Let’s review: We have a president-elect who:
1. Will end up having received around 2.5 million fewer votes than his main opponent.
2. Whose campaign benefited, almost no one now disputes, from the help provided him by Russian intelligence agencies and other even more shadowy Russian actors—which is to say that foreign agents, whether Russian or any nationality, sought to influence this election to an unprecedented degree.
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3. Who is so tied up in compromises and conflicts because of his business dealings that past White House ethics lawyers, including at least one Republican one, say he will be in violation of the Constitution from his first day in office and argue that the Electoral College must not seat him.
4. Has already told the American people that, with respect to number 3, his attitude is precisely that of Richard Nixon, back when Nixon declared the president to be by the very nature of the office above the law. Trump said that the president “can’t have a conflict of interest”—meaning, presumably, that it can’t happen simply because he’s the president.
Want to imagine any one of the above four statements applying to any Democrat, but especially to Hillary Clinton? Think about what we’d be hearing right now from Republicans if Clinton had won a substantial Electoral College victory but lost the popular vote by five more than Al Gore’s margin in 2000. Five hundred thousand was close, but 2.5 million isn’t, out of 137 million. It’s almost 2 percent. That’s a narrow win, yes, but a clear one—well above the threshold, for example, that triggers an automatic recount in the 19 states (plus the District of Columbia) that set such thresholds, which is most typically .5 percent or even .1 percent, but never more than 1 percent.
At the very least, we’d be hearing the right-wing radio people, some Fox hosts, and a fairly large number of prominent Republican senators and House members carrying on about the illegitimacy of Clinton’s victory. Recall back in 1992 when on election night itself, GOP Senate leader Bob Dole said Bill Clinton had no mandate because he didn’t win a majority of the vote. Bill Clinton won 43 percent of the vote, which was nearly 6 percent more than George H.W. Bush, and a whopping 370 electoral votes. But to Dole—and through him, to all Republicans, really, since he was the country’s top-ranking Republican at the time, and others echoed him—Clinton had no mandate.
So if Clinton had no mandate, does Trump?
If the situation were reversed, the cable shows would be filled with Republicans insisting that while Clinton may have attained victory under the rules, it was clear that the people opposed her policies, so it was therefore their solemn, nay even their Constitutional, duty block everything she proposed. And that’s at the least. At the most, conservative legal scholars would be trotting out arguments that electors were under no obligation to support her, along with more baroque theories about how her victory had happened in a way that the Founders never intended.
Instead it was Trump who won in a dubious way—although I cannot, alas, say that it wasn’t in a way the Founders intended. They did, of course, intend for the people not to be able to choose the president directly. And why? Well, it’s commonly said that it was because they didn’t trust the people, which they didn’t. But as with so much of this nation’s founding, it was also about race.
As Yale scholar Akhil Reed Amar wrote before the election in Time, the Electoral College was a compromise over slavery. In a system of direct election, votes in the North would vastly outnumber votes in the South, because the North had more propertied white males and the South had more slaves, who of course couldn’t vote. But the Electoral College in effect gave slaves three-fifths of a vote. Consequently, writes Amar, Pennsylvania had 10 percent more white males right after 1800 but 20 percent fewer Electoral College votes. As David Frum tweeted the other day, “‘The people’ wanted Hillary. The compromises of 1787 got us Trump.” The thread tying 1787 and Trump together? Four letters, starts with “r,” rhymes with disgrace.
All that is just with respect to point 1 above, which is the least problematic of the four points. Let’s move on to number 2. It’s astonishing that this just happened. Again, let’s flip the scenario. It’s hard to picture this since Trump and Putin are such birds of a feather, and because Russia is what it is; but imagine that Russia was a different kind of country and had a different kind of leader—a woman, say, a big feminist and rabid Paris accords enthusiast.
Now, imagine that evidence was ample that her intelligence agencies had hacked RNC servers and Kellyanne Conway’s email account, and that a shady international refugee from justice (a Julian Assange equivalent) had leaked the material out for 33 straight days before the election. And the media, the so-called librul media, had published the results more or less uncritically. Imagine it.
Don’t you think the FBI would possibly have opened up an investigation during the election? And do we dare allows ourselves to think that now, the FBI will even look into this at all?
Now let’s stop the “imagine if” part and deal with the reality that confronts us. We are about to have a president who, many experts say, can’t possibly serve honestly because of his global business interests. Where will the Trump Organization end and the presidency begin? Is anyone—anyone—naive or hackish enough to believe that Trump will maintain any such bright line? Especially when he has already told us he doesn’t think any such line exists?
Take Cuba. Is there a soul among us who doubts that Trump’s first thought upon hearing the news of Castro’s death was of the fortune that could be made there? We already know that he violated the trade embargo, so it’s reasonable for us to assume that his post-Castro Cuba policy will be driven with an eye toward development possibilities. As I tweeted Saturday morning, I’d normally worry under these circumstances that a Republican president-elect wanted to invade Cuba. This time, I fear he’ll want to buy it. He can rename Havana Havanka.
How did we get here? We have this sudden and broad post-election consensus that a Trump in the White House will be a walking and inherent conflict of interest from day one. The New York Times ran a big story on all this Sunday. Yet pre-election, this topic didn’t get anywhere near the press attention it should have. Trump was never asked, once, about how he’d handle his business interests at any of the three debates. We have strolled our way into a kleptocracy, and most of the media, far from recognizing it and stopping it, have used their machetes to clear the path.
In the end, it’s the Democrats’ fault too. They should have been making more noise about this. Hillary should have. But what’s done is done. The question is what to do now.
I hate to hear myself saying things like the electors shouldn’t vote for the person who did win under the rules. I don’t know if I can quite endorse that, yet. But by all means, these recounts should be pursued—whatever Jill Stein’s motives here, she’s stumbled into doing something right for once. Democrats from Chuck Schumer and Nancy Pelosi on down should be raising every question they can about Trump’s legitimacy and conflicts.
Three simple points. He was not the choice of the people; he prevailed with the help of a foreign power, a power to which he will clearly be indebted; and he tells us straight up that he will do as he pleases with his business and that he is above the law.
The Democrats ought to be able to stand up and oppose that—not in the name of party, but in the name of country. The press ought to, too—not in the name of “liberalism,” but in the name of the values we purport to defend. We are in a crisis. The next few weeks will show us who’s up to recognizing and acting on it.
