SIO249: Can Trump Refuse to Leave? with Andrew Torrez

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:30 Thomas: Hello and welcome to Serious Inquiries Only, this is episode 249, I'm Thomas Smith, and today's episode is part two with Andrew Torrez, this part will be focusing on what Trump can do to stay in office, and, and again, it's more about what wild theories there are out there about what he could do, and hopefully they're just that, hopefully they are wild theories, we'll see, I am going to throw everything I have at Andrew, and a lot of the listener questions and concerns about Trump staying in office. And we'll see if Andrew talks us down or what. So here it is. Part two with Andrew Torrez.

0:01:15 Thomas: OK, let's get to what people are very scared of. Let's say, you know, broadly speaking, there's going to be a few different ways this can go. I think we're all in agreement that a landslide Biden victory in the Electoral College and the popular vote, it's going to be very difficult for if not impossible to for Trump to do anything about that. We'll kind of set that aside. I think the scariest cases are just a very slim Biden victory, you know, like some very close swing states, again, obviously, the worst outcome is Trump winning. And the but the worst like Biden in victory is something that's a very narrow, you know, maybe, maybe the swing states again are so close that they're, they're along with the timing of COVID-19 delaying election results. You know, there could be a whole mess there. So in an outcome like that, where it's close or, you know, who knows, maybe Biden probably won, but it's close enough that Trump can pretend he didn't or something. What, what can happen there?

If he just decides to say, nope, I've decided that this state's results are invalid. I'm just deciding that. And who knows, maybe he has accomplices in the state or what accomplices would he need, I guess, and what would happen in that case. He just decides, nope. That state went to me. Invalid. I'm still president.

0:01:33 Andrew: Yeah. Yep.

0:02:38 Andrew: So here's the situation, and it's interesting in that we have already primed the electorate for what I am predicting will happen unless we have a landslide Biden victory, right? Like if, if Joe Biden wins 350-plus electoral votes, then we will get a decision the night, right, on election night. If he doesn't, right. Right. And in situations even in which he, you know, Biden does ultimately get that many votes. I think we will not know who won the election on election night. And in in the 1980s, that would have been like, oh, my gosh, like that's going to be, you know, that's but like, you know, a bunch of the recent elections have gone that way. Right. Like 2016 went that way, we didn't know until three in the morning. Right. 2004 went that way. Right. Like Ohio was put in green and it took until the next day for Kerry to concede. And obviously, 2000, we all know what happened in 2000.

0:03:21 Thomas: Yeah.

0:03:46 Thomas: And none of that was during a pandemic. So I think we should just be at peace with the fact that we're not going to know for a week or two famous

0:03:49 Andrew: So. Right, yeah. Yes, it that is I'm so glad you said it, because that is exactly the right message to start priming people with now, because one of the strategies that Trump will use and that Russia will will magnify in the event, hopefully very likely event that that Trump loses is, well, look, right, like the the deep state is stealing this election because blah, blah, blah, and like if you are prepared for the fact that like results won't be counted because the mail has to come in, then, yeah, like you can you can fight back against that and And you can use sort of recent history to normalize that and be like, yeah, us Democrats didn't do that in 2004 when it took until Wednesday for Ohio to be called. Right. Like, so, you know, quit whining and deal with it. This is how this is how elections work.

0:04:55 Andrew: But now let's talk about the scenario that it's close. What can Trump do about the returns? And and the answer is it depends. OK, so I want to sketch a possible disaster scenario, but I don't think that it's a very likely disaster scenario. And again, it depends. Yeah, well, I know.

0:05:19 Thomas: Last words in this era. But, yeah, sure.

0:05:22 Andrew: I agree. I disagree. So so here's the thing. The federal government is not in charge of what states report. Right. Like the the the meeting of the Electoral College. This is all governed by the Federal Elections Act, which is 3 U.S.C. 1, et seq. And if you're thinking like, oh, usually I hear like forty two U.S.C. ten thousand two thirty eight. Like, yeah, 3 U.S.C. 1 is a law from 1789. Right.

0:05:23 Thomas: Right. Yeah. Yeah,

0:05:54 Andrew: Right. Like, I mean, it is it's a foundational law and and it's been amended, obviously. But but but here's what the Federal Elections Act says.

0:06:06 Andrew: It is up to states to decide how to report their electoral vote totals, and they must report them by December 14th. Right. They've got to report them by like the first Wednesday after the second Tuesday after a full moon. Anyway, I figured it out. It's December. It's December 14. Right. So on December 14, if 270 electoral votes worth of votes have come in for Joe Biden, there is not a goddamn thing that Donald Trump can do about that. There is nothing. There's no scenario. We've talked about this on opening argument. Like, yeah, he could he could barricade himself up in the in the Oval Office and like staff it with, you know, Trump guards. But like that's literally no different than asking, like, well, what if a madman uses a Batman style like grappling hook to fight his way into the Ovil Office and, like. You know, staffs it with his guards like you can do that, but you're not the president, right? You're guy who's broken

0:06:23 Thomas: Yeah. Right? I

0:07:10 Andrew: Into the oval office.

0:07:10 Thomas: Don't want to derail your scenario, but maybe if We have time, I do want to talk about the Batman grappling hook scenario, scenario, because I don't know if that's entirely analogous, given that if a Batman villain grappling hooks into the Oval Office and sits there, but then 40, 50, 3 percent of the country plus enough Republicans and leadership say, "Yeah, no, that guy actually is president," could that be different? We'll, we'll pause on that, I guess, for later.

