Monday, March 1, 2021
March 1, 2021

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Estrich: Who Will Tell the Emperor?


This is getting serious.

I’m not talking about the nightmare scenarios being spun about by law professors, most of whom, respectfully, have never walked a precinct.

The states will finish their counts, certify them and send the electors who are pledged to the winner to the Electoral College.

Well before the election, in a lengthy parade of horribles that would never happen (as opposed to horribles that can and do happen), a writer suggested that Wisconsin might ignore a Joe Biden victory in that state and instead, by vote of the state legislature, send a delegation committed to voting for President Donald Trump.

Could it happen? Maybe in a law-school hypothetical. Not in real life, not if anyone in Wisconsin ever wants to hold public office again. The electors would be thrown out, along with the Legislature. In fact, hours after the rumor was printed in The Atlantic, it was denied by everyone from the governor to the most junior state legislator. Historically, faithless electors have popped up on occasion but never come close to reversing an election.

This was not a close election. In 2000, the election turned on hundreds of ballots in a single state. No such luck here. Biden’s margins are plenty wide enough to get him to 270 electoral votes without a sweat. This isn’t 2016. Some states were very close. The popular vote, not so much.

And the Supreme Court? On Tuesday, the Supreme Court heard arguments on Obamacare, which Trump has been trying to get rid of for four years, even though it would leave more than 20 million Americans without health insurance in the middle of a pandemic.

Apparently, the court is not as inclined as Trump to do that. Based on their questions, Chief Justice John Roberts and even Justice Brett Kavanaugh seemed disinclined to throw out the law. Imagine that — Trump’s justice upholding Obamacare. The next thing you know, they might shut down some of the ridiculous lawsuits that the Trumpers keep filing — and losing. The court is not going to reverse the election.

What is serious here is not the possibility that Donald Trump won’t leave the White House. He will.

It’s that between now and then, he is actively impeding the orderly transition of power, including in key national security areas where the Biden team is not being briefed.

What’s serious is that, according to The New York Times, Biden and Vice President-elect Kamala Harris will not even receive the level of Secret Service protection they would receive as president-elect and vice president-elect so long as Trump’s puppet at the General Services Administration refuses to recognize that they won.

What’s serious is that the cowards in the Republican Senate caucus are so afraid of Trump and so desperate for his help in Georgia that they are behaving like fools, with no respect for the rule of law, the institution of the presidency, the Constitution of the United States and the national security of our country.

In the new world of Trump, that threatens to destroy the Republican Party as we know it, and what matters is not offending the man who is determined to control Republican politics for the next four years, even if he kills his party in the process.

Make no mistake: Trump will move out of the White House, but he won’t go far. He will create his own shadow White House, complete with the scary right-wingers he would never disavow. He will threaten to run primary opponents against Republicans who cross him. He will hold rallies with red hats, spending enormous sums of money not on trivialities like the midterms or governors’ races but entirely on himself.

He can be as racist and sexist and selfish and greedy as he wants to be, at least so long as all those new Democratic U.S. attorneys who will be appointed in January don’t start investigating him. Oh, wait, the Manhattan DA already is. And there will be others. The emperor may be naked, and the senators may be afraid to tell him, but on court days, he’ll need to get dressed.