Saturday, October 24, 2020
The coronavirus pandemic was always going to make the 2020 election uniquely complicated, and Donald Trump’s norm-busting style was always going to make it tense, but headlines in recent days have started to read like political thriller plot lines. We’ve seen Iranian skullduggery, dummy ballot boxes and mysterious threatening emails. Congressional Democrats are pleading with the military to respect a peaceful transition of power. A poll shows that barely a fifth of Americans believe this year’s election will be “free and fair.” There’s concern about violence, especially by militias and white supremacists. Some Americans are even laying in extra food and water, fearing what comes next.
Americans have little experience navigating disputed elections at this scale, and none at all doing so with a president hinting he might not leave office if he loses.
So what could we really be in for after November 3? Beyond a vague, crippling sense of dread, a feeling informed by hours of late-night doom-scrolling, what could actually go wrong?
Three months ago, POLITICO Magazine surveyed experts about what could go wrong on Election Day itself—from voter suppression to sinister “poll-watchers” to complete voting chaos—and as the day approaches we asked more than a dozen election, constitutional and national security experts about the concrete problems they’re planning for once the polls close.
Some have already been involved in “wargaming” scenarios for a bitterly contested election; others have been busy gathering legal memos to plan for this contingency or that or enlisting corps of lawyers and observers to deploy on Election Day and to any trouble spots in the days that follow. Their fears run from a narrow election night Trump lead in Arizona to a reprise of the 2000 “Brooks Brothers riot”—this time with AR-15 rifles—to the outsized importance that might weigh on Montana’s sole congressional race if the presidential race ends up in the House of Representatives.
“Every nightmare scenario begins with the early states not being decisive and the absentee vote in Pennsylvania, Michigan and Wisconsin being outcome determinative. We’ll know within four hours of polls closing whether we live in that world.”
“If Biden wins by 2, 3, 4 points, we’re in this world,” says one Democratic strategist who spoke anonymously to avoid letting on that his group is involved in preparing for a contested election. “The 4-to-6-point range is still pretty significant. Even if there are no shenanigans and it’s a clean count, the Electoral College bias probably requires getting to 3 or 4-point margin of victory for a Democrat before you win the Electoral College too.”
What should we start worrying about, and when? Below, we’ve pulled their insights into a chronological guide: What to watch for in the minutes, days, weeks and months after voting ends on Nov. 3.
Few scenarios seem more likely, and more indicative of trouble ahead, than the candidates rushing out on election night to claim victory long before the votes are fully counted. “If you think about the fog of war in the 24 hours after the polls close, there’s going to be a competition to explain what’s taking place by the candidates, the news media, perhaps even foreign actors,” Stanford’s Persily says.
Changes in voting behavior and reporting patterns in recent years have led to what political scientists have taken to calling the “blue shift” or “red mirage”—a rush of Republican votes reported early that give way to more Democratic votes as more jurisdictions and ballots are counted. . . . . States like Arizona, for instance, have consistently seen a move of about 4 points in favor of Democrats as final votes are tallied. Nationally, when Trump took the stage to declare victory at 2:49 a.m. ET in 2016, he led Hillary Clinton by a million votes—57 million to 56 million—but the final tally had Clinton beating him in the popular vote by nearly 3 million, 66 million to 63 million.
[O]ne major anxiety is that Trump will seize on early favorable results to declare victory—before the election has been called either way—and point to any later shift as evidence of fraud. “After the votes are in, the game on his side is tell a different narrative about what happened—there was fraud and we won—and provoke an antagonistic or violent reaction to precipitate a law and order crisis,” says one election strategist, who worries Trump could then put pressure on states to shorten their counts.
The major social media sites are already planning to take steps to block such premature claims from spreading: Facebook will prohibit post-election “victory” ads on election night that are not backed up by independent assessments, and Twitter is preparing to label tweets that, in its words, “claim an election win before it is authoritatively called.” Activists, though, worry that such moves don’t go far enough: A coalition known as Accountable Tech argues that Facebook’s groups function is ripe to be weaponized by bad-faith claims of electoral victory.
North Carolina and Florida, two key bellwethers, both will likely report results relatively quickly on election night itself; early victories for Biden in either or both states will hint that Biden might be the clear winner within a day or so. And while a Trump win in either or both states wouldn’t necessarily foreclose an eventual Biden victory, it would likely mean that the nation would be in for a long period of uncertainty. And the longer the uncertainty, the greater the risk of, well, a lot of other problems cropping up.
It’s unlikely that in all but the biggest blow-out victory that the loser will concede this year on Tuesday evening, as is traditional, and so both parties will spend the night hunkered down in their respective legal and political war rooms, analyzing results and receiving reports from the field to determine what, if anything, will be worth disputing in the days ahead. Thus, the major threats in the first 24 hours or so after the polls close will likely take place in the streets or online.
The pandemic has raised numerous concerns this year about the threat from armed right-wing militias—groups more accurately described as domestic terror threats—that are primed to see Democratic or deep-state conspiracies in any results that don’t go their way. How—if at all—this threat manifests itself both during and after the election depends, in part, on where controversy erupts. Michigan and Arizona have particularly active histories with such groups, whereas, for instance, the threat is considered less in North Carolina or Pennsylvania.
