This week, American democracy either died or it didn’t, but you couldn’t tell from the news coverage. Some commentators and members of Congress warned that we are looking at “nothing less than a coup.” Others called for organized protests, proclaiming it is now clear that President TrumpDonald John TrumpTrump says he will ban TikTok from operating in the US Trump’s 2019 financial disclosure reveals revenue at Mar-a-Lago, other major clubs Treasury to conduct policy review of tax-exempt status for universities after Trump tweets MORE’s “anti-democratic intent was blood-chillingly real.” One leading academic called for Trump’s immediate impeachment as a fascist out to destroy our constitutional system.
We have not seen such rhetoric since Aaron Burr tried to peel off the entire southwestern territory of the United States. The cause this time was an 11-word Twitter question from President Trump. Returning to his favorite subject of denouncing mail-in voting as a disaster in the making, he ended his July 30 tweet by asking, “Delay the election until people can properly, securely and safely vote?”
As I said at the time, the tweet was reckless and repugnant. However, cries of some Twitter-based coup d’état were equally unconnected to reality. I have written repeatedly about this conspiracy theory that Trump will never allow an election to occur in 2020, which has raged on liberal websites and cable news since soon after his inauguration.
Trump does not have the authority to delay the election. Even if he could persuade Congress to change the date, with the implausible assistance of House Speaker Nancy PelosiNancy PelosiOn The Money: Unemployment benefits to expire as coronavirus talks deadlock | Meadows, Pelosi trade criticism on stalled stimulus talks | Coronavirus recession hits Social Security, Medicare, highway funding Pelosi: Trump trying ‘to suppress the vote’ with attacks on mail-in ballots Pelosi defends cannabis in coronavirus response: ‘This is a therapy’ MORE, the Constitution still stipulates that his term ends at noon on Jan. 20. In the interim, not only do citizens have to vote, but electors have to cast ballots in the Electoral College, and those votes must be certified and counted by Congress.
It is not much of a coup when you do not extend your time in office. It does not matter what Trump would like; it is what the Constitution will allow. A demand to delay the election has the same impact as Trump declaring he will change his name to “Joe BidenJoe BidenHillicon Valley: Three arrested in Twitter hack | Trump pushes to break up TikTok | House approves 0M for election security Wisconsin Republicans raise questions about death of Black Trump supporter Trump holds mini-rally at Florida airport MORE” if needed to claim victory, or that he will adopt Neptune’s calendar to extend his four-year term to 660 years.
That is why this conspiracy theory has been so maddening. Indeed, in a column in April, I criticized former Vice President Joe Biden when he took up the theory, triggering another round of panic; Biden added a second theory to this baseless fear, suggesting that Trump’s opposition to funding the U.S. Postal Service was part of a plan to steal the election. (I later wrote an equally caustic criticism of Jared Kushner when he equivocated about Election Day.)
While I portrayed Biden back then as a virtual nut for raising this conspiracy theory, many now have proclaimed him a virtual Nostradamus following Trump’s tweet. Biden was not right — any more than Trump is today. It is no surprise — and no sign of a conspiracy — that Trump might suggest something outrageous, such as a delayed election, on Twitter. Such behavior is an established fact that occupies many of us on a daily basis. The “conspiracy theory” is to suggest that Trump could actually halt or delay the election.
In fairness to Trump, he has not stated that he can unilaterally delay the election but rather has asked if we should do so. Later, he denied actually wanting a delay. Still, the tweet still showed terrible judgment and rekindled this conspiracy theory on the internet.
Normally sensible people seemed to take leave of their constitutional senses. Northwestern University professor Steven Calabresi wrote a column for The New York Times calling for Trump’s immediate impeachment over his question. Calabresi said this “latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.”
Having testified at the Clinton and Trump impeachments, I have no delusions about how impeachment often is a magnet for claims of high crimes and misdemeanors. Indeed, in the last few years, various experts and members of Congress have demanded impeachment for everything from Trump’s tweets to his criticism of the football player “kneelers.”
Yet Calabresi is not some internet loon; he is a respected academic who is suggesting that asking if an election should be delayed due to a pandemic is grounds for removal. Keep in mind that it is legal for Congress to delay the election, so Trump was suggesting something that can be done constitutionally. It would be practically illogical and politically impossible, but it would be legal. So is a president to be considered removable for suggesting legal if illogical measures? Imagine that as a standard in history. I would sooner impeach him for using three successive question marks in his question.
As is so often the case, Trump’s loose rhetoric overshadowed what might have been a lucid point. Trump objected that a shift to mail-in voting will cause delays and challenges after Election Day. I have covered presidential elections as a legal analyst for several decades; each election has had challenges, including the lingering controversy over the 2000 Bush-Gore contest ultimately resolved by the Supreme Court. While we have long used absentee balloting, we have not used mail-in voting on such a massive scale. It will, inevitably, add a new layer of problems and potential challenges. Trump also is right that it will likely delay the final counting of votes.
There is every reason to be worried. We have a relatively short window for challenges and recounts before the Electoral College meets on Dec. 14 to certify the results. While that date also could be changed, it would soon collide with another statutory date — Jan. 6 — when Congress must meet to certify the results. There is a real possibility for floor fights on the certification of the votes from given states and the possible failure to certify some states caught up in litigation. It is even possible that such challenges could continue to Jan. 20. What is not in doubt, however, is Trump continuing in office: On that day, he is no longer president unless he is reelected.
Indeed, for Trump, the only thing more nightmarish than losing would be if no duly elected president can be determined. Pelosi could theoretically become the acting president as the next in succession. One would think that would be enough incentive for the Trump administration to be sure that the Postal Service is fully prepared for Election Day. That is why we need to put this conspiracy theory to bed. Trump cannot unilaterally delay the election. Our real concern should be what will happen when the election is held on Nov. 3.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.