The AfterMath

           It’s all over . . . . except, of course, for the legal machination which President Trump is intent upon pursuing.  But, that too will soon be behind us. Joe Biden has been elected as our nation’s 46th President with a record-breaking 74.5 million votes and, if current trends persist (and there is no reason to believe that they won’t), with a 306 to 232 vote margin in the Electoral College.  President Trump has refused to acknowledge his defeat and continues to claim that the election is being stolen from him through the use of fraudulent mail ballots.

             Knowing that the coronavirus pandemic would encourage the use of mail ballots, he not only denounced them as inherently fraudulent but did his best to disrupt the Postal Service’s handling of those ballots. He even had his campaign initiate several dozen legal actions seeking to limit voting and the counting of votes, only to find the courts largely unreceptive to his assertions. With a “never-say-die” attitude, Trump developed two fallback strategies for staying in office.

            First, he rushed the Supreme Court nomination and confirmation of Justice Amy Coney Barrett in the hope that a solid 6-3 conservative majority on the Court would somehow find a way to provide him with a second term.  With the Court’s own reputation in jeopardy, it doesn’t appear likely that the Court would set aside the unambiguous choice of the American people. Changing the outcome of the election would also require overturning the vote in at least two states which would make it abundantly clear that the Court had acted out of political partisanship rather than reason.   

            That leaves, as the President’s last hope, calling upon the Republican-controlled state legislatures in Wisconsin, Michigan, Pennsylvania, Georgia and Arizona to overrule the certifications of their respective voting administrators and appoint delegates to the Electoral College who would support his re-election. While technically permissible under the U. S. Constitution, this tactic is also not likely to succeed. This is because it would require these states to first adopt legislation taking back from the voters the power to select Electoral College representatives. Since Wisconsin, Michigan and Pennsylvania each have a Democratic governor, the passage of such legislation in those states would be virtually impossible; and changing the outcome in both Georgia and Arizona would not be sufficient to give the President the requisite 270 electoral votes. 

            Unfortunately, losing his bid for a second term does not immediately end Trump’s presidency which continues until January 20, 2021. This will give him ample time for further mischief. During this interval, we can expect that he will wreak vengeance on his perceived enemies.  They will undoubtedly include a host of individuals within the Department of Health and Human Services who expressed views conflicting with his own assessment of the continuing threat of the coronavirus pandemic, as well as FBI Director Christopher Wray who contradicted him regarding domestic threats to national security, and those in the Department of Defense who balked at sending military personnel to curb street protests across the country.

            We can also expect that the President will use his pardon power to lift the cloud of federal prosecution from the heads of some of his close associates.  This could include those who worked on his 2016 campaign, including members of his family. It could also include those who have taken illegal actions in furtherance of the President’s agenda, such as using DHS personnel to disburse protesters in Washington, D.C. and Portland, Oregon and ICE and Border Patrol employees who have abused the rights of persons seeking asylum. Also in this group is Louis DeJoy who, in defiance of the Congress and courts, undermined the nation’s postal service so as to interfere with voting by mail.  In addition, individuals like Rudy Giuliani and his two cohorts, Lev and Igor, could be in line for a presidential pardon.  Lastly, there may be pardons for individuals who defied House subpoenas in connection with the impeachment inquiry into the President’s activities, including IRS personnel who have refused to comply with the House’s statutory requests for the President’s tax returns.  The unanswered question is whether the President will reciprocate their loyalty to him or reserve his pardon power for those who could protect him in the future.

            There is also a strong likelihood that the President will use his remaining days in office to roll back any remaining Obama era Executive Orders and federal regulations in a last ditch effort to eradicate what remains of President Obama’s legacy in office. With the President, it’s not about what’s good for the country he professes to love, but rather about how he can get back at the man who ridiculed him at the 2011 Annual White House Press Correspondents’ Dinner.

             Despite his denials, there is good reason to believe that the President may be facing some serious financial difficulties in the near future.  It’s not simply that he has over $400 million in loans coming due over the next few years and that he is facing a claim of over $70 million from the IRS for a highly questionable tax refund, but his businesses (which are in the real estate and hospitality industries) are facing serious ongoing problems resulting from the coronavirus pandemic which is yet to simply disappear.  He may therefore try to leverage his remaining power as president to reap some financial windfalls.  This could include his receipt of future financial payments in exchange for approving the sale of restricted military equipment to foreign governments or the sale of mineral rights on federal lands. Our President has a fertile mind and will likely not want to miss out on this closing opportunity for personal profit.

             One open question is the extent to which the President will work with the Congress during the lame-duck session and cooperate in the transition of power to President-elect Biden.  The President is not known to be a gracious loser and will likely continue to contend that the election was stolen from him.  The nation is already in dreadful shape with the pandemic totally out of control and the vast majority of Americans facing economic extremis. This means that these problems need to be addressed immediately.  Mitch McConnell has announced that, with the elections behind us, his caucus is now prepared to move forward on economic stimulus legislation.  Although Treasury Secretary Mnuchin has continued to negotiate with Speaker Pelosi and Senate Minority Leader Schumer, it is perfectly conceivable that any agreement they might reach could be undermined by an embittered President. 