Activists on the left have their own “Stopping the Coup” guide floating around online, urging quick action if Trump tries to claim a false victory or shut down an extended vote counting period.
Once street protests over the outcome of the election begin, they may be hard to turn off—particularly if Trump seizes on the civil unrest for a heavy-handed federal crackdown akin to this summer’s protests in Washington, D.C.
McCord says her main concern is that under normal circumstances, the nation’s leaders would be the primary voice for calm—but that this year, Trump has already indicated his willingness to stoke violence. “He’s probably going to egg it on, actually,” she says.
The post-election period will offer a fresh opportunity for [Attorney General] Barr, who has regularly falsely warned of voter fraud and promulgated odd claims to stoke worries about the legitimacy of elections, such as erroneously saying his department had indicted a man in Texas for falsely voting 1,700 times.
In the first hours after the polls close—or even before polls close—Barr’s Justice Department might seize on real, over-hyped or imagined questions of fraud or voting irregularities to publicly launch investigations that would help Trump build a narrative of an illegitimate election.
Earlier this month, more than 1,000 Justice Department alumni, from both Republican and Democratic administrations, signed an open letter saying they were worried about what Barr might do. “We fear that Attorney General Barr intends to use the DOJ’s vast law enforcement powers to undermine our most fundamental democratic value: free and fair elections,” they wrote.
[T]he biggest cyber threat is likely from groups pretending that they changed votes. The period of uncertainty after the election provides a ripe opportunity for malign actors—foreign or domestic—to attempt to undermine Americans’ faith in their own democracy. Accomplishing that doesn’t require the hard work of actually changing official vote tallies—which is hard to do and nearly impossible to do at scale given the decentralized nature of the U.S. voting system. Hackers might target news organization or state election websites to make it appear a losing candidate actually won—Russia attempted this very trick in a Ukraine election . . . .
Given Trump’s demonstrated proclivity to amplify false claims about the election, trouble could particularly arise from the second- and third-order effects of any such claims—for instance, if Trump, Barr, or state election officials use such disinformation to cast doubt on the election, launch investigations and court challenges, or even refuse to certify election results.
The biggest challenge here will likely be closely fought Pennsylvania, which as of a Monday night decision from the Supreme Court, will continue accepting ballots postmarked by election day for three days post-election. Across the country, questions will be arising about which ballots get counted and included in the final tallies. The drama is most likely to take place in counting offices and courtrooms, with legal teams squabbling over signature-matching, “naked ballots” and other suddenly crucial quirks of local election rules.
In Pennsylvania, media and election officials are racing to educate voters—candidates are even literally posing naked—about the need to put their ballots inside a “secrecy envelope” and warning that under an antiquated law so-called “naked ballots” will be discarded; election officials had tried to suspend the rule, but lost a court fight against the Trump campaign and the Republican National Committee.
Experts have their eyes on Wisconsin, Michigan and Pennsylvania, crucial swing states that will likely be slow to report results because of their limited ability to process absentee ballots ahead of time. Nevada is mailing all its voters ballots, resulting likely in a slow count, too. There’s a scenario in which, if Trump wins every state he carried in 2016, he will net 260 electoral votes on election night itself and then the nation will settle in for the count—and the fight over the count—in those four remaining battlegrounds.
[O]fficials and experts worry that this year’s political tension and national backdrop might mean threats or acts of violence or targeted online or real-world harassment of election administrators, both at work and at home. “We expect and fear that there will be intimidation of vote counters,” the NAACP’s Ifill told the Aspen Institute audience last month. “Our fear is that this year rather than wearing khakis, they will be strapped with AR-15s. It’s critical to engage with attorneys general, with governors, to prepare to protect the election counters the week after so that we can ensure that all absentee votes are counted.”
If there are major legal fights post-election and challenges about vote counts, it’s almost certain that such disputes will end up at the doorstep of the Supreme Court. If Amy Coney Barrett is confirmed in the coming days, as the Republican Senate seems set to do, that would mean a decisive 6-3 Republican majority on the court, three of whom are Trump appointees. Trump has already made clear that’s exactly the line-up he wants to be judged by amid any election problems. . . . . The key figure to watch here could be Chief Justice John Roberts, who has worked carefully in recent years to preserve the court’s reputation as a neutral arbiter, even if that means siding with the more liberal justices on controversial issues, and would be under immense pressure from both sides in any post-election court cases.
Trump has attempted to throw all manner of sand into the gears of American democracy—hinting, if he wins, he might run for a third term, refusing to commit to a peaceful transition of power and repeatedly preparing his supporters for a moment where he refuses to concede the election.
Most voters don’t realize that the official process of counting, reporting and certifying state election results takes weeks every election, even when the winner is perfectly clear. If an early winner emerges in November, it’s unlikely (but not impossible) that the election will be derailed by this process.
Precise dates vary by state, but sometime in November or early December, each state has an official like the lieutenant governor or secretary of state officially certify the results, the official stamp-of-approval that makes clear who the electors are bound to vote for on December 14. Given enough controversy over voting results, or some nakedly partisan proclivities to usurp the process, it’s possible to foresee a scenario where state officials in, say, Florida, might refuse to officially certify the results—thereby casting the validity of state electors into doubt and potentially robbing a winning candidate of the 270-vote majority necessary to be declared president-elect.
