leave-office-nixon-cohen-white-house-a8814991.html

31 orders do law enforcement obey? Because it would ultimately become a matter of the use of force in one direction or another.

V. Conclusion:

Adam Gopnik,114 pointed out, with this particular President, “there is no longer a choice. Law and arbitrary power remain in eternal enmity. You pick your side.” The following actions are might help ensure that the Constitution and the rule of law eventually prevails:

A. Ensure that attention is paid to key appointments such as the Director of National Intelligence to ensure that the appointees understand their duty is to the Constitution, not Mr. Trump. This is a needed action whether or not a scheme is actually being developed.

B. Develop and implement a strategy addressing the security of elections, including interference from the President.

1. This strategy might include actions that hopefully could be in place by the 2020 election and continued in subsequent elections. The following suggestions from Geltzer 115 might be a good starting point:

While many of us worry that President Trump has fallen woefully short in addressing foreign election interference through social media that can change American voters' minds, there's nonetheless an obvious imperative to respect the actual vote tally unless the intelligence community indicates that malicious actors have directly altered it (which would be unprecedented).

Thankfully, there are four key sets of governmental actors across the United States that can commit now to certain steps that would help to isolate President Trump should he refuse to hand over power peacefully.

First is the justifiably much-maligned Electoral College. As we were reminded in 2016, elections are not determined by popular vote but by the votes of each state's and the District of Columbia's electors, who are generally chosen by the political parties at state conventions or through a vote of the party's central committee. For the sake of the rule of law and peaceful transfer of power, both parties should require anyone seeking to be one of the college's electors to pledge that they will not withhold, delay or alter their vote based on the claims or protestations of any candidate, including President Trump.

Second is Congress. It's the newly seated Congress that, in January 2021, will meet in joint session to receive the Electoral College's handiwork and count the electoral votes. Thereafter, the President of the Senate will formally announce the election's result. Unlike the electors, who haven't been selected as of this writing, we already know many who will be serving in Congress that day (with the exception of any

114 Stop Saying That Impeachment is Political by Adam Gopnik, The New Yorker, November 27, 2019.

115 What if Trump refuses to accept defeat in 2020? by Joshua A. Geltzer, www.cnn.com, updated 4:39 PM ET, February 23, 2019.

32 defeated incumbents, resignations, deaths or other unusual occurrences). These senators and representatives should make a joint pledge not to delay or alter counting of the votes based on any candidate's objections. Moreover, they should pledge to hold public hearings with intelligence community leaders should those officials or any candidate suggest that vote counts were influenced by foreign election interference or for any other reason. That unvarnished testimony by intelligence professionals could debunk any claims by Trump (or any other candidate) that the final vote count shouldn't be honored.

Third, 39 of America's 50 state governors will not be up for reelection in 2020. They represent continuity in critical positions of leadership, and some command respect across party lines. Those 39 should band together now to make clear that they will serve, at least informally, as bastions of our democracy should a peaceful transfer of power look threatened by any candidate's response to the election. Especially because most, if not all, are sure to support one candidate or the other, they hold great power to urge respect for the election's results, regardless of who wins. Think here of the example set by former Gov. Mike Huckabee of Arkansas after the December 2017 special election for a Senate seat in Alabama. When Republican candidate Roy Moore initially appeared intent on baselessly contesting the election results, Huckabee, a Republican stalwart, issued a sharply worded rebuke to Moore. Moore soon acknowledged defeat.

Fourth, our civilian and uniformed Defense Department leaders have a role to play. The health of our democracy rests, in part, on not involving the military in transfers of power. And that should continue. But imagine the most extreme scenario, with Congress certifying Trump's defeat but Trump refusing to leave office. In those circumstances, the military would no longer owe its loyalty to Donald Trump as of noon on January 20, 2021. And it's worth asking the Secretary of Defense and Chairman of the Joint Chiefs of Staff, as they testify before Congress in coming months, to affirm that they understand that and would act consistently with it.

2. The strategy might include recommendations that would become law. While these are not likely to be in place prior to the 2020 election, they could become legal requirements for subsequent elections. A good starting point might be the recommendations from Protect Democracy: 116

Democracy requires free, fair, and regular elections. But an election cannot be free and fair when one of the candidates meddles with the rules or tilts the playing field. That’s why we have laws like the Hatch Act that limit how and when government officials can advocate for candidates for federal office. While a sitting president is free to compete in an election following the same rules as other candidates, he is not free to use the powers of his office to manipulate the election outcome.

But this is precisely what President Trump has tried to do, repeatedly signaling that he may use his official powers to manipulate the 2020 election. In doing so, he has also echoed and harnessed well-known and well-understood authoritarian tactics for

116 Play Fair, How to Prevent a Corrupt President from Tipping the Playing Field in His Own Election, Protect Democracy, 2019.

33 interfering with elections. For example, President Trump has repeatedly rejected the idea that he could legitimately lose an election or fail to receive support from the majority of Americans, and he even set up a White House commission in an attempt to cast votes from non-supporters as “fraudulent.” He has ginned up doubt about election results that he doesn’t like. He has demanded the criminal investigation of electoral opponents. He has tried to deploy federal resources to intimidate black and brown voters into staying away from the polls and to instill fear in people who might oppose him publicly. He has used rhetorical and regulatory tools to silence unfriendly media.

Given President Trump’s threats and actions, and the risk that a future authoritarian-minded president could be waiting in the wings, Congress needs to move to protect our elections from improper interference by a president or his allies. While there are limits on Congress’s power to control the presidential bully pulpit, legislation can prevent the president from translating words into actions. For example, statutes can constrain lower-level officials’ ability to enforce a president’s autocratic whims. We offer six recommendations for legislative reform:

a. Protect political candidates from improper law enforcement activity. Congress should create procedures for law enforcement agencies to follow before taking any major investigative step with respect to any candidate for federal office or any federal campaign committee.

b. Prevent voter intimidation by all law enforcement officers, including those who assist in enforcing immigration laws. Congress should update the laws to, among other things, expressly prohibit federal law enforcement officers or employees from taking immigration-related enforcement actions at polling places or conducting other nonroutine, non-emergency law enforcement activity on election days.

c. Enact a federal prohibition on practices intended to deceive voters and strengthen federal protections against voter intimidation. Congress should amend federal criminal law to prohibit any person from knowingly communicating false information about how, when, and where to vote, if the intent of providing the false information is to prevent another person from exercising the right to vote or to prevent a person from voting for their preferred candidate. Congress should also strengthen existing federal prohibitions (both civil and criminal) on voter intimidation.

d. Make it possible for victims of unconstitutional government interference in elections to obtain money damages. Congress needs to enact a statutory Bivens remedy to clarify that individuals whose rights to vote are violated by federal officials are entitled to recover for their injuries.

e. Strengthen disciplinary procedures in the Hatch Act for certain high-level federal employees. Congress should update the Hatch Act to ensure that any employee “in a confidential, policy-making, policy-determining, or policy-advocating position appointed by the President” is held to a high standard for ethical and non-partisan conduct while in office, including appropriate oversight checks and strong disciplinary procedures.

34 f. Require political campaigns to disclose offers of foreign assistance and prohibit government officials from aiding potential efforts to seek such assistance from foreign governments. Congress should require campaigns and candidates — including the sitting president — to promptly disclose offers of illegal foreign campaign assistance, and make it a crime for government officials to conspire to violate the Emoluments Clause, which already prohibits the president from receiving foreign assistance or gifts.

3. The strategy should also discuss how the US can reduce tribalism and address on-going conflicts between tribalism based upon a “chief” and democracy based upon allegiance to the Constitution and the rule of law.

For example, if the US is to have a tribal rather than a constitutional government, what are the implications for those in the military and civil service that have sworn to uphold and protect the Constitution? Since the President, assuming he is not convicted in the current impeachment, is now above the law and is not bound by his oath of office to “preserve, protect and defend the Constitution of the United States,” does this mean that members of the military and the civil service are also no longer bound by their oath?

If so, then would members of the civil service and the military be required to swear a new oath to a tribe? If the US is no longer a liberal democracy, where the people are king, and the President is now a king no longer bound by the Constitution, would all of the members of the military and civil service become mercenaries? Would the military and the civil service be willing to serve and sacrifice if that service is not for the protection of the Constitution and the nation as a whole? As a former state and federal worker that dedicated my life to public service, I do not believe I would have been willing to dedicate my life to a tribe.

Jim Mattis, in an article in the Wall Street Journal entitled “Duty, Democracy and the Threat of Tribalism” discussed the clash between the constitutional and tribal approaches and stated that “All Americans need to recognize that our democracy is an experiment - and one that can be reversed. We all know that we’re better than our current politics. Tribalism must not be allowed to destroy our experiment.” He also notes that “On each of our coins is inscribed America’s de facto motto, “E Pluribus Unum”- from many, one. For our experiment to survive, we must live that motto.”

Mr. Trump’s use of the pardon power illustrates the conflict between constitutional and tribal governments, with Mr. Trump’s pardons tending to focus on GOP-tribal members that were rightfully convicted, or were likely to be convicted, in civilian or military courts.117 His recent pardons of military personnel have been strongly criticized on the grounds that they under-cut military leaders and our existing system of military justice, legitimize war crimes, and dishonor military personnel that uphold American values.118

117 Pardons Granted by President Donald Trump, Department of Justice, retrieved 11/18/2019.

118 The Moral Injury of Pardoning War Crimes by The Editorial Board, The New York Times, November 22, 2019; Trump undercuts his military leadership - and dishonors troops who uphold our values by Editorial Board, The Washington Post, November 24, 2019; Worry rises in military over Trump’s decision-making by Barbara Starr and Nicole Gaouette, CNN, November 28, 2019; There Will Be No Victory in Dishonor by David Frum, The Atlantic, November 17, 2019; Trump’s Pardons for Servicemen Raise Fears That Laws of War Are History by Dave Phillipps, The New York Times, November 16, 2019; Richard Spencer: I was fired as Navy secretary. Here’s what I’ve learned because of it by Richard

35 4. The strategy also might include provisions for legal research and strategies to assist in the drafting of legislation required to implement the final strategy as well as address the legal arguments likely to be presented by a corrupt President and his allies. In addition, this strategy should address possible actions by the President that involve his possible use of emergency powers such as the declaration of martial law. The strategy should also include a plan to acquire the staff and other resources needed to develop and implement the recommendations, as well as staffing needed to help inform the public and provide warnings to others at risk.

C. In closing, one could quote from the Protect Democracy document referenced above, “It’s time for Congress to act, before it’s too late. Our democracy is at stake.”

