How Donald Trump can keep fighting his inevitable defeat until Joe Biden is sworn in

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Joe Biden seizing the lead in Pennsylvania and Georgia provides a strong indication of who will prevail in the Electoral College and ultimately be elected president – but little clarity about how the chaotic next 75 days will unfold.

That will be determined by a swirling mix of factors that include patchwork state and federal laws, the Constitution and its procedures, power-brokers in the Republicans Party angling for dominance, the courts – and a furious President Trump coping with rage and loss.

 

REFUSING TO CONCEDE – SO WHEN WILL THE REPUBLICANS TELL HIM TO GO?

President Trump has made clear in public statements he has no intention of conceding and bowing to the vote counts in Pennsylvania that include mail-in ballots. (States Trump won also include mail-in ballots, which are being tabulated to this day).

There have been cracks among Republicans about Trump’s initial posture of claiming he ‘won’ and fighting a vast war of litigation. So far, there have been restrained rebukes from retiring Sen. Pat Toomey, former Sen. Rick Santorum, both of Pennsylvania, and an assertion by Senate Majority Leader Mitch McConnell that expressed faith in the vote and backed up Trump’s right to sue. 

‘Every legal vote should be counted. Any illegally-submitted ballots must not,’ McConnell tweeted Friday.

The president’s family has provided vocal defense, and son Donald Trump Jr. turned up the heat on leading Republicans to demand they step up more – a reminder of the potential political cost among Trump’s base of sitting on the sidelines.

House and Senate Republicans had a much better election than many of them expected, in part by executing a strategy of tolerating Trump’s outbursts and avoiding direct confrontation with him. Public condemnation of Trump’s false claim that he won would be a new tack.

Many senior retired military figures of public renown already distanced themselves from Trump.

The president’s daughter Ivanka Trump, a White House advisor, could weigh in. Like other Trump children, she has both a family and political stake in what happens, as well as a financial one.

 ‘Every legally cast vote should be counted. Every illegally cast vote should not. This should not be controversial.

‘This is not a partisan statement — free and fair elections are the foundation of our democracy,’ she tweeted Friday.

Trump spent election night huddling with former campaign managers Kellyanne Conway and Cory Lewandowski, as well as former press secretary Sarah Sanders, who all will play a role helping him steer through the next few months.

‘He’s not blind to the reality of what the results are and he’s going to be talking to his lawyers and he’s going to be pretty frank with them,’ Newsmax CEO Chris Ruddy, a Mar-a-Lago member who talks to Trump, told DailyMail.com.

He said he thinks Trump has a strong legal case in his election suits. Asked who might bring bad news to Trump if he didn’t prevail, Ruddy responded: ‘He has a history of taking his own counsel. I think he’ll do his decision on that based on that.’

As Trump gets counsel from his inner circle, the relentless process of election counting and certification will continue.   

There are key dates beyond Election Day on the political calendar that provide at least a framework of what will happen. 

Each state has its own deadline for counting and then certifying votes. In Georgia, which currently has a razor-thin Biden lead, the secretary of state certifies the vote to the governor on November 20. In Pennsylvania, county boards of election must file returns with the commonwealth by November 23.

Officials in North Carolina are anticipating a recount after November 20, a process that itself could take another week .

Dec. 8 is the statutory deadline for resolving election disputes, and the end of so-called safe harbor. 

As days go forward and votes come in, the networks will end up calling more races, which presumably would grow Biden’s electoral vote total. 

By that point race that looked closely divided on election night will start looking less close. Biden could even win as many as 306 electoral votes – the same Trump 2016 margin that Trump frequently casts as a blowout. Meanwhile, his popular vote margin will fill in, allowing Biden to continue to boast he won more votes than any other candidate in history. 

The stronger Biden’s lead grows, the greater the potential political price for some of the more extreme measures in Trump’s toolkit – namely an idea floated before the election for the state legislature in Pennsylvania to ignore the voters and submit its own slate of electors.