Such a move, though, would hardly take place in a vacuum—it would almost certainly be preceded by a series of cascading problems or controversies upstream in one or more crucial states, and would almost certainly be met with legal challenges. And, it’s ultimately up to Congress to decide which electors to accept, so it’s not even clear that such a move would have a meaningful impact on the outcome.
This year, though, there’s a potential different twist in the Electoral College: The threat of Republican legislatures replacing Democratic electors before they have a chance to vote at all. In an article earlier this fall in the Atlantic, Barton Gellman reported that Republican operatives and the Trump campaign are “discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly.” Those loyal electors, chosen by the state legislature, would then presumably vote for Trump over Biden, actual results be damned.
Any such plan, however far-fetched and damaging to democracy, would hinge on (a) Trump’s losing, (b) his or the GOP’s casting enough doubt about the outcome and real vote totals that state legislators would feel OK enacting what would be a constitutional coup, and (c) the validity of those electors sustaining an inevitable court and congressional challenge. . . . . And the Supreme Court itself has already said in an unrelated case this year that “legislatures no longer play a role” in choosing electors, which would make the court battle to sustain a legislature overruling the popular vote an uphill battle in the extreme.
Many aspects of the election would have had to go sideways before Congress get involved in any more than a ceremonial way, but the 12th Amendment outlines a narrow set of circumstances in which the House of Representatives and Senate end up choosing a presidential victor if there’s no majority in the Electoral College . . . . The congressional election of a president is a process that’s known as a “contingent election,” and it hasn’t been used for the presidency since 1825. In the scenario of a “contingent election,” the House votes for the president and the Senate chooses a vice president, meaning it’s entirely possible, if the opposing parties each control one chamber of Congress, for the two to be of opposing parties.
In the House, each state gets a single vote—meaning that the presidency would likely fall to whichever party controls the majority of state delegations come the new Congress. (The District of Columbia, which normally gets three electoral votes, would be sidelined and cut out of the process in the House.) Nancy Pelosi is already laying the groundwork for such a fight: Right now, Democrats are outnumbered 22 states to 26; Pennsylvania’s delegation is equally split, and Michigan’s delegation is complicated by the wild card of independent, and Trump, foe Justin Amash. “We’re trying to win every seat in America, but there are obviously some places where a congressional district is even more important than just getting the member into the U.S. House of Representatives,” Rep. Jamie Raskin (D-Md.), a constitutional lawyer, told POLITICO last month.
If the election looks likely to come down to the House in January, pay special attention to the outcome of state congressional races where Democrats currently hold just a one- or two-seat advantage—places like Arizona, Colorado, Iowa, Maine, Michigan, Minnesota, Nevada and New Hampshire—as well as Florida and Wisconsin, where Republicans currently hold a narrow lead in the state’s delegation. Pennsylvania is already expected to become a majority Democratic delegation in November, and if Democrats manage to flip the sole congressional seat in either Alaska or Montana, those single at-large seats would secure an entire “delegation” vote in any continent election. A Democratic wave at the congressional level might prove decisive come January 6.
As much as catastrophists and nervous Democrats skitter about the possibility of a defeated Trump refusing to leave office, the reality is that even if he proves a sore loser, the worst-case scenarios seem vanishingly unlikely.
Presidential power shifts automatically under the Constitution at noon on January 20—it’s not like Trump has to sign a resignation letter or turn over the keys to the presidential limo—and there’s nothing that Trump could do to delay that or prevent his successor from then utilizing those powers. If he loses, as of noon on January 20, Trump would be trespassing at the White House, subject to arrest and removal by the Secret Service the same as anyone who jumps the Pennsylvania Avenue fence.
Friday, October 23, 2020
Trump yet again broke the fact-check meter at the second presidential debate, while Democratic nominee Joe Biden made relatively few gaffes. Here’s a roundup of 25 of the most noteworthy claims that initially caught our interest, virtually all of them by Trump. As is our practice, we do not award Pinocchios when we do a roundup of facts in debates.
It goes down hill for Trump from there. In the column, Trump's lies are laid out, especially his lie about having a health care plan or any strategy for ending the increasing pandemic. Here are column highlights:
The good news is that we likely will never be forced to endure another debate featuring
The better news is that even before the Thursday night event, Trump sabotaged himself by pre-releasing an interview for “60 Minutes” with CBS News’s Lesley Stahl in which he declared flatly that he hoped the Supreme Court would invalidate the Affordable Care Act. "I hope that they end it. . . . But as a bonus, Trump not only displayed his whiny, thin-skinned demeanor, but he also let on that he has no replacement health-care plan for Obamacare.
Nothing that occurred during Thursday night’s debate increases the chances we will have to endure four more years of the unhinged, know-nothing narcissistic president. Voters who made it through the 90-minute event saw a sharper, more fact-filled Biden than they have seen in previous performances. Meanwhile, the meandering, mean-spirited president was forced to resort to a flood of lies.
Trump is plainly sensitive that he was clobbered in the money race. He has never learned what matters to voters. When Biden argued that we should talk about real issues affecting American families, Trump mocked him. Rarely has a politician showed such contempt for voters. Never has a president bragged that a dictator liked him more than his predecessor. Trump’s reticence was short-lived as he embarked on long-winded and often incoherent riffs filled with ludicrous accusations.
