Below is my column in The Hill on the possibility of contesting electoral certifications by key states. With the adverse ruling in Pennsylvania, the Trump legal team is still pledging new evidence of massive fraud as certifications are completed. The options for the team seem more and more reduced to the ultimate constitutional trick shot in engineering a fight on the floor of Congress.
Here is the column:
The Thursday press conference by President Trump’s legal team left many breathless as Trump counsel Rudy Giuliani alleged a global communist conspiracy to steal the 2020 election. While making passing references to credible election challenges over provisional ballots or “curing” rules, he repeatedly returned to the allegation of a purported massive conspiracy directed by Democrats to change and “inject” votes into state tallies.
It was a strange narrative that seemed to move away from the provable to the unbelievable. The question is, why?
One possibility: to raise sweeping allegations with insufficient time to resolve them in order to force an Electoral College fight. The idea would be to give license to Republican-controlled legislatures to intervene with their own sets of electors or block the submission of any set of electors. Concern over such a strategy was magnified when Trump called key Republican leaders from Michigan’s legislature to the White House on Friday.
Call it the “Death Star strategy.”
In “Star Wars,” a struggling rebellion was in full retreat on every front against an overwhelming force in the Empire. The rebels were left with just one strategy and literally one shot. Luke Skywalker had to skim the surface of the Death Star along a trench and fire a round into a small thermal exhaust port to travel down an air shaft and cause an explosion in the core reactor. Then poof! No more Death Star.
However, if this is the Trump team’s plan, it will make Luke Skywalker’s shot look like a beanbag toss.
The electoral ‘trench’
The “trench,” in this instance, is found in state election systems leading to the electoral equivalent of the “exhaust port” in the Constitution’s Electoral College. It is the Electoral College where the actual election of an American president occurs. Each state certifies votes to the Electoral College — a figure that adds up to the number of members the states have in the two houses of Congress, or 535. (In addition, for Electoral College purposes, the District of Columbia is given three electors, for a total of 538.) Thus, a candidate must have at least 270 electoral votes to become president.
To reach that “exhaust port,” Trump’s legal-team equivalent of X-wing fighters must get all the way down the electoral “trench” by creating challenges to multiple state certifications and deny Joe Biden the 270 threshold or claim those votes for Trump. The Trump team has focused on states such as Arizona, Georgia, Michigan, Nevada and Pennsylvania. If the litigation can create serious doubts over the authentication or tabulation of ballots, the Trump campaign could force fights on the floors of these state legislatures. However, after meeting with the president on Friday, the Michigan legislative leaders dealt that potential strategy a serious blow by saying they are unaware of anything that would change their state’s certification for Biden.
The electoral ‘shaft’
Once litigation introduces doubt as to the validity of the vote, the matter travels down the electoral version of the Death Star’s air shaft to individual state legislatures. This is when things move into some uncertain constitutional physics.
Article II of the Constitution states that electors are appointed “in such Manner as the Legislature thereof may direct.” All but a couple of states have directed that all of their electoral votes will go to the candidate with the greater number of statewide votes. The question is, what happens if legislators decide they cannot say with confidence who won the greater number of votes?
Such controversies have arisen before, as in 2004, when Democrats objected to counting Ohio’s electoral votes due to voting irregularities. The greatest controversy occurred in 1876 after a close, heated election between Republican Rutherford Hayes and Democrat Samuel Tilden. Like Biden, Tilden won the popular vote and more electoral votes (184, to Hayes’s 165). The problem was that rampant fraud was alleged in Florida, Louisiana and South Carolina. (For example, South Carolina reported 101 percent of voters voting). The controversy led to rival sets of electors being sent to Congress. A long fight led to the improbable election of Hayes as president.
For Trump to pull off a similar maneuver, he would need the cooperation of Republican state legislators. He also would face collateral litigation over who should certify electors — a state’s governor or its legislature. In Bush v. Gore in 2000, the Supreme Court ordered an effective halt to further litigation, but that was just one state. It is possible that such multistate litigation could push the challenges beyond the end of the safe-harbor period for certification on Dec. 8 or beyond Dec. 23, when those votes are supposed to be submitted to Congress. Indeed, it could force a fight on Jan. 6, when Congress gathers in joint session to count the votes.
