November 26, 2016

8 New Reasons The Electoral College Shouldn’t Vote for Trump

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Soon after the election, I was one of those arguing that Republican electors should vote for someone other than Donald Trump when the electoral college convenes on December 19. My contention was simply that Trump is fundamentally unfit to be president. Many Republicans declared Trump unfit during the 2016 campaign, and Trump has a disturbing record of bigotry, misogyny and sexual abuse, dishonesty, predatory business practices, association with organized crime figures, and misuse of charitable entities. He also has advocated for torture, bombing civilians, and other reckless acts that no conscientious military officer could carry out.

Since he declared victory, however, Trump’s own actions have made the case for dumping Trump much, much stronger. I still seriously doubt enough electors will do the right thing and deny Trump the 270 electoral votes he needs. But if they care about our country and its values, they must not vote for Trump.

Here are the reasons why:

8. Hillary Clinton won the popular vote by nearly two million votes.

This is by far the weakest of the eight reasons because, as Trump has rightly pointed out, the contest every four years, including this year, is to win the electoral vote, not the popular vote, and Trump might have pursued a different strategy if it were otherwise. But Hillary Clinton’s big, expanding margin in the popular vote reduces the moral force of any argument that electors must somehow consider themselves bound to vote for Trump. They are not bound because —

7. The electoral college system created by the Framers did not prohibit electors from voting their own conscience. 

With Trump and his supporters hammering the point that the electoral college system is the relevant competition, they cannot escape that the system has two pieces — voting in the states and, later, the gathering of electors in their state capitals. In explaining a system that includes individual electors casting their own ballots, Alexander Hamilton in the Federalist Papers warned of the risks of inaugurating a president with”[t]alents for low intrigue, and the little arts of popularity.” Hamilton argued for the electoral college system in these terms: “The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” The electors have not just a right, but an obligation, not to vote for a candidate lacking such qualifications.

Under our system, the electors may vote for anyone they want, whether they were on the November ballot or not.  Some states impose penalties, mostly light penalties, on so-called faithless electors, but many states do not. (Congress, which must approve the electoral college results, is bound by the Constitution to consider only individuals who have received one or more votes from the electors.)

6. The Trump University settlement shines a new spotlight on Trump’s unethical business practices.

Trump insisted throughout the campaign that the lawsuits brought by students and by New York state against his unaccredited real estate school were worthless and would fail before a jury. Then, with the presiding federal judge — whom Trump had said was biased because he was “a Mexican” — holding to a November 28 trial date, Trump paid $25 million to settle the matters.

In truth, the evidence was strong that Trump University was a predatory operation that, for starters, told prospective students that all instructors were hand-picked by Trump, when they were not. Trump University used high-pressure tactics to sell overpriced seminars. One of Trump University’s own sales managers testified, “I believe that Trump University was a fraudulent scheme, and that it preyed upon the elderly and uneducated to separate them from their money.” A trial would have exposed all these abuses for the world to see, which gave Trump a good reason to settle.

Since the election, even more reports have emerged of dishonest business practices by Trump, such as a golf club he built in Scotland: As described Friday by the New York Times, Trump promised the village of Balmedie that he would build “the world’s greatest golf course,” then “proceeded to lash out at anyone standing in his way,” and overcame objections about environmental harm with a series of “grand promises,” all of which he eventually broke: “A promised $1.25 billion investment has shrunk to what his opponents say is at most $50 million. Six thousand jobs have dwindled to 95. Two golf courses to one. An eight-story, 450-room luxury hotel never materialized, nor did 950 time-share apartments. Instead, an existing manor house was converted into a 16-room boutique hotel.”

The heavy dossier of examples of shady Trump business ventures, from the multilevel marketing schemes ACN and The Trump Network, to his mountain of unpaid bills to contractors, has just been capped by a $25 million payment to thousands of students over allegations of fraud at Trump’s “university.” The electors need to consider whether it could ever be responsible to hand over control of our government to such an individual.