Second, Trump still has not come up with a realistic plan to fight covid-19. He has yet to develop any sense of compassion, and he remains unable to take responsibility for the crisis. “I take full responsibility," he said during the debate, before adding: “It’s not my fault that [the virus] came here.” Most galling, he insisted we are “learning to live with” the pandemic. . . . Biden pounced to reiterate that more than 220,000 Americans have died from the disease. Once more, Trump was illogical and nonsensical: “We have the best testing in the world by far — that’s why we have so many cases!"
Third, Trump was so intent on spinning strange and convoluted conspiracy theories that it is doubtful anyone outside the loony-tunes world of right-wing media understood what he was talking about. . . . . All Biden had to do was smile and suppress a laugh. He also effectively brought up Trump’s refusal to release his taxes, taunting him to make them public.
Fourth, Biden was strongest on health care, reminding us that Trump has no plan and has never had one. He reiterated his support for a public option, not for Medicare-for-all. His best line may have been: "Ten million people now have pre-existing conditions because of the president’s handling of covid. What are they going to do?” As Trump insisted Biden wanted to destroy private health insurance, Biden responded, "He’s a very confused guy. He thinks he’s running against someone else. He’s running against me, Joe Biden.”
Fifth, Biden made hay of his focus on working- and middle-class Americans, pointing out that Trump’s measure of success is the stock market. "Where I come from in Scranton and Claymont, the people don’t live off the stock market,” Biden said. His emphatic support for a $15 minimum wage was likely a winner in critical swing states. When Trump started trashing “Democrat cities,” Biden shot back that he would be the president for all of Americans.
Sixth, Trump’s utter lack of decency came when he insisted conditions for kids at the border were just swell. ("They are so well taken care of. They are in facilities that were so clean,” Trump said.) Biden emotionally hit back, “Separating children from their parents violates every value we hold as a nation.” Asked about Black parents who have to have the “talk” with children about encounters with the police that can turn fatal, Biden gave an empathetic answer acknowledging institutional racism; Trump hilariously claimed to have done more for African Americans than any other president since Abraham Lincoln.
Finally, on climate change, Biden made his case on job growth and green energy as Trump insisted windmills “kills all the birds.” He added this mumbo jumbo: “And the fumes coming up, if you are a believer in carbon emission, the fumes coming up to make these massive windmills is more than anything we’re talking about with natural gas, which is very clean.” It was one more reminder Trump is stunningly ignorant.
Biden had the final words of the debate, making a heartfelt pitch for decency and character. If Americans decide that is the defining issue, the election will not be close.
In the end, the Nashville debate was more about Tony Fauci than Tony Bobulinski.
Trailing by nearly 10 points in the polls, and facing the potential for the greatest repudiation of an incumbent president since Jimmy Carter in 1980 — a 400-plus electoral vote victory is possible for Joe Biden — Donald Trump arrived at the final debate of the 2020 campaign seized by an issue that was never really discussed.
One of the hallmarks of the Trump era has been his penchant for pushing fringe characters peddling dubious stories into the center ring of our political circus. In the past he has been an effective ringmaster. Whether it’s retweeting conspiracy theorists (that guy who recently alleged Osama bin Laden was still alive), elevating people who believe drinking water is tainted with Prozac that is causing shrimp to commit suicide (Alex Jones), or putting fringe GOP operatives banished from presidential politics on the payroll (Roger Stone), Trump has often delighted — and benefited politically — from turning the sideshow into the main show.
Trump worked overtime to do that again on Thursday, but it did not go particularly well, before or during the debate. His campaign organized a press conference earlier Thursday at which Bobulinski, Hunter Biden’s former business partner in a failed Chinese investment venture, stood awkwardly in a tight-fitting suit and tie and alleged that Joe Biden knew details about the enterprise.
In a recent video, Rudy Giuliani sat at a desk strewn with folders that he asserted contained damning evidence about Hunter Biden’s laptop. Bobulinski did something similar: He showed reporters three old cell phones with purportedly incriminating information that he claimed he would hand over to the authorities, but he didn't let reporters access them.
But so far the Bobulinski allegations seem like bubkes. At 10:47, minutes after the debate ended, the Wall Street Journal, part of the same media empire as Fox News and the Post, reported, “Text messages and emails related to the venture that were provided to the Journal by Mr. Bobulinski, mainly from the spring and summer of 2017, don’t show either Hunter Biden or James Biden” — the former vice president’s brother — “discussing a role for Joe Biden in the venture.”
Even if Bobulinski is telling the truth, that Joe Biden knew about the China enterprise, it’s not clear what the scandal is — he was a private citizen at the time and not yet running for president.
This isn’t the first time that Trump has made this kind of political miscalculation this year. Before people like Giuliani convinced him that attacking Hunter was the key to a comeback, he was obsessed with defining Biden as a mentally impaired septuagenarian who was so “gonzo” he had to hand control over to the far left. At the first debate this caricature was easily defused by Biden simply standing there and speaking relatively cogently.
In Nashville, it lost more of its effectiveness when Biden repeatedly pointed out that he had defeated Bernie Sanders and other more left-wing candidates in the Democratic primaries, distancing himself without any qualms from the people Trump alleges he’s taking orders from.
Similarly, the Hunter bombshell has so far been defused because Trump’s exaggerations and over-the-top allegations bear no resemblance to the available facts.