Trump Jr. retweeted talk radio host Mark Levin when he issued a ‘REMINDER TO THE REPUBLICAN STATE LEGISLATURES, YOU HAVE THE FINAL SAY OVER THE CHOOSING OF THE ELECTORS … SO GET READY TO DO YOUR CONSTITUTIONAL DUTY.’ But it was an idea immediately shot down by the Republican Pennsylvania Senate majority leader. 

His father followed up Friday morning seeking to rally allies to his cause: ‘With the attack by the Radical Left Dems on the Republican Senate, the Presidency becomes even more important!’ he tweeted.

 

BIDEN BECOMES PRESIDENTIAL AND UNVEILS HIS CABINET AND HIS CORONA PLAN

Biden will create more inexorable motion by behaving more and more like the duly elected nominee – as he did with a Thursday speech where he began talking about a briefing he received on the coronavirus. The more he talks about his agenda, his cabinet, and his team, the more he will take on the aura of the next president.

The Secret Service dispatching additional agents to protect him is just one of many moves that will pump him up. House Speaker Nancy Pelosi became the first top official Friday to call him ‘president-elect.’ 

Trump can seek to counter this with his own actions, but presidents have always had the right to continue actions during a presidential transition. 

Any moves by Biden to look ‘presidential’ could force disconnect if Trump directs most of his comments to his increasingly desperate legal strategy and grievances about the vote count. 

That is a disadvantage that always accrues to the challenger in a recount or disputed election election situation, even when there is a legitimate challenge. Trump already had to field a question about whether he was a ‘sore loser’ during his angry statement to the press Thursday evening.

A big unknown before the election was whether protests or street violence would play a role in voting. They didn’t. But mass demonstrations could impact the count, or even serve to spoil ballots in an extreme situation. The 2000 ‘Brooks Brothers riot’ helped stop the count in Florida.

There were already protests outside counting facilities in Detroit and Arizona. If Trump and Biden supporters believe they are being mistreated and take the streets, it could lead to chaotic scenes, which Trump could seek to add to his narrative about the prolonged count. 

Still absent since the election is any signal from Attorney General Bill Barr about whether he has seen evidence to back up Trump’s claims of fraud. 

  

COURT OPTIONS RUN OUT AND THE WALLS CLOSE IN

The legal battles will run their course over fall and winter, but ultimately will run into hard deadlines set by the law and the Constitution.

Recounts will slow but not stop the process. A recount Trump’s campaign says it will demand in Wisconsin must be paid for by the campaign – to the tune of an estimated $3 million. 

The RNC is now looking to raise $60 million to fight for Trump in court, an effort which will be led not by a James Baker figure, but by David Bossie, an off-again on-again member of Trump’s inner circle, once cast out over claims he was profiting from the president’s name, but now reconciled. 

Trump’s team has already moved to try to get the Supreme Court to revisit a decision about Pennsylvania accepting ballots postmarked by Nov. 3 after that date. 

But depending on the size of Biden’s lead, they may not even make the difference in the race.

The court, which now holds a 6-3 conservative majority thanks to Trump’s pre-election bush to get Amy Coney Barrett on the court, traditionally defers to states on setting their own election laws.

Trump’s campaign has been blasting out email appeals for his election defense, promising a 1000 per cent match to ‘FIGHT BACK!’ 

The costs of battling in every venue with complex litigation will add up. 

 Meanwhile, Trump’s legal woes on another front will not subside. 

Authorities in the Manhattan District Attorney’s office have been investigating Trump’s financials and whether he violated tax laws by overstating the value of assets, misleading lenders, or took tax deductions worth millions that he wasn’t entitled to.

Trump’s son Eric gave a deposition just days before Election Day, and the New York Times has reported numerous disclosures from Trump tax returns it obtained, including that he paid only $750 in individual income taxes in 2016.

Trump first fought off handing over his tax returns by claiming he was immune as president from investigation, a tack which failed 7-2 at the Supreme Court. He is trying to get the case back to the high court claiming he is the victim of a fishing trip.

He is also being sued for libel by E. Jean Carroll, who accuses him of rape, and an attempt by AG Bill Barr to take over that case failed.

