Saturday Q&A

We got an awful lot of questions about possible nefarious plots, plans, and schemes on the part of Donald Trump. Presumably we'll be fielding many questions of this sort until Jan. 20, 2021. Maybe longer.

Q: I appreciate all your reassurances that a military coup would be very difficult to accomplish. And I believe you that military leaders take their oaths very seriously. But unfortunately, we still have the example of the tear-gassing of protesters to allow the Orange One to cross the street; this instills a certain sense of unease. So my question boils down to: When does the president-elect become the commander-in-chief? Is it at 12:01 p.m. on Jan. 20, or is he required to take the oath of office first? And who is empowered to administer that oath? With his newly installed toadies at the Pentagon and 70 days left in office to do more, can Donald Trump gather enough loyalists to seize all the potential oath administrators and prevent the oath from being given? Or does the new President have the authority to order the military to stand down at that magic 12:01 moment? I sure hope you have some more reassurance for us. M.L. in Havertown, PA

A: Let us begin by addressing the very first part of your question, even though it wasn't in question form. Finding a few soldiers or officers who are willing to deploy tear gas in order to clear some protesters is a whole different kettle of fish from finding hundreds of thousands of solders willing to participate in a coup d'état. And that is before we consider that Joe Biden may have won the military vote.

In any event, Joe Biden becomes president at 12:01 p.m. on Jan. 20, oath or not. He cannot exercise the powers of the office without taking the oath, but he would still occupy the office, which would mean that Donald Trump would not and would have none of its powers. What this means is that if Biden was somehow stopped from taking the oath at noon on Jan. 20, thus leaving him unable to exercise the powers of the presidency, those powers would devolve upon the vice president (who is sworn in first). If Kamala Harris was also stopped, then the Speaker of the House would exercise the powers of the presidency until Biden and/or Harris was sworn in.

That said, there is no risk of this happening. The Constitution does not specify who can administer the oath of office, but federal law does, and the list includes anyone authorized to take testimony in any action or proceeding, including judges, clerks and other officers of the court, and even notaries public. Indeed, Calvin Coolidge was famously sworn in by a notary public (his father). So, it would be impossible for Team Trump to somehow round up and intern all the potential people who can administer the oath.

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Q: On Friday, White House Press Secretary Kayleigh McEnany stated that President Trump will attend his own second inauguration. As silly and unlikely as it may seem, what would happen if Trump had a federal judge administer him the Presidential Oath of Office in a counter-inauguration streamed for his supporters? C.S., Los Fresnos, TX

A: The oath is a necessary condition for exercising the powers of the presidency, but it is not, by itself, sufficient. You still have to win the electoral vote for the oath to be valid. If Trump were to do this, then he would just be another private citizen putting on a reality show for his supporters.

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Q: Is the hand recount in Georgia a ploy to delay the election result long enough to interfere with the certificate of ascertainment for Georgia? A.S., Silverdale, WA

A: Not likely. First of all, since Georgia Secretary of State Brad Raffensperger (R) has been attacked endlessly by Trump and his acolytes, he's presumably not in the mood to participate in chicanery on the President's behalf. Second, Georgia law makes clear that Raffensperger has 17 days to submit final results to Gov. Brian Kemp (R-GA). So, on Nov. 20, the Secretary is either going to have to submit the best numbers he's got, or he's going to have to get permission from a state judge to extend the window. Georgia law allows that, but the judge is going to need an excellent reason for the extension, and surely isn't going to push the window beyond the federal deadline for electors to cast their votes. In other words, even if this is Raffensperger's plan, and we strongly doubt it is, it won't work.

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Q: Is Donald Trump's current strategy to somehow get a contingent election in the House of Representatives, where each state delegation will have only one vote, with a majority of delegations controlled by Republicans? If so, what conditions must be satisfied? B.B., Philadelphia, PA

A: We doubt it. If that is his strategy, then it's a really dumb one.

There are only two ways that the election can be sent to the House for resolution. The first is a tie in the Electoral College. The second is a three- (or more-) way split in the electoral votes that keeps any single candidate from claiming a majority. Take note—and this is very important—that we're talking about a majority of electoral votes cast, and not a majority of those theoretically available. In other words, if—to take a random example—Ohio were to fail to submit electoral votes for any reason, then that would leave us with just 520 EVs, and the number needed for a majority, and thus a victory, would drop from 270 to 261.