It makes you wonder what Trump could have accomplished this year against Biden if he had focused on what’s front and center to voters and didn’t get so distracted and preoccupied by the sideshow.
Thursday, October 22, 2020
One of the most lethal leadership failures in modern times unfolded in South Africa in the early 2000s as AIDS spread there under President Thabo Mbeki.
Mbeki scorned science, embraced conspiracy theories, dithered as the disease spread and rejected lifesaving treatments. His denialism cost about 330,000 lives, a Harvard study found.
None of us who wrote scathingly about that debacle ever dreamed that something similar might unfold in the United States. But today, health experts regularly cite President Trump as an American Mbeki.
“We’re unfortunately in the same place,” said Anne Rimoin, an epidemiologist at U.C.L.A. “Mbeki surrounded himself with sycophants and cost his country hundreds of thousands of lives by ignoring science, and we’re suffering the same fate.”
Trump says he deserves an A-plus for his “phenomenal job” handling the coronavirus, but the judgment of history is likely to be far harsher.
“I see it as a colossal failure of leadership,” said Larry Brilliant, a veteran epidemiologist who helped eliminate smallpox in the 1970s. “Of the more than 200,000 people who have died as of today, I don’t think that 50,000 would have died if it hadn’t been for the incompetence.”
Trump in particular “recklessly squandered lives,” in the words of an unusual editorial this month in the New England Journal of Medicine. Death certificates may record the coronavirus as the cause of death, but in a larger sense vast numbers of Americans died because their government was incompetent.
As many Americans are dying every 10 days of Covid-19 as U.S. troops died during 19 years of war in Iraq and Afghanistan, and the economists David Cutler and Lawrence Summers estimate that the economic cost of the pandemic in the United States will be $16 trillion, or about $125,000 per American household — far more than the median family’s net worth. Then there’s an immeasurable cost in soft power as the United States is humbled before the world.
“It’s really sad to see the U.S. presidency fall from being the champion of global health to being the laughingstock of the world,” said Devi Sridhar, an American who is a professor of global health at the University of Edinburgh. “It was a tragedy of history that Donald Trump was president when this hit.”
The United States has made other terrible mistakes over the decades, including the Iraq War and the War on Drugs. But in terms of destruction of American lives, treasure and wellbeing, this pandemic may be the greatest failure of governance in the United States since the Vietnam War.
The paradox is that a year ago, the United States seemed particularly well positioned to handle this kind of crisis. A 324-page study by Johns Hopkins found last October that the United States was the country best prepared for a pandemic.
Credit for that goes to President George W. Bush, who in the summer of 2005 read an advance copy of “The Great Influenza,” a history of the 1918 flu pandemic. Shaken, Bush pushed aides to develop a strategy to prepare for another great contagion, and the result was an excellent 396-page playbook for managing such a health crisis.
The Obama administration updated this playbook and in the presidential transition in 2016, Obama aides cautioned the Trump administration that one of the big risks to national security was a contagion. Private experts repeated similar warnings. “Of all the things that could kill 10 million people or more, by far the most likely is an epidemic,” Bill Gates warned in 2015.
Trump argues that no one could have anticipated the pandemic, but it’s what Bush warned about, what Obama aides tried to tell their successors about, and what Joe Biden referred to in a blunt tweet in October 2019 lamenting Trump’s cuts to health security programs and adding: “We are not prepared for a pandemic.”
[I]n retrospect, Trump did almost everything wrong. He discouraged mask wearing. The administration never rolled out contact tracing, missed opportunities to isolate the infected and exposed, didn’t adequately protect nursing homes, issued advice that confused the issues more than clarified them, and handed responsibilities to states and localities that were unprepared to act. Trump did do a good job of accelerating a vaccine, but that won’t help significantly until next year.
Trump’s missteps arose in part because he channeled an anti-intellectual current that runs deep in the United States, as he sidelined scientific experts and responded to the virus with a sunny optimism apparently meant to bolster the financial markets. . . . . The false reassurances and dithering were deadly.
A basic principle of public health is the primacy of accurate communications based on the best science. Chancellor Angela Merkel of Germany, who holds a doctorate in physics, is the global champion of that approach. Trump was the opposite, sowing confusion and conspiracy theories; a Cornell study found that “the President of the United States was likely the largest driver of the Covid-19 misinformation.”
Instead of listening to top government scientists, Trump marginalized and derided them, while elevating charlatans: One senior health department official, Michael Caputo, who had no background in health, was ousted only after he denounced government scientists for “sedition” and advised Trump supporters, “If you carry guns, buy ammunition.”
Instead of leading a war against the virus, Trump organized a surrender. He even held a super-spreader event at the White House, for Judge Amy Coney Barrett, and that’s why the White House recently had more new cases of Covid-19 than New Zealand, Taiwan and Vietnam combined.
It didn’t have to be this way. If the U.S. had worked harder and held the per capita mortality rate down to the level of, say, Germany, we could have saved more than 170,000 lives. And if the U.S. had responded urgently and deftly enough to achieve Taiwan’s death rate, fewer than 100 Americans would have died from the virus.
“It is a slaughter,” Dr. William Foege, a legendary epidemiologist who once ran the C.D.C., wrote to Dr. Redfield. Dr. Foege predicted that public health textbooks would study America’s response to Covid-19 not as a model of A-plus work but as an example of what not to do.