The electoral ‘reactor’
Only then would the action make it into the “core reactor” equivalent of our constitutional system — the joint session of Congress. This would trigger a law passed after the Hayes-Tilden election. Unfortunately, the Electoral Count Act (ECA) of 1887 is hardly a model of clarity and would become the focus of litigation itself. Under some circumstances, Vice President Pence could issue a ruling in favor of Trump, but one senator and one House member could challenge his ruling.
What if there were insufficient votes overall to elect a president? This is where we could see a rare court intervention in a contested election in Congress. The ECA is ambiguous on what it means to have a majority of electors; it does not clearly state whether a majority of “electors appointed” means a majority of the 538 electors (270) or simply a majority of those electors accepted or successfully certified (allowing election with less than 270 electoral votes). There also are untested terms and provisions, ranging from the weight given to the decision of governors and the meaning of what is “lawfully certified” or whether votes were “regularly given.”
There also is the potential under the 12th Amendment for a “contingent election” when there is a tie or insufficient votes. In such a case, Trump could win again. In that case, the vote for president is held in the House based on state delegations, not individual members. Republicans likely will control a majority of state delegations in the House, despite having fewer seats overall — as well as the Senate, where Pence could be reelected.
Again, that is all quite a long shot — a bit more than Luke Skywalker’s boast that he could sink it because he “used to bull’s-eye womp rats in my T-16 back home.” It is enough to make an Ewok weep. All one can say, to paraphrase Han Solo’s parting words before heading out for Death Star, is “Hey, Rudy. May the Force — and the ECA — be with you.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
612 thoughts on “The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?”
I will start off by repeating what was said in the response you are presently responding to, “That is not logical, but I wouldn’t want to tell you what to do.”
You say: “I do not agree that reality is always perceived significantly differently by everyone.”, but what you are actually doing is hedging your bets. “is always” and “significantly” are nowhere near as definitive as you are.
“Nope. I am going to ignore “emotions”.”
You can say you are going to ignore emotions but you haven’t done that very well in your responses. The rest of the people sitting around the table will likewise be influenced by their emotions.
“common understanding”, do you wish to define what that phrase means in reality and to what the public perceives. Many on the blog have a common understanding that Obama was a peace loving President and that Biden won the election with the least fraud ever.
“a question of FACT.”
Known only by the person committing the act.
>>“No, we resolve an issue but the return to your former argument that definitions and fuzziness do not exist.”
>I have not siad they do not exist. ”
Fine, discussion over. But, we have gone through this exercise over and over again, yet the discussion doesn’t end. There is a need to recognize that men discern reality differently and that means definitions are necessary and fuzziness will always exist in complex human decisions such as the one’s under discussion.
>>“Why are you arguing? Human decisions are loaded with fuzziness and definitions are a common way of making sure one is understood.”
But we are not talking about all human decisions. We are talking about a very narrow subset of them.”
What makes this subset any different from other decisions? Most people recognize that dangerous or difficult situations have to be thought about in advance. The same with this subset you talk about which makes the urgency of definitional understanding that much greater to reduce the fuzziness in advance so a quick response can be performed.
“We have been through this all before. You do not like being compared to the left”
I have already discussed how juvenile that type of intentional slur is. It doesn’t accomplish anything.
“You can not make the world work if definitions precede reality”
I don’t. I keep saying that true reality is distorted by human explanations. True reality is not reproducible by mankind. I separated the two and you tried to force them together.
>>“Why don’t you show me where you think that happened. ”
>Any time you start speculating about what I am thinking.”
By necessity, any time I respond I have to speculate what your words mean. Are you now saying the libertarian response to your statements is and only is, yes I agree?
“Stick to what I have said, not speculation about what I am thinking.”
Instead of ordering people around why not simply say that the response (quote it) was not what you were thinking and then explain why not. That method is simpler and faster. It is also more libertarian than ordering people around.
“Typically when I criticise you for claiming to know what I am thinking – it is because you have gotten that wrong, and that invalidates your argument.”
In other words, should one interpret what you say in a fashion you don’t like, you want the ability to stamp “INVALID RESPONSE” to what the other person said? Is that the nature of a free libertarian or a bureaucrat?