0:07:13 Andrew: This And And again, you know, the, the counter arguments are right, Mitch McConnell stole a Supreme Court seat, and Bill Barr, right, those are real good counter arguments. The counter counter argument is, um, Republicans controlled the presidency, House, and Senate in 2018, they saw the a train wreck coming, they knew they were going to lose the House in 2018, and they did not cram through, right, like Mitch McConnell did not blow up the filibuster, they did not cram through like a bunch of last ditch, like we're holding on to power because there is something that, and again, like there's not enough that checks Mitch McConnell, uh, it's, it's further than I thought it would be, but like it isn't nothing, right, like there is something that stops them, uh, and, and, and that is some vestige of pretending like you are following the law.

So that's my response on the Batman, you know, villain scenario. But again, Mitch McConnell is a really good counter argument to a lot of things. So, you know, I, I did not think he would get away with stealing a Supreme Court seat. And he did. Um, so, so now then the question is, could Donald Trump orchestrate, uh, states to fail to certify their results by the December 14th deadline? Right.

0:07:58 Thomas: Yeah. Okay. Yeah.

0:09:04 Thomas: That was a scenario I, I saw on there. I want to give a shout out to Chris Smith on Facebook who asks, okay, what if he, this is, this is the galaxy brain level, um, uh, conspiracy theory, I guess, and I don't mean that insultingly, like this is them coming up with, like, because people are very scared, uh, here's a scenario that maybe, uh, is possible that they wanted your opinion on, which is, what if Trump directs certain states to not certify their election results so that the Electoral College can't come up with the requisite number of votes, and the vote is thrown to the House to be voted. But by the way, side note on this, I saw, oh, thrown to the House, that's great. But then there's this, we, I think there's this weird rule that you can tell me about where it's, it's not just the House, it's the state delegations in the House. So like it turns into the Senate or something, like what, what is that, that about?

0:09:06 Andrew: Yep. Yep, uh huh. It's, it's so much It's weirder than you think. So let's walk through this, right? Because I think this is fascinating. This is all governed by the 12th Amendment. There are two different procedures if no ticket gets to 270 electoral votes. There's a different procedure for how we pick the vice president from how we picked the president, president, um, I have no idea, like, I, this is one of these, I would love to, you know, be an originalist and thus have the power of time travel uh, and the surety that I, that everything I believe is something that the founding fathers believed, I would loved to know what the hell our founding fathers were thinking, uh, when they passed the 12th Amendment. Here's how it works, I'm going to start with the vice presidential candidate, okay, because this is the easiest one, um, but when I illustrate how easy this is, you're going to be like, well, then why did they pick the stupid process for the president?

Um, so, uh, we covered this on OA, the, the Congress is convened on January 6th. Okay. So three weeks before the president, two and a half weeks beforethe president takes the oath of office, uh. The new Congress is already in session. Okay. And that is the Congress as voted by the 2020 elections.

0:09:55 Thomas: Oh, god. Sure. Yeah.

0:11:20 Andrew: Right. So almost certainly will be a Democratic House and looks like increasingly better chances that that may be a democratic Senate in the event. And then under the 12th Amendment, the electoral votes have to come in by December 14th. If 270 votes do not come in for one presidential ticket. Here's what happens. On the vice presidential side, you take the top two electoral vote getters and they go to the Senate where it is one person, one vote. OK, so that will be Mike Pence and Joe Biden. I'm sorry, Mike Pence.

0:12:05 Andrew: And Joe Biden's running mate, will go to the Senate and each senator just gets to vote. And if you're asking, does the vice president, you know, does Mike Pence get to vote for himself to break the tie? No, he does not. The 12th Amendment requires this

0:12:16 Thomas: And and again just clarifying, this is the 2020 Senate, not the, not the 2020 okay just making absolutely sure gotcha

0:12:25 Andrew: Is the 2020 Senate, not the current Senate. Right. So, yep, requires a majority of the whole number of senators. That is 51. So in other words, If the Democrats recapture three votes in the Senate, right, that would make it 50 50. And then the question is, do I think Mitt Romney would vote for Kamala Harris or Elizabeth Warren or whatever over Mike Pence? I think probably he would break that tie. Right. Right.

0:12:29 Thomas: Oh

0:12:55 Andrew: So so I do.

0:12:49 Thomas: Man oh wow I don't know about that, but anyway

0:13:00 Andrew: I do it.

0:13:00 Thomas: But what happens if it's a tie? Oh.

0:13:03 Andrew: If it's a tie, you keep voting until until

0:13:07 Thomas: You keep voting until it's not a tie, wow.

0:13:08 Andrew: It's not a tie. Right.

0:13:10 Thomas: We might just not have a vice president then.

0:13:10 Andrew: There must be that if that is conceivable and I will talk about that in a second. OK, then. So but but that is how you get a vice president. Right. Pretty straightforward. Take the top two people. Not going to be anything weird. None of the like, you there there will be faithless electors um I want to talk about the Baca decision, we're going to do that on opening arguments. It's, it's, there are some nuances here. But, but it strikes me that while there are states that prohibit it, it strikes me that we probably will have faith, faithless electors. But it doesn't matter for the vice president because only, yeah, top two.

0:13:47 Thomas: But yeah, yeah because it's top top two so it's fine, yeah

0:13:50 Andrew: Now, here's what, that same amendment, right? This is the next sentence. Here's how the president works. You take the top three electoral vote Okay. And but it must be you must have more than zero. Right. So it's going to be Trump, Biden and some goofball.

0:13:50 Thomas: Oh Joe Joe Jurgensen or whatever, whoever that person is

0:14:12 Andrew: Yeah. Well, no, because nobody, none of the faithless electors, I think, are going to vote for like the Libertarian or the Green Party or whatever. But like some goofball who's pledged to Biden is going to vote like for John Huntsman or something. And like you're going to get a third wildcard candidate in there.

