The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?

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.

 

618 thoughts on “The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?”

  1. These stupid Republicans can reverse this under equal protection clause. Votes from dead people, duplicates, non-citizens, and non-residents cannot be counted. Votes counted exceed registration rolls. The evidence is there. In Michigan, votes exceeded 350% of the registration rolls in urban areas. Democrats love to cheat. The Supreme Court will overturn the elections in those affected states and call for new elections. And Justice Alito has signaled such a move already. Everything else with the audits, recounts, and state legislatures is a waste of time.

    1. “Democrats love to cheat.”

      Stop painting Dems with a broad brush.

      There are people in both parties who are cheaters, one might guess.

      Maybe you’re projecting, Jeff?

      1. He should have said Democrats are more committed to cheating than anyone else. It’s a relative thing and Democrats blow the competition away. Those that listen to them are quite dull.

      2. Is the marauding plunderer, Mitt “Milquetoast Mittens” Romney, one of those Alpha male, meat-eating aggressors?

        Was is it “Mitten Romney’s March to the Sea?”

        Oh, Hells yes!

        1. Anon. @ 5:15pm:

          I didn’t “confirm[] the Democrat cheating,” which you’d know if you’d bothered to read (and understand) the article.

            1. So you didn’t bother to read the article, and you inferred something that I didn’t imply. If you’d bothered to read the article, you’d know that they compared data from MI to data from MN, claiming that the latter data was from MI, and using the mistaken comparison to come to a false conclusion about MI. It cannot “confirm … cheating” in MN either, for the same reason: you cannot come to an accurate conclusion when you mix up data from two different states.

      1. I think that even if you looked at the correct voter rolls you’ll find many more votes.
        This was casually dismissed by the Election officials as a common occurrence in Wayne County.

  2. Is there the possibility of enough fraudulent votes in a particular state could have swung the election?

    Get a court to declare that such a state is in need of a runoff of hand counted ballots with two choices. Nothing ever touched by a computer. Judges everywhere watching every single vote be counted.

    Suggestion: a simple 3×5 card ballot (with a dime-sized circular bingo marker to fill a circle in) which can be riffled through to see a ballot in the wrong stack.

  3. In all the excitement among objective journalists for Joe Biden’s declared victory, reporters are missing how extraordinary the Democrat’s performance was in the 2020 election. It’s not just that the former vice president is on track to become the oldest president in American history, it’s what he managed to accomplish at the polls this year.

    Candidate Joe Biden was so effective at animating voters in 2020 that he received a record number of votes, more than 15 million more than Barack Obama received in his re-election of 2012. Amazingly, he managed to secure victory while also losing in almost every bellwether county across the country. No presidential candidate has been capable of such electoral jujitsu until now.

    While Biden underperformed Hillary Clinton’s 2016 totals in every urban county in the United States, he outperformed her in the metropolitan areas of Georgia, Michigan, Wisconsin, and Pennsylvania. Even more surprising, the former VP put up a record haul of votes, despite Democrats’ general failures in local House and state legislative seats across the nation.

    He accomplished all this after receiving a record low share of the primary vote compared to his Republican opponent heading into the general election. Clearly, these are tremendous and unexpected achievements that would normally receive sophisticated analysis from the journalist class but have somehow gone mostly unmentioned during the celebrations at news studios in New York City and Washington, D.C.

    The massive national political realignment now taking place may be one source of these surprising upsets. Yet still, to have pulled so many rabbits out of his hat like this, nobody can deny that Biden is a first-rate campaigner and politician, the likes of which America has never before seen. Let’s break down just how unique his political voodoo has been in 2020.
    https://thefederalist.com/2020/11/23/5-more-ways-joe-biden-magically-outperformed-election-norms/

  4. The ultimate constitutional trick shot was watching Turley twist and turn what was an impeachable act. Lying about a personal sexual affair was impeachable, that had no foreign involvement, but withholding approved congressional funds passed by both houses of congress to aid a country to check a enemy and lying about why he withheld, to aid himself was okeedokee for Turley.

    1. Ah, the “Trump lies” narrative. Funny how that assertion never turns out to be supported by facts. Whether your instance of aid withheld is accurate or not, the Executive Branch controls all foreign relations. Congress cannot tell the Executive Branch what or how foreign affairs will be.

  5. “…But in choosing the President, the votes shall be taken by states, the representation from each state having one vote;…”

    1. In such circumstances as we now find ourselves, in this election, if it were anyone but President Donald John Trump, there would be now way. But it is President Trump, therefore, I would not bet against an ultimate Constitutional Win by President Trump. In fact, I will sleep better when President Trump does win! Ok, now let’s here it from the usual hater suspects, to bash my view as opposed to some worthwhile debate.

  6. Let’s hope not, that sounds like guaranteed riots. But we do need to clean up the process, from registration verification, strict adherence to oversight, thorough and open audits of elections and computer software. We need these questions to go away before it starts. The nation depends on it.

