Illustration by Guillem Casasús / Rendering by Borja Alegre
November 2, 2020
The Biden team is preparing for the worst. Here are three possible scenarios.
A wretched presidential campaign has played out at last, but Election Day is not how this story ends. Unable to overtake his opponent in the polls, Donald Trump decided months ago to run against the election itself. That race does not conclude when the ballots are counted. Trump has raged against fictional plots to steal his victory, maligning routine procedures such as voting by mail and counting ballots until there are no more to count. His rage will not diminish if he is defeated.
Our electoral system was not built to withstand a sustained assault on its legitimacy. We are capable of defending it, but that is a collective enterprise. A healthy start would be to recognize that the assault has yet to begin in earnest. Election Day and the period to follow will be moments of maximum temptation for Trump. Can he find a way to interfere with the tabulation of votes? Impound ballots in the mail? Dispatch armed personnel to quell alleged disturbances in Democratic neighborhoods?
The battle for American democracy will not be fully joined until the counting starts. That’s when Trump will tell us that his predictions have come true—that the whole procedure is rife with fraud, that the tally is rigged against him, and that no one can be trusted except Trump himself to tell us who won and who lost. The vital questions are whether and how he will try to use his power to subvert the results.
Whether, I think, is easy. We have been over this before. Trump will not concede defeat. He will use every means at his disposal to maintain a grip on power.
From the November 2020 issue: The election that could break America
That qualifier, “at his disposal,” is important. It marks a distinction between wishes and commands that Trump can expect to be carried out. We know Trump’s intent. He is indifferent to any interest but his own and ruthless in its pursuit. What we need to know, in self-defense, is his capability. Trump stands atop a vast apparatus of government, ostensibly under his control but not entirely so in fact.
To move the government, Trump needs to know where the levers are and how to control them. In practice, this means persuading other people to operate the machinery on his behalf. Some of those people would balk at certain kinds of orders.
The Constitution anoints Trump the chief law-enforcement officer of the United States, but he cannot lock up Joe Biden or disqualify him from the race by executive order, no matter how much he yearns publicly to do so. He is commander in chief of the armed forces, but he cannot declare martial law, delay the election, and expect the troops to go along. The men and women he likes to call “my generals” would not obey.
What, then, can Trump do?
In public, Biden and his senior advisers profess full confidence in the electoral system to work as it always has. Every vote will be counted, they say, and the winner will be sworn in on January 20—end of story.
Behind the scenes, they are preparing for the worst. A special working group of high-powered lawyers led by three former solicitors general—Walter Dellinger; Donald B. Verrilli Jr.; and a recent addition, Seth Waxman—has overseen a massive planning exercise for rapid responses to dozens of scenarios in which Trump tries to interfere with the normal functioning of the election. Thousands of pages of legal analysis, according to an authoritative campaign source, have been boiled down into “template pleadings” for at least 49 predrafted emergency motions in state or federal court. The campaign will be ready on an hour’s notice to file for a temporary restraining order in any case it has thus far been able to anticipate.
“There’s no question that the Biden campaign has worked through every imaginable scenario and is certainly prepared—legally, at least—for any of these possibilities,” says Richard H. Pildes, a constitutional-law professor at NYU. Nothing Trump might do “would surprise the enormous legal team they’ve created to deal with twists and turns in the election. I assure you they’ve thought of more scenarios than the media would ever get to.”
The Biden team says it is ready even for scenarios it is sure will “never happen, and we’re not worried about it,” a Biden-campaign lawyer told me. “There have been a couple of lawsuits challenging Kamala Harris’s eligibility to be vice president,” he said. “Do we have stuff on that? Yeah. Do I think we have to worry about it? Absolutely not.”
Preparations for other cases feel more urgent, he said. Biden advisers (some of whom requested anonymity so that they could discuss this work) and independent experts I spoke with have gamed out multiple scenarios, with variations of law and circumstance, in which Trump sends forces to seize—or segregate, or intercept—ballots before they can be counted. Some of the scenarios seem far-fetched, others less so. Here are three they have taken seriously, along with reasons to doubt that Trump can pull them off. (The White House did not respond to a request for comment.)
Command of U.S. armed forces is among the most potent powers of any president. Could Trump dispatch active-duty forces to Democratic strongholds in swing states—say, Philadelphia, Detroit, and Milwaukee—with intent to suppress the vote or interfere with the count?
In a recent Atlantic story, I speculated on the possibility:
Suppose that caravans of Trump supporters, adorned in Second Amendment accessories, converge on big-city polling places on Election Day. They have come, they say, to investigate reports on social media of voter fraud. Counterprotesters arrive, fistfights break out, shots are fired, and voters flee or cannot reach the polls.
