It’s one thing for the much-admired legal scholar, George Takei, to rely on the Constitution’s “null and void” clause. After all, he’s the Dean of Twitter Law School. But when Norm Ornstein raises the question of what do about the illegitimate presidency, it can’t be sloughed off with a chuckle. He’s not only a very smart, very knowledgeable guy, but he’s scholar in residence at the American Enterprise Institute. He’s not chopped liver.
American politics is deep into the theater of the absurd—but unfortunately, it is a deadly absurdity, like being in a horror funhouse where the creatures leaping out at you have real knives and chainsaws. Americans now have to face at least the possibility, a tangible one, that the election itself was subverted by a hostile foreign power in league with the winning presidential campaign, with implications all the way down the ballot.
Why, exactly, we “have to” is not entirely clear. It may well be the case that Russia pulled off one of the most amazing coups ever by its disclosure of Democratic Party emails into the election. It may be far worse, doing so with the knowledge and acquiescence of the Trump campaign. And it may be that there was a quid pro quo involved, or at least with the expectation of a sympathetic administration in place.
Whether these things happened, or the extent to which they happened, should be known by the American people, and it will be up to FBI Director Jim Comey to do his job, investigate fully. But this won’t answer the next question, which is whether the absence of Russian involvement would have altered the outcome. Those who hate Trump will take this for granted, “of course it did; it’s obvious.” Beliefs aren’t exactly evidence.
Then there is the question of whether this happens all the time. We do it to them. They do it to us. They’ve done it to us in the past, as have we. Espionage wasn’t invented yesterday. The biggest difference this time is the ineptitude with which it was done, another homage to Trump’s no-nothing approach to the office.
What to do if that proves to be the case? It is a question I have been asked a lot; my stock answer begins with, “The Constitution does not have a do-over clause.” But I am now rethinking the response: Maybe it needs a do-over clause.
Ornstein had been involved with issues of presidential succession well before the notion of Trump being president would have been more than the punchline to a joke. So he comes by his concerns honestly. While the inane rantings of some invisible Mulligan between the lines of Article II exists only in the imagination of the clueless, Ornstein raises their question in a way that would appear to fall outside the Constitution’s four corners.
Here is the big problem. What if the election was effectively stolen? Under the current presidential succession structure, if Donald Trump were impeached and removed from office, Mike Pence would replace him. But if the election had been stolen, Pence’s place as president would be no more legitimate than that of Trump. After Pence—Paul Ryan, the speaker, followed by Orrin Hatch, the president pro tem, followed by Secretary of State Rex Tillerson. If voters’ collective desires were subverted by foreign interference and a party’s collusion, none would have a legitimate claim—especially since the control of the Senate, at least, would have been affected by the Russian role.
A big problem? Obviously. But it comes with a rather difficult caveat. How would one define “effectively stolen”? And even if it could be defined, how would one prove it? Even if every claim against Russia and Trump proved true, we would never be able to ascertain that it changed a single vote. Even if voters came forward and (honestly) announced that it did change their vote, what of the voters who don’t come forward.
Ornstein doesn’t address the hard questions. It may be because, as he notes, none of it can change the fact that Donald Trump is, for better or worse, the president.
Of course, realistically, no do-over option will or could happen to deal with the current ungodly mess. It may well be that the Trump campaign’s role has been exaggerated by its critics; there is not yet any public evidence of collusion. But if the worst case proves to be true, America will have to live with the consequences, including the dark cloud of illegitimacy that would hang over all actions taken by an administration that won with the aid of foreign interference.
Yet, suggesting, as he does, that we should create a door through which polarized political divisiveness, coupled with the absolutely certainty of hysteria about the other team, could tie up American government in a war over whether an election was “effectively stolen” would create an even worse ungodly mess. It would undermine the greatest feature of the United States Constitution, its bloodless coup every four years (or so) when teams that despise each other hand over the keys to the Oval Office.
The “the Russians stole it for Trump” belief that is held dear by true believers is just today’s flavor of stolen elections. There is an infinite variety of other flavors, fueled by fake news and deeply held but baseless beliefs and assumptions. Indeed, the mere suggestion to the deeply passionate on either side will generate such absolute certainty that the only way they could lose is theft that there will never be a peaceful transition of power again.
Was that what you wanted, Norm? Do you really think the public is sufficiently well-grounded in fact, in reasonableness, that they will put aside their partisan passion and pledge allegiance to the other team’s winner?
Does this make the problem of stolen elections disappear? Of course not, and if impropriety occurred, the Constitution provides a means by which a dishonest president can be taken down. But would a nation survive if no election going forward would be untainted by cries of theft, whether real or birthed in the fertile imagination of the deeply passionate?
As for the mechanism proposed by Norm Ornstein, a mere law enacted by Congress to create a do-over, that’s an issue for another day, since it will never matter as the Republic will crumble should we indulge his “big problem” solution at all.