The Role Of The Electoral College As Envisioned By The Founding Fathers
cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? (emphasis added)
In other words, the Founding Fathers established the Electoral College for the express purpose of ensuring, among other things, that the President wouldn't be a puppet of a foreign government (like say, Russia). Clearly, the Founding Fathers wanted the Electors to be free to follow their consciences and vote against those who posed a threat to our national survival. Unfortunately, thirty states have, in effect, said "screw you" to the Founding Fathers by enacting laws that attempt to force electors to vote for the candidate that won the states' election.
Most of the laws cited above require electors to vote for the candidate of the party that nominated the elector, or require the elector to sign a pledge to do so. Some go further: Oklahoma and Washington impose a civil penalty of $1,000; in North Carolina, the fine is $500, the faithless elector is deemed to have resigned, and a replacement is appointed. In South Carolina, an elector who violates his or her pledge is subject to criminal penalties, and in New Mexico a violation is a fourth degree felony. In Michigan and Utah, a candidate who fails to vote as required is considered to have resigned, and a replacement is appointed.
The Lawsuit In Colorado Against Colorado's Law Binding Its Electors To The Popular Vote
Two Colorado Electors, Polly Baca and Robert Nemanich, filed a lawsuit in order to prevent the state from enforcing its law requiring Electors to vote for the candidate who won the state's popular vote. They hoped that Judge Wiley Y. Daniel would rule the law unconstitutional and set a precedent for judges in other states to follow. Unfortunately, Judge Daniel ruled against them. Corey Hutchins explained why in the Colorado Independent:
“Part of me thinks this is really a political stunt,” the judge said at one point. “I bet if Hillary Clinton had actually prevailed in the national vote … we wouldn’t be here,” he said at another. . . .
After three hours, Daniel denied the electors’ request of a temporary restraining order stopping the state from enforcing its law.
The electors, he said, had signed a pledge. They are bound by promises they made when they took the job. If they have a problem with the law, he suggested, go to the General Assembly and get the law changed.
The voters who cast their ballots for Clinton would be harmed, the judge said, if these Democratic electors were allowed to vote for someone else. Ruling otherwise would “undermine the electoral process.” He said the electors were engaged in a plan to vote for someone else, “for reasons that don’t make sense to me.” . . .
There are five reasons why Judge Daniel clearly got this wrong.
- As noted above, he clearly went against the wishes of our Founding Fathers.
- As noted by the Electors' lawyer, Jason Wesoky, if Hillary had won the election and the FBI later disclosed that she had engaged in criminal activity, Trump's lawyers would be filing suit arguing that the Electors should be free.
- Judge Daniel's insistence that electors should get the legislators to change the law can only be classified as cute. He knows that this is no remedy since the odds of convincing the legislators of changing the law before December 19th are zero. It is also an abdication of his judicial responsibility for striking down unconstitutional law.
- Those who voted for Clinton did not just vote for Clinton. They also voted against Donald Trump. A sizeable portion probably held their nose in voting for Clinton because they saw no alternative. (An August 2016 Pew Research Survey showed that 46% of those who planned to vote for Clinton were doing so mainly because they wanted to prevent Trump from becoming President.) Judge Wiley claimed that voters who had voted for Clinton would be harmed if their Electors were free to vote for someone else. However, if all Electors were bound to their candidate then Trump would be guaranteed to become President and all Clinton voters would suffer 100% harm. Freeing the Electors to vote their conscience would set a precedent for judges in other states to unbind their states' Electors. This would increase the chance that someone other than Trump would become president, thus partially satisfying the wishes of a substantial number of Clinton voters. In other words, the harm suffered by Clinton voters would be reduced by unbinding the Electors. The same argument would hold even more strongly for unbinding the Electors who were pledged to Trump. That same Pew Research Survey showed that 53% of those planning to vote for Trump were primarily doing so to prevent Clinton from winning. Their interests would arguably be better served by freeing the electors to vote for another candidate. The next point explains why EVERYONE'S interests, both voters and nonvoters, are better served by unbinding the Electors.
- The Constitution is not a suicide pact. So warned Justice Robert Jackson in his dissent in Termineillo v. City of Chicago. So too did many who justified increased electronic surveillance of American Citizens as a response to the 9/11 attack. And while he was arguing for a temporary ban on Muslims entering the U.S., Donald Trump said, "The Constitution — there's nothing like it. But it doesn't necessarily give us the right to commit suicide, as a country, OK?" If the Constitution is not a suicide pact, then certainly a state law binding selectors is not a suicide pact either. I will argue below why enabling Trump to become President is equivalent to entering a national suicide pact, or at the very least, equivalent to playing Russian Roulette. But before arguing this, I shall present several non-suicide related reasons for allowing the Electors to reject Donald Trump.