There is a new, defiant energy among many of the top left-leaning lawyers who once revered the courts, even expected them to save us from Trump. Some are trying to get Democrats to play judicial hardball; others are promoting the various proposals percolating to expand the courts or strip them of their power, and yet more are making deeper critiques of how the legal system rewards the powerful. Those most committed to institutional norms are suddenly talking about tearing it all down.
It’s being mainstreamed by apostates like Kang — onetime insiders sick of what they see as unilateral disengagement. “Watching the Trump and Republican takeover of the courts has been radicalizing for me, in terms of understanding what the political power is at stake and how it has to be leveraged,” says Kang.
The rebuff of Merrick Garland started it, but it wasn’t enough. Then came the unusual discipline Trump has shown in filling the lower courts with young ideologues, and Kavanaugh raging his way to confirmation over the testimony of Christine Blasey Ford. But nothing pushed the revolt of the legal elite further than the death of Ruth Bader Ginsburg and the nomination of her opposite. Adding seats to the court is getting talked up not just in The Nation by Elie Mystal, but also by decidedly unradical Lawfare editors Quinta Jurecic and Susan Hennessey — “We have now come to believe, more in sorrow than in anger, that adding justices may be the only way to restore the institutional legitimacy of the Court,” they wrote in The Atlantic recently — and even Reagan’s solicitor general.
Practically every election cycle, legally minded Democrats decry the fact that their voters don’t care as much about the federal courts as Republicans do. “We’ve been seeing, since Kavanaugh, really, that the grassroots are getting it more,” Kang says. Witness the tide of small donor donations to Senate races that followed Ginsburg’s death. That’s the dynamic that has pressured institutionalists like Joe Biden and Chuck Schumer into ruling nothing out when it comes to the courts.
The election to shape the course of the current Supreme Court already happened — it was 2016, with one seat left open by Mitch McConnell’s partisan discipline and two Democratic appointees in their 80s. Now that liberals’ worst nightmare has happened with Ginsburg’s death, Democrats could deploy the insight conservatives long ago hit upon: It’s easier to run against the Court than to preserve the status quo, and your base might care if they lose much of what they hold dear.
Surveying the wreckage, you might ask what took the lawyers so long. Molly Coleman has a few theories. She was one of those starry-eyed students who showed up at law school, in her case Harvard, having absorbed what she calls the “lofty views of ourselves as advancing justice. And you very quickly learn that law school is about power.”
There, the cultural veneration of the courts and judges as infallible runs deep. “Lawyers are raised to believe that lawyers are the heroes,” Christopher Jon Sprigman, a professor at NYU Law School, told me. “And the ultimate lawyer heroes are lawyers in robes.”
Coleman realized, watching her cohort, that the romantic notions of lawyers as Atticus Finch — the principle that everyone deserves legal representation and lawyers shouldn’t be judged by their client’s deeds — was being deployed on behalf of getting rich: “It’s not the person accused of a crime,” she said. “It’s Exxon Mobil.” In 2018, her work organizing against forced arbitration clauses, which among other effects let sexual harassers off the hook, led Coleman to co-found the People’s Parity Project; she’s now its executive director, overseeing multiple campus chapters.
Litman recently decried the fact that “elite circles of the legal profession seem deeply uncomfortable with doing anything that might hold other elite lawyers accountable for their disregard of various norms or principles.” She was talking about the Trump lawyers who helped enact child separation — former deputy attorney general Rod Rosenstein has returned to Big Law and is on a speaking tour — but the same could be said for nominations and for the courts themselves.
The Supreme Court still enjoys relatively high approval ratings, and liberals in particular have tended to associate it with 20th century wins on desegregation and abortion rights, not its history of upholding slavery, eugenics, and the interests of the rich.
Ian Millhiser, author of 2015’s Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted (and my colleague at Vox Media) “have a financial interest in the notion that courts are good,” Chief Justice John Roberts has seemed to sense this reputational slippage, making surprise compromises that have often coincided with elections and blunted the angriest criticism from liberals. “It was not the best sales pitch for my book that immediately after it came out we had the most liberal term of my lifetime,” Millhiser said. After initial reluctance, he himself has argued that in the face of structural impediments and outright attacks on democracy, something has to give.
Barrett’s nomination highlights another asymmetry in the supposedly neutral legal system. It’s hard to imagine her Democratic equivalent — a committed movement soldier who Graham called “unashamedly pro-life” — being nominated by Democrats. Even when Democrats controlled the Senate, Obama chose for his judges and legal appointees a diverse slate dominated by corporate lawyers and prosecutors with little paper trail; the few who had taken avowed positions as professors or who represented actually unpopular clients paid dearly for it.
Long critical of the Supreme Court, Sprigman has recently been arguing to strip the courts of much of their power through congressional action, which he argues would be constitutional. Doesn’t that sound a bit like the decades of conservatives inveighing against black-robed tyrants? “Yeah, but their campaign was bullshit,” he said. “They didn’t appoint cautious judicious minimalists, they appointed a bunch of ideologues. They wanted to capture the courts, not confine them to their proper role.” Sprigman argues it’s only a matter of time before any legislation Democrats pass — whether to address the recession, the coronavirus, climate change — gets cut to ribbons by Republican-controlled courts. Then what?