However, the gross neglect of the Constitution and the rule of law shown by the GOP during the ongoing impeachment calls into question the ability of the Congress to move back toward democracy any time soon.

Spencer, The Washington Post, November 27, 2019; In firing Richard Spencer, Trump recklessly crosses another line by David Ignatius, The Washington Post, November 24, 2019; Brassed off - Donald Trump falls out with the military establishment he once wooed, The Economist, November 28, 2019; Top Military Officers Unload on Trump by Mark Bowden, The Atlantic, November, 2019; Will Trump’s Meddling in Navy Seal Case Derail Reforms Inside Commando Units? by W.J. Hennigan, Time, November 27, 2019; The worst commander in chief ever by Jennifer Rubin, The Washington Post, November 25, 2019; Trump’s ill-advised pardons will damage Americans’ view of the military by Joseph Kristol and Stephen Petraeus, The Washington Post, November 22, 2019; Trump Reverses Navy Decision to Oust Edward Gallagher from SEALs by Dave Phillipps, The New York Times, November 21, 2019; Trump pardons people accused of war crimes because he thinks war should be savage by Jens Kavid Ohlin, The Washington Post, November 19, 2019; Trump Betrays the Military by Benjamin Haas, The New York Times, November 16, 2019.

36 Appendix A

Discussion of Motivation, Opportunity and Means with a Focus on Three Know Norm-breakers: Mr. Trump, Mr. McConnell, and Mr. Barr

I. Motivation:

A. The President: Mr. Trump 119 would be highly motivated to implement a scheme to retain the Presidency if he lost the election:

1. Ego Protection: The President does not like to lose and, in order to protect his ego, generally looks for a way to blame others, e.g., foreigners or illegal voters, for his failures. He also would be very offended if he was not reelected to a second term since he would likely see a loss as “unfair” and a personal rejection 120 and likely believes that he has done an outstanding job as President and that only he can ensure a secure and prosperous future for the country. In fact, he seems to believe that he is not the chief executive of the country, he is the embodiment of the country, so any criticism of him is criticism of the country and thus, if expressed by a U.S. citizen, “treason.” 121

2. His Legacy: On the domestic side, an extension of his term would likely allow him to strengthen his control and continue the apparent transition of the U.S. government from a liberal democracy ruled by the people and based upon the rule of law, to a government completely ruled by him as the Chief of the GOP tribe. As he has stated earlier,122 he would like to prosecute those in or outside the government that challenge his rule. Assuming that he survives impeachment, he also might be able to increase the size of his political base due to his ability to violate the Constitution.

Internationally, another term would give him more time to build stronger ties with his autocratic “allies” and continue to disengage from NATO and other hindrances to his desire for complete control and bilateral transactional agreements that would bring him additional personal wealth and power. He would also likely want at least one more term in office to deal with those countries that have basically decided to not immediately meet his demands, e.g., China and Iran. Although the trade war with China is apparently damaging

119 Trump’s Going to Manipulate the Government to Stay in Power by Jeff Hauser, www.thedailybeast.com, Updated September 11, 2019.

120 Trump’s Paradigm of the Personal by Charles M. Blow, The Washington Post, August 26, 2019.

121 Trump’s Paradigm of the Personal by Charles M. Blow, The New York Times, August 25, 2019; Trump hauls out the rhetorical heavy artillery while taking a l’état,c’est moi approach to impeachment by Anne Gearan, The Washington Post, October 1, 2019.

122 Trump wanted to Order Justice Dept. To Prosecute Comey and Clinton by Michael S.Schmidt and Maggie Haberman, The New York Times, November 20, 2018; The ever-growing list of people Donald Trump says should be jailed by Kyle Swenson, The Washington Post, November 29, 2018; Here’s who is in the meme Trump tweeted showing political opponents jailed by Robert Schroeder, Marketwatch, November 28, 2018.

37 the U.S. economy123 and Iran is continuing to resist his sanctions (with the help of some EU members), an additional term might give Mr. Trump the opportunity to take revenge on these countries and also show other countries that they should respect his autocratic wishes.

A risk-taker such as Mr. Trump will be quite motivated to try a scheme for retaining the Presidency. After all, if the scheme fails, what does he have to lose? He knows that he already faces legal jeopardy under the present system and if the scheme succeeds, he can likely use either his autocratic power or the statute of limitations to avoid some charges and, as noted below, he may well be able to make any other charges “disappear” as he gains more power.

Mr. Trump is not particularly constrained by any beliefs in political norms, his oath of office, the rule of law or the Constitution. Based upon his disinterest in democratic norms, including his willingness to disparage and damage other institutions in our republic such as the Congress, the Judicial System, the Federal Reserve, and the independent press, it is certainly possible that Mr. Trump shares Mr. Putin’s view124 that the classic liberal ideology that has underpinned Western democracy for decades is “obsolete.”

3. Financial: He would want to continue receiving the financial rewards he is presently receiving because he is the President and would likely want to increase these direct financial rewards in his next term as he gains more control over the U.S. government and is able to make bilateral transactional agreements with other governments.

4. Legal Liability: As noted above, he needs to stay in office as long as possible so the statute of limitations will prevent prosecution for at least some of his earlier criminal activity. If he is able to gain enough power over time, he may be able to use his autocratic power to make any charges “go away” or at least work out a deal to receive a pardon from his successor.

5. The Timing is Likely Optimal: Mr. Trump may have a limited window of time to complete the change from a democracy to a one-party or one-tribe government. For example, he presently retains the strong support of the GOP base but this may decline over time as the consequences of earlier decisions on climate, interference with free markets, downgrading of science, reducing the protection of the environment, etc. become more obvious. In addition, his support may decline as demographic change continues and his older, white, Christian base continues to decrease in numbers compared to the number of minorities (shortly likely to become the new majority) and the number of younger voters.

6. Additional Factors: Mr. Trump has talked or “joked about’ the possibility of his

123 U.S.-China Trade War’s Global Impact Grows by Ruth Simon, Megumi Fujikawa and Paul Hannon, The Wall Street Journal, September 2, 2019. Also see: China has reasons to keep fighting a trade war by Thomas Gift, The Washington Post, September 4, 2019; and Will Trump Back Down As His Trade War With China Bites The U.S. Economy? By John Cassidy, September 4, 2019.

124 ‘Liberalism Is Obsolete, Russian President Vladimer Putin Says Amid G20 Summit by Madeline Roache, June 28, 2019. Also see: Western Leaders defend liberal values against Putin’s ‘obsolete’ claim by Daniel Boffey, The Guardian, June 28, 2019; Is Putin right? Is liberalism really obsolete? by Helier Cheung, BBC News, June 28, 2019.

38 serving beyond the mandatory limit of two terms125 and, in 2016, said that he might not honor the results of the election. He very recently claimed that his “rights and liberties were illegally stripped away” by the Mueller investigation and, therefore, an additional two years should be added to his first term.126 The Trump campaign manager has stated that the Trumps will be a dynasty that lasts for decades.127

He also boasts of his support by police, the military, bikers, and others with guns, implying he has the force and would use force to carry out his desires. He also has stated that Article II of the Constitution gives him “the right to do whatever I want.”128

As noted by Bob Bauer,129 Mr. Trump is the founders’ worst nightmare. His on-going narcissistic, authoritarian and demagogic behavior130 indicates he will be most concerned about his personal interests and would not be constrained by his Oath of Office, the Constitution or similar considerations. He also continues to spread lies, falsehoods, and conspiracy theories in order to fight the truth.131 At least some of his actions are apparently being made in bad faith, i.e., he knows that he is not telling the truth but is making statements and, more importantly, making decisions that influence millions of people’s lives based upon an intentional decision to deceive.132 His primary advisor on immigration, Steven Miller133 has been very active in promoting white nationalist ideologies and Mr.Trump has frequently used mass media and his rallies to make statements reflecting racism and hatred and similar language used by domestic white supremacists that have carried out mass killings of Hispanic and Jewish Americans. Similar language was used by domestic white supremacists who carried out mass killing of black

125 Trump takes credit for GOP’s North Carolina win, tweets photo suggesting a third term for himself by Allyson Chlu, The Washington Post, September 11, 2019. Trump just joked about being president for life - for the 6th time by Kathryn Krawczyk, The Week, July 11, 2019; America After Trump by David Frum, The Atlantic, December 2019 Issue; Trump says supporters might ‘demand’ that he serve more than two terms as president by Felicia Sonmez, The Washington Post, June 16, 2019.

126 Trump says he should be ‘given our stolen time back’ after release of Comey report by Johm Wagner, The Washington Post, August 30, 2019.

127 Trump Campaign Manager: Get Ready For Presidents Ivanka, Jared, and Don Jr. by Bess Levin, Vanity Fair, September 9, 2019.

128 While bemoaning Mueller probe, Trump falsely says the Constitution give him ‘the right to do whatever I want’ by Michael Brice- Saddler, The Washington Post, July 23, 2019.

129 Trump Is the Founders’ Worst Nightmare by Bob Bauer, The New York Times, December 2, 2019.

130 Refs re actions narcissism, authoritarian, demagogic. See my earlier work..

131 President Trump has made 12,019 false or misleading claims over 928 days by Glenn Kessler. Salvador Rizzo and Meg Kelly, The Washington Post, August 12, 2019. Also see: What I said was accurate!: Trump stays fixated on his Alabama error as hurricane pounds the Carolinas by Toluse Olorunnipa and Josh Dawsey, September 5, 2019; Trumps’s war on reality enters bizarre new terrain by Philip Bump, The Washington Post, September 4, 2019; NOAA’s support of Trump over its own scientists provokes uproar in weather community by Jason Samenow and Andrew Freedman, The Washington Post, September 7, 2019; and Trump pushed staff to deal with NOAA tweet that contradicted his inaccurate Alabama hurricane claim, officials say by Andrew Freedman, Josh Dawsey, Juliet Eilperin and Jason Samenow, The Washington Post, September 11, 2019.

132 Sotomayor’s brutal dissent unmasks an ugly truth about Trump by Greg Sargent, The Washington Post, September 12, 2019.

133 White House advisor Stephen Miller remains undaunted after lead of emails tying him to whate nationalist talking points by David Nakamura, The Washington Post, November 27, 2019.