            It seems highly unlikely that President Trump will make any effort to stop the spread of the virus which is reaching record numbers of new confirmed cases with each passing day. He has embraced the strategy advanced by Dr. Scott Atlas that the nation’s best path is to allow the virus to spread and thereby achieve achieve “herd immunity.”  Therefore, it is not even clear that the President would be in favor of acquiring additional face masks and protective clothing for healthcare workers, much less imposing mandates to wear face masks and to close bars and limit the size of social gatherings.

             In the past few weeks the President has spoken about a new healthcare plan and infrastructure projects, but he has had four years to offer proposals on these subjects and nothing has been forthcoming.  Accordingly, there is no reason to think that he has any serious intentions of addressing these important issues in his final months in office.

            It is also questionable whether the President plans to participate in the transition of government.  When asked about this at press conferences, he declined to answer. At the very least, this seems to evidence a hostility regarding this subject.  In all likelihood, he will simply choose not to participate and let his Chief of Staff and Vice President handle the transition process. In reality, the President’s own participation in the transition process is not particularly vital since he has taken little interest in the actual functioning of the government.  The principal problem is that he has either fired or chased out of the government so many highly qualified civil servants that the transition process will surely suffer.  This will be particularly true at the Department of Justice, the nation’s intelligence services, the Department of State, the Department of Health and Human Services and the Department of Homeland Security.

             The good news is that President-elect Biden has a wealth of experience in running the U.S. government and brings to the job a far greater understanding than most of his predecessors.  However, he will be facing a much more daunting task than his predecessors because he will be inheriting a hollowed-out government, a deeply divided population, deteriorated international relationships and a worsening climate crisis, all in addition to the immediate heath and economic crises.  To add to his problems, he will likely have to deal with these issues with a divided Congress and a Senate Majority Leader who seems more concerned about securing Republican control of the government than solving the nation’s problems. 

             While it is still currently possible that the Democrats can wrest control of the Senate from the Republicans, that possibility is more theoretical than realistic. There currently remain five unresolved Senate races and the Democrats would have to win three of them.  While Mark Kelly, with a current 90,000 vote lead, is likely defeat his Republican opponent, the Senate races in North Carolina and Alaska are likely to be won by the Republicans running for re-election as they currently enjoy 95,000 and 57,000 vote leads. This means that if the Democrats are to have any chance of electing even 50 members of the Senate they would have to win both of the two Georgia Senate run-off elections scheduled to be held in early January.

            Since it appears that the Democrats are on the verge of securing a narrow victory in Georgia in the presidential election, this may not seem so implausible. That victory was largely achieved through the heroic efforts of Stacey Abrams in recruiting several hundred thousand new Democratic voters, giving the Democrats a slight numerical advantage over the Republicans in the state.  The problem is that in Georgia approximately 17% of the voters have no party affiliation, and those independent voters have historically supported Republican candidates. While roughly half of them appear to have been sufficiently repelled by President Trump to facilitate a Biden victory, they may actually find it appealing to having President-elect Biden hampered by a divided Congress.  Therefore, it seems unlikely that Georgia will elect even one Democratic senator.

            If President-elect Biden hopes to accomplish anything, he will have to ignore the partisan cries within his own party to seek retribution against the man who destroyed our nation’s standing in the world and who almost single-handedly destroyed most of the fabric binding our federal government together.  This task will be made even more difficult because Trump will likely continue to question the legitimacy of Biden’s victory and to sow division within the nation.  As tempting as it might be to simply sit back and allow the Department of Justice to pursue legal action against Trump and his accomplices, this will not help him achieve what needs to be done to put our nation back on a sustainable path.  Even so, there may be state attorneys general, as well as a couple of independent-minded U.S. attorneys, who will be prompted to make President Trump answer for his misdeeds.

            Trump, fearing retribution (as he tends to project his own feelings upon others), might seek to protect himself by making a deal with Vice President Pence. Under such an arrangement Trump would resign and, in turn, Pence would grant him a pardon covering all of his prior actions.  This essentially is what President Nixon did to avoid similar legal problems.  In many respects this would be a win-win situation. It would free President-elect Biden from having to deal with Trump’s prior misconduct; it would free Republicans of having to explain why they tolerated Trump’s multiple abuses of his presidential powers; and it would allow President Trump to more or less go on with his life.  It would not, however, excuse him from IRS claims for back taxes, free him from civil libel charges by E. Jean Carroll, or even allow him to escape from criminal charges that might be asserted by the New York Attorney General and the Manhattan District Attorney.

             My guess is that, despite these potential problems,  our 45th President will go on to do quite well.  Yes, he might lose most of his real estate holdings which have little chance of being profitable under his management, and he may have to cut deals with his creditors to avoid personal bankruptcy. But, he’s had ample experience in successfully dealing with both of these types of situations.  More importantly, we should not lose sight of the fact that he may be this nation’s greatest con man ever, greater than P.T. Barnum or Bernie Madoff.  Look at the facts: even though he wrecked the U. S. economy and caused the greatest loss of American lives since World War II, he nevertheless managed to get over 70 million Americans to vote for him, a figure only exceeded in this nation’s history by the man who denied him a second term as president.  Not even Hillary Clinton or the much-beloved (at least by Republicans) Ronald Reagan even came close to garnering this many votes.  So, just as he parlayed his perceived reputation as an astute businessman into a lucrative television contract, he’s likely to parlay his substantial political following into a highly lucrative radio or television contract, continuing to entertain and energize Americans who feel rejected by a changing world.