Trump and Russia
Russian fingerprints were on email stolen from the DNC that was published by WikiLeaks and other outlets. Trump's recent claim that he doesn't know Vladimir Putin is contradicted by a video from 2013, in which he claimed he had a relationship with Putin and by a video from a National Press Club meeting in 2014 in which he stated that he had spoken directly and indirectly with Putin. Clearly, even before the election, Trump's changing story about his relationship with Putin should have raised red flags.
Donald Trump could have released his tax returns to allay suspicions that he had commercial entanglements with Russian oligarchs close to Putin that could compromise his ability to put U.S. interests over Soviet interests. For whatever reason, he chose not to do so. Four events occurred after the election that suggest Trump has been compromised in a way that the Electoral College was specifically designed to prevent.
- Lawmakers in the Russian Duma burst into applause when it heard news of Trump's victory.
- Russian Deputy Foreign Minister Sergei Ryabkov acknowledged that there had been contacts between the Russian government and Trump's team and that members of the Russian government knew most of the members of Trump's entourage.
- Sergei Markov, an unofficial Kremlin advisor suggested that Russia "may have helped WikiLeaks" in some unspecified manner.
- Most importantly of all, the CIA has briefed several key Senators that it has concluded that Russia intervened in our election to help Trump get elected.
If indeed the Russians helped Trump win by feeding stolen emails to WikiLeaks, then Trump will start his presidency indebted to Russia.
Other Events That Occurred After The Election That Call Trump's Suitability To Be President Into Question
University of Utah law professor Christopher Peterson completed a study that concluded that there would be grounds for impeachment if allegations against Donald Trump of fraud and racketeering were proven true in the lawsuits he faced at the time over his involvement in Trump University. Trump has avoided this danger by paying $25 million to settle the lawsuits out of court. Trump did not admit admit guilt in the settlement, but the fact that he had previously pledged that he would NEVER settle the case and would fight it on principle should raise some eyebrows.
Donald Trump's vast business empire creates a special Constitutional challenge that no previous president has faced. An in-depth examination of Trump's potential conflict of interests by the New York Times explains
Federal law does not prevent Mr. Trump from taking actions that could benefit him and his family financially; the president is exempt from most conflict-of-interest laws. But the Constitution, through what is called the emoluments clause, appears to prohibit him from taking payments or gifts from a foreign government entity, a standard that some legal experts say he may violate by renting space in Trump Tower in New York to the Bank of China or if he hosts foreign diplomats in one of his hotels.
Both Richard Painter, a University of Michigan law professor who had served as chief legal council for President George W. Bush, and Harvard law professor Lawrence Tribe, have concluded that Trump is poised to violate the Constitution from the first day in office.
On November 30, Donald Trump tweeted that he would be holding a press conference on December 15 to announces how he would be leaving his business. December 15 is just four days before the Electoral College meets to determine who will be the next president. However on December 11 he told Fox News Sunday that his executives and his children would be running his business without him. It is hard to see how anything short of selling his business would ensure that Trump won't violate the Emoluments Clause. And on December 12 Trump's transition team announced that Trump would postpone the Dec. 15 press conference until January, well after when the Electoral College chooses a president. He later tweeted that he would be holding the press conference "in the near future", but he did not say whether the conference would be held before or after December 19, the day the Electoral College is scheduled to meet. It will be a giant middle finger to the Electoral College if he fails to hold a press conference before it meets.
Why A Trump Presidency Is Equivalent To A National Suicide Pact, Or At Least A Game Of Russian Roulette
A Not So Intelligent Refusal To Accept Intelligence Briefings
Donald Trump has only sporadically attended intelligence briefings. [Update: Trump's team just announced that he will receive intelligence briefing three times a week See note below.] What's worse, Trump dismisses intelligence that contradicts what he finds to be politically expedient. It is, to say the least, inconvenient for him that our intelligence agencies have concluded that Russia was behind the hacking of the DNC that helped get him elected. So instead of acknowledging the evidence, he dismisses it entirely as politically motivated. A president who fails to carefully consider evidence that goes against his preconceived notions or his political desires could easily be led astray and plunge us into an unnecessary war. Conclusions should be based on carefully weighing the evidence, and the evidence that should be carefully weighed should not first be put through a filter of political convenience.
