What Does Trump Think We Should Do About Illegitimate Elections?

Keith Raffel
Feb 8, 2019 · 4 min read

President Trump has called the Maduro regime in Venezuela “illegitimate” because of electoral irregularities. He advocates replacing the recently inaugurated Maduro with Juan Guaido, head of the opposition party in the National Assembly, the Venezuelan equivalent to our House of Representatives.

What’s good for Venezuela ought to be good for the United States, right? Didn’t we have our own illegitimate election in November, 2016?

Here are a few highlights of what we’ve learned in the last two months:

· On December 12 in open court, U.S. district judge William H. Pauley III said Trump had conspired with his lawyer Michael Cohen to hide payoffs to two women that “were intended to affect” the outcome of the presidential election.

· The special prosecutor has proof that Cohen and Trump worked together on “the Moscow Project, a lucrative business opportunity that sought, and likely required, the assistance of the Russian government” during “a time of sustained efforts by the Russian government to interfere with the U.S. presidential election.”

· According to the special prosecutor, Trump campaign manager Paul Manafort transmitted polling data to a Russian with intelligence links that could have been used to target social media. There is also documentary evidence that former Manafort business partner Roger Stone served as a link between the Trump Campaign and the hackers. Trump lawyer Rudy Giuliani no longer denies that there was collusion between the Trump campaign and Russia.

Does anyone think Trump would have won the presidential contest if it hadn’t been hidden that he’d paid hush money to two women, that he was pursuing a lucrative business deal with Russia after winning the nomination, and that his campaign, even if not Trump himself, was colluding with the Russians?

According to dictionary.law.com, “defraud” means “to use deceit, falsehoods or trickery to obtain money, an object, rights or anything of value belonging to another.” Don’t we have enough evidence today to say Donald Trump gained the presidency by using deceit, falsehoods and trickery to obtain votes?

What then? Efforts to impeach the president like Andrew Johnson’s violation of a statute, Richard Nixon’s cover-up of the Watergate break-in, or Bill Clinton’s lying under oath all stemmed from the “high crimes and misdemeanors” the president allegedly committed while in office. Here, though, Trump did not even legitimately win the election. He won it through fraud committed before he took office.

What is the normal remedy for fraud? Rescission — the unwinding of a transaction in order to bring the parties back to the position they were in before the fraudulent conduct.

Applying this concept to Trump’s election would mean winding the clock back to the morning of January 20, 2017 before he took the oath of office. It would mean nothing he’s done since then would be valid. It would be as if Trump had never lifted a pen to sign the tax bill, ordered deportation of “dreamers”, nominated federal judges, or sought to withdraw from the Paris Climate Accord. It would mean stowing the animatronic figure of Donald Trump at Disney World in a storage closet.

Does that make sense? Let’s try this analogy: What if, for the sake of argument, we say voting machines in three key states had been hacked and, as a result, the candidate who ordered the hacking led in the vote count. How could we let the result stand? If the Trump campaign did indeed defraud the electorate, isn’t that morally equivalent to tampering with the vote count?

Making Mike Pence president is not the solution to rescission of the 2016 election — even though it would be the remedy to the impeachment and conviction of Trump. If the results of the 2016 election are found to be fraudulent, it should mean the “election” of both Pence and Trump should be invalid.

What then? The presidential succession statute says when the presidency and vice-presidency are vacant, the Speaker of the House becomes president. That would follow what Trump wants for Venezuela: the replacement of the illegitimately elected later by the head of the lower house of the legislature.

Would the Supreme Court buy this reasoning? Since the validity of their appointments hinge on the outcome, Justices Gorsuch and Kavanaugh would have no choice but to recuse themselves from the decision. Only Justices Ginsburg, Sotomayer, Kagan, Breyer, Roberts, Alito, and Thomas would be voting.

If Trump believes the defrauding of the Venezuela people ought not be allowed to stand, why in tarnation should the defrauding of the American people by Trump and his campaign be allowed to stand?

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