5. Trump has demonstrated a complete lack of trustworthiness by immediately abandoning campaign promises.

In post-election interviews with “60 Minutes” and the New York Times, Trump suggested he would back away from many of the hard-right promises he made in the campaign, promises that created red meat excitement at his rallies and drove highly conservative voters to the polls: promises to build a wall all across the Mexican border, to ban Muslims from coming to the U.S., to eliminate Obamacare, to hire a special prosecutor to go after Hillary Clinton, to waterboard suspects, to withdraw from the Paris climate accords, and to change the libel laws. Many people, including me, oppose those policies and would be relieved if Trump abandoned them. But his apparent willingness to break all these promises to his supporters as soon as the election is over demonstrates, once again, that Trump’s word is worthless.

Trump also immediately undermined his popular pledge to “drain the swamp” in Washington — his promise to clean up the corruption and restore power to people — by loading up his transition team with corporate lobbyists. Trump’s transition subsequently announced the lobbyists would be removed, but they simply replaced the lobbyists with ex-lobbyists, and then Trump put his inauguration up for sale, permitting corporations and rich individuals to write big checks to pay for the celebration.

Campaign promises get broken all the time, but not this many, this soon, with so little concern for the people who believed them. Electors must again consider whether a person so lacking in honesty and integrity should be our president.

4. Trump has appointed to top White House jobs people with disturbing records of bigotry.

This is where things get ugly. Two of Trump’s three White House appointments so far, for positions at the center of decision-making for our country in a Trump administration, are associated with angry expressions of racial and religious bigotry.

Trump has named his campaign CEO Stephen Bannon to be White House chief strategist and senior adviser. Until August, Bannon was executive chairman of Breitbart News, which Bannon called this summer “the platform for the alt-right,” a term that seems to define people who believe in white supremacy, deride women’s rights, condemn Islam, harass Jews with vicious insults, and hold other extremists views. Breitbart headlines have included: “Birth Control Makes Women Unattractive and Crazy” and “Bill Kristol: Republican Spoiler, Renegade Jew.” Bannon’s ex-wife filed a declaration in 2007 court proceedings alleging that Bannon opposed sending the couples’ daughters to an elite Los Angeles private school because many of the students there were Jewish: “He said that he doesn’t like the way they raise their kids to be ‘whiny brats’ and that he didn’t want the girls going to school with Jews.” Bannon has denied making that statement, or that, as his ex-wife claimed, at another school, he “asked the director why there were so many Chanukah books in the library.”

Trump’s pick to be White House national security advisor, the person in charge of coordinating the nation’s security policies, has his own issues demonizing an entire religion, one with 1.6 billion adherents worldwide. Army Lt. Gen. Michael Flynn has called Islam “a cancer,” tweeted a link to a YouTube video entitled, “Fear of Muslims is RATIONAL,” and tweeted a “dare” to Muslim world leaders to “declare their Islamic ideology sick.”

Meanwhile, Trump’s designated Secretary of Education, Betsy DeVos, daughter-in-law of the billionaire founder of Amway, has provided major funding for efforts to oppose LGBT rights — a troubling record for someone who would oversee policies related to America’s schools.

Trump did not need to fill so many of his earliest appointments, for core senior jobs, with people who have records of promoting bigotry against millions of Americans. Electors should consider the dangers to our nation of selecting a president who would install such a divisive senior team.

3. Trump has failed to disavow racism, bigotry, threats and violence by his supporters.

In the days and weeks after the election, there have been reports across the country of Trump supporters carrying out vicious attacks against people of color, women, immigrants, and others in “celebration” of Trump’s apparent victory. Trump, while complaining right after the election about anti-Trump protests as “very unfair,” said nothing at all about the violence and abuse in his name until pressed during an interview with “60 Minutes” to disavow the hateful acts by his supporters. Even then, Trump claimed he knew nothing about the widely-reported incidents and wanly went through the motions, saying, “I would say don’t do it, that’s terrible, ‘cause I’m gonna bring this country together…. I am so saddened to hear that. And I say, “Stop it.” If it– if it helps. I will say this, and I will say right to the cameras: Stop it.”

Days later, a white nationalist group, the National Policy Institute, held a Washington gathering full of white supremacy rhetoric, anti-semitic suggestions, and Nazi-era salutes, with a centerpiece speech in which the group’s leader toasted, “Hail Trump! Hail our people!” and finally, “Hail victory!” – which in German translates to the Nazi cheer “Sieg Heil!” Again Trump said nothing, until pressed in the New York Times interview, at which point he offered this lukewarm statement: “It’s not a group I want to energize, and if they are energized I want to look into it and find out why.”

