Over the lat couple of decades, as townships, counties, and states have been pitched on the virtues of electronic voting systems over the tools of Stone Age democracy (where voting was done on paper ballots with simple mechanical machines). The pitches all came with one promise: “There will always be a paper ballot fail-safe, so in the event of a broken election you can always just open the boxes and count the ballots!” I would respectfully suggest that whatever foresight caused election officials in years past to extract that commitment, whatever threshold of election uncertainty they envisioned might someday occur requiring that a measure be taken to give the public confidence in an election result…whatever that point is, has surely been breached.
Because of that fact, since November 15 I have imagined a way to resolve this quickly, with little-to-no insult to the Constitution (and far less than all alternatives routes, including “doing nothing”):
- Under Executive Order 13848, a president has the power to find that there is evidence of foreign involvement in a domestic election. Within days of this election enough was already known (e.g., my cyber-comrades had already traced packet traffic between Dominion and Frankfurt, Serbia, and Pakistan) that would have justified President Trump (with no declaration of Martial Law or use of the Insurrection Act) signing a statement that he had seen enough to activate that Executive Order, and therefore:
- He was going to send a federal force (National Guard, DHS) in to take control of the paper ballots in six disputed counties and count them livestream, such to be completed in 3-5 days.
- Set up a website where people at home could browse in and watch those six key counties be recounted. Of course, YouTube already has all of the technology built: the federal forces moving into each counting operation would simply set up some cameras and start piping up through live-feeds as they counted what we as a country were promised: a 100% integrity failsafe. Paper ballots. Remember, that was the promise that came with the machines: “In the event of a broken election you can always just open the boxes and count the paper ballots!” So why not do it? A well-managed National Guard force could have comfortably completed this assignment in 3 days, 5 at the outside.
- If upon completion of this exercise, if there were not significant disparities in these 6 states (or even the 6 key counties within them that are at the heart of all of these strife), then President Trump would call it a day.
- If, on the other hand, this exercise did unearth significant disparities, President Trump would have a choice to make.
- If large irregularities were found in those six counties, President Trump would have had two routes (one better than the other, I feel):
- THE NOT SO GOOD ROUTE: Take the irregularities found by such a recount, and bring them to the Courts or the States, and fight to have them reverse earlier certifications and thus gain a second term (with what half the Country would feel was underhanded decision of a Court or a State legislatures).
- THE SMARTER ROUTE: If the six counties showed mass irregularities, then have the National Guard step in and re-run the election nationally. 50 states. Give them 30 -45 days days to set it up and run it. Paper only. If you want to vote by absentee ballot, National Guard will come to your home and hand you a paper ballot that you fill out and give back to them. Again, all counting to be done on livestreams from each precinct or tabulation center.
- Would it not be injurious to the Constitution to involve federal officers, let alone uniform-wearing National Guard, in the democratic process? I answer: Yes. It is also injurious to the Constitution to have a Presidential election doubted by roughly 47% of the population. The National Guard are (as the advertisement says) our neighbors, our relatives, our co-workers, our Citizen Soldiers. In fact, at the moment I cannot think of a federal body that (essentially) all of us could trust, more than we do the National Guard.
- Would this have thrown off the timing of Presidential succession as envisioned in the Constitution? It need not have. For one thing, the 20th Amendment (ratified in 1033) stipulates that one presidential term ends and another begins on January 20 (no matter the day of the week of the inauguration year in question). Other than that January 20 date, the Constitution is silent. There is a January 6 date to be concerned with but it is not in the Constitution, and sliding that would not have been nearly so grievous a matter as the January 20 date. That said, here is how the timing would have looked (in increasing order of insult to the Constitution):
- If by November 20 the National Guard had been told to recount the ballots, they would have finished by November 25 (the day before Thanksgiving Day). If they documented large irregularities, the National Guard could have re-run the national election over the following 40 days (again, livestreaming the paper ballot counting), and had an answer the nation could trust by January 5. No insult to the January 6 date by which Congress accepted the results.