0:14:13 Thomas: Oh are there no states that will give proportional electoral votes if to, oh

0:14:37 Andrew: There are states that do proportional electoral votes, but like none of those garbage third party candidates are going to proportionally get an elector. So if no faithless electors, it will just be top two. If there are faithless electors, it will be top three. By the way, unlike in the VP choice, if you had if if let's say Trump had 260 electoral votes, Biden had 100 and Jurgensen had 100. I know, uh, you would actually take those top three, right? Like it would say in the event of a tie, all the ties, everybody who's tied for second place gets to go in. Um, the, the president, it says the person's having the highest numbers, not exceeding three on the list of those voted. So, um, what happens if it is 260, 240, one and one? Uh, we

0:14:45 Thomas: All right, hmm no idea

0:15:36 Andrew: Don't know. We, we literally, Clearly, we have no idea. Seems like you'd have to flip a coin. Yeah.

0:15:36 Thomas: Wow that's funny, coin toss, yeah or maybe back that it was 1804, four when this was ratified, so maybe a duel. So,

0:15:46 Andrew: So possibly I have to check on that. So top three go in and the votes are not, as you as you suggested, are not one person, one vote in the House, but are in fact each state gets to vote as a state comprised of its internal delegation. So, in other words, right, if a state has seven members of Congress, there are four Democrats and three Republicans, then that state will cast one vote for the Democrat, assuming everybody votes on party lines.

0:16:24 Thomas: It kind of turns it into the Senate, weirdly yeah

0:16:27 Andrew: And it turns it into a weird thing. Right. And you're asking, OK, so that seems more like sanity, electoral ecology, like, isn't that going to benefit Republicans? The answer is maybe. Right now, state delegations are split 26 Republican, 23 Democratic, and Pennsylvania is tied nine to nine. OK, but all right. So, are we going to pick up a seat in Pennsylvania? We're going to pick up a House seat in Pennsylvania. So 26-24. Then the question is, what states are flippable? And here's where it gets weird. Um, the, the next best states to flip are Florida, is 14 to 13 Republican. So one win, one net win of one House seat in Florida is, would flip the entire delegation. And if you're asking, are there any Florida seats that are considered, uh, you know, potential toss-up, um, Florida 15, Spano, is rated as lean Republican by the Cook Report.

0:16:56 Thomas: Yeah, jeez, I don't

0:17:46 Andrew: Uh, and that same district, there are a couple of districts that, uh, I think, uh, what is that, yeah, now Ross Spano, uh, is really the only race to watch in Florida. Um, I guess there is a slight risk that, uh, that freshman Debbie Mucarsel-Powell, Mucarsel-Powell, excuse me, who won in 2018, she's targeted, but you have to assume in a Democratic year that she's going to win election. So if the Democrats defeat Ross Spano, then Florida switches from 14 Republican, 13 Democrat to a Democratic vote.

0:18:32 Thomas: Boy.

0:18:32 Andrew: So if you're asking, and I know you are, who's running against Ross Spano? The answer is, I don't know, because Florida moved their primary to August 18th. So the candidates are Alan Cohn, Adam Hattersley, and Jesse Philippe. Whichever one of those three wins might consider kicking a few bucks their way because it could very much make the difference. Um, next best states to flip right after Florida are probably, uh, Georgia, Georgia is nine to five Republican, okay, which again seems bad, and it is, but you just have to win two races, and there are three contested races right now in Georgia, um, yeah if you want to it'd be seven, seven, but that's good enough, right? Right. Like, if, if the state is deadlocked. Right. Yeah. Then they

0:19:20 Thomas: If you want to, it'd be seven, seven or did I get my yeah it is oh do they just abstain, kind of thing, like they don't and then, then you'd only need for, you know, a lesser majority, got it, hmm

0:19:32 Andrew: That that is right. They abstain. And yep. Yep. And so so you could if you win two races in Georgia, that could that could be a tipping point in Texas. It is currently split 22 to 13 to one with one libertarian candidate. So if you win four races in Texas and there are three competitive races. Right. So, you know, look, it it it there are there are easy paths to not having the Republicans have a majority in either house.

0:20:20 Thomas: Well let's say they do, does this scheme then work it would, it make sense for, like, because let's say again, this would only take very, very Republican states, but are there enough that could be this level of Trump accomplices to somehow withhold results so that there aren't 270 for somebody, right?

0:20:23 Andrew: Yeah. So to me, when when you look at that, what you want to look at is which battleground states could be the margin of victory for Joe Biden, but have Republican governors. And and here and again, every time you're talking about land voting rather than people, you're thinking, OK, like that's going to structurally benefit Republicans. And it usually does. Um, I, I will tell you again, because the Republicans got wiped out in 2018 and 2019, um, Democrats control 24 governorships right now. And in most of the swing States, uh, they control the governor's mansion.

0:21:27 Andrew: Right. So, and, and again, it's not to say, right. Like, so Wisconsin has been a nightmare, but like that, that, the, the Democrats control the, the governorship in Wisconsin, in Michigan, in Minnesota, in Pennsylvania, in Virginia, in North Carolina, in New Mexico and Colorado.

0:21:44 Thomas: Are you about to do the, the Howard Dean scream.

0:21:45 Andrew: Yeah. Yeah, we're going to Michigan. Yeah! So where Are warning signs, right? Warning signs are, yeah, if it all comes down to Florida, I would be really, really nervous, right, because Ron DeSantis is a Trump acolyte, right. He's He's pinned his entire political future to Trump and Trumpism. So, yeah, if it's tied and Florida is what, that that's a redo of Bush v. Gore, that would scare me. Other states, if it comes down to Ohio, if it comes down to New Hampshire, if it comes down to Arizona, those those are your day. And I guess Georgia as well, right?

