WASHINGTON — The battle over Monday's Electoral College vote is the beginning, not the end. A larger campaign to undermine the legitimacy — and constitutionality — of Donald Trump’s presidency is likely just getting underway.
Discomfort with Donald Trump before and since Election Day, the divisiveness of the 2016 election more broadly, and the popular vote mismatch with the Electoral College result have produced yet another unusual moment in an unusual year.
Many Democrats and other opponents of Trump have been working to change the results of the election through the Electoral College vote on Monday — an almost-impossible-to-succeed effort to deny Trump a majority of the electoral votes as required to become president. Presuming that mission is unsuccessful, prepare for the next phase: Jan. 6, when Congress formally tallies the results of those votes.
At that time, as few as two members of Congress — one in the House and one in the Senate — could lodge an objection to the results of the vote in a particular state or overall. While similarly unlikely to change the outcome, given current circumstances, it would be another wrench thrown into the transition of power — and another effort to make the case of opposition to the coming Trump presidency.
But even then, don’t expect it to end. Efforts to undermine Trump’s presidency by Democrats and those Republicans who believe Trump is unfit for office — or violating his oath of office — almost certainly will continue, a cascading series of constant challenges.
In short, Monday could be the opening salvo of a new campaign against a president's legitimacy — a fact-based version of the racist, fact-free birther conspiracy. This time around, the questions raised appear to be legitimate — Trump’s international conflicts of interest are real and, according to the unanimous view of US intelligence agencies, Russian attempts to influence the election are likewise real. The problem this time, however, is that — for the most part — these are uncharted waters and there are no established solutions.
Like the birther conspiracy that plagued Obama (despite its falsity), the anti-Trump sentiment being stirred in the attempt to persuade electors to abandon Trump could continue to circle the political waters for years to come, playing a part in breaking down further yet another norm: the presumed legitimacy of the presidency. Trump would become the third president in a row whose legitimacy would be perpetually in question, reasonably or not, by significant numbers of opposite party.
It could continue until the issues are resolved or Trump is no longer president. What’s more, that’s likely exactly what Trump’s opponents want.
Big names in law, politics, and popular culture — from Laurence Tribe to Martin Sheen — have taken to encouraging the electors in states that voted for Trump to become so-called faithless electors and vote for Hillary Clinton or, at the least, a presidential candidate other than Trump in order to keep him from reaching the 270-vote majority needed to become the 45th president of the United States. Kate McKinnon, extending her Saturday Night Live Hillary Clinton character for another week, made the case in a Love Actually parody this weekend. Lawyers and politicians across the country are, in slightly more nuanced tones, laying out the same case.
The effort almost certainly will not succeed — and likely will not even come close to doing so. Trump’s Election Day results mean that 306 electors are pledged to support him on Monday. Thirty-seven electors would need to vote for someone other than Trump in order for the plan, such as it is, to succeed. What’s more, the electors would need to do so in the face of laws in more than half of the states barring electors from voting for anyone other than the popular vote winner in the state. (It also is true, though, that these laws are mostly untested in court and their constitutionality is questioned.)
Despite the difficulties, Federalist #68 — in which Alexander Hamilton discusses the role of electors, laid out in the Constitution and, subsequently, 12th Amendment — is suddenly being quoted everywhere.
Hamilton wrote that the constitutional convention was worried about “the desire in foreign powers to gain an improper” influence over governmental decision-making such as the selection of president and “guarded against all danger of this sort” by “not ma[king] the appointment of the President to depend on any preexisting bodies of men” but rather a group selected “for the temporary and sole purpose of making the appointment.”
More than 225 years later, social media discussion of #HamiltonElectors is the latest of countless efforts over the past year to keep Trump from becoming president.
Tribe, along with Norm Eisen and Richard Painter, published a memo on Friday regarding Trump’s coming international conflicts of interest — providing “ample reason,” Eisen tweeted, for electors to vote against Trump. The American Constitution Society (progressive lawyers’ answer to the Federalist Society) is also pushing the idea. Electors, unsuccessfully, sought an intelligence briefing for all electors about the Russian efforts to influence the election.
Attempts to buttress this argument with court backing in advance of Monday’s vote through a series of lawsuits in states that Clinton won has been, on the surface, uniformly unsuccessful. Every one of the lawsuits has failed.
While ruling against electors’ appeal based on the case presented to the court, however, the US Court of Appeals for the 10th Circuit on Friday night acknowledged in a footnote that “there is language in the Twelfth Amendment that could arguably support” the would-be faithless electors’ argument — pointing to a recent legal analysis of the issue.
Nonetheless, while nothing is certain until it happens (especially this year), there is no real reason not to believe that well over 270 electors will cast votes for Donald Trump and Mike Pence on Monday.
Those votes, however, are just one more step forward. Assuming that effort fails to stop Trump, expect to start hearing about Title 3, Section 15 of the US Code and “objections” to the electoral vote results. An objection can be lodged in writing by two members of Congress: one each from the House and the Senate.
Although rare, this step is not unprecedented. In 2005, Sen. Barbara Boxer of California and Rep. Stephanie Tubbs Jones of Ohio filed such an objection, specifically to the counting of the votes of Ohio’s electors in the wake of allegations of voting irregularities. The objection was rejected within a few hours, with only 32 members of Congress — all but one from the House — voting against the counting of Ohio’s votes.
It’s easy to imagine a House member and senator on Jan. 6 laying out the case, in writing, for why the Electoral College’s vote in favor of Trump should not stand. Back in 2005, Boxer acknowledged that the effort then was not to stop Bush’s re-election, but rather to highlight voting problems.
But, in all likelihood, none of these efforts will stop Trump from being inaugurated on Jan. 20, 2017. Prominent lawyers and scholars’ beliefs that Trump should not become president, however, could quickly turn into the ways in which they believe his presidency itself can and should be criticized — if not ended.
Enter the Emoluments Clause — the constitutional provision referenced in the Eisen, Painter, and Tribe memo and elsewhere — which bars the president and other federal officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
“While holding office, Mr. Trump will receive—by virtue of his continued interest in the Trump Organization and his stake in hundreds of other entities—a steady stream of monetary and other benefits from foreign powers and their agents,” the trio of scholars wrote. A handful of Democrats in the Senate already have made it clear they will not be dropping this as an issue.
It’s not just emoluments, either. On Friday, John Shattuck — a former senior State Department official and professor — raised what he called “the specter of treason” regarding the president-elect’s established and alleged ties to Russia in a Boston Globe op-ed. Specifically, Shattuck questions the implications of the fact that “Trump publicly reject[s] ... intelligence agency conclusions” about Russia’s involvement in the hacked Democratic emails during the campaign and likewise rejects further investigation from Congress.
The efforts aimed at opposing Trump are not like the birther conspiracy, insofar as they are based on factual concerns about real things. But, just as Donald Trump took credit for pushing the conspiracy theory about Obama’s birthplace until Obama released his “long-form” birth certificate, Monday’s Electoral College vote could be the first in a series of steps that opponents won’t stop taking until Trump releases information, including his tax returns, and cuts ties with his businesses — or leaves office.
This story has been updated to provide additional context.