39 and Hispanic Americans.134

He apparently believes that it is “smart” to not pay your fair share of taxes.135 He has apparently broken the law a number of times, including the evasion of taxes related to his father’s estate,136 continuing to allow a White House federal employee to routinely violate the Hatch Act,137 and being identified as directing election finance violations and witness tampering related to the payment of hush money payments.138 He also apparently obstructed justice and may have lied to Special Prosecutor Mueller.139 Recent press reports indicate he may have ordered subordinates to break the law to speed up the construction of a new border wall, while assuring them that he would protect from prosecution by giving them presidential pardons.140 He also may be illegally reprogramming funds by declaring a “fake” emergency and thus violating Congressional spending directives, both to build his border wall 141 and to keep the most popular national parks open during the recent partial federal shutdown.142 He may have told policy not to worry about injuring suspects during arrests;143 told border agents to not let migrants in;144 and improperly modified an official weather map in an attempt to cover up his earlier

134 Charleston church shooter: ‘I would like to make it crystal clear, I do not regret what I did’ by Matt Zapotosky, The Washington Post, January 4, 2017; El Paso mass shooting suspect pleads not guilty in 22 deaths by Cedar Attanasio, AP, October 10, 2019.

135 Trump brags about not paying taxes: 'That makes me smart' by Dan Mangan, www.cnbc,com, September 26, 2016

136 11 Takeaways From The Times’s Investigation Into Trump’s Wealth by By Russ Buettner, Susanne Craig and David Barstow, The New York Times, October 2, 2018.

137 Federal watchdog agency says Kellyanne Conway should be fired after violating the Hatch Act by Catherine Kim, June 14, 2019.

138 FBI tied Donald Trump and top aides to 2016 effort to silence a porn star, new court files show by Kristine Phillips, Kevin Johnson and Nicholas Wu, USA TODAY, July 18, 2019.

139 House investigating whether Trump lied to Mueller by Katelyn Polantz and Jeremy Herb, CNN, November 18, 2019; Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit by Michail S. Schmidt and Maggie Haberman, The New York Times, January 25, 2018; Trump plausibly committed impeachable offenses. A leading expert explains how by Greg Sargent, The Washington Post, April 22, 2019; Mueller’s obstruction of justice case against Trump looks damning by Zack Beauchamp, Vox, updated January 24, 2018; The Mueller Report’s ‘Smoking Gun’ on Obstruction of Justice by Murray Waas, NYR Daily, The New York Review of Books, April 19, 2019; It’s Now Likely Mueller Thinks Trump Obstructed Justice by Ranato Mariotti, January 26, 2018.

140 ‘Take the Land’: President Trump wants a border wall. He wants it black. And he wants it by Election Day by Nick Miroff and Josh Dawsey, The Washington Post, August 27, 2019. See also: Trump has no trouble gutting the law to build his wall by Editorial Board, The Washington Post, August 29, 2019. Also see: ‘Take the Land’: Trump Promises Pardons for Law-Breaking by Paul Rosenzweig, Lawfare, September 3, 2019; Trump is Ordering Crimes to Get Wall Built Before Election by Jonathan Chait, The National Interest, August, 2019.

141 Trump Tells Aides ‘Take the Land’ as Impatience Grows on Border Wall by Katie Rogers and Zolan Zolan-Youngs, The New York Times, August 28, 2019. Also see: Trump administration poised to tap military construction funds to build wall by Jeremy Diamond, Ryan Browne, Geneva Sands and Tammy Kupperman, CNN, August 29, 2019.

142 Trump officials broke law by using entrance fees to keep parks open, watchdog says by Juliet Eilperin, The Washington Post, September 5, 2019.

143 Trump tells police not to worry about injuring suspects during arrests by Mark Berman, The Washington Post, July 28, 2017.

144 The President of the United States Told Law Enforcement to Break the Law by Jack Holmes, Esquire, April 9, 2019.

40 error is describing the likely path of a hurricane.145 It also appears that his Justice and Commerce Departments deceived Congress and tried to deceive the Suspreme Court concerning the basis for the proposed addition of a citizenship question to the 2020 census.146 As noted above, Mr. Trump is likely to be impeached for his actions concerning Ukraine. Finally, the President may consider his own financial interests in setting and implementing U.S. foreign policy.147

B. Mr. Mitch McConnell: Mr. McConnell is now the longest-serving Senate Republican Leader, having served over twelve years, and bears much of the responsibility for the radicalization of the Senate. He has done an extraordinary amount of norm breaking 148 even prior to Mr. Trump’s arrival in Washington and has taken a number of undemocratic steps that placed retaining power for his party above supporting the greater good and preserving our democracy.149 Mr. McConnell is now acting as a “wingman” for Mr. Trump 150 and has been compared to Van Hinderberg as a wrecker of liberal democratic norms and the attempted establishment of one-party (one-tribe?) rule in America.151

Mr. McConnell apparently once said that “a spending edge is the only thing that gives a Republican a chance to compete” and, during a Senate debate on proposed campaign-finance restrictions, reportedly told colleagues that “If we stop this thing, we can control the institution for another twenty years.” 152 As an individual with a long history of utilizing extensive amounts of political campaign funding from business 153 and from working with and taking money from right-wing interests such as the Kochs 154 and opposing restrictions on “big

145 Why President Trump’s Sharpied weather map was likely a crime - and should be by Jamie Pietruska, The Washington Post, September 6, 2019. Also see Here’s Why U.S. Law Prohibits Claiming That a ‘Counterfeit Weather Forecase’ is Official by Mahita Gajanan, Time, September 5, 2019.

146 New evidence shows contact between Trump official and Republican redistricting expert over census citizenship question, contradicting earlier DOJ claims by Tara Bahrampour, The Washington Post, November 12, 2018; Wilbur Ross and the Trump War on Truth by The Editorial Board, The Washington Post, September 10, 2019; It’s Not Nice to Lie to the Supreme Court by Linda Greenhouse, The New York Times, July 3, 2019.

147 In private speech, Bolton suggests some of Trump’s foreign policy decisions are guided by personal interest by Stephanie Ruhle and Carol E. Lee, nbcnews.com,, November 12, 2019; Trump's Turkey Corruption Is Way Worse Than You Realize by Tim Miller, thebulwark.com, November 26, 2019.

148 Donald Trump has done less to destroy democratic norms than Mitch McConnell by Robert Schlesinger, nbcnnews.com, May 29, 1919; and How Democracies Die by Steven Levitsky and Daniel Ziblatt, Crown Books, 2018, p. 145, 162.

149 It’s Even Worse Than It Was by Thomas E. Mann and Norman J. Ornstein, Basic Books, 2012, p. 17, 25,29; also see Mitch McConnell, the man who broke America by Dana Milbank, The Washington Post, April 4, 2017.

150 Trump-McConnell 2020? Senate leader takes on role of wingman by Lisa Mascaro, AP News, August 10, 2019; Trump acts like he’s above the law because Mitch McConnell lets him by Ezra Klein, vox.com, September 25, 2019; Trump and McConnell fall short in Kentucky - but remain steady allies in Washington by Seung Min Kim and Josh Dawsey, November 7, 2019.

151 The Danger of Trump’s Political Accomplishments by Andrew Sullivan, New York Magazine, October 18, 2019 and The Suffocation of Democracy by Christopher B. Browning, The New York Review of Books, October 25, 2018.

152 Dark Money by,Jane Mayer, Doubleday, 2016, p. 234 and 235.

153 Nation on the Take by Wendell Potter and Nick Penniman, 2016, p. 96, 104, 131, 154, and 178.

154 Dark Money by,Jane Mayer, Doubleday, 2016. p. 196 and 371.

41 money’ in politics, 155 he has been a faithful servant of the “oligarchs” now amassing great power around the world.156 One of Mr. McConnell’s prime missions is apparently to place “conservative” judges in the federal court system. He has been very successful in this regard.157

However, it appears that what has primarily motivated Mr. McConnell has not been a particular vision for the government or the country, but the game of politics and career advancement in its own right.158

A partial list of Mr. McConnell’s actions that have undermined democracy is provided below.

1. Worked to make Obama a one term president 159 by the use of gross obstruction; increased partisanship; and the erosion of institutional forbearance.160 This behavior placed his and his party’s needs over the needs of the country, including refusing to support areas where was earlier agreement; making a much greater use of the filibuster (for the 2009- 2013, he used filibusters 79 times compared with a total of 68 filibusters in previous history of the U.S.);161 and greater use of senate holds that became ‘indefinite or permanent vetoes.” 162 He also started restricting the confirmation of presidential circuit appointees (the rate fell from 90 % in the 1980's to barely 50 % under Obama).163

2. He also made a very partisan and anti-democratic decision to not allow consideration of Obama’s Supreme Court nominee Merrick B. Garland in 2016.164 This decision almost certainly helped Mr. Trump win the 2016 election,165 but also led to later partisan fights in Congress concerning this stolen seat and also the appointment of a very conservative

155 Nation on the Take,by Wendell Potter and Nick Penniman, 2016, p. 53,54, and 222;Dark Money by Jane Mayer, Doubleday, 2016, p. 34, 238, and 371; It’s Even Worse Than It Was by,Thomas E. Mann and Norman J. Ornstein, Basic Books, 2012, p. 154.

156 The Oligarch Threat by Tamsin Shaw, The New York Review of Books, daily, August 27, 2019.

157 How McConnell and the Senate Helped Trump Set Records in Appointing Judges by Privanka Boghani, pbs.com, May 21, 2019; The GOP is confirming Trump judicial nominees it stalled under Obama by Chris Cloffl, Rollcall.com, August 26, 2019; Trump is appointing judges at a record pace. Now McConnell wants to move even faster by Jennifer Haberkorn, Los Angeles Times, April 2, 2019; Mitch McConnell is Undeniably a Master of the Senate and the Judiciary by Newt Gingrich, Newsweek, August 8, 2019; Trump has Confirmed 150 Lifetime Federal Judges. That’s a Lot. By Jennifer Bendery, Huffpost,Updated September 18, 2019; Mitch McConnell is the Master of Confirming Judges by Fred Barnes, Wall Street Journal, July 9, 2019.

158 The Cynic, The Political Education of Mitch McConnell by Alec MacGillis, Simon and Schuster Paperbacks, 2014, p 132.

159 How Democracies Die, by Steven Levitsky and Daniel Ziblatt, Crown Books, 2018, p. 162, Dana Milbank, wash post, 4/3/19)

160 How Democracies Die, by Steven Levitsky and Daniel Ziblatt, Crown Books, 2018, p. 162.

161 Mitch McConnell undid 213 years of Senate history in 33 minutes by Dana Milbank, The Washington Post, April 3, 2019; Also see: Today’s Republicans Use the Filibuster Just Like the Segregationists Did by Ed Kilgore, New York Magazine, August 23, 2019. .