Trump's failure to attend intelligence daily briefings and his dismissal of evidence he doesn't want people to believe would be disturbing even if he surrounded himself with the very best people. But some of his closest associates have demonstrated questionable judgment at best, and a propensity for dangerous extremism at worst. Take for example, Trump's proposed National Security Advisor, General Michael Flynn. Flynn, was fired from his job as head of the Defense Intelligence Agency and his soft approach to Russia has raised eyebrows within the national security establishment. According to Politico, Flynn has uncritically retweeted fake news sixteen times since August 9. These tweets included accusations that "Clinton is involved with child sex trafficking and has 'secretly waged war' on the Catholic Church, as well as charges that Obama is a 'jihadi' who 'laundered' money for Muslim terrorists." To be fair to Flynn, despite rumors to the contrary, he never retweeted links to articles pushing the bizarre Pizzagate conspiracy theory that John Podesta and the Clintons were involved in a child trafficking and prostitution ring supposedly run out of a Washington DC pizzaria. (For more on Pizzagate, see here and here and here.) However, his son, Michael Flynn Jr. did promote this particularly vicious rumor. To Trump's credit, he fired Jr. from his advisory team, but only after Jr.'s tweets came under scrutiny when right wing thug Edgar Maddison Welch entered the pizzaria with an assault rifle and firing at least one shot. Innocent people could be harassed, threatened, or killed when civilians are misled by fake news. The consequences are a bit more dire when Trump's national security adviser is so easily led astray. The inability to distinguish false reports from reality could lead to war. Tens of thousands of people could be killed.
Empowering ISIS and Radicalizing Muslims By Declaring War On Islam
Flynn is more than just a purveyer of fake news. He is also a fear mongerer. He has said that Islamism "is a vicious cancer inside the body of 1.7 billion people on this planet that has to be excised." He once tweeted that "Fear of Muslims is RATIONAL". And he is hardly the only person close to Trump who suffers extreme Islamophobia. Trump's proposed CIA Director, Mike Pompeo, attacked Muslim leaders two months after the 2013 Boston Marathon bombing for their failure to denounce the bombing. However the Universal Muslim Association of America, the Muslim Public Affairs Council, the Council on American-Islamic Relations [CAIR], the Muslim Peace Coalition, the Muslim American Society Public Affairs and Engagement, and the the Islamic Society of North America all denounced the bombing within 10 hours of its occurrence. Facts matter. This April, Pompeo appeared on a radio show hosted by Frank Gaffney, one of the world's most extreme Islamophobes. Among other things, Gaffney pushed the fake story that President Obama was really a Muslim who was born outside the U.S. Echoing Senator Joe McCarthy's fears of communist infiltration, Gaffney claimed that the Muslim Brotherhood had deeply infiltrated the government in order to propagate Sharia law. He even accused a prominent conservative, Grover Norquist, of links to the Muslim Brotherhood. He also pushed a conspiracy theory that the Obama Administration redesigned the Missile Defense Agency's logo to incorporate an Islamic Crescent. I guess we shouldn't be too surprised by Gaffney's insanity. After all, in March 2009 he was pushing the theory that Saddam Hussein was behind the 1995 Oklahoma City bombing. There have been reports that Gaffney was serving as an adviser to Trump's transition team, though both Gaffney and Trump's spokesman denied it. However, what can not be denied is that Trump cited work by Gaffney's Center for Security Policy think tank to justify his proposed ban on Muslims entering the U.S. Even more disturbing, Trump's right-hand man, Steve Bannon considers Gaffney along with extreme Islamophobes Pam Geller and Robert Spencer to be experts on Islam and has given them a platform to share their poisonous views. And just to add a cherry on this foul cake, Trump's pick for Secretary of Housing and Urban Development, Ben Carson, has said that Islam is inconsistent with the Constitution.
By surrounding himself with these extremists, Trump has given the 3 million Muslims in the U.S. and the 1.6 billion Muslims around the world reason to worry that he will declare war upon them and their faith. And Muslims aren't the only ones picking up on this signal. KKK, neo-nazis, and alt-right wingers have also recieved this message. Hate crimes against Muslims, some by thugs invoking Trump's name, have soared recently. At least two mosques have been defaced with "Trump" spray-painted on them and one has been firebombed, allegedly by a Trump supporter. Trump did say that he wants these hate crimes to stop. But he has only denounced them when prompted to do so by a reporter, and his denunciation was so weak that thugs are interpreting it as a wink and a nod to carry on.