So, the only way to send the election to the House would be for Trump to convince precisely 37 Biden electors to flip, or to vote for a third-party candidate. And if Trump can somehow do that, then why wouldn't he just push it to 38, and skip the need for the House to get involved?

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Q: How much money would it take to sway 37 electors? And wouldn't most any prospective sum pale in comparison to the amount already spent on the election, or in comparison to the amount of money a certain foreign adversary would be willing to spend? E.D., Tempe, AZ

A: It would not be difficult to come up with a life-changing amount of money for 37 people. If we imagine $20 million per, then that's $740 million. Sheldon Adelson might be willing to cover that all by himself. After all, he's 87, and you can't take it with you.

The impossibly difficult part would be recruiting 37 accomplices without anyone blowing the whistle on the scheme. Remember, we're not talking randomly selected people off the street, we're talking longtime Democratic loyalists. And you'd have to find 37 of them who are not only corruptible, but who are willing to take the enormous risk of getting caught committing a federal crime, and who do not come from states that automatically replace faithless electors. Further, if you approach just one person who puts party/country/ethics above money, they could blow the lid off the whole scheme by going to the authorities (or the press). Even worse is if the target keeps a level head, appears to play along, and then goes to the FBI to set up a sting. If only one or two electors needed to be bought off, then it might be doable, but with 20 or 30 or 40, it's just too risky and too hard to pull off.

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Q: I know that the vote certification is done by a joint session of Congress and that objections to results must be signed by both a Senator and a representative, but other than an objection, are there ways that process could be artificially derailed by say, a certain Kentucky Senator? A.M., Reno, NV

A: As we argued this week, it is theoretically possible. But all that would do is elevate the Speaker of the House to acting president, so it's not like it would save the White House for the Republicans or for Donald Trump.

And as long as we are addressing this, let us reiterate something we've mentioned multiple times before. The Speaker need not be a member of the House. They always have been, but they don't have to be. So, if we get to this level of shenanigans, then Speaker Nancy Pelosi (D-CA) could certainly step aside, instruct her caucus to elect Joe Biden as speaker, and then he would become acting president for as long as needed until Senate Majority Leader Mitch McConnell (R-KY) stopped playing games.

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Q: The image of Donald Trump being dragged from the White House kicking and screaming by the U.S. Marshals has become a semi-serious meme on this site and many others. My question is, what would this process entail? I assume Joe Biden would have to go to court to ask this to take place. Would this happen before or after the inauguration? Do the marshals have to provide Trump with a warning they are coming? I assume the marshals wouldn't dump personal items on the street curb like they do when they evict regular people. I imagine there is no historical precedent for this action. D.E., Lancaster, PA

A: Recall how Cinderella's carriage becomes a pumpkin again at midnight? Well, Donald Trump is very much like the pumpkin—he's very orange. No, wait, that's not what we were going for. Sorry. What we were going for is that, once noon on Jan. 20 arrives, he is once again a civilian, legally no different from you or I. And so, he would be trespassing in the White House, and would be removed—as it turns out—by the U.S. Secret Service. There would be no need for a court order or a warning or any other special procedure, he'd just be escorted out and taken by car to wherever he wants to go. Alternatively, Biden could order him arrested for trespassing and prosecuted. That would be up to Biden. Chances are Biden would not like to make prosecution of the outgoing president the news story of the week, though, so most likely Trump would be brought to his D.C. hotel and left there.

As to his stuff, there is a staff of professionals responsible for packing up the president's personal possessions, putting them on a moving van, and taking them wherever the president directs. If Trump refused to give them a delivery address, then they would take his stuff to his officially registered address, which is Mar-a-Lago.

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Q: Can Donald Trump be impeached after his term has ended to prevent a second term? D.H., Philadelphia, PA

A: Yes. There are two potential penalties in an impeachment trial: (1) removal from office, and (2) disqualification from future officeholding. So, it would be possible (if extremely unlikely) that Trump could be impeached, convicted, and barred from future officeholding even if he is no longer in office.

