Fourth of Jooly Follies

CNBC founder claims Trump has a specific plan in hand to stay in office no matter what the voters decide https://t.co/g1OlxOE0Tt

— Raw Story (@RawStory) July 3, 2020

This made my head hurt; so I looked into it a bit.  Turns out there have been 3 Presidential elections decided by the House.  One prompted the 12th Amendment, the other two came after.  None were decided by the Supreme Court, and none were contested by an errant AG throwing sand in the air.

So, first, could Barr work some mischief by finding new "Presidential powers" nobody has seen before?  No.

In 1825 no one won enough electoral college votes, and the House picked Adams over Jackson.  In 1877 three Southern states submitted certificates of election for both candidates.  Neither case involved "voter fraud."

In Bush v. Gore, there was a question of how ballots were being counted, and the Supreme Court summarily decided the case in favor of Bush by declaring the electors in Florida were Bush's.  They also said the case could not be precedent for any other case, so relying on it to set the "precedent" of a date in December as the date by which all must be reconciled is dubious legal reasoning, at best.

1877 is especially instructive on the mechanism for choosing the President:

While the Constitution requires the House and Senate to formally count the certificates of election in joint session, it is silent on what Congress should do to resolve disputes. In January 1877, Congress established the Federal Electoral Commission to investigate the disputed Electoral College ballots. The bipartisan commission, which included Representatives, Senators, and Supreme Court Justices, voted along party lines to award all the contested ballots to Hayes—securing the presidency for him by a single electoral vote.

If there are disputes about the allocation of electors, there must be better grounds than "I object!" or "Millions of illegal aliens voted illegally!" or even "Mail in ballot fraud because people steal ballots!"  Barr may be Trump's new Roy Cohen, but even Barr can't make bricks without straw.  Without facts, all he can do is say "we don't like it!," and that's not a case any court will recognize.

Even if it goes to the House, the precedent of 1877 could decide the case, rather than the House voting as states.  That would be the most the GOP Senate could do, if they wanted to dispute the electoral college.  And why would they do that for Trump?  Especially if the election turns the GOP out of the majority in both houses.  The provision in Art. II, is applied when the electoral count is deadlocked; not when it is disputed.  Trump may scream "FRAUD" in all-caps Tweets, but it will be no more effective than "INVOKE P!" was.

Let's just say the founder of CNBC is not a very good Constitutional lawyer.*

*And for those of you who say "What about Bush v Gore?", let me explain:

That was a factual dispute based on ballot counting.  Actually, the fault there lay with the AP, who had become the unofficial arbiter of elections.  But AP is NOT A GOVERNMENT AGENCY, and has NO LEGAL AUTHORITY TO DECIDE WHO WINS ELECTIONS!  Sorry, that just really annoys me.  I remember the election that year.  AP called Florida for Gore (who wins!), then for Bush (who wins!), then said "Maybe we shouldn't have said anything."  They got it right the third time.  But Bush's lawyers used that confusion as an excuse to bamboozle the Supreme Court, and they won. Could that happen again?  Well, Trump can't get there by screaming "mail in ballots!" without evidence of fraud more concrete than "people steal ballots from mail boxes," which was Barr's idiot contribution to the conspiracy theories.  You can say that to FoxNews, but if you say it in court, you'd better have some evidence to present, too.  So Trump may scream about "FRAUD!", but he doesn't get a recount without grounds in fact for it.  And he doesn't get it because he doesn't like the outcome.  Unless the electoral count is too close to call, or some states pull some hanky-panky as was done in 1877, there's no reason to expect this election to go to the House for final decision.

No more than there is reason to believe Trump will build a pillow fort around the Resolute Desk and have to be carried out bodily.  If he doesn't drop out of the race (which could be very interesting if he does it after the ballot deadlines have passed in several states**), I fully expect him to flee the White House under cover of darkness before Inauguration Day.

a source tells us

— PoliticsVideoChannel (@politvidchannel) July 3, 2020

I solemnly swear I am up to no good.  I also solemnly swear I didn't see this until I wrote that about the inauguration.  It just seemed reasonable to me, based on Trump's behavior.  It's the zeitgeist, I suppose.

**THAT could set up a series of unfortunate events; but probably wouldn't, either.  Might lead a lot of Trump voters to stay home, and then the GOP REALLY takes one in the family jewels.