>>”“You may not need definitions but others do.”
To understand what another is saying one needs to use appropriate definitions. To act in the fashion you are talking about one doesn’t need words and therefore one doesn’t need definitions. However, later when explaining the events one again needs to use appropriate definitions.
>>” It is totally appropriate to stay on topic.
>Except that you are off topic.”
To say that one finds it appropriate to stay on topic is off topic? What are you thinking?
John:>>>“Again changing the definition does not change reality.”
S.>>We have agreed on that since day one, but yet you continue to argue.
John>We have not agreed on that. If we had – the argument would be over.”
I believe definitions or their change does not change reality. It seems you think such a change changes reality. That is a problem.
“In fact we go further – not just mistakes, but even accidents caused by recklessness are immoral.”
John, we utilize the word morality in different fashions but according to you we need not have a definition to know what each other is talking about. We can go about without definitions because according to what you write you have the only tried and proven definition.
According to you a driver that had an accidental fender bender is now an immoral individual.
“When you jump from what I have said to what I am thinking, you jump the shark.
Stick to what I have said. ”
I reply based on your words. Now I find there is not just one rigid meaning behind every word but every response should be a specific response that is just as rigid and comes from the same proprietary rule book as the definitions.There is no freedom of thought in this ultra-libertarian world you are creating.
I won’t continue with the rest of this post that fails to recognize what was said by another and is highly repetitive.
“We have been through this all before. You do not like being compared to the left”
No. John, I don’t care that you compare me to the left. The use of the phrase as a slur means you have no rational argument and have to resort to puerile behavior. There is no reason you can’t provide only your explanation, leaving out the slur. That makes it your problem not mine.
You have a problem that rigidity cannot fix. People need definitions to communicate and even then there is virtually always some degree of grayness or fuzziness between them whenever the conversation involves complex dealings that also involves human behavior. I think most people will agree with that statement. It is virtually the sum total of our arguments that you continuously wish to expand on.
Reality is something different. It is something man tries to define but never really gets it quite right so that there is total agreement and understanding between various people. You probably find it very frustrating that you cannot provide me with a satisfactory definition of the important words mentioned over and over again that doesn’t leave a bit of grey.
If I say the mafia gets its way by killing people – that is a slur, it is also true.
John, it depends on how you say it. There is no reason to express what you wish to say as a slur. You have adequate abilities to express it another way. That is frustration that cannot be controlled. It is emotion that humans have even when deliberating the most important things and that can increase fuzziness and the need for improved definitions.
Your best form of debate is fact and logic, not slurs.
I expect that those not on the left will not engage in the same stupid arguments and tactics that the left does – except against the left.
If you consider that expectation being slurred and insulted – that is your problem – not mine.
I have been about as gentle as I can in pointing out this error on your part – short of ignoring it – which I am not going to do.
Words serve to communicate about reality – NOT the other way arround. Words do not change reality. That fallacy is to core to all of Orwell’s dystopia’s Please do not channel Oceania.
Failures of an weaknesses in human perception do not alter reality.
Everything is not equal. All opinions are not equal. Most opinions are wrong – that is not arrogance on my part – it is a matter of math statistics and probability.
Alynsky’s rules for radicals is a list of tactics that are both fun and effective. But not a single one cares whether the objective is moral, or correct.
One can write a book on what was said and what was left out. In the end a slur is a slur whether meant or not. If it appeared like a slur and wasn’t meant to be there is a way to make the slur disappear. That way is not to write a book.
A slur is a slur – and sometimes they are necescary.
valid argument do not become invalid because you are offended by them.
If you do not want to be compared to the left – do not adopt their tactics and arguments – atleast not with respect to those not on the left.
I am not apologizing to you for criticizing some of your arguments as tactically or logically equivalent to the fraudulent arguments made by the left.
Remember when you defame another person – truth is an absolute defense.
“valid argument do not become invalid because you are offended by them.”
No offense. I didn’t know you were into slurs and insults.
However, since you say truth is an absolute defense, why not show the remarks made that you consider were leftist remarks, and not remarks that anyone on either side might make. Not liking an argument is not a reason to defame and it isn’t a good defense.