162 How Democracies Die, by Steven Levitsky and Daniel Ziblatt, Crown Books, 2018, p. 163.

163 , How Democracies Die, by Steven Levitsky and Daniel Ziblatt Crown Books, 2018, p. 163.

164 Partisanship is poison. How will the Supreme Court survive? by Ruth Marcus, The Washington Post, October 5, 2019; Steven Levitsky and Daniel Ziblatt, How Democracies Die, Crown Books, 2018, p. 164.

165 The Court Mitch McConnell Built by Carl Hulse, The New York Times, June 26, 2019.

42 Justice, Mr. Gorsuch,166 Mr. McConnell also used the nuclear option to allow the confirmation of the new Supreme Court justice. Mr. McConnell now admits that he would, however, fill a vacancy if it came open late in Mr. Trumps term.167 These partisan actions have led more citizens to see the court as partisan 168 thus lowering the court’s authority since fewer citizens will be willing to respect and accept its decisions.

3. Mr. McConnell refused to join in a strong warning of Russian interference developed by US intelligence agencies and only allowed a watered-down warning statement prior to the 2016 election.169

4. He also fast tracked confirmation for another far-right Supreme Court justice, Mr. Kavanaugh. Once again, he used the nuclear option to allow confirmation. This confirmation involved another huge partisan fight, including an “investigation”170 that lowered the standing of the court in America’s eyes.171 More recently, more attention is being paid to the Federalist Societies influence in the nomination of judges172 and four senators filed a brief reflecting their concern that the court’s conservative majority may be partisan and in the pocket of the National Rifle Association.173

5. Mr. McConnell has allowed Mr. Trump to take many nondemocratic actions without effective Senate action, including failing to provide the leadership needed to over-ride any of the five Trump vetoes concerning U.S. arms sales to Saudi Arabia, U.S. participation in the war in Yemen and the national “emergency” on the southern border of the U.S.174

166 The High Court’s Rocky Mountain Originalist by Kyle Peterson, The Wall Street Journal, September 6, 2019; ‘Everything conservatives hoped for and liberals feared’: Neil Gorsuch makes his mark at the Supreme Court by Robert Barnes and Seung Min Kim, The Washington Post, September 6, 2019; Can Gorsuch DE-Politicize the Supreme Court? by Scott Turow), Vanity Fair, February 1, 2017.

167 Why Mitch McConnell Doesn’t Care if You Think He’s a Hypocrite by Nancy LeTourneau, The Washington Monthly, May 29, 2019.

168 The Court Mitch McConnell Built by Carl Hulse, The New York Times, June 26, 2019; Partisan gap widens in views of the Supreme Court by Claire Brockway and Bradley Jones, Pew Research Center, August 7, 2019.

169 Denis McDonough: McConnell 'watered down' Russia warning in 2016 by Kailani Koenig, nbcnews.com, March 4, 2018; Secret CIA Assessment says Russia was trying to help Trump win White House by Adam Entous, Ellen Nakashima and Greg Miller, The Washington Post; December 9, 2016; Biden: McConnell Refused to Sign Bipartisan Statement on Russian Interference by Scott Neuman, npr.com, January 24, 2018.

170 FBI has not contacted dozens of potential sources in Kavanaugh investigation by Leigh Ann Caldwell and Heidi Przybyla, nbcnews.com, October 3, 2018.

171 Brett Kavanaugh’s confirmation isn’t democracy. It’s a judicial coup by Richard Wolffe, The Guardians, October 6, 2018; When the Supreme Court Lurches Right by Emily Bazelon, The New York Times, August 22, 2018; What’s the Point of the Supreme Court by David A. Kaplan, The New York Times, September 3, 2018; The Confirmation Wars are Over by Benjamin Wittes, The Atlantic, August, 2018; Supreme Court Party Time by Linda Greenhouse, The New York Times, November 22, 2018; Kavanaugh’s confirmation gives the GOP the most power since the Great Depression by Aaron Blake, The Washington Post, October 7, 2018; The Supreme Court is Coming Apart by David Leonhardt, the New York Times, September 23, 2018; and The Supreme Court has become just another arm of the GOP by Sheldon Whitehouse, The Washington Post, September 6, 2019; The Court Mitch McConnell Built by Carl Hulse, The New York Times, June 29, 2019.

172 The Federalist Society just became a no-go zone for federal judges by James P. Donohue, The Washington Post, July 8, 2019.

173 Warning or threat? Democrats ignite controversy with Supreme Court brief in gun case by Robert Barnes, The Washington Post, August 16, 2019.

174 Donald Trump: Vetoed legislation, ballotpedia.org. Accessed November 3, 2019; Trump acts like he’s above the law because Mitch McConnell lets him by Ezra Klein, Vox, September 26, 2019.

43 6. Mr. McConnell also has used the nuclear option to reducing the time allowed to debate a number of nominees thus reducing the Senate’s ability to assess nominees prior to a vote.175

7. Mr. McConnell is continuing to block legislation concerning election interference that would provide full funding to the states and help prevent foreign interference in the 2020 election.176 As noted in the main text, he did recently agree to an additional limited amount of funding, but the amount was less than half of the request by the House and he apparently did not support the other provisions in the House Bills including a requirement for back-up paper ballots and requirements that political campaigns notify the FBI of assistance offers from foreign governments.177 In any case, the expanded funding is apparently still only a small fraction of the funding needed to protect our elections.178

8. Some have expressed concerns that Mr. McConnell may have received favorable treatment in that his wife, the Secretary of Transportation, set up a special intermediary for his state of Kentucky. John Hudak, a Brooking Institution scholar who has studied political influence in federal grant-making, suggested that some would see that as sore of “swamp behavior.” 179 In addition, Mr. McConnell may have been key to helping Russian oligarchs with ties to Putin skirt U.S. sanctions and invest in an aluminum mill in McConnell’s home state in Kentucky. 180

9. Mr. McConnell and a number of his fellow Senate Republicans have apparently failed to carry out their responsibilities under the Constitution by basically blowing off the evidence and testimony showing that the President almost certainly committed impeachable offenses

175 Mitch McConnell undid 213 years of Senate history in 33 minutes by Dana Milbank, The Washington Post, April 3, 2019; Mitch McConnell triggered the ‘nuclear option’ again. Here’s what that means. By Allan Smith and Alex Seitz-Wald, nbcnews.com, April 3, 2019; Senate Rewrites Rules to Speed Confirmations for Some Trump Nominees by Kelsey Snell, npr.com, April 3, 2019.

176 McConnell under fire for burying election bills in ‘legislative graveyard’ by Jordain Carney and Maggie Miller, The Hill, July 27, 2019; Mitch McConnell is a Russian Asset by Dana Milbank, The Washington Post, July 26, 2019; The Cybersecurity 202: Here’s why Mitch McConnell is blocking election security bills by Joseph Marks, The Washington Post, September 9, 2019; Editorial: Protecting American elections from sabotage is apparently now a partisan issue. Senate Majority Leader Mitch McConnell chose not to act on election-interference bills. By the Times Editorial Board, The Los Angeles Times, July 30, 2019; What Will It Take for Congress to Protect America’s Elections? By The Editorial Board, The New York Times, July 27, 2019; Mitch McConnell Is Making The 2020 Election Open Season For Hackers by Sue Halpern, June 11, 2019; Also see Russians tried to hack our elections. Voters overwhelmingly support stronger security measures - So why doesn’t Mitch McConnell? by Evan Crawford, The Washington Post, August 28, 2019; and Hillary Clinton accuses Trump, McConnell of ‘abdicating their responsibility’ on election security by John Wagner, The Washington Post, September 17, 2019.

177 Senate Democrats believe this new funding is not a substitute for passing the comprehensive bipartisan election security legislation that experts say is desperately needed, See: McConnell backs election security amendment after facing criticism by Marianne Levine, Politico, September 19, 2019.

178 $250 Million to Keep Votes Safe? Experts Say Billions Are Needed by Michael Wines, The New York Times, Updated September 26, 2019.

179 Chao created special path for McConnell’s favored projects by Tucker Doherty and Tanya Snyder, Politico, June 10, 2019.

180 McConnell’s new posture toward Moscow by Dana Milbank, The Washington Post, August 2, 2019; How a McConnell-backed effort to lift Russian sanctions boosted a Kentucky project by Tom Hamburger and Rosalind S. Helderman, The Washington Post, August 13, 2019; A Kremlin-Linked Firm Invested Millions in Kentucky. Were They After More Than Money? by Simon Shuster and Vera Bergengruen, Time, August 15, 2019.

44 181 and by holding secret meetings with the defendant in the impeachment trial, the President, and his staff to plan out the defendant’s strategy and the over-all design of the impeachment trial, thus helping ensure that the result of the trial will be rigged in the President’s favor.182 As noted in the main text, the GOP Senators are also working with the White House in setting up an show “investigation” of Vice-President Biden and his son.183 This effort has also been pushed by Mr. Trump, who’s “personal attorney” is presently trying to dig up dirt of the Bidens, apparently to justify Mr.Trump’s previous impeachable actions in trying to basically trade the release of already approved American war aid for an announcement by the Ukrainian government of an announcement of an investigation into the Bidens.184 In addition, Mr. McConnell, who will have broad latitude to call witnesses who may be less damaging to Trump, 185 has announced that he is fully prepared to shut the Democrats out setting the rules for the impeachment trial.186 As noted above, Mr. McConnell, who as Senate Majority Leader is primarily responsible for planning the trial, has stated that Mr. Trump, the defendant, will control the design of the trial even though each Senator, who acts like a juror, takes a special oath to “do impartial justice” in an impeachment trial. Therefore, we appear to be dealing with tribal behavior rather than genuine differences over policy and ideology

C. William Barr: Mr. Barr, as Attorney General, has been able to move the Department of Justice (DOJ) away from its normal position established after Watergate that the DOJ would take care to maintain a balance in its responsibilities toward representing the people and representing the President. Unfortunately, the DOJ now appears fully committed to the defense of the President.187 Mr. Barr would likely be highly motivated to have Mr. Trump remain in office so that he would be able to continue implementing his concept of an imperial

181 Impeach, The Case Against Donald Trump by Neal Katyal, Mariner Books, 2019; More than 500 law professors say Trump committed ‘impeachable conduct’ by Matt Zapotosky, The Washington Post, December 6, 2019; Legal scholars: Conduct like Trump’s is the reason Congress has impeachment power by Jonathan Allen, NBC News, December 4, 2019; White House gears up for aggressive effort to defend Trump in Senate as House moves toward impeachment vote by Seung Min Kim, Mike DeBonis, Rachael Bade and Karoun Demirjian, The Washington Post, December 4, 2019. Also see: How to Fix Impeachment by Politico Magazine, December 6, 2019.