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Q: I had a morbid thought on self-pardons. If the courts allowed for Donald Trump to pardon himself while in office, would the president be above all forms of law going forward? Or, imagine Joe Biden, once elected, walked into the Senate and promptly shot Mitch McConnell and Sen. Lindsey Graham (R-SC). Would he be able to pardon himself under the same logic? B.M. in Chicago, IL

A: A president cannot pardon himself (or anyone else) for ongoing or future crimes. So, the very best Trump could do is give himself (or resign and get Mike Pence to issue) a blanket pardon for all past federal crimes.

Your Biden hypothetical is exactly why self-pardons make no sense; the authors of the Constitution clearly did not intend to give the president the power to commit murder (or other crimes) with impunity. If Biden, or any other president tried this, we would surely get a Supreme Court decision making clear that self-pardons are not allowed.

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Q: If Donald Trump takes up residence overseas in a friendly country to avoid prosecution in the United States, does he still qualify for Secret Service protection? If so, how would that work? A cadre of Secret Service would not likely be welcome in Saudi Arabia, Russia, and elsewhere. D.A., Ada, MI

A: Secret Service protection is granted to former presidents by the terms of several bills that have been passed by Congress, the most recent being the Former Presidents Act. Presumably, in this case, Congress would pass a bill withdrawing protection from Trump. Alternatively, Secret Service agents are not allowed to commit crimes in the execution of their official duties, and so the agents assigned to him might withdraw (or might be withdrawn by their superiors) on the basis that ongoing protection would be aiding and abetting a crime.

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Q: Would Florida extradite Donald Trump to New York to face legal charges in 2021? J.G., Alta Loma, CA

A: Assuming that he has been charged with a crime, and that the paperwork is in order, then Florida has very little choice in the matter. And if they resisted, New York could go to a federal judge, who would then order U.S. Marshals to arrest Trump.

There is one possible loophole, but it's a longshot. If the person is serving a prison or jail sentence, a governor can deny extradition until the sentence is completed. So, Gov. Ron DeSantis (R-FL) might plausibly charge Trump with felony aggravated jaywalking or failure to pay parking tickets with malicious intent, and then arrange for him to be sentenced to 20 years of supervised release. That would require multiple corrupt confederates in the Florida justice system, and the federal judge that New York would immediately complain to would surely see right through the scheme. But, Trump and DeSantis could try it, if they were really desperate.

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Q: How does a former president philander with a full secret service detail? Asking for definitely not a friend. J.C., San Antonio, TX

A: The Secret Service isn't always in the same room with the president (or ex-president), often they stand on the other side of the door. They are particularly likely to do this when the president (or ex-president) needs privacy for professional reasons (discussing classified information) or personal reasons. In fact, these days, the president's detail even has a special code for when they need to make sure not to interrupt the president's...personal time. During the Obama presidency, the USSS would tell one another that "Renegade and Renaissance are discussing the Bosnian Problem." This apparently carried over to the Trump presidency, except Trump is "Mogul" instead of "Renegade," and his "conversational" partner may or may not have been "Muse" (Melania Trump).

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Q: With news reports of how much of the donations to the recount efforts are actually going to pay down debt and fund a possible 2024 campaign, two questions come to mind: (1) How much, if any of the campaign funds can end up lining the President's pockets?, and (2) How could he continue to make money off the United States after he leaves office through Secret Service family protection and the like? K.S., Jefferson City, MO

A: There are all kinds of ways to redirect these funds to Trump and his family. They can pay themselves fat salaries as RNC consultants, or as chairs and co-chairs of Trump's PAC. They can hire themselves to give paid speeches. They can purchase thousands of copies of Trump's books at list price, to be given away to donors.

Assuming Trump does not flee the country, and keeps his Secret Service detail, he can continue to charge the federal government full price for lodgings and other accommodations (food, golf carts, etc.) used by Secret Service agents while they guard him at Mar-a-Lago or Bedminster or Trump Tower. Further, ex-presidents are also entitled to office space, with the rent paid by the General Services Administration. There are some limits to what they'll pay for, but if Trump chooses the 12th floor of Trump Tower, and tells the GSA that they have to pay full market value, they will probably have to accede (on the other hand, they rejected Bill Clinton's first choice, and forced him to find something cheaper).