Then suppose the president declares an emergency. Federal personnel in battle dress, staged nearby in advance, move in to restore law and order and secure the balloting. Amid ongoing clashes, they stay to monitor the canvass. They close the streets that lead to the polls. They take custody of uncounted ballots in order to preserve evidence of fraud.
Could it happen? Not easily, and not likely, but it is not impossible either.
If Trump cared at all about conforming to law, he would need a reason under the Insurrection Act of 1807 for the use of troops in domestic law enforcement. In early June, Trump threatened to invoke that authority to quell disorder during widespread protests in American cities over the death of George Floyd. That kind of deployment has precedent—most recently in 1992, to suppress rioting in Los Angeles after white police officers were acquitted in the beating of Rodney King, a Black motorist, and in the 1950s and ’60s, when it was used to enforce desegregation orders in the South. Trump, in theory, could seize upon any violence around polling places—even violence touched off by his own supporters—to justify the deployment. He might even cast his intervention as a bid to protect voters’ civil rights.
Those justifications would be slender reeds, and they would run into a major legal obstacle. Trump’s power as commander in chief is exclusive, but not unbounded: It is subject to statutory limits. And federal law forbids, under criminal penalty, the presence of “any troops or armed men at any place where a general or special election is held.”
There is, however, an exception: Troops are permitted if “necessary to repel armed enemies of the United States.” An aggressive interpretation of that phrase, according to Dakota Rudesill, a professor of national security law at Ohio State University’s Moritz College of Law, might describe “agents of antifa” in those terms. “That would be a stretch, but we’ve seen a lot of stretches” from Trump, Rudesill said. If troops took possession of ballots, “obviously what we’re talking about are profoundly severe, extreme, shocking developments that would be just massive norm violations and the sort of thing you see in authoritarian states like Russia that have the forms and processes but are not democracies anymore.”
But who could stop the president? Courts are often deferential to the executive branch in matters of national security, and it is unclear what remedy they could order even if they ruled the deployment illegal. There are no do-overs in a presidential election.
Most election-law experts I talked with expressed deep skepticism of this scenario.
“The kinds of things you’re talking about are the kinds of things that would lead to rioting in the streets,” said Richard L. Hasen, a professor at the UC Irvine School of Law. “Now we’ve truly crossed into banana-republic territory.”
Maybe rioting is just what Trump would want in order to validate the deployment, I observed.
“You’re one of the few people I know who’s darker than I am,” Hasen replied.
One practical barrier, according to a lawyer advising the Biden team, is that “it would take a lot of troops in a lot of places to have an impact that clearly helps him.”
“A huge number of people have already voted,” the lawyer added. “How many troops do you have to send to how many places to affect a national election? And you’ve got to worry about whether you can actually get them to do what you want.”
That last point is the real constraint on Trump’s use of troops, the practical barrier he likely cannot surmount. It is hard to imagine the armed forces going along. General Mark Milley, the chairman of the Joint Chiefs of Staff, is not in the formal chain of command, but he spoke for the top uniformed leadership in a highly unusual written statement to the House Armed Services Committee, disclaiming any role for the U.S. military in the event of an election dispute.
Kori Schake: The military doesn’t want to get involved
Biden’s team has emergency legal papers prepared, but a senior adviser said flatly that “there is no way that he’s going to persuade the Pentagon to send troops.”
“Number one,” the adviser said, the senior brass “don’t want to, so let’s start with that. And number two, they make an independent evaluation about whether the action is legal. And there are at least two statutes that not only prohibit the troops from being deployed near polling places, but actually impose liability on the officers and arms-bearing soldiers.”
There is a caveat here, even so, the adviser acknowledged. It is also a serious crime, under the Uniform Code of Military Justice, to disobey a lawful order. Disobedience flies in the face of a lifetime’s training for a man or woman in uniform. Anyone who defies the commander in chief had better be sure.
Trump and his political advisers have good reason to assume that ballots sent by mail are likely to be Biden votes. Trump himself is the principal driver of that skew, because he has equated absentee voting with fraud, and many of his supporters believe him.
It might be in Trump’s interest, then, to interfere with the delivery of those ballots. Could he?
Experts considered one scenario that the Biden team has gamed out. John Ratcliffe, the director of national intelligence, passes word that top-secret information suggests an effort by China to forge absentee ballots—a risk that Attorney General Bill Barr has publicly raised as a matter of “common sense.” The report reaches Postmaster General Louis DeJoy, a major campaign contributor to Trump. DeJoy instructs the chief of the U.S. Postal Inspection Service to halt the delivery of ballots sent by mail.