182 White House counsel plots with Senate GOP as impeachment gets closer by Marianne Levine and Burgess Everett, Politico, December 4, 2019. White House gears up for aggressive effort to defend Trump in Senate as House moves toward impeachment vote by Seung Min Kim, Mike DeBonis, Rachael Bade and Karoun Demirjian, The Washington Post, December 4, 2019; Trump acts like he’s above the law because Mitch McConnell lets him by Ezra Klein, Vox, September 26, 2019.

183 McConnell once called Biden ‘a real friend’ and a ‘trusted partner.’ Now he’s quiet as Trump, GOP attack him by Paul Kane, The Washington Post, November 30, 2019; G.O.P. Tactic on Impeachment: Turn Allegations Against Biden by Katie Glueck and Maggie Haberman, The New York Times, December 6, 2019; GOP senators dig deeper into Ukraine election meddling theory by Burgess Everett, Politico, December 6, 2019; Three GOP chairmen seek information on unfounded Ukrainian effort to undermine Trump by John Wagner, in Impeachment Updates, 2:00 p.m., The Washington Post, December 6, 2019.

184 G.O.P. Tactic on Impeachment: Turn Allegations Against Biden by Katie Glueck and Maggie Haberman, The New York Times, December 6, 2019; Giuliani departs Ukraine after controversial meetings by Robyn Dixon, in Impeachment Updates, 9:50 a.m., The Washington Post, December 6, 2019; An impeachment tide swirls around Trump, Giuliani drops anchor in Ukraine by Paul Sonne, Greg Miller and Josh Dawsey, The Washington Post, December 6, 2019.

185 How Mitch McConnell can shape Trump’s future in a Senate trial by Amber Phillips, The Washington Post, November 1, 2019.

186 Mitch McConnell Is Fully Prepared to Shut Democrats Out Of Impeachment by Alison Duekee, Vanity Fair, December 4, 2019.

187 Independence and Accountability at the Department of Justice by Jack Goldsmith, Lawfare, January 30, 2018; Lowering the Barr by Maureen Dowd, The New York Times, June 1, 2019; No holds Barred: Trump and his troops push for imperial presidency by David Smith,The Guardian, May 19, 2019; Bill Barr’s Dangerous Pursuit of Executive Power by Don Ayer, The Atlantic, June, 2019; William Barr, Mr. Trump’s New Roy Cohn by Peter Stone, The New York Review of Books, October 17, 2019; Barr Has Abandoned the Constitution in Order to Serve Trump by John Nichols, The Nation, April 18, 2019; A Cruel Parody of Antitrust Enforcement by The Editorial Board, The New York Times, September 6, 2019; The Perverse Servility of Bill Barr by Frank Bruni, The New York Times, December 10, 2019; Donald Trump Wanted Another Roy Cohn. He Got Bill Barr by Caroline Fredrickson, The New York Times, December 12, 2019.

45 presidency and further his work of twisting the Constitution 188 to help him exhibit his “Perverse Servility” 189 to Mr. Trump. His predecessor, Mr. Holder, believes Mr. Barr is unfit to serve as Attorney General based upon behavior in office, including his misplaced loyalty to the President and his lack of respect for the Constitution and his duty to the American People. 190

A partial list of Mr. Barr’s actions that have tended to violate the Constitution and favor the interests of Mr. Trump over those of the country as a whole is provided below:

1. The Imperial Presidency: In implementing his unusual and likely unconstitutional 191 view of an imperial presidency,192 Mr. Barr has worked to expand executive privilege beyond any reasonable limit; 193 and approved the DOJ to argue that the Judiciary has no role in resolving conflicts between the executive branch and the Congress;194 blocked release of the President’s tax returns in defiance of clear statutory language; 195 and apparently utilizing extreme language to the effect that the Constitution gives the President sweeping immunity not just from indictment and prosecution, but also from any investigation by federal or state authorities.196 Mr. Barr also allowed the President and his agencies to basically ignore the Constitution and refuse Congressional requests and subpoenas for oversight and impeachment proceedings and, by condoning the bad faith use of emergency powers, has allowed the taking of funds appropriated for other purposes

188 Barr’s Legal Views Come Under Fire From Conservative-Leaning Lawyers by Katie Brenner, November 22, 2019.

189 The Perverse Servility of Bill Barr by Frank Bruni, The New York Times, December 10, 2019.

190 Eric Holder: William Barr is unfit to be attorney general by Eric H. Holder Jr., The Washington Post, December 11, 2019.

191 Barr’s Legal Views Come Under Fire From Conservative-Leaning Lawyers by Katie Benner, The New York Times, November 22, 2019.

192 Trump has placed himself above the law, His latest eruption confirmed it by Greg Sargent, The Washington Post, October 2, 2019; Trumps lawyers: does serving the president mean undermining justice? By Tom McCarthy, The Guardian, May 20, 2019; Trump Attorneys Assert Immunity From Broad Sweep of Law by Byron Tau, The Wall Street Journal, October 29, 2019; How the Republicans Built a Presidency Above the Law for Donald Trump by Jonathan Chait, New York Magazine, May Issue, 2019; Trump keeps claiming he’s a king. The courts keep telling him he’s not by Paul Waldman, The Washington Post, November 26, 2019; William Barr’s Unsolicited Memo to Trump About Obstruction of Justice by Jonathan Hafetz and Brett Max Kaufman, www.aclu.blog, January 11, 2019; The 40-Year War by Representative Brad Miller, September 9, 2019, Fall, 2019 issue of The American Prospect..

193 U.S. House panel accuses Barr of contempt as Trump invokes executive privilege by David Morgan, Reuters, May 8, 2019; A federal judge give the Trump administration a lesson in rule of law by Ruth Marcus, The Washington Post, November 26, 2019; Former White House counsel Donald McGahn must comply with House subpoena, judge rules by Spencer S. Hsu and Ann E. Marlmow, The Washington Post, November 26, 2019.

194 A federal judge give the Trump administration a lesson in rule of law by Ruth Marcus, The Washington Post, November 26, 2019; Former White House counsel Donald McGahn must comply with House subpoena, judge rules by Spencer S. Hsu and Ann E. Marlmow, The Washington Post, November 26, 2019.

195 House Democrats sue Trump administration over president’s tax returns by Jeff Stein and Rachael Bade, The Washington Post, July 2, 2019; Judge throws out Trump lawsuit against New York over release of tax returns by Associated Press, November 11, 2019.

196 Trump Taxes: President Ordered to Turn Over Returns to Manhattan D.A. by William K. Rashbaum and Benjamin Weiser, The New York Times, October 7, 2019; Trump Attorneys Assert Immunity From Broad Sweep of Law by Byron Tau, The Wall Street Journal, October 29, 2019; How the Republicans Built a Presidency Above the Law for Donald Trump by Jonathan Chait, New York Magazine, May, 2019.

46 and thus has allowed the nullification of the power of the purse. 197 He has also injured the Judicial and Congressional Branches by working with the Commerce Departments to deceive Congress and attempting to deceive the Supreme Court concerning the basis for the proposed addition of a citizenship question to the 2020 census.198 Finally, Mr. Barr has been working to end nationwide injunctions by the Judicial Branch,199 apparently in an attempt by the Trump Administration to change the balance of power between Trump’s White House and the other branches of government that check the executive.200 Mr. Barr also may have been involved in allowing Mr. Trump and a number of other individuals to apparently escape responsibility for crimes related to Mr. Trump’s payment of hush money.201 Mr. Barr has also allowed the opening of an “antitrust investigation into four auto companies that had the temerity to defy the president by voluntarily agreeing to reduce auto emissions below the levels required by current standards.” 202

2. The Mueller Report: Mr. Barr has expressed concern that the Mueller investigation was basically illegitimate, in that, in his view, the FBI did not have enough justification to open the investigation and that the FBI had been spying on Mr. Trump’s campaign.203 Once the investigation was completed, Mr. Barr apparently took no action when he became aware that this DOJ report showed that Mr. Trump apparently obstructed justice numerous times and may have lied to Special Prosecutor Mueller. Instead, Mr. Barr took it upon himself to arbitrarily and capriciously clear Mr. Trump of obstruction.204 He also publically released a misleading and dismissive summary of the Mueller investigation, and

197 Trump Tells Aides ‘Take the Land’ as Impatience Grows on Border Wall by Katie Rogers and Zolan Zolan-Youngs, The New York Times, August 28, 2019. Also see: Trump administration poised to tap military construction funds to build wall by Jeremy Diamond, Ryan Browne, Geneva Sands and Tammy Kupperman, CNN, August 29, 2019.

198 New evidence shows contact between Trump official and Republican redistricting expert over census citizenship question, contradicting earlier DOJ claims by Tara Bahrampour, The Washington Post, November 12, 2018; Wilbur Ross and the Trump War on Truth by The Editorial Board, The Washington Post, September 10, 2019; It’s Not Nice to Lie to the Supreme Court by Linda Greenhouse, The New York Times, July 3, 2019.

199 End Nationwide Injunctions by William P. Barr, The Wall Street Journal, September 5, 2019.

200 Inside the Trump Administraton’s Fight to End Nationwide Injunctions by Tessa Berenson, Time, November 4, 2019.

201 Prosecutors Are Asked Why Trump Wasn’t Indicted for Campaign Violations by Rebecca Ballhaus, The Wall Street Journal, July 19, 2019; Also see: FBI tied Donald Trump and top aides to 2016 effort to silence a porn star, new court files show by Kristine Phillips, Kevin Johnson and Nicholas Wu, USA TODAY, July 18, 2019.

202 A Cruel Parody of Antitrust Enforcement by The Editorial Board, The New York Times, September 6, 2019; Also see: Justice Dept. Investigates California Emissions Pact That Embarrassed Trump by Hiroko Tabuchi and Coral Davenport, The New York Times, September 6, 2019.

203 Barr Again Casts Doubt on Russia Inquiry’s Origins, Aligning With Trump’s Attacks by Charlie Savage, The New York Times, May 17, 2019; Is William Barr Going After Trump’s ‘Deep State’ Enemies? By Jonathan Chait, New York Magazine, September, 2019; William Barr, Trump’s New Roy Cohn by Peter Stone, The New York Review of Books, October 17, 2019; Bill Barr’s Justice Department swings into action to undercut the inspector general report by Andrew Prokop, Vox, December 9, 2019.