- In by December 15, had the National Guard had been instructed to recount the 6 counties, we would have had an answer by December 20. If large irregularities had been found, the National Guard would have been able to rerun the national election and have its answer by (with a big effort) a few days before January 20. Again, little to no injury to the Constitution would have been sustained.
- If by January 5 the president had used his authority under the EO 13848 to have the National Guard (or FBI/DHI) do a livestream recount of paper ballots for 6 counties, and it showed large irregularities, then re-running a national election using the National Guard would have brought some small insult to the Constitution, as it may not have been finished until February 15-22. That would still have left time for certification of electors and Congressional acceptance and Inauguration before the end of February. Again, some insult to the Constitution would have been sustained (a delay of 4-5 weeks in the presidential transition), but that would have been a slight abrasion compared to the broken leg with which the Constitution is going to crawl away if things continue on their course (roughly half of a population feeling that this election was rigged).
- Why didn’t President Trump take this peaceful, clarifying course? He could have on his own, but I suspect he was hoping for DNI Ratcliffe to bring in a finding that found just foreign interference. Ratcliffe was supposed to deliver that report on December 18, but was stalled by his own Intelligence Community (not one of whom would sit and review with us the evidence we had already dug up). At the end, DNI Ratcliffe delivered a report to Congress on January 7, minutes after the certification was complete: in it, he voiced a muted dissent from the conclusion that had been reached by the IC (which, I repeat, had failed to ask to speak to a single one of our cyber-sleuths or witnesses or providers of affidavits, even though many of those involved were ex-feds themselves and highly conversant with the need for clearcut evidence).
- What should President Trump do now? Is there a peaceful resolution possible?
A couple evenings before Christmas I spent 4.5 hours with the President and a handful of others. One of the strangest aspects of it was how warm and gentle he was, nothing like the blustering man we have been told ad nauseum inhabits the White House. He even acknowledged knowing that I had not voted for him, and was doing this out of a sense of civic duty: he was quite gentlemanly about it. One of the most touching moments came when he turned and said quietly to me, “You know something Pat? If I lost this fair and square, then come January 20 I would be perfectly content to walk to the helicopter, fly away, and just spend my days playing golf and enjoying my friends. I don’t need this. But how can I do that if this is a stolen election? How can I, with the oath I swore to the Constitution, just walk away and let them steal it?” He seemed sincere and heartfelt; in fact, he seemed anguished. I understood his dilemma, and I wish I could have thrown an arm around his shoulders and let him know he was right to feel such a dilemma.
Yet that dilemma is what argues for the solution that I propose above. One way or another, America could have her answer and could go forward in confidence without a civil war. All other solutions leave half the nation feeling cheated.
HOW THESE IDEAS WENT OVER IN THE OVAL OFFICE
For some reason General Counsel Pat Cippollone thought this discussion was an egregious affront to our republic. We asked him to explain why, and every objection he raised was quickly shot down.
“Never in American history has there been that kind of a challenge to an election!” Thundered Cippollone. Flynn responded, “Never in American history has there been a situation like this, with tabulation centers being shut down for three hours, with foreigners connecting to our equipment, …..” and so on.
“The press will crucify you,” predicted Pat Cipollone. Sidney responded: “What do you think they’re doing now?”
“He does not have the authority to do it!” Cipollone thundered. Sidney rejoined, “Actually he does, Pat: look at EO 13848 (and something else signed by Obama). He without question has that authority.” President Trump seemed perplexed, and asked if it were true. Sidney whipped out EO 13848 and showed him the relevant language. Trump read it for 45 seconds, saw Sidney was telling the truth, looked at Cipollone and more or less said, “Why haven’t you even told me about this, Pat?”
After half-a-dozen of such frivolous objections from the White House General Counsel, Mike and I looked at each other dumbstruck. Mike grew calm and silent, his brow knit in bafflement. Finally I calmly announced to the room: “This is the most surreal meeting I have ever attended.” That is also when I told the President tthat I could have several staffers com in within 30 minutes, and vouch that Cipollone had been telling all staffers since November 4, “Just get the President to concede. Just get him into trtansition mode…”
Flynn got to his feet and faced the three standing lawyers. In a measured tone of voice, he asked of the three lawyers, “Let’s get something clear. What do you think happened on November 3? Do you think was a fair election? Nothing unusual about it?”