And there are questions over whether the Manhattan DA’s federal counterparts, the fiercely-independent U.S. Attorney for the Southern District of New York are looking at people around Trump, having already indicted Steve Bannon and Rudy Guliani’s business partner.

Complex legal questions about whether a president can pardon himself are sure to emerge as Trump’s final days approach.

Trump could also seek to issue blanket federal pardons to those around him who could face prosecution, as he did when he commuted Roger Stone’s sentence when the longtime advisor was on the verge of heading to jail.

 

WILL THE ULTRA-LOYAL FOX NEWS STARS DESERT HIM?

Trump knows he is facing not just a legal fight but a media war. His early morning Election Day call in to Fox News included repeated attacks on the network. 

The channel’s polling unit infuriated him when it called Arizona with substantial vote still out, although Biden still was leading in the state Friday. 

So furious was Trump, Vanity Fair reported, that he pleaded directly with Rupert Murdoch to reverse the call – which the Australian billionaire refused to do.

Fox evening anchors have continued to note that Trump has not yet provided evidence of his claims of fraud, including a campaign charge that 10,000 Nevada voters weren’t registered to vote in the state and voted fraudulently.

The network showed Biden’s leads in blue in Arizona, Georgia, Nevada, and Pennsylvania on its ticker Friday, with Trump leading only in North Carolina, shown in red. 

Anchor Bret Baier continued Friday to refer to Trump’s charges as ‘accusations of irregularities.’   

‘We are not seeing any evidence of widespread voter fraud,’ he told Republican National Committee chair Ronna McDaniel. 

Cohost Martha McCallum said ‘transparency and watching ballots is different than finding fraud…we just haven’t seen it.’

‘Biden Leads in Pennsylvania, Georgia and Nevada,’ said a Fox News Alert headline Friday.  

But so far Sean Hannity, Tucker Carlson, Laura Ingraham and ‘judge’ Jeanine Pirro remain in the fold. 

Trump has previously listened to Carlson’s advice not to bomb Iran and to take COVID more seriously, so if he or another one were to split, it would also begin to fracture Trump’s supporter base between their TV network and their president.

  

DECEMBER 8: THE ‘SAFE HARBOR’ DEADLINE WHICH SUNK AL GORE

No matter how much Trump litigates, a fixed deadline known as the ‘safe harbor’ deadline will be bearing down on him.

This year, it occurs Dec. 8. 

The deadline, fixed in in federal law, states that if elections are contested and a state has followed its procedures to determine results by the deadline – six days before the Electoral College meets – that the results are considered final. 

The Supreme Court issued its Bush v. Gore decision on December 12, when the deadline occurred in 2000, on the day of the deadline. 

It effectively froze the election in place, since the decision sent the case back to Florida for further action but there was no time to take it. 

Florida’s then-secretary of state Katherine Harris had already certified the state’s electors for George W. Bush. Democrat Al Gore conceded the following day. 

 

CAN TRUMP CAUSE CHAOS AT THE ELECTORAL COLLEGE ON DECEMBER 14?

States meet separately so that their electors can vote. 

This is when states where Republicans hold the levers of power can seek to overturn the vote count in states that went for Biden on the grounds that the vote has been ‘corrupted.’ 

Pennsylvania GOP leaders signaling they will seat the electors chosen by the people would seem to take away one scenario – having a Republican legislature supplant the choice for Biden with their own determination. 

But the move can’t be considered dead until the date passes. 

After Mark Levin’s tweet that got promoted by Donald Trump Jr. on state legislatures having the ‘final say,’ Trump loyalist Sen. Lindsey Graham told Trump ally Sean Hannity on Fox News: ‘Everything should be on the table.’ 

No state legislature has taken such a move since the 19th century. The law limits the opportunity to act to instances where the voters ‘failed to make a choice.’

It was discussed in Florida before the Bush v. Gore ruling but no serious Republican figure endorsed it at the time. 

Such a move would certainly invite its won court challenge.

If it happened in states where the race ultimately gets called for Biden, like Georgia, Wisconsin, or Arizona assuming that happened, states would send two rival sets of electors to the Congress. 