If it comes down to those kids and you want to throw in South Carolina, you could throw in that it seems to me unlikely that those states are tipping point states, um, but you know, could be, um, and and so that's a thing to be nervous about, um, Ohio, right? Like Mike DeWine is one of the the few governors, along with, uh, Larry Hogan in Maryland, who have, you know, sort of publicly broken with Trump on COVID. Um, so, you know, I don't, in other words, I would feel much more comfortable if the election came down to Ohio than I would if it came down to Florida, right? I would feel much more concerned about shenanigans by DeSantis than by DeWine. But the election is very likely to come down to Wisconsin, Michigan, Pennsylvania, right, like that's, if it's close, those were the states that all went Trump in 2016.

0:21:47 Thomas: Yeah. Yeah. Yeah.

0:23:28 Andrew: They are all Biden by, you know, almost double digits right now. Uh, but you know that's, those are the states, those are the, the firewall, right? That's, that's what you have to win as the Democrat, um, such that Florida and Ohio don't matter. Um, so yeah, that, that'S, those are the situations that there aren't a lot that, um you know that kind of provide the possibilities for shenanigans. Uh but Florida does, right Right. I mean, Florida is is a mess. I mean, and the only thing.

0:23:58 Thomas: So this is a shenanigan that is theoretically possible, but it does seem vanishingly unlikely. And it almost takes a level of foresight or planning or coordination that I, that's one thing we have going for us is that Trump is not that the people around him might be, but yeah.

0:24:06 Andrew: Yeah.

0:24:15 Andrew: Trump is not a planner, but like, look. Yeah, yeah. I mean look, Hofeller proves that they are planners, right? Like that that there there's no doubt in my mind that, you know, Steve Bannon has has looked at this, right, like that they they it would shock me if they haven't kind of game this out. But but again, look, there's a a foolproof way to make sure none of this matters. Right. And that is if the Democrats take back three seats in the Senate and take and win one congressional, you know, beat that dude in Florida. Right, Ross Spano. If he goes down in Florida, this entire scheme goes out the window. Right. They they cannot win if Ross Spano loses. So, yeah, that that that underscores the message.

0:25:07 Andrew: Right. Like that, you know, we've been saying since the 2018 midterms, which is all the votes count. Do not think like, oh, I just live in Florida and it's right. Like, get out there, vote, vote down ballot. And yeah.

0:25:22 Thomas: It really is a great argument for why no matter what the polls show, I don't buy the argument of all the polls are probably wrong about. OK, I don't really think that's what's happening, but even if the polls are totally right and they show an easy victory for Biden, still very, very, very important because of the the shenanigan level because Of all this weird stuff. The more votes, the better. It's absolutely critical to go and vote for Joe Biden. It just is, um, it's not close, um, okay, so that, I think, so that settles the states withholding election results. It again, kind of technically possible, but seems very unlikely and difficult to to make happen unless just the exact, you know, exact perfect for Trump states are are the ones that are swaying the election. Yeah.

0:25:40 Andrew: Yeah. Yep.

0:26:08 Thomas: So here's one, and and feel free to give a nice laurel and hearty laugh at this if you'd like, but here's, here's one theory that I just worry about because I don't know if, um, I don't, if maybe people, I know I certainly at the time, I didn't understand it because I was in high school, but after doing the first few episodes of our, our very own show, which actually I think was also on this show, of Bush v. Gore, um, Bush v. Gore was just the most ridiculous thing to ever happen. It was outrageous. Um, could there be something along the line, because we know that there's going to be this huge delay, and honestly, there should be a big delay in the election results. Is there any chance for something weird where it's like, OK, no one has 270 yet, but in a toss up state that would put Trump at 270 because there's a delay, Trump essentially is able to say, yeah, I won that state.

0:27:06 Thomas: It's over. And then we get some horrendous, you know, Bush v. Gore like decision that says, yeah, stop counting. It's already decided something weird like that. I feel free to laugh. But what are the possibilities for something crazy like that?

0:27:16 Andrew: No. So I think it's worth revisiting a little bit of the facts on the ground for Bush v. Gore. Right. And that is the the Republican argument was not manufactured out of nothing in Bush v Gore. Right. Like there was a statewide recount which put Bush ahead. Right. There was a result to defend. And then there was a tactical decision by the Al Gore campaign. And again, I understand this in the abstract, to pursue manual recounts in three counties. Right, Palm Beach, Volusia, and I forget the a third.

And so ultimately, and again, you know, the first four episodes of Opening Arguments are me railing about how bad Bush v. Gore was as an opinion, right? Like this does not take away the fact that it was a political opinion from start to finish, founded on nothing, that the, you know, conservative concurrence is especially laughable. It turns a provision that favors the states into an offensive weapon, right, like it's just, it's nonsense, right, but but they were helped by the fact that uh and it was Ted Olson, whom we've, you know, I've used in talks, we've talked about on the show, you know, arguably the best lawyer on earth, right, like Ted Olsen's argument was helped by the fact that there was a statewide recount that had Bush winning, and Al Gore was pursuing a selective recount, and finally the Supreme Court was like, look, uh, you've got a hard deadline by 3 U.S.C. 7. That's the one we led off the segment with, right?

December 14th. You've gotta have the results in by then. And your recount isn't going to get the votes in by them. And therefore, we're gonna tell you, stop doing that recount and just certify the result that you have and put it in. Now, again, terrible decision, terrible logic.

0:27:25 Thomas: Sure. Hmm.

0:29:17 Andrew: But think of all of what had to go through in order to get to that spot. So it was not a case where Bush was down by 30,000 votes and the Supreme Court just threw out a whole bunch and gave it to him. Right. Like that there was, you know, Bush was, Bush was up by five hundred and thirty seven votes. And there are, I think the most reliable methods now show that a statewide recount would in fact have have delivered the state to Al Gore. But that wasn't the remedy that Al Gore was pursuing. Al Gore was pursuing recounts only in heavily Democratic counties, where he knew that the result of those recounts would probably be enough votes to, you know, he would make up more than 537 of those votes by looking at the votes that were undercounted, right, that were kicked out by the machine. You do that in a heavily Democratic area, in the heavily populated areas, you get way more than five hundred and thirty seven votes.