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Q: Should Donald Trump actually decide to run for president again in 2024, would he end up clearing the Republican field and run largely unopposed? Or, would he face a significant primary battle? R.M. in Pensacola, FL

A: Assuming his cheese has not slipped completely off his cracker, he would presumably dominate the "Trump" lane in 2024. That may not be enough to get him the nomination, though. In 2016, the regular Republican vote was split among many candidates, which is what allowed Trump to seize the nomination. In 2024, by contrast, it is likely that the regular Republicans will coalesce quickly around a candidate, like Gov. Larry Hogan (R-MD) or Sen. Ben Sasse (R-NE). We also suspect that a fair number of Democrats, fearful of a second term, would cross over to vote for the regular Republican in the primaries, especially if the Democratic side of the contest is not competitive (in other words, if Joe Biden decides to run for reelection). So, a third nomination for Trump is far from a sure thing.

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Q: If Trump supporters are less likely than non-supporters to respond to pollsters, then doesn't that mean that the regularly reported Trump approval ratings have been underestimates? P.M., Albany, CA

A: Good point. That is probably true. His approval rating has mostly been in the low 40s yet Trump got 48% of the popular vote, so it does appear that Trump's approval rating was better than reported.

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Q: You've written extensively about the vulnerabilities in voting machines and how many states are susceptible to foreign interference. However, none of your write-ups explaining why the 2020 polling was off addressed this as a possible reason for what went wrong. It seems like if a foreign government wanted to ensure our government is non-functional, ensuring close to an even split in Congress would be a pretty good way to do it. Are the systems Maine and North Carolina use secure? Is it possible there could have been any interference in the downballot races? I know we don't need another conspiracy theory about our election security, but I can't help but wonder. M.B. in Melrose, MA

A: As we wrote a few times before the election, it would be pretty hard to manipulate the results, since everything is so decentralized. That said, if there was some sort of chicanery, it will probably be discovered eventually. However, that requires final numbers, and some very careful analysis. We don't have the former yet, and there hasn't been time for the latter.

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Q: What do you make of this assessment?



D.W., Ann Arbor, MI

A: We would very much like to see a serious analysis of this question and, if one presented itself, we would surely write an item about it.

However, this is not a serious analysis. It is silly nonsense. First of all, there were 435 House races, but only 16 are mentioned here. Why? Looks like cherry picking to us. Second, we're a little skeptical that candidates can be lumped into binary categories like this. Politicians often walk a fine line and sometimes try to hedge their bets, or else change their messaging based on whatever audience they are talking to. So, were these folks 100% consistent on this particular issue, throughout the campaign? Third, how can we separate out this issue from others? How do we know it was M4A that swung these elections as opposed to, say, the candidate's position on mask mandates or tax policy or immigration or court packing?

These are just some of the kinds of problems you run into when you try to boil down a complex policy issue to a soundbite or a meme.

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Q: Ohio's record for having picked the president correctly is now broken. Am I now correct to notice that Arizona, Georgia, Michigan, Pennsylvania and Wisconsin now have the longest running streak of success in picking the president, but with just two in a row? K.A., Miami Beach, FL

A: You're in the ballpark, but you're not quite right. First of all strike the first two states from the list. The remaining three—Michigan, Pennsylvania, and Wisconsin—are all on a three-president and four-election streak, putting them on the throne that Ohio just vacated.

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Q: What would happen if the Senate refuses to confirm any of Joe Biden's cabinet choices? Short of Joe being forced to only choose who the Republicans want him to pick, does he have any options and has this situation ever happened before? P.D., Leamington, Ontario, Canada

A: The Senate and the White House almost always butt heads about some appointments, so there is indeed a lengthy body of precedent to draw on here. And while there has been much angst about a possible Cabinet-less Biden administration, Mitch McConnell doesn't have quite as many cards to play as some people seem to think.

To start, the Vacancies Act allows Joe Biden to appoint, as acting secretary, anyone who has been confirmed by the Senate to any federal post. So, for example, it would be legal to appoint Lael Brainard—already Senate-confirmed to the Fed Board of Governors—as acting Secretary of the Treasury. Biden can also appoint any person who has been a member of their agency for at least 90 days, and is at the top of the federal pay scale (GS-15). So, for example, it would be legal to appoint Dr. Anthony Fauci as acting Secretary of Health and Human Services.