And it isn't just Muslims and TrumpThugs who have picked up this signal. SOMEONE on an extreme right wing pundit's staff, and perhaps the pundit himself, has picked up on it as well. SOMEONE, posted a meme to Allen West's Facebook account that Donald Trump chose General Mattis to be his Secretary of Defense in order to EXTERMINATE Muslims. Who actually posted the meme and whether West actually authorized its posting is a bit of a mystery. Michelle Hickford originally claimed that she had posted the meme without West's approval. She later changed the post where she had claimed responsibility for posting the meme to say that neither she nor West had authorized it. It seems the West camp is having trouble explaining who to blame for the post. The meme was quickly taken down, but the point remains--it isn't only Muslims who believe it will be open season on Islam under Trump. And Trump has not done nearly enough to dispel this perception, misguided though it may be. Certainly the Trump camp did not assuage Muslim fears by meeting with West two days after the meme advocating genocide against Muslims was posted.
Donald Trump has magnified a threat to our national security by creating, or at least allowing, an environment where extreme hostility towards Muslims flourishes. The overwhelmingly vast majority of Muslims in the U.S. are peaceful and just want to get along. But allowing this hatred towards Islam to grow fosters the perfect environment for extreme Islamic radicalization to occur. This is why Israeli historian Gershom Gorenberg has called Donald Trump a strategic asset of the Islamic State.
Playing A Dangerous Game WIth China
But this is not the only threat that Trump has created for our national security. Trump roiled the waters of U.S.-Chinese relations earlier this month when he took a phone call by Taiwan's President, Tsai Ing-wen. This was a big deal, possibly a VERY big deal, because it called into question whether the Trump Administration would continue the One China policy that the U.S. has been following since 1979. (For background on the One China policy, see this explainer in the Washington Post and this article by Jeffrey Bader, a senior fellow in the John L. Thornton China Center at the Brookings Institution.) The Chinese government is extremely sensitive about any change in the status quo. How they will react to the Trump Administration's overtures to Taiwan is anybody's guess. The options range from doing nothing, to pressuring Taiwan through economic sanctions, to punishing U.S. companies doing business with China to breaking off diplomatic ties with the U.S. to war. No one knows what will happen. We do know, however, that the Chinese have already signaled their displeasure with Trump's policy by flying a nuclear-capable bomber beyond its borders and over disputed islands in the South China Sea.
Trump's refusal to take daily intelligence briefings is especially unnerving in light of his propensity to tweak the nose of the Dragon.
Paul Haenle, who was on the National Security Council staffs of President George W. Bush and President Obama and is now director of the Carnegie-Tsinghua Center in Beijing, said the incident showed the importance of Trump taking daily intelligence briefings, consulting with experts at the State Department and Department of Defense and quickly assembling a China team.
Past administrations took a “no surprises” approach to Beijing, Haenle said. “The alternative — catching China by surprise on some of the most sensitive and long-standing areas of disagreement in our relationship — presents enormous risks and potential detriment for this consequential relationship.”
The news that President-elect Trump has spoken by phone to Taiwan’s President Tsai Ing-wen as part of the series of congratulatory calls on his election heightens concerns about Trump’s foreign policy deftness. There are serious risks posed by his failure to take briefings by government professionals, and he appears to have little respect for the potential damage of actions taken without understanding long-standing U.S. national security concerns.
Donald Trump and Nuclear Weapons
The thought that Donald Trump could send nukes flying should scare the crap out of anyone who has been paying attention to the news for the past 6 months. But just in case you are not sufficiently scared, pay attention to what Tony Schwartz has to say about Trump. Schwartz spent 18 months working very closely with Donald Trump as his ghostwriter for "Art of the Deal". He started speaking out about his experience with Trump because
. . . the prospect of President Trump terrified him. It wasn’t because of Trump’s ideology—Schwartz doubted that he had one. The problem was Trump’s personality, which he considered pathologically impulsive and self-centered. . . .“I put lipstick on a pig,” he said. “I feel a deep sense of remorse that I contributed to presenting Trump in a way that brought him wider attention and made him more appealing than he is.” He went on, “I genuinely believe that if Trump wins and gets the nuclear codes there is an excellent possibility it will lead to the end of civilization.”If he were writing “The Art of the Deal” today, Schwartz said, it would be a very different book with a very different title. Asked what he would call it, he answered, “The Sociopath.”
Now, watch this video featuring retired General and former CIA Director Michael Hayden and Joe Scarborough. Hayden stresses that the nuclear launching system was built for speed and that there isn't much in the way to stop a president from launching nukes, whether a launch was genuinely warranted or not. Scarborough relates a story a national security expert told him about Trump questioning, three times in an hour, why we can't launch nuclear weapons if we have them. Scarborough's source is anonymous, so it is open to question. However, I believe Scarborough and his source are telling the truth since they seem to back up what Tony Schwartz has said on the record.