0:29:30 Thomas: Yeah.

0:30:19 Andrew: You're going to win the presidency. Um, so, you know, so it's important, so none of that is to say, yeah, right now and

0:30:24 Thomas: It's important that there was a result that they were able to say, OK, we got the result. Whereas so. So, again, I guess it would once again come down to if there's some Republican controlled state that's able to do some BS and say, yeah, we counted. It's good.

0:30:38 Andrew: Yeah and Florida fits that category right, like Florida is that Florida's a nightmare, so you know you gotta make sure it doesn't come down to Florida, uh, is, I think, you know, maybe you titled the episode that, right? Like, I I agree with you, I'm on the ledge if the, if this election comes down to, if, if, you know, you have the situation that that Al Gore had in 2000, right, where he had 267 electoral votes, right? Like, I mean, he he was there, right.

0:31:08 Andrew: He he was the president. And then and then it came down to Florida. And so, yeah, if Joe Biden gets 267 electoral votes that comes down of Florida, I'm going to be nervous and you should be. I'll be on the ledge. Every other scenario I'm not I'm not nervous about. I'm I'm cautious. Right. The message we've sent the whole show. But but I'm nervous in the sense that we win and they steal it from us.

0:30:40 Thomas: Yeah. True. OK. Yeah, yeah. Yeah yeah.

0:31:35 Thomas: So I wonder if maybe this should have been in the in the previous category, but a lot of people did ask this. So I just want to get your take on it. A lot of people mentioned something about martial law, either declares martial law on election day or declares partial law maybe afterward and says, no, there can't be a transition because martial law. I don't know. So a lot of People seem to be worried about that. Is there anything there? What would that entail? What do you think?

0:32:02 Andrew: Yeah. There is nothing there. Right, that the Constitution is explicit that on January 21st like he's no longer the president. Right and so So, again, if you declare martial law, if there are no results that come in, then then the office of president is vacant. So, for example, let's let me believe that I didn't play this scenario out on the the less than 270 electoral votes. But the 12th Amendment makes this clear that when it goes to the House where they vote by state delegation, there's a built in backstop. And that backstop is that if the House of Representatives shall not choose a president, wherever the right of choice shall devolve upon them before the fourth day of March next following. Right. So they get they get a month and a half.

0:32:43 Thomas: Mm hmm.

0:33:02 Thomas: We get a while. Yeah.

0:33:03 Andrew: Yeah. But if, but if you can't pick a president by March 4th, then the vice president elect shall act as president, as in the case of the death or other constitutional disability of the president. So, yeah, so that's waiting in the wings. It, Trump's term expires on January 21st, 2021. There is nothing he can do about that in declaring martial law. The Constitution is 100 percent clear.

And if he does not win re-election, right, like that, we've gone through the various, you know, uh, replacement scenarios, uh, but there's nothing, that's like, he's not the president after that date, and and again I will go back to like, you know, well, what if he says he is right, like that's no different than the penguin climbing up that grappling hook, which by the way I picked the penguin because that's the funniest Batman villain to climb up the grappling hook, um, but but it's no different than the penguin climbing up the grappling hook and deploying his little penguin-themed guards at the door and saying, well, I'm in the Oval Office now, like, quack, quck. Like, that's great and all, but you're not the president, right? You're just a dude squatting in a room.

0:33:56 Thomas: Yeah.

0:34:15 Andrew: And that's all Trump will be.

0:34:15 Thomas: Well, to get back to That, to give back to them. Now, I really wonder, because people, you know, justifiably are very scared. Slash, I think they have started. They're not perhaps as expert as you, Andrew Torrez, in the law. And they've seen signs of like, well, it feels like nothing matters. Like it feels like Trump and others are able to just say or do things that are clearly should have been against the law or shouldn't be allowed. And then it doesn't matter somehow. And I know that, you know, there's... there's a story behind all of these things and and it's not quite as dire as all that. But I don't blame people for feeling that way sometimes that like it doesn't really matter. So I want to go down that road a little bit, if you don't mind, of what would it take? Who would have to be the accomplices and how many for Trump to just decide to still be president?

0:35:06 Thomas: Like you've got the results that, you know, the results are the results. The states decided, you know, that Trump lost electorally, but he just says, no, they cheated. I won. How many people does it take? Like the whole Senate, the whole house, like imagine, imagine like any number of Republicans willing to go with him on this, which I don't know that they are. I don't think they are, but imagine they are for the sake of a horrible, uh, dire, um, you know, like nightmare scenario. What would, or could that take? What would it take? I guess.

0:35:40 Andrew: So I'll answer the question. I want to respond to the predicate first, right. Right. I don't blame people who feel afraid or angry at where the country is right now. I get right. Like I am afraid and I am angry, too. Right. What I try and do is calibrate that fear such that it's appropriate. Right? And so what I would say that should give you some encouragement, again, not not a lot. Lot, um, but but but when when you say everything's made up and the laws don't matter, you know, the law doesn't matter, um, that's Not, it's demonstrably not true, right. And and you can see the difference between the stuff Trump says when he's on Fox News, right? Article one means I'm the president and I can do whatever I want, versus what They Actually.

0:36:34 Thomas: I think he says article two, doesn't he?