In neither case has Trump issued his own statement, or even tweet, condemning or disavowing the parade of hate in his name. Instead, he has tweeted complaints about the media, “Saturday Night Live,” and the cast of the broadway musical “Hamilton.” This studied indifference to the hate and violence by his supporters is one more reason for electors to refrain from voting for Donald Trump.

2. Russian covert action influenced the election.

While evidence of vote-tampering in this election is intriguing but far from conclusive, there is extensive evidence, most recently detailed in a Washington Post story, that operations emanating from Russia were aimed at influencing, and did influence voters — through fake news stories attacking Hillary Clinton, pushed by paid live trolls, phony social media accounts, and networks of automated botnets. These efforts, according to the Post, “portrayed Clinton as a criminal hiding potentially fatal health problems and preparing to hand control of the nation to a shadowy cabal of global financiers. The effort also sought to heighten the appearance of international tensions and promote fear of looming hostilities with nuclear-armed Russia.” The Russian disinformation machine is also linked to promotion of the false story that a protester was paid thousands of dollars to demonstrate at Trump rallies, a claim the Trump campaign later echoed. (More anti-Clinton fake news was generated by Trump associates, as Lee Fang reports today.)

Russian hacking also led to the publication of troves of emails from top Democratic officials that became fodder for a range of attacks on Clinton. Last month, the U.S. government, in a statement by director of national intelligence James Clapper and the Department of Homeland Security, said of hacks into the Democratic National Committee, “We believe, based on the scope and sensitivity of these efforts, that only Russia’s senior-most officials could have authorized these activities.” The statement added that the Russian hacks “are intended to interfere with the U.S. election process.” The Clinton campaign and security experts also linked Russia to the hack of the emails of Clinton campaign chair John Podesta; the Wikileaks founder Julian Assange denied that Russia was involved — in an interview aired on the RT Russian television network.

Although Russia has denied interfering in the election, the Vladimir Putin-controlled Russian media made clear their preference for Trump throughout the general election campaign. Trump has repeatedly expressed his admiration for Putin.

Although we can’t know for certain whether Russian influence helped tip the election to Trump, it’s one more factor that should give GOP electors pause in deciding whether they really owe their allegiance to Trump, or whether allegiance to country should push them to vote for a different candidate.

1. Trump has made clear he will use the presidency to enrich himself, risking the corruption of our democracy. 

Finally, and disturbingly, since the election Donald Trump has repeatedly mixed his new role as the incoming U.S. head of state with efforts to advance and promote his businesses. If Trump continued such a course as president, it would fundamentally compromise the integrity of our government, with a president seeking leverage for his corporations in his dealings with foreign governments. Unfortunately, all indications are that Trump has no intention of holding himself to any meaningful standards of integrity in office.

In post-election meetings and calls with foreign leaders and nationals, Trump has pushed his business interests. When Trump met with a group of British politicians he pressed them to oppose the kind of offshore wind farms that Trump believes will block the the view of one of his Scottish golf courses and that he had unsuccessfully sued to prevent. Trump admitted he “might have” raised the wind farm issue with the British delegation.

Trump also, according to one report, mentioned on a congratulatory call with Argentina’s president, Mauricio Macri, the subject of pending permits for a Trump high-rise building in Buenos Aires. Trump denied the allegation, although there was other reporting that Trump’s daughter Ivanka, a top executive in his Trump Organization, also spoke with Macri, and the next day the Trumps’ Argentine business partner announced the project was moving ahead.

Trump also included Ivanka Trump in a meeting with Japanese Prime Minister Shinzo Abe; afterward her jewelry business publicist reached out to reporters to highlight a $10,800 bracelet Ivanka had worn on “60 Minutes.”

Trump had a post-election meeting with his Indian partners in for a new Trump Towers in Pune, India, a meeting about which Robert S. Stern, a lawyer with expertise in government ethics said, “It already looks like he is using his position as president-elect to promote something in India that would benefit him financially…. It is not presidential — or at least presidential before him.” Pranav R. Bhakta, a former consultant to Trump in India, helpfully told the New York Times that the marketing tie-in was irresistible: “To say, ‘I have a Trump flat or residence’ — it’s president-elect branded.” The Indian partners tweeted out smiling pictures of their meeting with Trump.