And of course, all of this debate assumes not only a Democratic sweep of the White House and the Senate but that this rebellious spirit outlasts the Trump administration. That’s what worries Chase Strangio, deputy director for Transgender Justice at the ACLU LGBT & HIV Project, who has worked within the courts while being a longtime critic of how they enshrine power. “One of my concerns is that you have this outrage and new and creative demands emerge,” Strangio says, “and then when the sense of urgency wanes, for one reason or another — you could imagine if Trump is defeated and you have a shift in power and the federal executive and in congress, that people will be lulled back into complacency, and the system will adapt to normalize this rightward shift even further.” Another way to say it, says Strangio, is that “the system accommodates over time to make sure the same people stay in power.”
In 1964, Fact magazine published an unscientific survey asking psychiatrists whether they thought the Republican nominee, Barry Goldwater, was psychologically fit to serve as president of the United States. The problem wasn’t that professionals felt the need to share their views of what they considered Goldwater’s dangerous ideas; it was the irresponsible and often bizarre analyses that were in some cases based entirely on rank speculation.
Embarrassed, the American Psychiatric Association (APA), in reaction to this debacle, established the “Goldwater Rule,” which barred its members from diagnosing public figures. It concluded that “it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement.” That’s fair, as far as it goes. But in March 2017, shortly after my uncle, Donald Trump, was inaugurated, the APA didn’t just reaffirm the rule — it expanded it past the point of coherence. Not only were members prohibited from diagnosing public figures, now they could no longer offer a professional opinion of any sort, no matter how well supported or evidence-based, even if they believed that a public figure posed a threat to the country’s citizens or national security.
This is absurd on its face and has potentially serious consequences for the safety of the American people. While psychiatric diagnosis is a technical process, it is entirely within bounds to draw conclusions based on observable behavior. It is one thing to declare definitively that a person has anti-social personality disorder (a specific diagnostic term); it is another to point to behaviors — such as deliberately putting other people in harm’s way for no discernible reason (for example, abandoning our Kurdish allies) beyond one’s own self-interest — and express the general conclusion that it is dangerous to have somebody in the Oval Office who is incapable of empathy.
It is not an exaggeration to say that Donald has exhibited pathological behavior that is equally alarming — as evidenced most recently by his callous disregard for his own health and the well-being of those around him when he left Walter Reed hospital while still shedding coronavirus, or when he holds rallies and encourages thousands of people to attend without wearing masks or social distancing in order to prop up his ego.
Every day legal experts weigh in on Donald’s unconstitutional or norm-breaking behaviors. Since his covid-19 diagnosis, medical experts have speculated about the course of his illness and the potentially dangerous side effects he may be experiencing as a result of the experimental treatments he’s received. Only the mental health experts have been effectively sidelined.
If we look at the past 3½ years, Donald has lied publicly in excess of 20,000 times; he has impulsively, and against all reason, gone against the advice of experts who could have helped contain the pandemic and protect the economy; he has put private citizens at risk by attacking them on Twitter because they have criticized him; he has proved himself to be incapable of accepting responsibility, changing course or exhibiting empathy.
I am a trained clinical psychologist and have worked as a clinician. If Donald had walked into my office for an evaluation, I would have gathered less information about him from a normal intake interview than I could gather from the countless hours of video available from his decades in the public eye. Usually when self-reports aren’t available — because the patient is either unable or unwilling to offer information — the clinician often turns to those close to the patient in order to fill in the blanks. But none of that is necessary because examples of Donald’s disordered, impulsive, self-defeating and destructive behavior, which are unlikely to present themselves in a clinical setting, have been extensively recorded.
Adopting a notionally neutral stance in this case doesn’t just create a void where professional expertise should be — it serves to normalize dysfunctional behavior. Paradoxically, the suggestion seems to be that speaking out about mental illness is the problem. But in truth, it is remaining silent about Donald’s obvious psychological impairment that is stigmatizing. By claiming that its silence is neutral, the APA is essentially granting Donald’s campaign an in-kind contribution while the American people remain subject to his often deranged and unpredictable behavior, without the tools necessary to evaluate it or understand how it renders him unfit for the office he holds.
I agree with Mary Trump. The APA is doing American citizens a severe disservice.
[W]hen Shaw attended her first meeting of a local Democratic club in 2018, she saw it as her next big project. The gathering was fairly dull, a handful of older people seated around tables in an echoey ballroom on Cleveland’s west side. There was pizza, sure, and a lineup of local speakers. But there was no attendance-taking, no callouts for volunteers, no planning for weekend projects—even though the midterm-primary season was under way. Things have got to change if we’re going to beat Donald Trump, Shaw thought to herself as the meeting wrapped. And things did.
Under the stewardship of Shaw and a handful of allies, the sleepy Ward 17 Democratic Club has been revitalized. In less than two years, the group has doubled its membership, from 25 to 50; built a brand-new website; and developed a witty social-media presence. Every weekend, the club holds voter-registration drives and literature drops, drawing from a pool of 90 volunteers—most of them women.
