Seriously, will he ever go?

This law professor saw our election meltdown coming. Here’s where he thinks this crisis is headed.

Back in June, I interviewed Lawrence Douglas, a law professor and the author of a prescient book, Will He Go? Trump and the Looming Election Meltdown in 2020.

Among other things, Douglas predicted that mail-in votes counted in Pennsylvania would feed the false perception of foul play, that President Trump would exploit that perception and claim he won despite evidence to the contrary, and that right-wing media would peddle baseless conspiracy theories to help Trump overturn the results.

Douglas didn’t get everything right — he thought turnout would be low because of the pandemic and that the networks (except Fox) would have a call on election night — but the Election Day aftermath he painted is certainly playing out. The vote-counting process, delayed largely because mail-in votes take several days to count (and GOP state legislatures blocked laws allowing for an earlier start to mail-in vote counting), has been exploited by Trump and his allies to cast doubt on the election. Trump, predictably, has refused to concede and has spent the past week tweeting about how the election was fraudulent.

Douglas’s worry was that this scenario would set us up for a protracted constitutional crisis, one without any clear resolution.

As things stand, it does seem unlikely that the election won’t be settled — Joe Biden is the clear winner. But once-unthinkable scenarios are now in play, and the big question is whether flaws in our system, a president unwilling to accept reality, a party willing to test the bounds of our democracy, and a flood of legal challenges will lead to a major political meltdown.

Since Douglas anticipated our current crisis about as well as anyone, I reached out to him again to discuss what’s happening, where he thinks this is headed, and if he’s more or less confident that we’ll avoid the crisis he predicted.

A lightly edited transcript of our conversation follows.

Sean Illing

Did the reality of the 2020 election confirm your worst fears about how it would play out?

Lawrence Douglas

I would describe Trump’s refusal to concede as shocking yet unsurprising — shocking because it represents such a foundational attack on the democratic process; unsurprising because it was all too predictable. In my book, I imagined the following scenario:

As Michigan, Wisconsin, and Pennsylvania continue counting their absentee and provisional ballots, a clear pattern begins to emerge. President Trump’s lead over Joe Biden is shrinking, and within days, it vanishes altogether… Biden now leads in all three states. If these leads hold up, he will enjoy an electoral majority and become our next president.

None of this catches the president unprepared. Since [declaring himself] victorious…on election day, he has been tweeting tirelessly…

“In interest of FAIRNESS, ELECTION must be CALLED NOW! We must STOP the CORRUPT Democrats in PA, MI & WI from STEALING our VICTORY with THOUSANDS of FAKE  VOTES!!!”

“DEMS will never STOP trying to STEAL an election they can’t win HONESTLY! MUST go with ELECTION DAY COUNT!!”

“Stories of DISGUSTING FRAUD pouring in from MICHIGAN!! Dems can’t win honestly, so they CHEAT!! Courts must STOP”

While Trump’s claims of fraud lack merit, they find support among his various megaphones in Congress and the media and gain traction with his supporters, who, like millions of other Americans, cannot fathom how tens of thousands of votes can seemingly materialize after election day.

Trump’s tweets and the echo chamber of right-wing social media magnify…small acts of incompetence and confusion into a grand, organized conspiracy to overturn the results of election day….Trump’s lawyers, aided by the Justice Department, file suit to strike the provisional ballots in the three battleground states.

Not bad for a prognostication written over a year ago.

Sean Illing

Nope, not bad at all. So how is our system managing the crisis so far?

Lawrence Douglas

I think it’s important to appreciate how smoothly the election ran. I was deeply moved by the webcam images of election officials working tirelessly to count all the mail-in ballots. Those workers are the unsung heroes of the democratic process. The courts have dismissed Trump’s meritless suits with the proper dispatch.

Only the Republican leadership has demonstrated the predictable and lamentable failure to condemn the president’s baseless attacks on the integrity of the election.

Sean Illing

What has worked? What has failed?