204 House investigating whether Trump lied to Mueller by Katelyn Polantz and Jeremy Herb, CNN, November 18, 2019; Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit by Michail S. Schmidt and Maggie Haberman, The New York Times, January 25, 2018; Trump plausibly committed impeachable offenses. A leading expert explains how by Greg Sargent, The Washington Post, April 22, 2019; Mueller’s obstruction of justice case against Trump looks damning by Zack Beauchamp, Vox, updated January 24, 2018; The Mueller Report’s ‘Smoking Gun’ on Obstruction of Justice by Murray Waas, NYR Daily, The New York Review of Books, April 19, 2019; It’s Now Likely Mueller Thinks Trump Obstructed Justice by Ranato Mariotti, January 26, 2018; .Barr’s zealous defense of Trump makes it impossible to trust his legal judgment by Neal Katyal, The Washington Post,June 3, 2019.

47 even after a letter from Mr. Mueller, failed to correct his earlier summary.205 He also apparently mislead Congress as to the existence of the letter from Mr. Mueller.206

3. The DOJ Inspector General Report: The report, initiated on March 28, 2019, investigated the origins of the Mueller investigation and found that: 207

the FBI had an authorized purpose when it opened Crossfire Hurricane to obtain information about, or protect against, a national security threat or federal crime...

Additionally, given the low threshold for predication in the AG Guidelines and the DIOG, we concluded that the FFG information, provided by a government the United States Intelligence Community (USIC) deems trustworthy, and describing a first-hand account from an FFG employee of a conversation with Papadopoulos, was sufficient to predicate the investigation. This information provided the FBI with an articulable factual basis that, if true, reasonably indicated activity constituting either a federal crime or a threat to national security, or both, may have occurred or may be occurring. For similar reasons, as we detail in Chapter Three, we concluded that the quantum of information articulated by the FBI to open the individual investigations on Papadopoulos, Page, Flynn, and Manafort in August 2016 was sufficient to satisfy the low threshold established by the Department and the FBI.

As part of our review, we also sought to determine whether there was evidence that political bias or other improper considerations affected decision making in Crossfire Hurricane, including the decision to open the investigation....We concluded that Priestap's exercise of discretion in opening the investigation was in compliance with Department and FBI policies, and we did not find documentary or testimonial evidence that political bias or improper motivation influenced his decision. We similarly found that, while the formal documentation opening each of the four individual investigations was approved by Strzok (as required by the DIOG), the decisions to do so were reached by a consensus among the Crossfire Hurricane agents and analysts who identified individuals associated with the Trump campaign who had recently traveled to Russia or had other alleged ties to Russia. Priestap was involved in these decisions. We did not find documentary or testimonial evidence that political bias or improper motivation influenced the decisions to open the four individual investigations.

In his response to the I.G.’s report, Mr. Wray, the Director of the FBI, noted that the report concluded “the FBI’s Crossfire Hurricane investigation and related investigations of certain individuals were opened in 2016 for an authorized purpose and with adequate factual predication.” 208

205 William Barr torched his reputation. His testimony compounded the damage by Editorial Board, The Washington Post, May 1, 2019; William Barr and his horrible hearing by Jennifer Rubin, The Washington Post, May 1, 2019; Limited information Barr has shared about Russia investigation frustrated some on Mueller’s team by Ellen Nakashima, Carol D. Leonnig and Rosalind S. Helderman, The Washington Post, April 4, 2019; How Barr’s Excerpts Compare to the Mueller Report’s Findings by Charlie Savage, The New York Times, April 20, 2019; A Side- by-Side Comparison of Barr’s ve. Mueller’s Statements about Special Counsel Report by Ryan Goodman, justsecurity.org, June 5, 2019; Lowering the Barr by Maureen Dowd, The New York Times, June 1, 2019.

206 Nancy Pelosi Says Attorney General William Barr Lied to Congress by Byron Tau, Natalie Andrews and Rebecca Ballhaus, The Wall Street Journal, May 2, 2019; Pelosi questions Barr’s credibility, says she’ll no longer address anything he says by John Wagner, The Washington Post, July 9, 2019.

207 Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation, Office of the Inspector General, U.S. Department of Justice, December, 2010, Pp iii-iv.

208 FBI’s Response, Letter from Christopher A. Wray, Director, in Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation, Office of the Inspector General, U.S. Department of Justice, 2019, Pp 424-427.

48 However, Mr. Barr apparently strongly disagrees with both the FBI and the Inspector General and has stated that the FBI did not have adequate information to open the investigation and, further, that the FBI may have operated out of bad faith when it investigated whether the Trump campaign colluded with Russia. He also believes that there were “gross abuses ...and inexplicable behavior that is intolerable in the FBI.” 209

In his recent Senate testimony, the DOJ Inspector General, Mr. Horowitz, pushed back against Mr. Barr and said that Barr’s hand-picked prosecutor failed to convince him the FBI was wrong to open the Trump campaign investigation. He also stated that he had met with Mr. Durham and that neither Mr. Barr nor Mr. Durham provided him with evidence to counter his determination and his disagreement with Mr. Durham centered around whether the FBI should have opened a preliminary investigation, that puts some limitations on the steps agents can take, or a full investigation.210 It seems clear that the large amount of Russian activity would quickly require an elevation of any preliminary investigation to a full investigation, and it would seem more appropriate to praise the FBI for its quick action in aggressively addressing a serious national security threat, rather than insisting that it should have slowed down until the condition clearly worsened and became more difficult to address.

4. Mr. Barr’s Probe: In May, 2019, Mr. Barr set up yet another probe of the origin of the FBI Russia investigation. He and his investigator John Durham apparently believe that they have new information that will be the last word on the matter.211 This ‘investigation of the investigators’ probe has been controversial since, unlike the I.G.’s investigation, it addresses possible actions by U.S. intelligence agencies in other countries and Mr. Barr has been an active participant in the probe, with the President contacting at least one foreign leader to request assistance. Since the I.G. report debunks a number of conspiracy theories frequently repeated by Mr. Trump, Mr. Trump has attacked the I.G. report. 212 Since Mr. Barr has been a long-time fan of an imperial presidency and a critic of the Mueller investigation, both his disagreement with the I.G. and the FBI and his probe may

209 Barr thinks FBI may have acted in ‘bad faith’ in probing Trump campaign’s links to Russia by Pete Williams and Ken Dilanian, www.nbcnews.com, December 10, 2019; Attorney general sharpens attacks on FBI’s Russia probe, dismaying some in his own department by Matt Zapotosky and Devlin Barrett, The Washington Post, December 10, 2019; Attorney General Barr Calls FBI’s Trump Probe ‘Travesty’ by Sadie Gurman, The Wall Street Journal, December 10, 2019; The inspector general report just blew up “Trump’s lies. So Barr is rushing to the rescue by Paul Waldman and Greg Sargent, The Washington Post, December 9, 2019..

210 Inspector general says the FBI is not vindicated by his report on Trump campaign probe by Devlin Barrett, Matt Zapotosky and Karoun Demirjian, The Washington Post, December 11, 2019; Justice Watchdog Testifies About Disagreement With Attorney General Over Report on FBI’s Russia Probe by Sadie Gurman and Byron Tau, The Wall Street Journal, December 11, 2019; The real problems the inspector general found by Editorial Board, The Washington Post, December 11, 2019.

211 Barr thinks FBI may have acted in ‘bad faith’ in probing Trump campaign’s links to Russia by Pete Williams and Ken Dilanian, www.nbcnews.com, December 10, 2019; Bill Barr’s Justice Department swings into action to undercut the inspecctor general report by Andrew Prokop, Vox, December 9, 2019; Barr disputes key inspector general finding about FBI’s Russia investigation by Devlin Barrett and Karoun Demirjlan, The Washington Post, December 2, 2019; Trump says his 2016 campaign was spied on. The DOJ’s watchdog is about to offer its official report, Q and A by Zachary B. Wolf and David Shortell, CNN, December 8, 2019; Barr Assigns U.S. Attorney in Connecticut to Review Origins of Russia Inquiry by Adam Goldman, Charlie Savage and Michael S. Schmidt, The New York Times, May 13, 2019.

212 Trump lashes out at FBI director in wake of Justice Deparment inspector general’s report by Devlin Barrett, Josh Dawsey, Matt Zapotosky and John Wagner, The Washington Post, December 10, 2019; Michael Horowitz just shot down a bunch of Trump conspiracy theories by Aaron Blake, The Washington Post, December 11, 2019.

49 be politically motivated.213 The perception that the Barr probe is political in nature is also enhanced by Mr. Trump naming Mr. Barr as one of his contacts for undertaking the demanded investigations in his July 25 telephone call to the President of Ukraine and by the President, numerous GOP Senators, Mr. Barr and Fox News commentators building up the Barr/Durham probe as the last word on the origins of the Russian investigation.214 As a part of his probe, Mr. Barr has been actively contacting foreign governments and may be working on producing stories that could undermine the US intelligence community’s assessment of Russian election tampering and/or used to discount Mr. Trump’s involvement in pressuring the Ukrainian Government to announce investigations of Mr. Biden and possible Ukrainian interference in the 2016 US election.