0:36:36 Andrew: Yeah, right. Article two is, in fact, the article that defines the powers of the presidency. So I was extra making fun of Trump. But but yeah, right, like, I mean, you know, he said I can do whatever I want when he's being interviewed, you know, by Steve Doocy or whatever. But when it comes time to actually do the horrible things that they've done, They have gone to the trouble of actually issuing executive orders and developing legal justifications for it. And as we've seen time and time again, like we went over the Trump's administrative scorecard on opening arguments, right? Like those are the cases that he loses even in very, very favorable courts, right.

0:36:42 Thomas: Yeah. Oh, okay. Gotcha. Gotcha.

0:37:20 Thomas: Yeah.

0:37:20 Andrew: Right. Like he loses time and time again in the Fifth Circuit, in the 11th Circuit, before the Supreme Court on administrative cases because they just haven't done the proper legwork. Right. So that that should fill you with some confidence. Right. That like you have to chew on this until you have to make a legal argument and where no legal argument is available. Right. You can't just say like, well, I'm the president. That's the way it is. Right. Like it that has not been the case. And, you know, it it where it has. Right. Like I've just said, that has never been the best.

0:37:58 Andrew: If I'm steel manning the opposition. Right, the opposition would be Jared Kushner, White House, you know, White Houses. And he would say, yeah, he

0:38:05 Thomas: Clear as Kushner. He shouldn't be able to be there.

0:38:08 Andrew: Shouldn't be able to be here. Yeah.

0:38:10 Thomas: DHS Secretary Wolf, right?

0:38:12 Andrew: Well, and and look, there have been right. There's a there's a a pending court decision about Ken Cuccinelli. So, you know, like, look, the the Kushner situation is an is an example of where they violated the law and there were no consequences built into that law. Right. Again, should there have been? Yeah. Nobody ever thought the president would come in and say, OK, well, I'm going to do it anyway. We probably won't make that mistake in the future. Who am I kidding? We probably will. But but these are not a situation, right, that where the default is that nothing happens, right? This is the situation where the default is you've got to leave now, right. You're not the president anymore. This this house doesn't belong to you. I'm sort of thinking about the trial of Socrates, right, in which, you know, during the reign of the tyrants in Athens, when, you know, Socrates was commanded to go seize, and I forget who the landowner was, you know, seize his property. And Socrates is like, what's the law? And the tyrant was like, well, there is no law. Like, I just, I am the tyrand. That's

0:38:53 Thomas: Hmm. Yeah,

0:39:22 Andrew: Why they call me that. And I want his property, yeah. Yeah.

0:39:22 Thomas: It's in the name. Yeah mm-hmm.

0:39:25 Andrew: And Socrates is like, well, if there isn't a legal justification, I'm going to go home. And he did. And he went home. And then, you know, fortunately, before he could be tried, the Athenians revolted and overthrew the tyrancy and reinstalled democracy. Democracy, um, that's what I mean, that's sort of where you're, you're asking, right, like these scenarios cross the line from arguable, we wrote an OLC letter that, you know, that says we can do that, which is what they did for Kushner, you know, we have a favorable court decision here, we have this bad, right, like that, those are situations where there's the veneer of the rule of law, um, what does it take to cross the line over to Trump being like, yeah, I just don't want to give up being president, I like being president, um, kind of fun, I live in this big house, I get to play golf all day and I'm making billions yeah so

0:40:15 Thomas: Well and I'll add in enough maybe Republicans who are so all-in on Trump that they realize like if the game is up then they're just done kind of think.

0:40:26 Andrew: Here's the thing that I, I, I would say, um, it is is maybe a perversely positive sign to take from how quickly Trump was able to co-opt the entire Republican Party, um, in my view, like that kind of shows you how, if you're a Republican politician, you believe that like you can weather anything, right, like so look, it was super bad that like Lamar Alexander, you know, who ran for president in 1996, kind of like elder statesman in the party, sucked up to Trump and didn't vote to allow witness, right, like he was one of the the people on my list of like, come on, Lamar Alexander's 80. Like, what does he have to gain by, you know, voting with Trump? But he voted with Trump anyway. But I think like the willingness by which they were willing to jettison their previous principles to support Trump, I think will also give them the confidence that they can jettison Trump the minute he becomes a liability. Right. There's some people who can't. Right. Matt Gates, for example, Matt Gates is tied to Donald Trump. You know, Ron DeSantis is tied. A lot of Florida.

I'm trying to come up with a non-Florida example, but it's it's hard, that that asshole in Iowa, Greg Gianforte, I think he's from Iowa, Montana. I don't know where he's from, but you know, the uh, the congressional candidate who punched out the reporter and then won

0:41:12 Thomas: Yeah. Yeah,

0:41:58 Andrew: And then won re-election, yeah, those guys sure, um, they're going down in flames, the Q Anon candidate for senate, uh, right, but but but by and large, like the same group of, you know, jellyfish that got in line behind Donald Trump, get in line between Mike DeWine or Larry Hogan or whoever the face of the Republican Party is post-Trump, you know, Mitt Romney, like you want to talk about jellyfish leading jellyfish, like that would be amazing. But I don't, it would require, I mean, in some ways, right, like it would require political courage to sort of lead that insurrection. And the fact that they're not courageous is, you know, sort of works in our favor in that instance. Look, I could be wrong, but but but if I'm wrong, then right, then we have to change opening arguments. Right. Like because then the law doesn't matter.

0:41:59 Thomas: Yeah, yeah.

0:42:59 Thomas: Well, I but I I think that it's possible, you know, it's not impossible that we will get to that point someday where this country just doesn't work anymore. Like, if if we get to the point where two different sides decide that they just cannot do it together, like I almost am wondering, I know it probably sounds nuts to you, but I'm almost wondering if we got, if Trump did decide to do this, if we get the, like, OK, these the following red states decide that Trump is their president and then the following blue states are like, no, like, what do we just split up? What, you know I mean? Maybe it could get that bad someday, I don't know. Yeah.