    1. Do you think Democrats will clean up the process when it works so well for them? Last time they were griping about Russian Collusion affecting the election, but when they “win”, no griping. If Biden does get “elected” there will be NO ACTION to clean up the process. They are just figuring out how to control it to their favor; wait and see!

      1. Paper ballots plus voter ID verification and ONLY solicited absentee ballots, not mass mallin ballots, is the ONLY system that provides a secure election going forwards

        Anything less is a cheat on the citizens

        We can be sure Democrats won’t allow it! Wont allow a fair election that is, with these wise measures.

        We should break up the union if they’re going to keep on cheating. Let’s have the divorce already

  7. 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.

    Now who would deny the use of a constitutional process to determine our next president? My guess is the party that isn’t confident in what the outcome would be.

    1. Calling what Trump is doing “constitutional” is a stretch. The provisions are there when there to take into account when no candidate gets a majority (such as when three candidates get electoral votes), or for when there is a tie. The process is not there for a candidate to bypass a clear win by sabotaging the vote certification process.

      1. Molly, the correct term for overthrowing the results of an election is a coup, and Turley is so morally bankrupt and lacking in principles, he doesn’t recognize it as such. The MIss Manners of Democrats arrived at the banquet with no pants on.

      2. Foolishness. They are not ” sabotaging the vote certification process” when they claim fraud and election rule violations.

        Tell us Molly G. What does one do when they believe there was fraud and election rule violations that provided the majority of votes to the side that committed those infractions of justice?

          1. More foolishness from someone that apparently doesn’t mind looking foolish. He probably should be ignored..

            That is exactly what the lawyers are doing.

        1. Depends on what you mean by “believe”. I may believe I am a Martian, with green skin and computer parts instead of internal organs, and therefore it is fraudulent to call me human, but such a claim is so absurd and lacking in factual support that it should be dismissed. The same is true for Trump’s claims of fraud, which have no basis in fact. This was the most heavily-monitored election in US history. Some states went overboard–requiring witnesses for mailed ballots, refusing to accept ballots postmarked by election day, but not delivered by a deadline, which is out of the control of the voter. The so-called “election rule violations” were not intentional, and could not possibly make up the 6 or 7 million more votes that Biden legitimately received.

          Unless Trump had legitimately won, which was unlikely not just due to the polls but due to the fact that he consistently polled at less than 50%, which is a record in the history of presidential polling, he was going to claim fraud. He predicted that before the voting ever took place.

          And…he’s never, ever, going to shut up about it, either.

        2. If you have evidence, then you go to court and prove it.

          If you do not have evidence but believe it anyway, then I would ask what your belief is based upon. I know a lot of people believed Obama was born in another country even after seeing his birth certificate – we really should not worry about what such people believe.

          1. “If you have evidence, then you go to court and prove it.”

            That is exactly what is being done. You realize there are videos and affidavits don’t you?

            1. Allan, you realize that the judges have so far ruled that those videos and affidavits don’t prove what’s alleged, don’t you?

              1. Really? What do you think the judge said about the video and affidavits. Which judge and which alleged misdeed?

              2. Anon. @ 5:47pm,

                FWIW, a lot of the affidavits were filed in Trump v. Benson (https://www.courtlistener.com/docket/18619867/donald-j-trump-for-president-inc-v-benson/). The Trump Campaign voluntarily dismissed that case, so the judge didn’t rule. According to Marc Elias (https://twitter.com/marceelias), who is tracking the cases for Democracy Docket, Trump and his allies are 1-35 (win-loss) for cases at this point, so if they filed affidavits with the other cases, apparently they weren’t compelling.

      3. The process is not there for a candidate to bypass a clear win by sabotaging the vote certification process.

        Hyperbole aside, the process exists with many paths to constitutionally challenge election results. Once those challenges succeed or fail, then we’ll have a President-elect. And yes, once that president is inaugurated, efforts to overthrow the results is a coup, as we’ve seen over the last 4 years.

        1. Except the coup is being undertaken by trump. Six million plus down, trying to overthrow large voting blocks in urban, non-white areas. Down by a hundred in the EC.

          The corpulent orange one gets frog walked out of the Oval.

          1. Except the coup is being undertaken by trump.

            You’re implying constitutional challenges are a coup. What do you have against legitimate voters in as you say urban, non-white areas ensuring their votes weren’t disenfranchised? That seems racist.

            1. What part of the constitution says an election can be challenged without evidence of actual voter fraud?

                  1. And evidence is exactly what trump *doesn’t* have.

                    Good. Now that we’ve established these challenges are going through a constitutional process, it will be incumbent on his attorneys to provide evidence to prove their case. And now that the U.S. Third Circuit Court of Appeals granted an expedited review for appeal, this will likely end up in the Supreme Court. Trump’s team is on a very short clock. Once this process is completed, the country will have their next president. You should relax if you believe that don’t have the evidence to make the case.