Alternatively, every president since George Washington has made recess appointments when Congress was not in session. These appointments remain valid until the current session of Congress expires, which means they can last for up to two years. It is true that Congress often uses pro forma sessions (one member shows up for a couple of minutes each day) so as to keep one chamber or the other from ever being at recess. But if Biden needs to play hardball, Article II, Section 2 of the Constitution gives him the power to adjourn Congress if the two chambers cannot agree on a recess date. So, with Nancy Pelosi as his helper, Biden could engineer a disagreement and then declare Congress in recess (for as long "as he shall think proper").

And finally, it took a long time for Donald Trump's bending of the various appointment rules to get before a judge, and he lost those cases primarily because he made no particular effort to get his acting appointees confirmed. But if McConnell refused to engage with any of Biden's Cabinet picks (or most of them), and a judge was asked to weigh in, that judge might very well allow the acting appointee to remain in office.

Biden would prefer not to play games like these but, if he has to, he will. So, if McConnell wants to put the kibosh on a couple of picks he doesn't like, then Biden will defer. But if it's the whole Cabinet, then Biden will flex his muscles, and he quite clearly has the upper hand here.

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Q: If a senator is nominated for a cabinet position, does she vote on her own confirmation? A.T., Arlington, MA

A: Customarily, no. However, there's no rule against it, and so if someone like Sen. Elizabeth Warren (D-MA) has a choice between observing custom and being confirmed, then custom will go right out the window.

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Q: What are the chances of Gavin Newsom appointing himself as Harris' replacement or making the legally necessary moves to make such arrangement? R.C., Des Moines, IA

A: It's legal, but unlikely. Every governor California has elected since World War II has been given a second term by voters. So, Newsom has a high-profile, high-powered job for another 7 years. If he were to appoint himself to the Senate, he would be wasting those years. Further, it would be an unpopular move, and he might get primaried by another Democrat in 2022.

If Newsom really wants a Senate seat, Dianne Feinstein is up for reelection in 2024, and will be 91 years old. She is very likely to retire, and he could run for the seat while still holding the governorship in his back pocket. That is far less risky. Of course, there is another—even bigger—position up for election in 2024. Newsom is undoubtedly aware that the Democrats have done well in the past with young, good-looking, charismatic candidates like Jack Kennedy, Bill Clinton, and Barack Obama.

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Q: Assuming both Democrats (Warnock and Ossoff) win their runoffs in Georgia, who would be considered the senior and the junior senator since they'd be elected at the same time? R.H.D., Webster, NY

A: There are a bunch of tiebreakers, most of them based on previous service in federal office. Since neither candidate has served in federal office, however, the first six tiebreakers don't apply. That would leave us with the seventh and final tiebreaker: Last name, in alphabetical order. So, Ossoff would be the senior senator.

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Q: Given all of the wrongness (to use a term from HP Lovecraft) of the polls, how are you going to assess the Georgia Senate races? A.K.P., Huntsville, AL

A: Well, as we wrote earlier this week, any poll is surely better than "I talked to 20 people in a diner, and here's what they said." Further, let's be careful about judging the 2020 polls too harshly. The numbers aren't final yet, and while there were clear misses, there was also quite a lot that was correct. For example, of the last 20 polls of the Jon Ossoff-Sen. David Perdue (R-GA) race in our database, 16 had it as a toss-up, which is what it turned out to be. The very last poll, from Election 2000, had it 48-48; it ended up 49-48. That's nearly a bullseye. Similarly, of the last 20 polls of the Georgia presidential race, 18 had it as a toss-up. And Emerson, who released their last Georgia poll two days before the election and had a very good cycle overall, had it 49-49, which is exactly how it turned out.

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Q: What are some other significant election outcomes that polling missed badly and what did they do to correct those errors? S.B., New Castle, DE

A: Well, the most famous polling fails were in 1936, when the Literary Digest had Alf Landon beating FDR in a walk, and 1948, when nearly all pollsters had Thomas E. Dewey defeating Harry S. Truman. And the problem, in both of those cases, is the exact same problem as some pollsters had in 2020: The polling sample wasn't properly randomized. The Literary Digest, for example, selected respondents by randomly dialing phone numbers and by working from a list of automobile registrations. It did not occur to them that phone/car owners, at least in 1936, would skew heavily Republican.

In 2022 and 2024, the problem of randomizing the sample will be solved in a different manner than in the 1930s and the 1940s, but the fundamental issue remains the same, and is a constant challenge for pollsters.