0:43:36 Andrew: I I don't want to say that it couldn't. But but, you know, what I would say is that that would that would be a fundamental transfer. Right? Like that would it?

0:43:47 Thomas: It would change the name of our show, as you said, and that's the most important thing, part about it.

0:43:49 Andrew: Yeah. But, but, but I want to, I mean, I guess I want to underscore this, right? Like, to me, what has been the most dangerous aspect of Trumpism is the, I don't want to say the slow erosion of our norms, because we've gotten rid of a ton in three years, but has been the erosion of norms rather than like a binary flipping a switch, right? Like there isn't a moment, right, I I pick naming Jared Kushner, but like, you know, that's just me, um, there isn't a moment that you could point to in the Trump presidency and say, Okay, this is where he crossed the line, right? Like, no, it's it's this kind of constant battle to to to reframe the country so that what he's doing is normal. And, And, it doesn't seem like his style. You know what I mean? I don't want to say, like, look, what I want to Say to all of that. Like, don't think those scenarios are likely.

0:44:43 Thomas: Yeah. Yeah, yeah.

0:44:51 Andrew: I think the way to make them impossible to almost impossible is just to do, right? Right. It doesn't this does not require superhuman courage. It does not acquire standing up to, you know, brown shirts, shooting rubber bullets in your face. Right. It requires you sending in something in the mail and it requires more. All you have to do really protect against this scenario is go out and vote. And between now and then, don't use your voice to amplify voices that are hostile to American democracy. Right. Don't don't share right wing stories about Joe Biden, no matter how much you hate Joe Biden. I get it. I hated John Kerry in 2004.

0:44:51 Thomas: I don't

0:45:38 Andrew: That wasn't social media. But like if this were 2004, I would not be sharing Fox News hit pieces on John Kerry. You shouldn't be sharing hit pieces On Joe Biden from sources that want to bring down our country. Um, and, and and then let me add this thing. This is the unpopular part. What I've just sketched out is the best way to defend against Trump messing with the election is to have broad, popular, sweeping support for the Democrat. And the best way to get that is for the race to fundamentally be a referendum on Donald Trump and not a referendum about positive things that you want Joe Biden to do.

0:46:24 Andrew: Right. So, in other words, it means that Joe Biden is incentivized to not stake out progressive positions. OK, that sucks. You and I both voted for what

0:46:36 Thomas: Really? Think that's what's happened, though. I think he's done the opposite of. Yeah.

0:46:38 Andrew: I want. I want to, I want that. That's that's right. I mean, and again, we should talk about how we could do that in another show, how Joe Biden has moved left and embraced a lot of progressive positions. But but look, during the general election, right, if if there is a position that is very right. Again, a question: will you commit to the Bernie Sanders Medicare for All plan? Right. Instant, you know, Medicare for All on day one. And the political incentive, that position is broadly popular with about 40 percent of the country and is the number one issue for the entirety of the progressive left. It is an issue that you and I both support.

0:47:25 Andrew: We voted for progressive candidates. And when Liz Warren was out, I voted for Bernie Sanders. Right. Right. Like, so we we're strongly on the Medicare for All side of the equation from a political strategic perspective. If Joe Biden is incentivized not to defend progressive policies that are not broadly popular across the electorate and you have to not get pissed off at that. I don't mean you personally, Thomas. I mean, our audiences need to say, like, yeah, sure, wish that he was running a more aggressively progressive campaign. But I understand, because the way in which we are going to stop Trump from doing is not a narrow win.

0:48:11 Andrew: Right. In which a whole bunch of suburban soccer moms stay home because they're they buy into attack ads. We're going to get a billion dollars worth of attack ads on Joe Biden. If Joe Biden comes out and endorses, say, defund the police, which you and I, again, have both spoken of popularly, like, yeah, of course we do, right?

0:48:29 Thomas: Hardly endorse defunding the police. Joe

0:48:32 Andrew: We've all The time. Joe Biden will not and is incentivized not to say. And you need to say, and you need to make peace with, I understand why Joe Biden is taking that course. I wish he wasn't. I wish our political system were different. I hope that when he gets into office, he will listen to those voices and that he will surround himself with people who will explain the problem and that he will take a course of action. But I get why he's not going out on a limb right now, because his job is to is to assemble the broadest possible coalition across states like Texas, Arizona, South Carolina, Georgia, and Ohio, and we can't fault him for not taking that would kill him in those states.

0:48:32 Thomas: Biden has not.

0:49:16 Thomas: Is. It is kind of topic for another show, but I've more and more been wanting to, I don't know, drive home the point that like as a progressive want to focus on getting the... Here's what I'll say. We've said this before. Joe Biden will be firmly in the center of the Democratic Party. That to some people is like the worst thing in the world. To me, that's good. He will firmly be in the center of the Democratic Party, that means as a progressive, if I can move the Democratic Party I can move Joe Biden I and I I think it's a it's sort of a I don't know what the right word for it is but to me it feels a don't know it feels too weak and mopey to be like well he's in the center so I'm not not voting for him he can't I can't do anything it's more empowering to say, okay, great. Right. Well, look at how much these latest protests have moved people on these issues. It's been it's been massive.

And that is within the power of progressive people to make it such that the center of the Democratic Party and perhaps even, you know, more of the country as a whole will it will be more beneficial to support Medicare for all than not. And we need to fight for moving people in that direction.

0:49:17 Andrew: Yep. Yeah.