I have already done as you ask – as gently as possible.
I would not have been nearly so kind to those on the left.
I would further note that I chided you for using the arguments of the left.
If I accused you of using the arguments of Friedman – would that be a slur ?
You have repeatedly accused me of being Randian – I am not. But I do not take that as an insult.
John, first, I want to compliment you on your many excellent replies that you have made on the blog. They are informative and enjoyable even if a little long.
I want you to know I never accused you of being a Randian. I never thought you were. I stated that like a Randian you had your own proprietary dictionary that you referred to even though you wouldn’t put those words into writing.
It didn’t bother me when you used a slur instead of an argument. I was troubled by your misuse. What you called a leftist argument was an argument used by all sides of the aisle so obviously there was a better way for you to express yourself and be more accurate at the same time.
My thoughts caused you upset because they didn’t conform to the thoughts you think everyone should carry. You are looking more for conformity than libertarianism in argument. That should answer your question about your Friedman concern.
I do not recall accusing you of being a leftist – I noted that you were sometimes employing the same tactics and arguments as the left.
That remains True.
I appreciate and respect your comments to, but you do not get a free pass on everything just because you are mostly right.
I do not care about your Randian attacks. I am not a Randian. At the same time though not accurate I am not that insulted by the comparison. There is significant overlap between Rand and classical liberalism. Rands problems have more to do with the cult like nature of objectivism than much of her philosophy.
Your “proprietary dictionary” claim is pure nonsense and demonstrates you are not reading my arguments.
I am have rejected offering any definition of words that MUST have near universal understanding – without referencing law or dictionaries.
“It didn’t bother me when you used a slur instead of an argument.”
Sorry S. Meyer – the claim that you are/were using leftist tactics and arguments IS AN ARGUMENT.
It is only a slur because you do not like the comparison. One you can avoid by not making leftist arguments or using their tactics.
“I was troubled by your misuse.”
“What you called a leftist argument was an argument used by all sides of the aisle”
Yes, increasingly some on the right are using both the tactics and the arguments of the left.
That is a mistake. Alinsky’s tactics as an example are effective and not actually ideological.
But employing them is divisive and creates rather than solves problems. Alinsky’s rules for radicals can help bring a minority to power, but it harms any ability to govern.
And leftist philosophy is vile and nihlist
“so obviously there was a better way for you to express yourself”
Not planning on changing.
“and be more accurate at the same time.”
I am fine with my accuracy on the points we disagree on.
“My thoughts caused you upset”
Again – do not pretend to know my emotions. That too is mostly a leftist tactic.
Argue the facts – not what you think are my feelings (or thoughts).
“because they didn’t conform to the thoughts you think everyone should carry.”
It is pretty essential if we do not wish to have chaos, to have a strong shared core set of values/principles regarding when force is justified and when it is not.
“You are looking more for conformity than libertarianism in argument.”
The constraints on the use of force are pretty much the core of pretty much all libertarianism, classical liberalism – even Kant.
“I do not recall accusing you of being a leftist”
You didn’t. As I said in my last response, “ What you called a leftist argument was an argument used by all sides of the aisle so obviously there was a better way for you to express yourself and be more accurate at the same time. “
What tactics of mine are not used by the right or center. Be specific.
I have no desire for a free pass. Not calling a normal argument a leftist argument is not a free pass. Doing so is poor argument.
You wrote: “ I do not care about your Randian attacks. I am not a Randian. “ but I stated in my last response, “I want you to know I never accused you of being a Randian. I never thought you were.” It is a waste of time to discuss such things when they never existed in the first place.
“Your “proprietary dictionary” claim is pure nonsense and demonstrates you are not reading my arguments.”
No you are not listening to mine and if you were you would have provided definitions as requested, but you didn’t yet you depended on others to rely on your proprietary dictionary.
When you continuously portray another’s argument wrongfully and in a pejorative manner it is a slur You diverge to Alinsky, “That is a mistake. Alinsky’s tactics as an example “. Yes, not infrequently I use Alinsky type tactics and for good reason.. They are not tactics of the left in particular rather the right doesn’t use them as well. Using that name would not be inaccurate and would not be a slur as long as you are using the correct term at the time. I believe the right needs to forget about graceful actions of thought and think about Alinsky.