This could set in motion political mayhem when Congress meets.  

 

JANUARY 5: REPUBLICANS MUST WIN GEORGIA SENATE RUNOFFS AND TRUMP COULD DRAG THEM DOWN

Two Georgia runoff elections that will determine control of the Senate throw more uncertainty into the balance of power.

It puts tremendous power into the hands of Georgia voters, and sets up a high-octane political battle with massive fundraising certain to follow. 

The race could provide an incentive for Republicans to avoid overturning the will of the voters, out of concern they would pay a price at the polls in a live election environment.  

  

THE NEXT DEADLINE: CONGRESS CERTIFIES THE VOTE – ANOTHER CHANCE FOR DISRUPTION ON JANUARY 6 OR WORSE A REAL CONSTITUTIONAL CRISIS

 

Congress meets in a Joint Session January 6 to count the electoral votes, with Vice President Mike Pence presiding.  

When the Electoral College meets in person on December 14, fixed in law as the Monday after the second Wednesday in December, Congress gets to have its say.

This is where there could have been a real fight in the event of a 269 to 269 Electoral College tie, which seems to have been avoided.

When states present their electors, there is an opportunity for lawmakers to register an objection. 

Such a move seems at least possible, given the loyalty Trump has seen among both House and Senate Republicans, and how GOP senators have backed his legal challenges to date.

A Republican who objects to a state’s vote might earn chits with Trump, who found eager defenders in the Capitol during the Mueller probe and impeachment.

The joint session of Congress would then be briefly suspended so that each chamber could vote on whether to accept the objecting. 

However it would have to be agreed to by both houses to take affect – giving the Democratic-controlled House the ability to block GOP efforts to overturn state electors. 

The most daunting scenarios would come if the split houses seek to approve different sets of electors. 

Clearly if Democrats win in Georgia the day before that is moot – but if they do not, Mitch McConnell could force through his own slate of electors who vote for Trump. 

If that happens, Biden and Trump could each claim to have secured the presidency, in a dark scenario laid out in the Washington Post, with unknown results. 

There is no playbook after that, and no law to turn to for an answer. 

   

LAST DAYS IN THE BUNKER AS NATION MOVES ON – SO WILL HE ORGANIZE A MASSACRE OF HIS ENEMIES AS THE INAUGURAL STAGE GOES UP? 

 

The final days of an outgoing Trump Administration have long loomed as a question mark.

Trump’s advisors sent one signal by publishing a new FDA regulation the day after the election that House Speaker Nancy Pelosi blasted Friday. Senate Judiciary Committee Chairman Lindsey Graham said his panel would keep acting on Trump judges.

Even in the days leading up to the campaign the administration put out new regulations on gray wolves and lifting federal protections on Alaska forests  

Trump has already indicated he may seek to make personnel changes in the final days. 

He has hinted at firing Dr. Anthony Fauci, the nation’s top infectious disease expert at the National Institutes of Health, although Fauci does not report directly to him.

He also has grumbled about FBI Director Chris Wray, the subject of attacks by former advisor Steve Bannon and others.  

Trump has also indicated dissatisfaction with Attorney General Bill Barr, who has been quiet since the elections.  A broader purge of the bureaucracy is possible.

The danger for Trump is making more enemies who might have information they can use against him. 

There were reports Friday that demoted campaign manager Brad Parscale is shopping a book, and Trump has had to endure a series of tell-all books from angry former aides, including some who signed non-disclosure agreements.

When the NDAs are with Trump – not the government – courts have held, they cannot stop a publisher from publishing but would allow Trump to sue afterwards, creating a potential First Amendment clash.

NDAs with the government may be easier to enforce, but there has been no litigation to suggest exactly how federal judges would land on a government official writing a book exposing a president’s potential wrongdoing in breach of an NDA. 

Trump also can use the days between now and January 20  to try to install more officials in political and career posts – flipping his complaints about ‘deep state’ careerists on its head and seeking to continue his policies after he leaves. 

A signal emerged Wednesday that McConnell might try to hold up Biden cabinet secretaries illustrates how lower level officials could wield influence long after January 20.