The Washington Post reported that the week after the election Trump’s new hotel in Washington invited “about 100 foreign diplomats, from Brazil to Turkey… to sip Trump-branded champagne, dine on sliders and hear a sales pitch about the U.S. president-elect’s newest hotel.”

Trump has said that Ivanka Trump and his two adult sons will run his business while Trump runs America. But top White House ethics lawyers for both President Obama and President George W. Bush have said the electoral college should reject Trump unless he sells his business and puts his wealth in a blind trust — because otherwise his presidency will be on a collision course with the Constitution.

Article 1, Section 9 of the Constitution prohibits U.S. office holders from accepting “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Former Obama White House lawyer Norm Eisen explained to ThinkProgress that “the founders did not want any foreign payments to the president. Period.”  Room rental fees by foreign governments to the Trump hotel in Washington, or any other Trump hotel, would constitute such payments.  Harvard Law Professor Laurence Tribe told ThinkProgress that violation of this constitutional provision “would qualify as one of the ‘high Crimes and Misdemeanors’ that would require Trump to be ‘removed from Office.'”

In other words, from a constitutional perspective, the Trump presidency would be dead on arrival.

Richard Painter, the chief ethics lawyer in the George W. Bush White House, offered a similar view of Trump’s stance in an appearance on CNN:  “I don’t think the electoral college can vote for someone to become president if he’s going to be in violation of the Constitution on day one and hasn’t assured us he’s not in violation.”

Trump insisted in his New York Times interview that “I don’t want there to be a conflict of interest.” But he asserted the position that “the law is totally on my side, meaning, the president can’t have a conflict of interest” and opined that “in theory I could run my business perfectly, and then run the country perfectly.”

Every signal Trump has given since the election, through his actions, suggests he will not hold himself to any meaningful ethical standard to protect against him using his office, and distorting our national interest, to increase his family’s wealth.


The world has seen kleptocratic leaders who amassed vast fortunes while in office, from Marcos in the Philippines to Mobuto in the Congo to Milosevic in Serbia.  We have seen leaders who pressured the media to report favorably on their governments, today including Putin in Russia and Erdogan in Turkey. We have seen leaders who trade in ethnic and religious hatreds, and who stand by and allow violent supporters to attack critics of their regimes. And we have seen countries have their elections and societies influenced by foreign powers. But we haven’t generally wanted these things for our government and our country, and we — Republicans, Democrats, and others — have often been strong enough to reject such forces through our democratic processes.  That record is now threatened by the impending inauguration of Donald Trump.

Despite these concerns, it’s obviously still unlikely that a sufficient number of GOP electors, if any, will vote for someone other than Trump.  There’s certainly a good argument that to avoid chaos, we should generally pick the winner, and move ahead, soon after the presidential election, or these things could be fought out in all manner of forums, from courtrooms to city streets, indefinitely. Certainly President Obama has seemed ready to move on since election night.

A handful of Democratic electors now say they might vote for someone besides Clinton, perhaps a Republican like Ohio governor John Kasich, as they lobby Republican electors to do the same, but it’s unclear if they’re getting any traction. Even if a miracle occurred and enough electors came together to deny Trump 270 votes, the matter would go to Congress, whose GOP leaders now seem to have fallen in love with the man so many of them were running away from just weeks ago; Congress might well hand the election to Trump anyway. But electors could still do their job, vote their consciences, and force Congress to make the decision about whether to install Trump.

In any case, I’m not arguing what’s likely. I’m arguing that we are not powerless. We as Americans can use the very procedures built into our constitutional system to avoid an unprecedented risk to the integrity and safety of our country, to avoiding the inauguration of a man who has proven since election day, if there were any doubt before, that is he unfit to president of the United States.

 

This article also appears on Huffington Post.

UPDATE 11-28-16 6:00 pm:

More on the electoral college and Trump:

Peter Beinart, The Atlantic, November 21

Larry Lessig, The Washington Post, November 24

Michael Tomasky, The Daily Beast November 27