“What tactics of mine are not used by the right or center. Be specific.”
Rules for radicals is available in wikipedia.
Absolutely those tactics are increasingly being used by all.
But they started with the left.
Trump si quite good at them – which throws the left into a tizzy, and makes the right happy as they enjoy watching leftists get hoist by their own petard.
But Alinskies rules – though written for the left are non-partisan. They are also illegitimate.
They create conflict, they accomplish through power, not legitmate argument or persuasion.
We should all avoid using alinskies tactics is we want a stable government.
“Not calling a normal argument a leftist argument is not a free pass.”
Alinskies tactics are NOT normal. “Doing so is poor argument.”
“No you are not listening to mine and if you were you would have provided definitions as requested,”
You response proves you either did not read or did not understand what I have said.
“but you didn’t yet you depended on others to rely on your proprietary dictionary.”
I do not depend on others at all. My expectations are rooted in the necescary limited common standards that MUST predate and precede dictionaries.
We teach children proper behavior – before most of them can read – in part we tech them right and wrong, but in part we just get them in touch with concepts of right and wrong they already know.
“When you continuously portray another’s argument wrongfully”
You are doing that to my argument constantly – you insist I am using a personal defintion – when I have stated repeatedly that terms like justified use of force are determined in the context of government and law not by dictionaries and law books. but by near universal understanding. Not “My understanding” But everyone’s.
Does everyone agree on the nuances – nope. That is one reason law and government must be limited – they are constrained to what there is near universal disagreement.
“in a pejorative manner it is a slur You diverge to Alinsky, “That is a mistake. Alinsky’s tactics as an example “. Yes, not infrequently I use Alinsky type tactics and for good reason.. They are not tactics of the left in particular rather the right doesn’t use them as well. Using that name would not be inaccurate and would not be a slur as long as you are using the correct term at the time. I believe the right needs to forget about graceful actions of thought and think about Alinsky.”
Are you really fixated on the difference between calling a tactic and alinsky tactic and one of the left ?
If it will assuage your ego I will modify my claim to “you use alinsky;s tactics” rather than those of the left – a distinction with little difference. Though absolutely the right is learning to use the same tactics.
Regardless, those tactics are problematic – they do not lead to the resolution of problems. The increase rather than decrease conflict.
And they are all fallacious.
That still leaves the problem that many arguments you use are also leftist arguments. You constant claims that because perception is imperfect, that “fuzziness” leads to all things being equal. We may not be able to acheive black and white. But we can have very very small grey areas – which in effect is nearly the same.
All ideas are not equal – not even close. All opinions are not equal. Everyone is entitled to voice their opinion. But respect for an opinion, or argument must be earned.
All arguments that devolve to equality or equity are leftist arguments and they defy the real world, nature.
The only equality that exists is equal rights before the law. We are not equal in any other way. Our opinions are not equal.
“But they started with the left.”
Do you think the individual rules of Alinsky were not used by all types long before he was born? Alinsky united them into one list. That does not make them leftist.
Take the first rule, “ Power is not only what you have, but what the enemy thinks you have. ” Even the fish in the sea have conformed to that rule. The markings of some fish make them look bigger than they are.
No, it is not the use of Alinsky rules that make one sound like a leftist. That is a fallacious argument. Do you have specific statements in mind that I made? In order to make that type of remark, one would expect you to copy the argument made and prove your case. I wait for your copy and paste demonstration.
“But Alinskies rules … They are also illegitimate.”
If they are illegitimate then you should have no problem proving it for all 12 rules. Take this rule: “Make the enemy live up to its own book of rules.”
Is that illegitimate? Are you saying that your opposition can make rules and then not follow them? The left is filled with hypocrisy. I say make them live up to their own rules. That is not illegitimate. It is common sense.
You are used to arguing using your own ground rules and your proprietary definitions. I touched on that a while back when I expressed your not so libertarian desire that I conform to your definitions. More recently you used a slur to push me to do so by calling my arguments leftist arguments when they are rational arguments put together into a book by a leftist named Alinsky. Are you too sensitive to confront your opponent with a powerful argument that he might find offensive? The usage of only facts frequently fails to put things into context. You want clean lines, but the world is not clean. It is messy. I discuss the real world as it is while sometimes you discuss the world in a form that will never exist. That is the same mistake made by leftists.