Americans know the bigger story well by now: how an all-consuming hatred of Trump has spurred women, especially suburban women like Susan, to campaign and vote for Democrats all across the country. But the piece often missing from that narrative is that these women aren’t just expressing their outrage by voting in high-stakes national elections; they’re funneling their energy toward a collection of smaller targets, including statehouse races, local party organizations, and school boards. And all of this activism has the potential to shape American politics in a much more significant way than their biennial votes. “It’s a renaissance of a very long-standing form of American civic engagement,”
The question now is whether these women will sustain their zealous engagement no matter which party is in power. Is America entering a new age of activism—or is all of this just a Trump-era blip?
Before Trump’s election, Shaw read the news. . . . . But she never volunteered to knock on doors or lick envelopes for Hillary Clinton, let alone for any local candidates. She’d never once attended a local Democratic Party function—hell, she wasn’t entirely sure what a “ward club” did. She was, in other words, exactly like a lot of other Democrats. And like a lot of other Democrats, Trump’s victory took her completely by surprise. The day after his win, she gathered with a few friends to mourn. We “just started bawling and drinking wine,” Shaw told me. One woman announced to the group: “I feel like I’ve been asleep.” Actually, they all felt that way.
Things came together quickly after “The Indivisible Guide”—a handbook for grassroots activism—was released in December 2016. The women began meeting on the second Monday of every month, first at members’ homes, and later at a local coffee shop owned by a member. They called themselves the GrassRoots Resistance, or “GRR,” an onomatopoeic representation of their feelings toward the president.
By January 2017, GRR had settled on a few targets for their activism. Their anger was national, but their action would be local, the thinking went. The women, who were mostly white and ranged in age from 35 to 65, studied up on the inner workings of the Cleveland city council and the Ohio legislature and on the quotidian operations of state-level campaigns. They subscribed to state-politics newsletters, figured out who their state representatives were, and began researching those lawmakers’ past votes. Over the past three years, the group has grown to 150 members. They’ve channeled their energies toward fundraising and door-knocking for candidates, and they’ve given themselves hand cramps writing hundreds upon hundreds of get-out-the-vote postcards.
GRR was one of roughly 2,500 women-led groups that whirred into action following the 2016 election, according to Skocpol’s research. Many of these women live in the suburbs of major cities, places that have traditionally been Republican but are rapidly turning blue as college-educated white women grow more and more repulsed by Trump and as neighborhoods become more and more diverse. Some are former Republicans, while others were simply inactive Democrats, as Shaw was. These so-called Resistance groups are always somewhere between 75 and 100 percent women, and they generally operate independently of national bodies. Many of the women in these groups are middle- and upper-middle-class, well educated, and used to running or working on teams and planning big events. The level of organization this work requires, Skocpol says, is already something they’re good at.
Some on the political left have dismissed these women, many of them white, as “wine moms” or “MSNBC moms”—silly, unprincipled newcomers to the political scene who are more interested in watching Rachel Maddow with a glass of pinot in hand than agitating for systemic change.
What the critics may be missing, though, is the scope of these women’s influence—and their role in strengthening the Democratic Party’s infrastructure. Despite the fact that most Democrats are concentrated in urban areas, Resistance groups have sprung up all over the country, from the Arizona desert to rural Pennsylvania.
Americans’ civic involvement declined massively from the 1960s to the 2000s; there was a kind of “falling-away of regularly meeting groups,” as Skocpol put it. That loss has been felt by both political parties, but especially by Democrats, as their membership in two key groups has declined. Liberals no longer attend church or join local labor unions at the rates they once did, depriving them of crucial forums for community and political engagement. This means that today’s widespread, women-led activism represents a fundamental shift in American politics, says Lara Putnam, a history professor at the University of Pittsburgh who has studied the anti-Trump movement.
They’re registering voters, raising money, and establishing formal databases of volunteers. They’re boosting federal candidates and learning how to run—and win—state political campaigns. “They went to be troops fighting this battle for democracy and found no one there,” Putnam told me. “So they basically rebuilt those structures.”
If Trump leaves office, it stands to reason that at least some of their motivation may disappear right along with him. A Biden presidency could mean a chance to relax, to take some time off, to bond as friends rather than as political warriors. “They may maintain an interest in politics that is much higher than it was previously,” Jessica Trounstine, a professor at UC Merced who focuses on local politics, told me. “But they’re gonna have a limited amount of energy they’re gonna put toward [it].”
Organizations working to channel suburban women’s political power are already worried about a potential slump. Katie Paris, the founder of Red Wine and Blue and the former CEO of the left-wing media company Shareblue, believes the path to turning both Ohio and the rest of the country Democratic runs through these women’s neighborhoods.
The GOP has, on average, a three-point turnout advantage over Democrats in midterm elections, according to FiveThirtyEight, and Democrats were dominated by Republicans in the 2010 and 2014 midterms. In 2018, that changed: The work of these Resistance groups contributed to the highest turnout for a nonpresidential election in U.S. history, and helped deliver the House majority to Democrats. But the party can’t assume that 2018 is the new normal. It’s possible—even likely—that in 2022, Democrats, under a President Biden, would return to their pre-Trump voting levels.
Many of the GRR members I spoke with, including Shaw, are adamant that there’s no turning back. After all, they’ve already done the hard part. “People have developed the networks, the skills, the tools to do this work,” said Nora Kelley, a 44-year-old lawyer and a leader in the group. “The faucet’s on, and it’s not getting turned off.”