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posted ago by Legalese ago by Legalese +17 / -0

tl;dr Trump has no constitutional or legal options to continue his challenge after January 6 if Congress certifies Biden's electors. Trump cannot win on January 6 without the support of both Pence and, through McConnell, a majority of the Senators. Trump can only secure McConnell and Pence's support by threatening: (1) to tell his supporters NOT to vote for Republican candidates in the Georgia run-off, so as to deny McConnell a majority in the Senate, completely neutering the Republicans for two years of Biden's administration; and (2) to create a new political party to challenge RINOs. I would also add (3) appoint a Special Prosecutor who can survive Trump's administration to investigate uni-party election fraud.

Analysis.

There are two (and only two) winning scenarios on January 6 for Trump:

  1. Pence asserts his constitutional authority to supersede the relevant provisions of the Electoral Count Act; or

  2. Republican Senators object to the Biden electors under the Electoral Count Act.

The Electoral Count Act asserts, in cases when dueling electors reach Pence, that "those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State." Therefore, if Republican Senators object to the counting of Biden electors, it opens the door for Pence to assert his constitutional authority to select between dueling electors like Thomas Jefferson.

If only a few Republican Senators—Mitt Romney and Lisa Murkowski—joined all the Democrats to concur with the acceptance of the Biden electoral votes from the disputed states, thereby agreeing with the Pelosi-led vote in the House to do the same, Pence could still assert a constitutional prerogative to supersede the provisions of the Electoral Count Act and, despite the joint agreement of the two congressional chambers, declare the Trump electors to be the authoritative ones from the disputed states. Under this scenario, it is possible for a political and constitutional challenge to continue until January 20th. A conflict between the House and Senate, ending in Pelosi physically removing the Senators from the House, would result in conflicting claims: Trump's 12th Amendment claim versus Pelosi's 20th Amendment claim, which would have to be resolved by SCOTUS before January 20th. SCOTUS could not turn down the case at that stage.

But if Mitch McConnell leads the Republican-controlled Senate to agree with the Democratic-controlled House the Biden electoral votes are valid, it is impossible for Pence to prevail on his constitutional claim that he alone is entitled to overrule this bicameral, bipartisan determination of which electoral votes to count. Thus, it makes all the difference in the world how Mitch McConnell chooses to lead the Republican conference in the Senate if this kind of situation occurs. Further, Trump must have Pence's support on January 6, and Pence has not publicly stated he will support Trump on January 6 by picking Trump's electors.

Trump needs McConnell and Pence's support, but he cannot simply rely on them to put it all on the line for a second administration; Trump will have to use forceful coercion. If Trump leaves office, McConnell will become the most powerful Republican (presuming a Republican Senate majority) and the anti-establishmentarian threat to the RINOs and McConnell's beloved swamp-donors will fade. Trump has to take away such a favorable option away from McConnell, which means threatening McConnell's majority in the Senate.

The Georgia run-off on January 5 is almost a perfect opportunity to leverage, except it occurs the day before January 6. If Trump tells his voters not to vote in that race, then McConnell will be powerless come January 20th—that is the kind of threat you want to use against McConnell, namely one that makes his political interests align with Trump's needs on January 6. Trump should be negotiating with McConnell and Pence right now telling them he will throw the January 5 election for the Democrats, unless they go on T.V. and publicly commit to supporting Trump on January 6. Trump will not be able to guarantee Pence and McConnell will not simply renege on January 6 after the January 5 vote has already taken place, but Trump needs to put them in between a rock and a hard place. Ultimately, that means threatening Republican leadership with the creation of a new political party under Trump that will primary all of their candidates and divide the right for a good generation or two. (Trump does not necessarily have to go through with his threat after the fact, but he has to make it believable to maximize his political leverage between now and January 6.) It would also be a good idea to appoint Sydney Powell as Special Prosecutor so someone loyal to the People will survive Trump's administration for sure; a thorough investigation of the uni-party would benefit any new party as well.

I honestly do not trust Pence or McConnell. Pence will be more than happy to slink back into the swamp under the cover of political impossibility if McConnell is allowed to stab Trump in the back. I honestly also fear Trump does not have the necessary political skills for this situation. It's time to get Machiavellian on these motherfuckers.

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Lambinator 1 point ago +1 / -0

Alternative scenarios?:

  1. The 200K indictments are unsealed resulting in mass arrests of members of Congress.

  2. A Biden concession is published. (Surely Team Trump could have already managed to secure a deal, trading a Biden concession for leniency to his criminal son and brother.)

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Legalese [S] 1 point ago +1 / -0

The reports coming out of the White House suggest Trump is not in control of the Durham investigation, the FBI, or the DoJ, and does not really understand his options at the moment. I highly doubt there is anything like 200k indictments coming, let alone because the courts could never process that amount of paperwork.