Lawrence Douglas

The count worked well. The fact that it took days to declare Biden the victory was not a sign of the system malfunctioning, but a sign that election officials all over the nation were working with due diligence to count all legally cast ballots. The pandemic placed a lot of stress on the system, and the system held up remarkably well — far better than might have been predicted based on the missteps and foul-ups that plagued the primary season.

The failures are those of the Republican leadership, which, once again, has failed to condemn Trump’s reckless, baseless, and toxic attacks on a central pillar of constitutional democracy.

Sean Illing

So for all your accurate prognostications, we’re not really that close to the “meltdown” you imagined?

Lawrence Douglas

I don’t believe so, and for two reasons. First, because the election itself ran smoothly and fairly, Trump’s attacks on the counts are unlikely to gain enough traction to have a material bearing on the result.

Secondly, Biden’s margins are substantial enough in places like Michigan, Wisconsin, and Pennsylvania to discourage any Republican state legislators from succumbing to pressure from the president to award the state’s electoral votes to Trump.

Sean Illing

Some people (including on this website) think we’re seeing an attempted coup. Others say that’s an overstatement. Where do you land on this question?

Lawrence Douglas

Certainly the president is behaving as if he had been schooled by Lukashenko [Alexander Lukashenko is the authoritarian ruler of Belarus] on the meaning of the “peaceful transfer of power.” But Trump is distrusted, if not reviled, by the nation’s senior military leadership, held in contempt by the intelligence community, and despised by much of the Justice Department. He has installed loyalists in many federal bureaucracies and in the federal judiciary, has a powerful adjutant in the person of [Attorney General] Bill Barr, but he lacks the institutional support to defy the results of the election.

Sean Illing

Could Republicans prevent a constitutional crisis if they wanted to? Is this the problem right now?

Lawrence Douglas

The Republicans are presently doing what they’ve been doing for the last four years —aiding and abetting Trump’s assaults on the normative underbelly of our constitutional democracy. I suspect that once Trump has exhausted his legal remedies, leading Republicans will tepidly suggest that it’s time to move on.

Sean Illing

What can Democrats do? Should Biden be taking a stronger position right now?

Lawrence Douglas

I think Biden has adopted precisely the right response. In his victory speech, he did not so much as mention Trump by name. No point in doing so.

Sean Illing

If, as you worried, we still don’t have a consensus among the parties on who won in December or January, do you see a path to resolution?

Lawrence Douglas

I believe there will be consensus well before January. The members of the Electoral College will cast their votes on December 14. Before then, the states will have certified their results. I don’t see Trump’s electoral defiance gaining traction in state legislatures.

Sean Illing

There seems to be no there there, legally speaking, no plausible case that the election was stolen, but is there a chance this somehow makes it to SCOTUS?

Lawrence Douglas

It’s exceptionally unlikely that any case would make it to the Supreme Court, and if it did, the Court’s decision would have no material bearing on the outcome of the election. And I think Chief Justice John Roberts would bend over backward to make sure the Court didn’t render any decision that could be construed as supportive of Trump’s attacks on the election.

Sean Illing

Are there any litigation challenges in any of the states that concerns you?

Lawrence Douglas

Negative. As far as I can tell, they are all meritless and frivolous, without any chance of affecting the outcome. But while they might fail to achieve anything legally, they can serve Trump politically by further muddying the waters and casting doubt on the legitimacy of the outcome.

Sean Illing

Do you feel more or less confident that we will manage a peaceful transition of power now?

Lawrence Douglas

Trump will ultimately submit to defeat — he will not need to be frogmarched out of the White House on January 20. That much we can be grateful for. But he will never concede defeat; he will never acknowledge Biden’s victory as legitimate.

In the short term, the multiple lawsuits justify Trump’s refusal to concede. But at no point will Trump back off from insisting that he is a victim of the same nefarious “deep state” and “fake news” forces that allegedly have been aligned against him since the moment he took office.

By refusing to concede, he propagates the myth that he is being forced from office precisely because he has kept faith with his base. In defeat, his brand will remain irresistible to his supporters. And if he commands his base, he commands his party — and leaves open the possibility that, like Napoleon returning from his Elba exile, he will run again in 2024.