5. The Impeachment of Mr. Trump: Mr. Barr has been active in the background of the impeachment proceedings and may have turned down a request by the President to hold a news conference and publically clear him over the Ukraine call.215 Although Mr. Barr was named on the call between the President and the President of Ukraine, Mr. Barr has yet to recuse himself. In fact, lately he has been an outspoken critic of the impeachment effort 216 and his department has apparently been involved in activities related to the whistle-blower complaint, including ordering the Acting Director of National Intelligence to withhold the whistle-blower complaint from Congress and deciding that the President’s actions did not constitute a violation of campaign finance laws and did not warrant the opening of an FBI investigation.217 In addition, Mr. Barr may have been involved in Mr. Trump’s decision to completely reject all Congressional subpoenas and forbid everyone presently or previously

213 Trump used his office for political gain. Now Barr appears to be using his authority to help him by Editorial Board, The Washington Post, October 1, 2019; Barr and the GOP cannot handle the truth by Jennifer Rubin, The Washington Post, December 3, 2019;“It is not what the Department of Justice does”: Barr and Durham go rogue on the Inspector General’s Report by Abigail Tracy, Vanity Fair, December 10, 2019; Internal Justice watchdog finds that Russia probe was justified, not biased against Trump by Ken Kilanian, Pete Williams and Julia Ainsley, www.nbcnews.com, December 9, 2019; Barr’s enabling of Trump’s corruption just got more dangerous by Greg Sargent, The Washington Post, October 10, 2019; Barr Again Casts Doubt on Russia Inquiry’s Origins, Aligning With Trump’s Attacks by Charlie Savage, May 17, 2019; Democrats’ worst fears about William Barr are proving correct by Aaron Blake, The Washington Post, October 1, 2019; Barr personally asked foreign officials to aid inquiry into CIA, FBI activities in 2016 by Devlin Barrett, Shane Harris and Matt Zapotosky, The Washington Post, September 30, 2019; Barr’s probing of Australia, Britain and Italy suggests a conspiracy focus by Aaron Blake, The Washington Post, October 1, 2019; Is Mr. Barr Going After Trump’s ‘Deep State’ Enemies? By Jonathan Chait, New York Magazine, September, 2019; Did William Barr break any rules? Only the most important one by Harry Litman, The Washington Post, October 1, 2019; William Barr, Trump’s New Roy Cohn by Peter Stone, The New York Review of Books, October 17, 2019; As Democrats unveil impeachment articles, Trump signals corruption will continue by Greg Sargent,The Washington Post, December 10, 2019;Trump Pressed Australian Leader to Help Barr Investigate Mueller Inquiry’s Origins by Mark Mazzetti and Katle Benner, The New York Times, September 30, 2019; New revelations about Barr and Giuliani strengthen case against Trump by Greg Sargent, Washington Post, December 5, 2019; Willaim Barr’s deceptions are more dangerous than you think. Here’s the latest by Greg Sargent, The Washington Post, December 11, 2019.

214 Trump, GOP shift focus from alleged surveillance abuse to Durham Russia probe by Jordan Carney, The Hill, December 8, 2019; Barr thinks FBI may have acted in ‘bad faith’ in probing Trump campaign’s links to Russia by Pete Williams and Ken Dilanian, www.nbcnews.com, December 10, 2019.

215 Impeachment Inquiry Test Ties Between Barr and Trump by Peter Baker, Katie Benner and Maggie Haberman, November 7, 2019; Impeachment tests Barr-Trump relationship by Morgan Chalfant, The Hill, November 9, 2019.

216 Attorney General Barr accuses Democrats of ‘war’ on Trump in speech decried as partisan by Hannah Knowles, The Washington Post, November 16, 2019; Barr defends Trump’s use of executive authority, slams impeachment hearings by Tal Axelrod, The Hill, November 16, 2019.

217 Justice Dept.’s Dismissal of Ukraine Call Raises New Questions About Barr by Katie Benner, The New York Times, September 25, 2019; New reports reveal wider role for Barr and Pompeo in impeachment scandal by Tom McCarthy, The Guardian, October 1, 2019; Trump’s Ukraine whistleblower scandal sets a dangerous DOJ legal precedent by Steve Vladeck, www.nbcnews.com, September 27, 2019; The Dangerous Position of William Barr by David Rohde, The New Yorker, September 29, 2019; Just How Corrupt Is Bill Barr by Michelle Goldberg, The New York Times, September 25, 2019; 5 Questions Attorney General William Barr should answer about Trump’s call with President Volodymyr Zelensky by Sean Collins, Vox, September 25, 2019; As Democrats unveil impeachment articles, Trump signals corruption will continue by Greg Sargent, The Washington Post, December 10, 2019.

50 employed in the Executive Branch from testifying or providing information to the House of Representatives impeachment inquiry.218 Finally, as discussed above, Mr. Barr has been active in contacting foreign governments and may have been working on producing stories that could undermine the US intelligence community’s assessment of Russian election tampering or stories that could be used to discount Mr. Trump’s involvement in pressuring the Ukrainian Government to announce investigations of Mr. Biden and possible Ukrainian interference in the 2016 US election.

6. Other Actions: The DOJ is responsible for identifying, investigating and, if appropriate, prosecuting crimes. However, recent press reports indicate that the President and others in the Administration have taken a number of actions that appear to be corrupt or illegal and these actions apparently have not been addressed by the DOJ to determine if these actions rise to the level of criminal activity. Also, the DOJ may have failed to refer the possible campaign-financial violation described by the Ukrainian scandal whistle- blower to the Federal Election Commission and may have allowed the submittal of false testimony to the Supreme Court as a part of the Census case. 219

In addition, the President may have misused the pardon power by ordering subordinates to break the law to speed up the construction of the new border wall, while assuring them that he would protect from prosecution by giving them presidential pardons.220 The Department of Interior also apparently illegally kept the most popular national parks open during the recent partial federal shutdown.221 The President apparently violated the law by telling police not to worry about injuring suspects during arrests;222 telling border agents to not let migrants in;223 improperly modifying an official weather map in an attempt to cover up his earlier error is describing the likely path of a hurricane;224 and is continuing to allow a White House federal employee to routinely violate the Hatch Act.225 Finally, the President may consider his personal financial interests in setting and implementing U.S.

218 Barr defends Trump’s use of executive authority, slams impeachment hearings by Tal Axelrod, The Hill, November 16, 2019.

219 New evidence shows contact between Trump official and Republican redistricting expert over census citizenship question, contradicting earlier DOJ claims by Tara Bahrampour, The Washington Post, November 12, 2018; Wilbur Ross and the Trump War on Truth by The Editorial Board, The Washington Post, September 10, 2019; It’s Not Nice to Lie to the Supreme Court by Linda Greenhouse, The New York Times, July 3, 2019.

220 ‘Take the Land’: President Trump wants a border wall. He wants it black. And he wants it by Election Day by Nick Miroff and Josh Dawsey, The Washington Post, August 27, 2019. See also: Trump has no trouble gutting the law to build his wall by Editorial Board, The Washington Post, August 29, 2019. Also see: ‘Take the Land’: Trump Promises Pardons for Law-Breaking by Paul Rosenzweig, Lawfare, September 3, 2019; Trump is Ordering Crimes to Get Wall Built Before Election by Jonathan Chait, The National Interest, August, 2019.

221 Trump officials broke law by using entrance fees to keep parks open, watchdog says by Juliet Eilperin, The Washington Post, September 5, 2019.

222 Trump tells police not to worry about injuring suspects during arrests by Mark Berman, The Washington Post, July 28, 2017.

223 The President of the United States Told Law Enforcement to Break the Law by Jack Holmes, Esquire, April 9, 2019.

224 Why President Trump’s Sharpied weather map was likely a crime - and should be by Jamie Pietruska, The Washington Post, September 6, 2019. Also see Here’s Why U.S. Law Prohibits Claiming That a ‘Counterfeit Weather Forecase’ is Official by Mahita Gajanan, Time, September 5, 2019.

225 Federal watchdog agency says Kellyanne Conway should be fired after violating the Hatch Act by Catherine Kim, June 14, 2019.

51 foreign policy. 226

D. Congressional/Executive Branch and Major Donor Republicans: These groups would also likely be highly motivated to retain Mr. Trump as President, since he serves as the Chief of the GOP tribe. In this position, he would be able to continue with one-tribe/one-party rule and thus able to nominate additional “conservative” judges, help GOP politicians get reelected through fund-raising and turning out the base; speak against or veto actions the tribe opposes and further some of their other political aims.

E. The Republican Base: Mr. Trump generally enjoys a high approval from the GOP base.227 Apparently almost half of the Republican base would welcome Mr. Trump’s rejection of the checks and balances in the Constitution and would support the President not having to “worry so much about Congress or the courts.” 228

In addition, with the electorate being very politically polarized to the point that the GOP is now basically operating as a tribe, the Republican base would be very motivated to keep Mr. Trump and other Republicans in office, since they would likely see the election of a Democratic President as a disaster for them personally and for the future of the country.

A large number of “conservative”229 operatives and donors including the Koch Network, local, state and federal politicians; conservative lobbyists; “conservative” evangelical organizations and individual citizens have been actively working for decades to devise and implement methods and rationales to support actions and legislation that, in essence, favors one party or one tribe rule, i.e., rule of the majority by the minority. This activity has included implementing partisan gerrymandering; developing legal challenges such as “Citizens United;” setting up think-tanks and university programs supporting “conservative” and libertarian thought; providing final support and manpower for participating in public events and turning out “conservative” voters in local, state and federal elections; providing critical support and funding for the “Tea Party” movement; suppressing voting and voter registration; working to counter or defeat citizen initiatives that would ban gerrymandering and restore voting by felons; electing far-right GOP local, state and federal officials that will reject compromise and support extremist measures; implementing widespread mandatory arbitration measures in business transactions to minimize consumer’s ability to sue; supporting the new Roberts

226 In private speech, Bolton suggests some of Trump’s foreign policy decisions are guided by personal interest by Stephanie Ruhle and Carol E. Lee, nbcnews.com,, November 12, 2019; Trump's Turkey Corruption Is Way Worse Than You Realize by Tim Miller, thebulwark.com, November 26, 2019.

227 Poll: Who's sticking with President Trump, through trouble and tweets? His seemingly unshakable base by Susan Page, Savannah Behrmann and Jeanine Santucci, USA TODAY, October 29, 2019.

228 Republicans Now Are More Open to the Idea of Expanding Presidential Power, Pew Research Service, August 7, 2019. 43% of Republicans now say that the country’s problems could be addressed more effectively if presidents ‘didn’t have to worry so much about Congress or the courts’ as compared to 16% of Democrats.

229 The new Republican Party under Mr. Trump is not particularly “conservative.” Instead, the new far-right “radical” libertarian/populist orientation of the Republican Party under Mr. Trump favors abrupt changes away of position on many areas of previous bipartisan agreement such as respect for the rule of law and the Constitution; respect for rule by the majority; working to lower the federal debt; working to unite all Americans (in line with our de facto national motto and our pledge of allegiance to our flag); cooperating with our democratic allies; working to support the cause of human freedom and liberty; welcoming immigrants; acting in a humane way toward other peoples; and avoiding the praise and embraces of dictators. See, for example, How Democracies Die by Steven Levitsky and Dan Ziblatt, Crown, 2018 and Why the Right Went Wrong by E.J.Dionne Jr., Simon & Schuster, 2016.

52 narrow conception of the Commerce Clause; and placing extreme limitations on abortion and immigration.230

II. Opportunity and Means for Mr. Trump, Mr. McConnell, and Mr. Barr:

Simply because of the offices they hold, these three individuals have almost unlimited opportunities and means. As President, Senate Majority Leader and Attorney General and as key leaders of the GOP tribe, their positions apply to almost every aspect of American life. They all also have almost unlimited means at their command.