0:49:48 Andrew: I Love everything you've just said. I could not have said it better myself. Myself, um, part of what that reminds me of that I think is tangential that never fails to send my blood pressure skyrocketing is when, uh, people on the far left will like put up something and like accuse Joe Biden, or you know, or other targets of flip-flopping, right. And And you're just like, wait, no, no. Like changing your mind on something and moving left is exactly what we want to reward. Right. Like I think I was I was in a debate and somebody, you know, like pointed out how Obama and Biden were against gay marriage in 2008. Right. Which is it's true. Right. They were pro civil unions, but against gay marriage in 2008 because that was sort of where the center of gravity of the Democratic Party was. Because that center got pulled way left in a short period of time, primarily due to the activism of progressives. And then they changed their minds. And like, that's an awesome thing. The idea, yeah, absolutely.

0:51:11 Thomas: Yeah.

0:51:34 Thomas: That means we have the power to do that, to make that happen.

0:51:38 Andrew: And that's why I thought that just overlaps so well, right? Right. So, yeah, to the degree to which, you know, you were looking at Joe Biden and going like, oh, he's a weathervane and he doesn't really, he's old, and he's like, yeah. And and all of those things mean that we should put into power somebody who who will listen to our voices, as opposed to real, like, someone who definitely won't. And yeah.

0:52:02 Thomas: Yeah. Final, final question. A lot of people had, I know we've kind of answered this elsewhere, but is there anything you're worried about in the lame duck period? And I think that our answer on OA has kind of been like, yeah, he's already in the, like what difference, he's already pardoning Roger Stone, or sorry, commuting the sentence of Roger Stone, down, uh but is there anything I'm missing, is there anything you're really worried, like, okay, once nobody, clearly there, there are no fucks left to give, as uh the internet might say, is there anything you're worried about in the lame duck period? More raiding of the treasury, I guess, yeah.

0:52:33 Andrew: Yeah. I mean, yes, I'm I'm worried. But but right. I means, but I'm less here. So here's here's what's protective. Right. Again, crucial. Just how much we cannot overstate the holding action victory of the 2018 midterms. Right? Right. So Donald Trump will not have the Congress. He will not be able to pass laws in the lame duck session. So can he tell his executive agencies to do monstrous stuff? Yes. Will he? Yes But the nice thing is all of that stuff that he does in the lane duck will be covered by be covered by the Congressional Review Act if we have a Democratic president. Right. So that can be undone instantly. And believe me, we will be undoing that. Yeah, exactly.

0:52:58 Thomas: So critical, yeah.

0:53:25 Thomas: By their own petard, take that, Newt.

0:53:30 Andrew: So. So, yeah, like I think that the stuff that's most likely to be done in the lame duck session are again, you know, pardoning all of his cronies, judicial appointments.

0:53:40 Thomas: Pardoning more cronies, maybe, be if there are any left. I don't. Oh,

0:53:47 Andrew: Right, um, that felt like that machine.

0:53:49 Thomas: Yeah, true. They're already Trying to do that as fast as they can, though. I mean, the point is like, is nothing's really changed, he's already shameless for the most part, so it's hard to, it's harder, like, the lame duck, normally that's when, you know, asshole Bill Clinton is pardoning his friends or whatever, you're like, oh god, that's terrible, but it's like Trump already is that, he's at that all the time, yeah.

0:53:51 Andrew: Yeah. Yeah. Yeah. Right. Right. Yeah. Yeah. Somebody, somebody who feels no shame already, like, yeah, it, I it, so I do, but I will say, like, when, when, but this is the area where, you know, again, I kind of opened up with the, like, I have empathy for people who say I'm worried that nothing matters, and like, I totally get that, and and and I will tell you, like, that the sort of irrational fear that's in the back, like, yeah, I do, I still have that, right, I have the, like, okay, we haven't seen what happens when Trump wants to burn it all down, right, um, and you

0:54:11 Thomas: So not much Yeah.

0:54:44 Thomas: Who

0:54:44 Andrew: Know, could that be? So a theoretical example is, right, could he fire everybody at the Environmental Protection Agency? For example, I'd be like, yeah, no, I'm just, a new executive order, they're all canned, and no, I'm not going to fill these spots. And so, for, you know, two and a half months, like, a broken government now becomes, you know, literally an empty government. He could do that. Right. So there are things that I could imagine a madman doing during the lame duck session, and, uh, and Trump is a madman, so

0:54:44 Thomas: Knows? Yeah.

0:55:10 Thomas: Yeah.

0:55:23 Andrew: Um, nope.

0:55:24 Thomas: So it's possible, but I would go back to my, I don't really think he cares enough to put in that work, but if he just deputizes somebody, you know, if somebody else is going to do the evil work for him during the, yeah, who knows? All right. Well, I've been very selfish with your time. Sorry about that, but thanks for coming on and doing all this.

0:55:42 Andrew: Uh, thank you so much for having me on, this was, uh, this was a lot of fun, and, um, and as always, love what you're doing over here on SIO. Good.

0:55:42 Thomas: Um, I think maybe you probably more talked me off the ledge than I talked you on it. So that's good. Good for the country. Good for The Ledge.

0:55:56 Andrew: But I met you on a ledge. Right, I mean, this is that we're not opposed to ledges. Yeah.

0:56:01 Thomas: It's true. Yeah, yeah. All right. Thanks so much, Andrew. And listen to Opening Arguments, everybody, if you aren't already. We'll see you next time.

0:56:19 Clip: Thank you so much for listening to Serious Inquiries Only. If you like the show, the absolute best thing you can do is support us at patreon.com/seriouspod. The second best thing you can do is please share it on social media or by word of mouth. Speaking of social media, if you'd like to follow Jamie on Twitter, she's at Euthyphro. And follow me at SeriousPod. If you'd like to be Facebook friends, send me a request at facebook.com Thomas podcast. If you're not up for that level of intimacy, that's fine. Maybe you want to join the discussion at facebook.com/groups/SIO members. Thank you again for listening. We'll see you next time.