Amid the machinations, the state of play of a coronavirus relief package with the potential to benefit millions of Americans remains murky. Both Pelosi and Graham spoke about it as a live item on Friday, but Trump may have less incentive to dedicate billions to state virus relief on his way out of office after claiming the nation was already ’rounding the turn.’

All the while, planning for inauguration proceeds on its own timetable. Capitol employees will secure an area on the East Front, unless there is a radical change due to coronavirus. 

Plans will go forward for staples of presidential transitions, which include a capital draped in American flag bunting, a traditional luncheon inside the Capitol, and a program that usually stresses the shared values of the peaceful transfer of power. 

As the inauguration approaches, Trump and his team will face continuing questions about whether he’ll show up, as Hillary Clinton did for his inauguration in 2017. 

There is also a traditional photo-op at the White House for the outdoing president and the president-elect and a shared limo ride – assuming he goes to the Inauguration.

 

JANUARY 20: WHAT IF HE WON’T PHYSICALLY LEAVE THE WHITE HOUSE?

Biden during the campaign brushed off questions about a peaceful transfer of power when Trump refused to commit to one. Trump said he would accept the results of a ‘fair’ election – a term he certainly hasn’t used this week.

Biden has held back. ‘We’ll have an election in this country as we always have had, and he’ll leave,’ he said. 

There are small steps those around Trump could take to send a message.

Non-political aides control the in-house email system. Career Secret Service agents control the White House admittance system. Military aides who report to senior officers handle the nuclear football, 

Democrats have warned about potential document destruction, something that is difficult to achieve in the digital era. 

The coming days will reveal which aides stand by Trump’s side to the bitter end. 

The final rally tours before the election featured shout-outs to those who have been with Trump from the beginning, like former press aide Hope Hicks, who Trump called on stage. 

Sarah Sanders, his vocal defender as press secretary, also took a turn. Longtime aide Dan Scavino accompanied him around the country, and continues to hold access to his Twitter account. 

Son-in-law Jared Kushner has been at Trump’s side, even if he was reluctant to dance to YMCA at October rallies. First Lady Melania Trump ended up being a vocal defender, but attended a single campaign rally.

Press Secretary Kayleigh McEnany was the only aide with Trump as he made his defiant claim he ‘won’ the election at the White House Thursday.  

All those in Trump’s circle will have to consider not only their loyalty to the president and his appreciation for them, but their own legacies and financial future, with Lincoln Project members calling for those who ‘enabled’ Trump to be branded and denied outside work. Alternatively, they could stay close until the end as allies lay plans for a restoration of Trump or an offshoot Trumpist forces in 2024. 

The ultimate Biden nightmare is that Trump effectively barricades himself inside the White House while the new president is sworn in.

In that nightmare, Biden rides back to the White House in the Beast and has to decide what to do with his predecessor.

Biden’s campaign mocked the idea Friday, saying: ‘As we said on July 19th, the American people will decide this election. 

‘And the United States government is perfectly capable of escorting trespassers out of the White House.’

That is true – the Secret Service, the U.S. Marshals, and even the U.S. Park Police all report to Biden from midday on January 20. He can simply ask them to escort Trump – and whoever else is with him – out of the White House. 

A specific law protects the White House and other ‘restricted’ federal property – and the punishment for breaking it is a maximum of a year in federal prison.

So in that scenario, Trump could be Biden’s guest for a while longer, just not in the White House. 

SO COULD HE TAKE A PLEA BARGAIN?

A backdrop for much of Trump’s presidency has been his own potential criminal exposure, amid the Mueller probe, an impeachment, and federal prosecutors in New York combing over his business actions before he became president.

During his House testimony, former Trump lawyer Michael Cohen stated that Trump would inflate the value of his business holdings to get loans, while lowballing financial information at tax time.

The New York Times reported on tax return information that Trump engaged in instances of ‘outright fraud’ through tax schemes. Prosecutors in New York have indicated they are investigating Trump for possible bank and insurance fraud. Cohen is serving jail time in part over his role in facilitating hush payments on Trump’s behalf to porn star Stormy Daniels. Trump himself was identified as ‘Individual 1’ in court documents pertaining to the case. 