A Summary of the Dangers Facing The U.S. Under Trump's First Term
To summarize, Donald Trump poses a great threat to the existence of the United States.
- He is sure to antagonize most of the 1.6 billion Muslims around the world.
- He is likely to antagonize the Chinese government that represents 1.35 billion people, or 20% of the world's population. This government commands the largest military in the world and possesses over 200 nuclear warheads.
- Trump has said that China must take stronger action against North Korea to pressure it to halt its nuclear weapons program. He has even suggested that China should invade North Korea to solve this problem for us. It is impossible to imagine China invading North Korea under even the best of circumstances. Imagining it will increase cooperation with the U.S. in any realm while we are challenging the One China policy is folly.
- He has already antagonized our neighbors to the South with his threat to build a wall and make the Mexicans pay.
- He has, perhaps inadvertently, created major divisions within our society by creating conditions where the Ku Klux Klan and neo-nazis flourish.
- He has called global warming a hoax and is seeking a way to withdraw from the Paris Agreement to fight climate change by limiting greenhouse gas emissions. He is reportedly considering stripping NASA's budget to prevent it from monitoring climate change.
- He may be looking for an excuse to abandon the Iran nucler deal. It is extremely unlikely that other nations will join us in reinstating a sanctions regime against Iran if we torpedo the deal. If the deal collapses we will be faced with a choice of letting Iran's nuclear program go unchecked or going to war with Iran.
- Putting Donald Trump in charge of nuclear weapons is not just playing Russian Roulette with our national security. It is playing Russian Roulette with human survival.
It is hard to see how the U.S. will survive four years of Trump. If electing Donald Trump isn't entering a suicide pact, or at least playing Russian Roulette, I don't know what is.
Will We Have The Opportunity To Vote Trump Out In 2020 (If The U.S. Survives That Long)
If we do survive Trump's first term, will the country have the opportunity to get rid of him four years from now? Trump unintentionally raised that question when he tweeted that he had really won the popular vote.
In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally
— Donald J. Trump (@realDonaldTrump) November 27, 2016
Both Snopes and Politifact looked at the claim that millions of people illegally voted for Hillary, and both cried "BULLSHIT!" If Trump is willing to claim that his opponent received millions of illegal votes now, what will he do four years from now if he loses his reelection bid? Will he claim that the results are invalid because his opponent received millions of illegal votes? Will he refuse to leave the White House amidst claims of fraud? He will have had four years to appoint loyalists to positions of national security. He will have had four years to appoint the heads of the FBI, the CIA, the NSA and the joint chiefs of staff. He will probably have had a chance to appoint two or three Supreme Court Justices and numerous federal court judges. Will they stand up to him and say, "No, Mr. President, it is time for you to go?" Or will they smartly salute the one who had brung them to the dance and say, "Aye Aye sir! The vote was rigged and the results are null and void?" The fact that Trump has put us in a position where we even have to ask these questions should give Electors reason to reject him.
Update: 12/14/16 2 pm: To learn more about the Hamilton Electors and how you can support them, please visit their website. I encourage making a donation and helping them get publicize their cause.
Update: 12/14/16 2 pm: The President's team announced today that he would be getting three official intelligence briefings a week. While that is far better than the once a week briefing he was reported to have received until today, it still fall shorts of a daily briefing. However, his team reports that he will be briefed daily by General Michael Flynn. Given Flynn's propensity to latching onto conspiracy theories and fake news, having him spin the intelligence is less than assuring.
Update 12/15/16 Colorado's Secretary of State Wayne Williams plans on forcing Colorado's Electors to take an oath that they will vote for Clinton before allowing them to cast their vote. If they violate their oaths he said he will prosecute them for perjury. If they are convicted of perjury they could face fines of $500,000 and be sentenced to six years in prison. This is outrageous. I urge you to contact his office and send him a link to my article. The phone number is 303-894-2200. Email: firstname.lastname@example.org Twitter: @ColoSecofState DO NOT THREATEN HIM, but feel free to ask if he will be violating 18 U.S. Code § 594--Intimidation of Voters.
Whoever intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, at any election held solely or in part for the purpose of electing such candidate, shall be fined under this title or imprisoned not more than one year, or both.
I honestly do not know if this law applies to this situation, but it doesn't hurt to make Williams think about it.
— Summer Brennan (@summerbrennan) December 14, 2016
Update 1/13/19: Congressman Steve Cohen has introduced a Constitutional Amendment to eliminate the Electoral College. Read his well-reasoned column justifying his proposed Amendment.