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Q: After how many years will President's Daily Briefs (PDB) be made available to the general public? It's my understanding that these began in 1961. Will they be available to 22nd century scholars? D.K., St Louis, MO

A: The PDBs are made public either at the discretion of the agency that first prepared them, or on the orders of the sitting president, or in response to Freedom of Information Act requests. Although there is no set timeline, they tend to be made available 30 or so years after a president's term comes to an end. So, pretty much all of the PDBs from John F. Kennedy, Lyndon B. Johnson, Richard Nixon, and Gerald Ford are available on the CIA's website. There are assorted PDBs from other presidents floating around, as well; for example, it's not too hard to find the August 6, 2001 PDB that warned that Osama bin Laden was up to something very bad.

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Q: There is no question that Donald Trump has caused a great deal of harm to U.S. citizens with his COVID "policies." Without his lies and obstruction of a competent national response, it seems plausible that tens of thousands of deaths, and a great deal of non-lethal harm, could have been avoided. Is there any historical case of a U.S. president causing a similar amount of harm to his own citizens, whether through negligence, incompetence, bad luck, or whatever? T.S. in Stratford, CT

A: That is a tough question to answer, since there's no precise parallel in U.S. history (i.e., a president who downplayed/denied a nationwide pandemic). You might argue that if James Buchanan had provided better leadership from 1857-61, instead of sticking his head in a hole and ignoring the obvious problems unfolding before him, that maybe the Civil War would not have been so long and bloody. In particular, his failure to secure federal facilities and armories was a serious dereliction of duty that made the Confederacy much more viable than it would otherwise have been. Similarly, if Lyndon Johnson had been less a hawk and more a dove, perhaps the Vietnam War would have been a much-smaller-scale affair, and far less ugly and destructive than it turned out to be.

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Q: If Donald Trump doesn't concede in the end, would he be the first losing major party candidate in a U.S. presidential election who doesn't concede? If not, which other losing major party candidates in U.S. history didn't concede? F.S., Cologne, Germany

A: The tradition of publicly conceding the election began in 1896, when William Jennings Bryan felt it prudent to tell his populist supporters that he had lost, and that it was their responsibility as Americans to support president-elect William McKinley. Since then, every major-party loser has publicly and graciously conceded, even if they did not feel like doing so.

Before Bryan, there were many presidential losers who did not concede, simply because there was no custom in place for them to follow. That said, many of the 19th-century losers wrote private letters to the winner congratulating them on their victory.

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Q: I know that Grover Cleveland was president from 1885, was defeated in the election of 1888, and then ran again and won in 1892. Had there been any other person who lost an election as an incumbent president and then ran again? Also: Did Grover Cleveland graciously concede in 1888 or did he maintain that Harrison had stolen the election? G.T., Budapest, Hungary

A: Besides Cleveland, no president has lost reelection as a major-party candidate, and then come back to run again as a major-party candidate. However, Martin Van Buren was defeated in his reelection bid as a Democrat in 1840, and then came back to run as the candidate of the Free Soil Party in 1848.

As the previous answer notes, in 1888, there was not yet an expectation that presidential losers should concede graciously, so Cleveland did not do so. However, he did feel the election had been stolen from him. First, because he won the popular vote. Second, because the Republicans did some pretty serious last-minute ratfu**ing. A GOP operative posed as a British expatriate named Charles F. Murchison, and wrote a letter to Sir Lionel Sackville-West, the British ambassador to the United States, asking whom to vote for. Sackville-West answered the Murchison letter, as it came to be known, with the advice that Cleveland was the candidate best aligned with British interests. The Republicans released the letter to newspapers, knowing that it would infuriate Irish voters, and would cause them to vote against Cleveland. That cost the President New York State and with it the election.

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Q: It seems safe to say now, that Trump lost the popular vote (again). So he lost the popular vote twice. Did this ever happen to any president before? A.C., Aachen, Germany

A: John Quincy Adams lost the popular and electoral vote in 1824, but the four-way election kept any candidate from claiming an EV majority, and the House of Representatives gave him the win. Then, he lost the popular and electoral vote again in 1828, when Andrew Jackson booted him out of office.

The only other president to pull it off, besides Trump and JQA, is Benjamin Harrison. He lost the popular vote to Grover Cleveland in 1888, but won the electoral vote. Then he lost both the popular and electoral vote to Cleveland in 1892.

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