“Alinskies tactics are NOT normal. “Doing so is poor argument.”
Is “Make the enemy live up to its own book of rules.” a bad method of dealing with opposing ideas?
No John, in our discussions I will not permit you to make your own rules and provide only your definitions. I am much more libertarian than that. 🙂
I don’t wish to go further at this juncture for I think I have made my point that applies to the rest of your arguments as well. The final thing I wish to say has to do with your belief that there is a “near universal understanding.” of things that you choose not to define. If such near-universal understanding existed it should be easy to define, but apparently for you, it is not. I caution you against using the phrase near-universal understanding. Without a definition, it is nothing more than a cop-out.
“Those pushing the nonsense that 2+2=5 – or anything else are fixated on the claim that these are all just symbols or words and they can mean whatever we want – which is just an extreme form of your argument.”
You say this while I am trying to establish more rigid definitions for things we perceive while you promote your specific perception even though you agree reality can be perceived differently by different people. That is not logical, but I wouldn’t want to tell you what to do.
Real numbers as used in counting are quite different from thoughts, emotions and perceptions.
“You say this while I am trying to establish more rigid definitions for things we perceive”
If you say so.
“while you promote your specific perception”
I am very specifically arguing that in a narrow domain our “perception” – as manifest by our actions, and by general societal a posteriori judgement regarding those actions is near universally the same.
“even though you agree reality can be perceived differently by different people.”
I do not agree that reality is always perceived significantly differently by everyone.
“That is not logical”
Please note the gulf between your assertion and mine.
Both are true. That quite litterally means the logical contradiction you think exists does not.
“Real numbers as used in counting are quite different from thoughts, emotions and perceptions.”
Nope. I am going to ignore “emotions”.
we think in symbols. I am guessing you did not watch the darkhorse VLOG.
You can litterally and correctly say that 2 + 2 = 4 is just symbols and we can replace that with 2 + 2 = 5 and still be correct.
But you can not do so without devestating consequences – because enormous parts of the world of humans will come to a grinding halt if the reality attached to those symbols is arbitrary.
Exactly the same thing is true about force and justification. We must universally agree on significant parts of what constitutues justifiable force or the world does not work. There is little room for complexity and fuzziness with regard to the initiation of force and its justification.
Too be clear I do not propose MY definition for those terms. I state that there must be a common understanding – whether it is defined in words properly or not.
John Say is spamming this forum with interminable posts about liberterian talking points. How about giving it a rest John Say so that other people’s comments can be found and not just your endless argument with Meyer droning on and on forever. It’s very selfish of the two of you. I suppose you are proudly selfish however so maybe Meyer will listen and give it a rest!
John Say is posting his remarks on an old thread that no one else is using. You have the ability to unsubscribe to that blog or delete his posts as they come in. Maybe you are unable to understand what the discussion is about so of course it would be of no interest to you.
Where is the selfishness? We have seen comments from anonymous posters that contain nothing but insult. You may or may not be a part of that but I would think that was far worse yet you didn’t comment on that.
“John Say is spamming this forum with interminable posts about liberterian talking points.”
You are free to have that oppinion – another “libertarian talking point” – in left wingnut world you are NOT free to have whatever oppinion you want. And who knows I might be a handicapped trans person and your oppinion would be a microagression.
“How about giving it a rest John Say”
Why ? Myu posts do not harm you in anyway.
“so that other people’s comments can be found”
Ctrl-G in most browsers will allow you to search for whatever you want.
Your inability to use tools is not my problem or responsibility.
“and not just your endless argument with Meyer droning on and on forever.”
So do not read my posts.
Do not respond.
You are perfectly free.
“It’s very selfish of the two of you.”
How so ? Have we taken something from you that is yours ?
Have we taken something from you at all ?
“I suppose you are proudly selfish however so maybe Meyer will listen and give it a rest!”
You seem to think that making stupid assertions transforms them into truth.
Your claims are both false and irrelevant.
There is no selfishness to the use of an unlimited resource.
But if there were the argument would be irrelevant.
“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind…”
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