With constitutional scholars split on whether Trump could pardon himself to avoid prosecution, a plea bargain remains one possibility. If prosecutors believe they may have difficulty bringing a case against a former president, they may have an incentive to make an accommodation. The situation regarding Trump’s multi-year audit by the IRS remains murky, and it is unclear if the independent agency would even be ready to resolve any outstanding matters before the president leaves office.

Trump may have an incentive to put his legal house in order before Congress finally obtains his returns or potentially obtains government information Democratic lawmakers have been seeking for years without success. 

Another unknown is whether Biden, as president-elect, would in any way consider a pardon or another signal of an end to investigations in order to induce Trump to relinquish power. When asked about his posture during the campaign, Biden has said he would leave it to career prosecutors at the Justice Department to decide what to do.

The start of Biden’s Senate career coincided with Gerald Ford’s controversial Nixon pardon, so he is familiar with the partisan fury it created. He also campaigned with a call for reconciliation and a return to bipartisan cooperation, although he must work with a Congress with an energized left and that is filled with members furious at Trump administration stonewalling and what its members say are crimes. 

There is yet another opportunity to get his legal exposure wiped clean: get Vice President Mike Pence to do it for him. The strategy was laid out by Michael Cohen – who himself pleaded guilty to crimes – on MSNBC. ‘

‘My theory is that if he loses, there’s still the time between the election and the time that the next president will take office. And during that time my suspicion is that he will resign as president, he will allow Mike Pence to take over, and he will then go ahead and have Mike Pence pardon him,’ Cohen said. ‘It’s a very Nixon type of event.’ 

 

AND YES THERE IS A NUCLEAR OPTION: THE 25TH AMENDMENT

Trump cannot retain power as a man alone in the White House. 

If he has lost the support of even Mike Pence and his cabinet, there is a chilling possibility: they remove him through the 25th Amendment, finding him unfit to discharge the duties of office.

They would have to use the Section IV powers of the amendment which describes how the president can be removed from office if he is incapacitated and does not leave on his own.

The vice president and ‘a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide’ must write to both the president pro tempore of the Senate and the Speaker of the House, saying that ‘the President is unable to discharge the powers and duties of his office.’

The term principal officers of the executive departments would normally mean the cabinet secretaries.

So at least eight of the president’s 15 most senior Cabinet members together with the vice president must agree that a president should be removed before any plan can move forward.

That group is made up of the Secretary of State, Treasury Secretary Steve Mnuchin, Secretary of Defense, Attorney General, Interior Secretary, Agriculture Secretary, Commerce Secretary, Labor Secretary, Health and Human Services Secretary, Transportation Secretary, Energy Secretary , Education Secretary, Veterans Affairs Secretary and Homeland Security Secretary. 

Notifying the House Speaker  – Nancy Pelosi – and the Senate president pro tempore – Republican Chuck Grassley – is the act that immediately elevates the vice president to an ‘acting president’ role.

The deposed president can contest the claim, giving the leaders of the bloodless coup four days to re-assert their claims to the House and Senate.

Congress then has two days to convene – unless it is already in session – and another 21 days to vote on whether the president is incapable of serving. A two-thirds majority in both houses is required to make that determination.

As soon as there is a vote with a two-thirds majority, the president loses his powers and is removed, and the vice president stops acting and is sworn in as president.

But if 21 days of debate and votes ends without a two-thirds majority, the president gets back his powers.

Alternatively, Congress could set up its own mechanism to decide if he is fit for office – maybe a commission, or a joint committee. 

Pence would still have to agree with its conclusion and then write formally to the Speaker and president pro tempore. 

Pelosi in fact took steps towards that, unveiling in October legislation both House and Senate would need to pass to create a commission made up of former presidents, vice presidents, and other figures including former secretaries of state, attorneys general or surgeons general. 

The legislation went nowhere but if Trump was deserted by his party and Pence but not members of his cabinet, it could be rushed through in hours and the commission convened rapidly to force him out.