                    1. “it will be incumbent on his attorneys to provide evidence to prove their case”

                      Their motion was already submitted. You can read it and judge for yourself whether they prove their case: https://drive.google.com/file/d/1osi1PYYXRM__cWF7CJvFSiLLbGbFC8yM/view
                      Comments that I’ve read from some lawyers who’ve read it is that it’s weak.

                      “now that the U.S. Third Circuit Court of Appeals granted an expedited review for appeal, this will likely end up in the Supreme Court.”

                      I don’t think you’re paying attention to what they filed the appeal for, Olly. It isn’t so likely to go to SCOTUS.

                      It’s only about Judge Brann having denied their request to further amend their motion in district court. If they win the appeal, the case doesn’t go to SCOTUS, it goes back down to Brann’s court and they amend their motion, and Brann rules again, perhaps after having an evidentiary hearing first. If their appeal is denied, they can appeal that to SCOTUS, but SCOTUS doesn’t have to grant cert, and my understanding is that it is rare for them to grant cert to review the denial of a motion seeking leave to amend. According to Sasha Samberg-Champion (a lawyer whose comments I sometimes read), one time they did agree to review that is Foman v. Davis, 371 U.S. 178 (1962). He adds: “Foman says leave to amend should be freely given unless there’s a good reason not to give it, and sets out such reasons, such as undue delay, bad faith, etc. Here, the district court would seem to have acted well within its discretion pursuant to Foman.”
                      https://twitter.com/ssamcham/status/1331011450320588802 (screen shot of the relevant excerpt from Foman)

                      And again, if SCOTUS ruled in their favor, the case would then go back down to Brann’s court, where they’d amend their motion and he’d rule.

            2. You might want to take into account what judges are saying when they throw out trump bogus challenges, Olly…

              Or remain ignorant. Your choice.

              1. No, I believe they were explicit about it being a soft coup. Regardless, the constitutional process played out to necessary conclusion.

            3. Olly–the man of law and order, and natural laws–losing it because Q has disappeared and Parler is froth from the very same.

              His beliefs were puerile when he first arrived, now they are embarrassing. How many defeated lawsuits and appeals will satisfy Olly?

              He should take what’s left of his marbles and go home; fight another day, when his champion actually has a valid complaint.

              1. His beliefs were puerile when he first arrived, now they are embarrassing.

                I wear your recognition of my beliefs as a badge of honor. Thank you. On the other hand, it’s quite telling that you consider law and order, and natural laws to be puerile and embarrassing. That is embarrassing…for you.

                1. Good for you Olly!

                  However, you should brush up on your reading comprehension as the hyphens make it clear that I think you are puerile.

                  I’m sorry you can’t follow the structure of written words beyond a twitter length.

                  Your pretensions of being honorable are long spent.

                  1. His beliefs were puerile… And what beliefs are those? the man of law and order, and natural laws My reading comprehension is just fine.

                    Try again.

                    1. Drone on, Olly.

                      Look at the sentence before, note the hyphens, keep the concept in your puerile brain after the period.

                      You are so twittered/parlered out that you have no recognition of simple sentence structure anymore.

            4. Olly, I have noted that this Anonymous is the stupidest one on the blog and probably can be separated from all others. How long has he been so stupid? You said you were on the blog a long time.

              1. Barb,
                This particular Anonymous has used numerous ID’s, but he hasn’t figured out he can’t hide his left-brain disconnect. His latest tactic, when he’s not mimicking a remora, is to do the old I know you are, but what am I? grade school response.

                    1. Are you saying he is young and on this type of blog? He doesn’t sound normal or act normal? Could he be in the autistic spectrum?

                    2. Barb, I guess you’d have to define normal. Keep in mind that he and his fellow travelers applaud Gov. Cuomo getting an international Emmy for his Covid-19 “presentations”, after his “actions” forced senior homes to take in Covid-19 positive patients that resulted in thousands of deaths. Obama received a “Seinfeld” quality Nobel Peace Prize for actually doing nothing and Trump receives nothing but hate and contempt for his actions to bring about peace.

            5. The constutional chqllenges you speak of are, in reality, election tampering masquerading as something other than it is.

              1. The constutional chqllenges you speak of are, in reality, election tampering masquerading as something other than it is.

                I don’t live in your version of reality. So we’ll just have to disagree.

          2. We should pull the plug on the Union and dump all those urban areas into two rump coastal regimes.
            With no travel privileges to the interior. Except maybe sealed railroads or jets.

            West Coast, interior, texas, east coast. e pluribus, quattor

            Chicago? Population transfer out, resettled by Americans.

            1/5 Chicagoans were not even born here. easy in, easy out.

            no more fake elections. Voter ID verification, paper ballots, and only solicited absentee ballots in the old way, unsolicited mail in ballots banned

            And all social media now considered a utility. And other measures taken to restrict the mind-bending powers of financial interests through their corporate media assets
            The power of mass media to lie to the public, defanged

            Billionaires won’t control the Disunited States in the red areas, and then we’ll all be better off in the long run

            Divorce now!

            -Saloth Sar

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