230 All the States taking up new abortion laws in 2019 by Jessica Campisi, Brooke Seipel, Alicia Cohn and Jessie Hellmann, The Hill, May 27, 2019; Dark Money, the Hidden History of the Billionaires behind the Rise of the Radical Right by Jane Mayer, 2016; Democracy in Chains, the Deep History of the Radical Right’s Stealth Plan for America by Nancy MacLean, 2017; Kochland, the Secret History of Koch Industries and Corporate Power in America by Christopher Leonard, 2019; and Why an Heiress Spent Her Fortune Trying to Keep Immigrants Out by Nicholas Kullish and Mike McIntire, The New York Times, August 14, 2019. Also see: Why Are Florida Republicans So Afraid of People Voting? By The Editorial Board, The New York Times, August 10, 2019; The Supreme Court, gerrymandering, and the Republican turn against democracy by Zack Beauchamp, www.Vox.com, June 27, 2019; The Vote Next Time by Jelani Cobb, The New Yorker, August 19, 2019; The Voter Suppression Chronicles by Bob Moser, The American Prospect, Summer, 2019; The Supreme Court has failed the Constitution by Michael Waldman and Eliza Sweren-Becker, The Washington Post, June 28, 2019; Voter-Suppression Tactics in the Age of Trump by Jelani Cobb, The New Yorker, October 21, 2018; and Voter Purge Rates Remain High, Analysis Finds by Kevin Morris, www.brennencenter.org, August 1, 2019, updated August 21, 2019.

53 Appendix B

Additional Discussion The Likely Reaction to Scheme Implementation

This appendix describes how the Congress, the states, the Supreme Court, and other parties might react if Mr. Trump were to implement the scheme described in this paper:

I. Congress: The composition of the new Congress, including the majority and minority parties in the House and the Senate, will be determined by the 2020 election. Once the election results are known, the House and Senate will choose their majority and minority leaders.

Due to Mr. Trump being the head of the Republican party and the “chief” of the GOP “tribe,” Congressional Republicans would almost certainly strongly support the President’s actions and Congressional Democrats would strongly oppose the President’s actions.

Of course, if the Republicans were able to gain a majority in both houses, one could expect that they would attempt to put the Congress on record as approving the President’s actions. Conversely, if the Democrats were able to gain a majority in both houses, they would likely attempt to put the Congress on record as disapproving of the President’s actions.

Except for the Joint Session on Certifying the Electoral Vote, it is as yet unclear what role the Congress will choose to play.

II. The States: It is assumed that the states would not be of one voice, with some supporting the GOP and other supporting the Democrats. It is unknown if the state governors and legislatures will attempt to play a role in the issue. Of course, the states may be able to influence the election by choosing electors that will vote for a particular candidate. As another example, state militias become possibly become involved at some point in “keeping order,” however that might be defined by whomever is in operational control.

III. The Supreme Court: It is likely that the President’s scheme would end up being considered at the Supreme Court.

Unfortunately, even if the President’s scheme is found to be unconstitutional, it is not clear what remedy would or could be provided, except to allow the announced winner, i.e., the winner of the election take power. Unfortunately, this would occur after evidence of extensive interference in the election process had been presented by Mr. Trump and his allies, thus requiring the new President to enter office with a somewhat shaky voter mandate. Still, this would be preferable to allowing Mr. Trump to further weaken our Constitution and the rule of law.

Presumably, we would muddle through. The most likely model for muddling through would likely be the patch-work model used after the 2000 Bush-Gore election, i.e., a legal fight quickly resulting in a Supreme Court ruling that, while not directly naming the new President, would

54 dictate the outcome of the election. As later analysis has shown,231 the resulting ruling was, to say the least, not a work of art or logic but, since Mr. Gore gracefully conceded the election, the ruling did allow the nation to move forward with a new Administration. However, it is not clear that a Bush-Gore type of process would work at this time since the losing party would be most unlikely to gracefully concede and call for unity. The level of partisan polarization and tribalism is very high 232 and many would likely see a decision in favor of the other side as a disaster for both their personal future and the future of our country.

Of course, the Supreme Court would likely want to avoid participating in the settling of a partisan dispute:

A. Under the Constitution, both the election and removal of Presidents is primarily the responsibility of the Congress.

B. The Supreme Count lacks any way to force the President to follow its rulings and would not want another situation like that forced by President Andrew Jackson, who famously refused to implement a ruling by the court.233

C. The Supreme Court is aware that it is not viewed as an impartial body by many Americans, with the partisan gap between being among the widest it has been in the last two decades.234 This gap is in part likely due to the unfortunate process used by the Trump Administration and the Senate to confirm the last two justices, thus ensuring that the Court now has a majority of right-wing members.235 This process included:

1. The undemocratic decision by the GOP Senate Majority Leader to ignore Mr. Obama’s nomination of Merrick Garland to the Supreme Court and therefore basically “steal” a seat from a Democratic president;

2. The GOP Senate Majority Leader’s use of the ‘nuclear option” to prohibit the use of

231 “Overruling Democracy, The Supreme Court vs. the American People by Jamin B. Raskin, Routledge, 2003.

232 Key takeaways on Americans’ growing partisan divide over political values by Carroll Doherty, pewresearch.org, October, 2017; Far more Americans say there are strong conflicts between partisans than between other groups in society by John Gramlich, pewresearch.org, December 19, 2017; The Partisan Divide on Political Values Grows Even Wider, Pew Research Center, October 5, 2017; ‘It’s just messed up’: Most think political divisions as bad as Vietnam era, new poll shows by John Wagner and Scott Clement, The Washington Post, October 28, 2019; It’s Official: Partisan Rancor Worst in Over a Century by Mike Dorning, Bloomberg, October 9, 2014; Political Divisions in U.S. Are Widening, Long-Lasting, Poll Shows by Janet Hook, The Wall Street Journal, September 6, 2017; Also see the main text for additional references concerning high levels of tribal behavior and partisanship.

233 Although Jackson is widely quoted as saying, "John Marshall has made his decision; now let him enforce it," his actual words to Brigadier General John Coffee apparently were: "The decision of the supreme court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate."). Source: https://www.georgiaencyclopedia.org/articles/government-politics/worcester-v-georgia-1832. Retrieved 9/12/2019.

234 Partisan gap widens in views of the Supreme Court by Claire Brockway and Bradley Jones, Pew Research Center, August 7, 2019; The Supreme Court, gerrymandering, and the Republican turn against democracy by Zack Beauchamp, www.vox.com, June 26, 2019; Gerrymandering and the Rising Risk of a Monopoly on Power by Nate Cohn, The New York Times, June 28, 2019; The Supreme Court has failed the Constitution by Michael Waldman and Eliza Sweren-Becker, The Washington Post, June 28, 2019; The Gerrymandering Decision Drags the Supreme Court Further Into the Mud by Richard L. Hasen, The New York Times, June 27, 2019; Is this how American democracy is supposed to work? No it’s not by Justice Elena Kagan, The Guardian, June 27, 2019; and Supreme Court Lets Trump Proceed on Border Wall by Adam Liptak, The New York Times, July 26, 2019; .

235 The Confirmation Wars Are Over, Partisanship won out - and contagion is spreading by Benjamin Wittes, The Atlantic Magazine, August, 2018.

55 the filibuster for the confirmation votes for the two justices and;

3. The abbreviated and apparently partisan and incomplete “investigation” used to justify the confirmation of Mr. Kavanaugh.236

Unfortunately, the Court has now become divided into two blocks determined by whether a particular justice was nominated by a Republican or a Democrat. Even more unfortunately, the existing “conservative” majority has generally shown a willingness to follow the President’s lead. This cooperation has included providing clearance of a Moslem travel ban apparently seeped in racism; choosing to ignore actions by partisan majorities in states to favor one political party over another (gerrymandering); providing the President at least short- term access to billions of dollars in so-called “emergency” funding to the President for his Wall; and allowing the Administration to deny asylum to migrants.

Finally, assuming the Supreme Court does get involved, reaching a decision may take some time, due to the difficulty of resolving the tension between the election timing requirements specified in the Constitution and the need for insuring that the votes are suitable for use; the expected tension between the powers of the executive and legislative branches (and the likelihood of involvement by the Senate and House); tension between the power of the federal government and the separate states; and tension caused by likely participation by additional parties. Of course, it is not certain that Mr. Trump would comply with the Court’s opinion.

IV. The Department of Justice (DOJ): Law enforcement is unlikely to forcibly remove Mr. Trump, at least in the short-term and may not move to remove Mr. Trump in the long term. As discussed in the main text, Attorney General Barr apparently believes in an imperial president,237 and has assisted Mr. Trump by, for example, distorting the findings of the Mueller Report and helping Mr. Trump avoid Congressional oversight. Therefore, Mr. Barr’s partisan assistance to Mr. Trump would likely continue at least prior to the scheduled inauguration date. This would likely include assisting Mr. Trump in constructing a legal case holding that the Supreme Court should cancel, modify, or delay the implementation of the 2020 election results.

V. The Military: Will they obey Mr. Trump when he orders them to enforce martial law to put down violent protests if Supreme Court or Congressional proceedings found in his favor? Likely so. If the Supreme Court and/or Congress rule against Mr. Trump, would they obey Mr. Trump if he asked them to support his continued refusal to accept the results of the election? Probably not. I hope and expect they would choose to honor their oath to defend the Constitution.

VI. Other Governmental Organizations: It is not clear what role other key government organizations would play in this issue:

A. The possible role of Mr. Pence, as President of the Senate and the individual named by the

236 This topic is now back in the news. See: Calls for Kavanaugh’s Impeachment Come Amid New Misconduct Allegations by Sandra E. Garcia, The New York Times, September 15, 2019.

237 Bill Barr’s Dangerous Pursuit of Executive Power. He is using the office he holds to advance his extraordinary lifetime project of assigning unchecked power to the president by Donald Ayer, The Atlantic Magazine, June, 2019. Also see: No Holds Barred: Trump and his troops push for imperial presidency. With his compliant attorney general, the man in the White House is taking aim at the constitutional balance of powers. by David Smith, The Guardian, May 19, 2019 and: The 40-Year War, William Barr’s long struggle against congressional oversight by Representative Brad Miller, Preview of the Fall 2019 issue of “The American Prospect.

56 Constitution to count the electoral votes from the states, is unclear. Would he work to make his role key or would he consider his role primarily ceremonial?

B. White House Staff: It is assumed that they would continue to support Mr. Trump at least until the end of his term of office.

57