Legitimacy
In a series of interviews selling her new book, What Happened, Hillary Clinton has questioned the “legitimacy” of the Presidential election of 2016.[1]
In an interview of former DNC Chair Donna Brazile on his show “Hardball,” Chris Matthews hammered Brazile on the issue of the “legitimacy” of the 2016 election. Brazile didn’t back down, arguing that the events that occurred during the campaign raised enough questions to doubt whether the outcome was “legitimate.”[2]
The US Constitution sets up the fundamental means of electing the President through the 2nd Article and 12th Amendments. Ultimately the outcome is based on the winning candidate getting a majority of the electors. And, while the rules governing the selection of electors vary somewhat by state, ultimately the electors are chosen as a result of the popular vote outcome.
There is no question that the “electoral process” as set forth in the Constitution was followed, and therefore there is no legal issue regarding the selection of Donald Trump as President of the United States. From that standpoint, there is no question of his legitimacy.
The questions about the integrity of our electoral process are a step back from that. Fundamentally there are three factors that need to be examined to determine whether the election of 2016 was in fact legitimate.
- Was the technical voting process infiltrated by Russian intelligence in order to change the vote count by either altering actual votes or vote counts, or by altering registration data so that properly registered voters were unable to cast votes.
- Was the Russian infiltration of internet media such that it caused the voting to reflect a “Russian” reality which did not reflect the real will of the United States. As part of this, was the a conspiracy between the Trump campaign (or parts of the campaign) with Russian intelligence to target specific areas and voting groups.
- Was there a conspiracy among the Russians, representatives of the Trump campaign, and parts of US law enforcement (particularly the New York office of the FBI) to manipulate the Clinton email scandal in order to alter the results of the election.
None of these questions are “decided,” even though a fundamental talking point of Republicans is that “…the Russian meddling that took place did not effect the outcome of the election.”[3]
There is growing evidence that the actual voting process may have been compromised. Mike Farb at “unhackthevote.com” has gathered mountains of statistical evidence which gives credence to claims that Russian Intelligence may well been able to penetrate key state and county voting systems. [4]
There is also been a “legal” process used by the Republican party to suppress voter participation. The Republicans, through voter identification programs, legal and illegal voting roll purges, and even voter intimidation at the polls; has worked to keep minority and lower income voters from participating in the process. [5]
There is already a great deal of evidence of Russian involvement in internet media. Facebook, Twitter, Google and other internet media sources were literally swamped with Russian advertising, trolling, and bots. These attacks were carefully directed towards critical voting groups and geographical areas to maximize their impact on the electorate. This highly sophisticated targeting required an advanced understanding of American political behavior: an understanding that might have come from the Trump campaign itself, particularly through their linkage with Cambridge Analytica.[6]
And finally there is the possibility of a US conspiracy to manipulate the Clinton emails, involving parts of the FBI, to serve as a distraction to the Trump campaign flaws. This was obvious with Wikileaks “dropping” the stolen Podesta emails within hours of the release of the Access Hollywood, or when FBI Director Comey seemed to be compelled by his own agents, to reveal the possibility of new Clinton emails on the Anthony Weiner laptop.[7]
What is a “legitimate election?” The United States has had questionable elections for many years. In the Presidential election of 2000 for example, the final count, done after the election result was already legally determined, did not necessarily support the legally determined winner. The legitimacy of the Bush Presidency was determined by the US Supreme Court, rather than the voting results of Florida.
If it is determined that through some combination of actions, Russian Intelligence determined the winner of the 2016 election, must we consider Trump to be a “legitimately” elected President? And IF we reach the conclusion that the Trump Presidency is, in fact, illegitimate, what then? In other areas of our society, from sports (think of the NCAA taking away national championships) to contract law, if we determine that the game or negotiation was tainted, we nullify the results. Presidential elections aren’t quite so easy.
There is no provision in the United States Constitution for a “do-over.” There is a way to remove the President. Certainly if we find that the Trump Campaign did conspire (collude isn’t a legal term) with a foreign power to win the election, if will fit the “…treason, bribery, or other high crimes and misdemeanors.” The key element will be Trump’s individual responsibility. Any impeachment would have to implicate him as individually responsible rather than as an unwitting recipient of the benefit of others illegal acts.
Unless the concept of nonfeasance is applied. Nonfeasance is the failure to act when action is required. Even if Trump himself is not implicated, if he allowed his campaign to be run in such a manner, he allowed for the illegal acts by NOT taking charge and so still is responsible.
And if Trump is guilty of nonfeasance, then Vice President Pence would be as well (he supervised the transition which put Michael Flynn in as National Security Advisor.) Would this require the impeachment and removal of both, leaving the Speaker of the House as President?
Or do we elect a Democratic majority to the House and Senate, and depend on “grid-lock” to keep our nation together through a one term Trumpacy. If so, there will be a tremendous amount of damage to undo, legitimately.
[1] https://www.npr.org/2017/09/18/551217204/hillary-clinton-says-shes-optimistic-about-our-country-but-i-am-not-naive
[2] http://www.msnbc.com/hardball/watch/donna-brazile-2016-was-not-a-legitimate-election-1101291587735
[3] https://www.nbcnews.com/politics/elections/cia-director-wrongly-says-u-s-found-russia-didn-t-n812411
[4] https://www.unhackthevote.com/our-research/
[5] http://nymag.com/daily/intelligencer/2017/10/voter-suppression-may-have-won-wisconsin-for-trump.html
[6] http://www.cnn.com/2017/10/27/politics/trump-campaign-wikileaks-cambridge-analytica/index.html
[7] https://www.huffingtonpost.com/entry/the-domestic-conspiracy-that-gave-trump-the-election_us_587ed24fe4b0b110fe11dbf9