The three lawyers looked down, stuck their toes in the dirt, glanced at each other out of the corners of their eyes, and would not give an answer.
From that point forward(perhaps an hour into the meeting), the meeting was focused on ironing out the approaches I have described. Mutating them, adopting one or another, working through who would do what, whom to use, whom to notify, Sidney’s appointment as a White House Special Counsel, etc. By 12:10 AM it was all done and sealed. Elated, Mike, Sidney, another of Sidney’s lawyers, and myself walked out of the White House seeing that a path towards a peaceful resolution of these matters had been achieved. Sidney said to me as we walked home: “Believe it or not, Patrick, this is not about Trump for me. I can accept whoever wins. It just has to be a fair election.” We all went to bed thinking the country had chosen such a course.
The next morning Sidney was told that getting an office in the White House was proving inconvenient. Sidney said, “Well then I need a White House pass, so I can come and go.” Again she was told this was proving tough….. And over the following 48 hours the entire agreed-upon course of action had dissolved. And Pat Cipollone leaked to the New York Times that the discussion has been about martial law and Insurrection Act (which it specifically had not: as Sidney had sown President Trump, all the authority he needed to run that National Guard recount of six counties was already in EO 13848).
WHAT SHOULD PRESIDENT TRUMP DO NOW?
- Tuesday morning, January 12, the President should decide that he has suspicions that EO 13848 have been implicated, and order the National Guard to do a livestream recount of the relevant 6 counties, directing them to have an answer by Friday-Saturday (January 16-17).
- Trump mightconsider saying, No matter what the answer, I will not serve a second term. That way the public can know that I am not doing this out of selfishness, but simply because our republic cannot take sweeping this under the rug. If the quick recount of 6 counties establishes that there have been large irregularities, than the National Guard does re-run the election, but let Trump choose Pence if he wants, or someone else, to run. Or Trump can stand again for Pressident, but as I said…. I had the sense of a man who would be just as happy to walk away as not, if only he could find some graceful resolution such as I describe.
Yes, this plan has costs. It gives us a few more days of uncertainty (more if they turn up the irregularities I believe they are going to discover). To be balanced against that, of course, is our interest in avoiding a civil war, or even, having a president from either party serving through four years with legitimacy is doubted: it is too crippling for any president.
If this proposal had been adopted on that December 23 meeting and then not torpedoed over that Christmas weekend, we would have had a good answer by January 1. A big chunk of rubber would have been taken out of the center of equation. If the paper ballots backed up the reported votes in those six counties, then Trump would have done his duty and (I am quite confident) would have jauntily walked to Marine 1 on January 20.
On the other hand, if such a livestreamed recount by the National Guard in those 6 counties turned up irregularities such as I strongly suspect, then this nation could be having a different conversation. Of course delaying a swearing in of a new President into sometime in February would have been upsetting to some, but assuming that path was only taken after a livestream recount of the six counties showed large irregularities, opponents would not really have had a leg to stand on.
For the record, there was one scenario I proposed he avoid: it would not do to wait until January 6, have the Congressional situation go against him, and then start exploring these options. It would be too much like a sore loser to let the results become official, and then take some such extraordinary measure to unravel them.
I believe that because the President should immediately go ahead and order the National Guard to livestream-recount six counties to determine if large irregularities occurred, and if they have, call a new election to be run by the National Guard in 30-40 days. But because he waited beyond January 6, he should consider pulling himself out of the running in favor of Pence or another of his designation. That would show America he was doing it for the right reasons; it would allow America to go forward under a president elected in a clean, trustworthy election…. And President Trump could get back to his golf and his friends, secure in the knowledge that in the way out he did more to expose election perfidy and reestablish the integrity of our elections than any President in history.
NB I drafted this in frustration tonight and want to get it out. It has not had my customary editing, rewriting etc. Reserving the right to get up in the morning and touch it up. Also, I am going to risk tweeting this: I wonder if offering peaceful resolution to such a massive problem violates the Twitter Terms & Conditions.