Here even a temporary delay is strategically valuable to a sufficiently ruthless president. Twenty-eight states require that absentee ballots arrive by Election Day; the other 22 have deadlines within a few days. A ballot cannot be counted if it does not arrive on time, and the Supreme Court has been reluctant to permit a change of rules close to Election Day. “Running out the clock is a potential concern,” Pildes said.
S. David Fineman, a former chairman of the Postal Service’s board of governors, told me that postal inspectors could theoretically detain the mail for investigation purposes. “The Postal Service could take the position, ‘We’re not going to deliver any more mail to the county boards of election,’” he said.
Fineman said any move like this would be transparent and “outrageous.” He described it as “a little bit far-fetched,” if only for practical reasons. Since late last week, he pointed out, the Biden campaign and its allies have urged voters to stop using the mail, warning that ballots might not arrive on time. Tens of millions of ballots have already been delivered. If Trump were going to pull this move, he would probably have done it sooner. On the other hand, every vote counts in a closely contested state.
3. The Law-Enforcement Option
What “I do worry about,” the senior Biden adviser said, is an operation that combines federal law-enforcement forces under Barr’s command—as Barr arranged for the photo opportunity in Lafayette Square in June—including “some combination of DHS and the marshal service.”
In this scenario, federal authorities would purport to be investigating voter fraud and take steps to stop the counting. There is not much plausible authority to do that under federal law, but the law would not really be the point. If the FBI or U.S. Marshals showed up at a county election board with orders to seize the ballots, local officials would probably comply.
When I asked Lisa Manheim, a University of Washington law professor, about this scenario, she figuratively threw up her hands.
“Baked into your question is the idea that the president would somehow use legal means to then commit unlawful actions, so I understand why you’re asking it, but conceptually speaking, you’re not really asking a legal question,” she said. “You’re asking more just a question of power, when [legal pretexts] lend legitimacy to that exercise of power.”
“The law has a really hard time knowing what to do with pretext,” she added, “where a governmental actor is purporting to do something for one reason but in fact is doing it for another reason.”
Chuck Rosenberg, a former U.S. attorney and a former acting head of the Drug Enforcement Administration, was likewise somewhat flummoxed by the question. “I am not as sinister as the president, and so it’s really hard for me to think of ways to do something so out of line, so far out of norms,” he said. “How unrealistic do you want me to get?”
Rosenberg, echoing several other experts, said career assistant U.S. attorneys and FBI agents would rebel against such a plan. “It would require complicity at the executive-management level, and gullibility on the part of those following orders,” he said. “That’s hard for me to see.”
Justin Levitt, a Loyola Marymount University law professor and a former deputy assistant attorney general, said the trouble with the scenario is, “I don’t think that Bill Barr can carry that many ballots out of any given room, and I say that because I don’t think that career attorneys at DOJ would have any part in authorizing or signing off on or participating in an unlawful attempt to seize custody over ballots that were still in contention in the state.”
From the April 2020 issue: The president is winning his war on American institutions
“I fully believe that Trump and, unfortunately, Barr will seize every advantage they can because they have shown that they are willing to,” he said. “My firewall is that there’s very little that they can do themselves.” The equivalent of asking DOJ lawyers to seize ballots “based on completely visible pretext” is “asking the military to line up and shoot a crowd of peaceful civilians in the face.”
The Justice Department manual for prosecuting election crimes says that “in most cases,” documents relating to an election “should not be taken from the custody of local election administrators until the election to which they pertain has been certified and the time for contesting the election results has expired.” There is an exception for cases in which prosecutors allege “that local election administrators seek to retain or destroy the election records for a corrupt purpose or to further an ongoing election fraud scheme.”
In recent voting litigation, according to Edward B. Foley, a constitutional-law professor at Ohio State, the Trump administration is “taking the position that it’s a denial of voting rights to have fake ballots dilute real ballots,” which means “they have a legal theory for thinking that [state elections fall under] federal jurisdiction.”
“You can’t just say there’s no power of the federal government at all in these things,” he added. “You just have to hope it will not be abused … The idea of using DOJ power to try to thwart the popular vote is taking us into truly uncharted territories.”
Bob Bauer, a former White House counsel who is advising the Biden campaign, said the challenge for Trump would not be making an accusation of fraud, but backing it up. No court would allow the government to seize and hold ballots without evidence, he said, and “I don’t know how they could conjure it up and sustain that claim if it’s tested in any kind of adversarial process.”
The ultimate check on Trump’s power to meddle in the election is the same as it has been throughout his term in office: whether he can bend subordinates and institutions to his will. The record on that is mixed.
Bauer said a decisive loss in preliminary poll returns would greatly diminish the president’s power to push government agencies—or fellow Republican leaders—across normative lines.
“I am not sure when he looks behind him that he’s going to see the massive army that he thinks that he leads,” he said.