On a recent episode of Amicus, Dahlia Lithwick was joined by attorney Joshua Matz, one of the so-called resistance lawyers during much of the Trump administration, to discuss Donald Trump’s election lawsuits, the transfer of power, Trump’s lawyers, and what justice will look like in the post-Trump era. A portion of their conversation, which has been edited and condensed for clarity, is transcribed below.
Dahlia Lithwick: So I wonder if we can just start with where we are at this moment. As of this taping, we are in this really deeply strange interregnum. It’s not a lame duck. I don’t know what it is. It’s this moment of constitutional and democratic stasis. Joe Biden has won the election decisively across several key states. And yet, Donald Trump and, maybe just as importantly, the GSA refuse to begin an orderly transition of power. His lawyers are filing lawsuits, and they’re largely silly lawsuits. But it’s not actually, as a lawyer, all that funny, right?
Joshua Matz: I don’t know what to call this strange period of time, but I would start with unbelievably scary. The fact is that this election was always going to present significant challenges. It was being conducted amid a national pandemic. Many states had modified their voting procedures in all sorts of ways to allow for drop boxes, early drive-through and in-person voting, absentee ballots on a scale and scope that was not previously known to the country. And there were threats early on and continuing right up through the election from white supremacist groups that they would seek to sow chaos, of efforts by the president and the Republican Party to sow doubt about the legitimacy of the election, and ultimately even from the Justice Department itself to sow some doubt about the validity of the votes that were cast.
And notwithstanding all of that, all of the ways in which things could have gone wrong, they didn’t. This was an unbelievably well-run election. And there is clear evidence that the vote tallies that we are seeing now across all 50 states where the result of an election that was effectively administered and whose results should not in any serious world be subject to doubt. And yet, here we are.
There’s a way in which we give ourselves a lot of solace and comfort, right? We say to ourselves, Look, the thing I was worried about on election eve was white supremacists on the streets, MAGA, massive civic disturbance and protests and massive lawlessness and looting. Because that didn’t happen and because the election was won decisively, it feels like the only thing left to be concerned about, if anything, is this kind of weird King Lear creature who’s bumbling around the White House and tweeting and golfing and being disruptive in the manner of a tiny, tiny child having a tantrum but certainly not anything to worry about. But I don’t think that’s perfectly correct. His enablers, whether it’s Lindsey Graham picking up the phone and calling Georgia election officials or two election officials in Michigan who simply don’t feel like they want to certify the vote, the Trump Mini-Mes that this has spawned and the lawlessness that that seems to be fomenting, it’s adjacent to Trump. He’s almost irrelevant to it, but it’s not nothing.
Well, it’s absolutely not nothing. I actually want to start with your first point, which is Trump himself. You described him as like King Lear, and I think that’s an apt analogy. The challenge is that he is in fact still the president. And quite problematically, he has decided to stop acting like one. And so right now, as the country navigates a resurgence of the pandemic in a truly terrifying way, what we’ve seen is a president who has essentially stopped governing the country other than to exact revenge by firing officials at the Defense Department and cybersecurity officials who disputed his claims about fraud. And while the president himself has failed to govern, his party has essentially gone along for the ride, with the Senate more focused on confirming, in some cases, shockingly unqualified judges than it is on enacting policies that would redress the problems that our country faces. So the first thing I’d emphasize is that there is a real here-and-now harm to the fact that the federal government has essentially stopped functioning as a federal government while the president throws this temper tantrum that threatens the guardrails of our democratic system.
That latter point, that this is a threat to the guardrails of our democratic system, is why I ultimately think that even though it’s easy to minimize what’s happening, the collateral damage is undoubtedly going to be significant. Because what the president has called into doubt is the peaceful transition of power and the acceptance of the results of an election that officials at virtually every level of the government and virtually every court to have considered the question have concluded was conducted fairly and properly and within the bounds of law. Once you unleash that idea that an acceptable response to the election is to grind the government to a halt, to unleash maximum partisan warfare at every level of local, state, and federal government, and to try to persuade the country that even though you lost, you really won, once that idea takes root in a way that it really hasn’t in America for well over a century, I think you mark a path that could potentially be a pretty dark one unless the country turns away from it as it comes out of, hopefully, this experience into a new Biden administration.
One of the things I’ve been mulling is this question of how does this end well? We want to believe it ends well, because somehow after the new president is sworn in, what? Mitch McConnell says, Just kidding; Lindsey Graham says, Psych? Everybody pretends that this was all about Trump all along, and we all snap back to the norms that existed to the extent that they existed at all? They didn’t exist in the end of the Obama era either. But there’s so much magical thinking around the idea that either Biden can enforce some kind of return to norms, or that once we’ve sucked out the poison, once Trump himself is gone, everything is going to go back to some resemblance of what came before. That again also feels descriptively wrong based on what we’re seeing right now. I guess I think the temptation to just describe what we’re seeing as a smash and grab—Mitch McConnell’s just going to grab the silver on the way out; Josh Hawley’s positioning himself for the 2024 run—that’s a really tempting narrative. But I don’t see that playing out at all. What I see is this is actually going to be a profound continuation of illiberal, anti-democratic weaponization of the government itself.
The idea that this is an artifact of Trumpism, its last hurrah or whatever the terrible opposite of a hurrah is, to me it just seems to be, the way you put it, magical thinking. The fact is that this isn’t just the president. And who knows what the president’s motives are personally for doing this. We’ve all spent the last four years deep in the murky, mysterious, muddled depths of Trump’s psyche. I don’t think anyone has a particularly clear grasp on it. This could just reflect an inability on his part or an unwillingness to acknowledge legitimate defeat. This could be the result of the fact that he’s the kind of person who would commit fraud, and so he assumes that others surely must have done so. Maybe he’s just in this to boost his personal brand or to posture himself for 2022 or 2024 as a dominant player in the GOP. What’s more unnerving is that so much of the Republican Party establishment has gone along with him and not just the establishment but the base.
The fact is that there is some evidence out there that a majority of the people who voted for President Trump in fact believe that he won this past election, and that group of people will, one assumes, believe that Biden in fact unlawfully stole power when he comes into office. And when you establish that kind of a dynamic, it will create all sorts of continuing problems in our democratic system. I expect it will push the Republican Party to pursue all of these various nonsense claims of fraud and continue to attack the legitimacy of the new administration.
I think there’s a risk that the Republican Party will remain in thrall to Trump personally and to Trump’s brand of politics, which bore so many of them to power, especially given that Trump has demonstrated at least some interest in trying to remain a kingmaker within the party. As you see these dynamics unfolding of Trump trying to remain a key part of the story, of the base largely standing by him in these crazy circumstances, of the party either looking the other way or actively abetting an essentially slow-motion coup following the election outcomes, that, I don’t think, disappears on the day that President Biden comes into office.
And the one last point I might put on the table there just to think about is this will be potentially the fourth presidential administration in a row to come into office with some significant part of the other party believing to its bones that the office was stolen. That happened for President Bush after Bush v. Gore, perhaps with a bit of reason. That happened when President Obama came into office and there were all of those various racist conspiracy theories relating to his birth certificate. Obviously, when President Trump came into office, there were any number of theories in the various respects that he might have unlawfully obtained that office in the first place, some of which bore fruit, many of which ultimately were not substantiated by the evidence that has since come to light. And now President Biden will come into office. It is kind of crazy to think that there’ll be four presidencies in a row where when the president comes into office, some significant part of the opposition doesn’t just believe that they lost the election but believes that the person who won it didn’t or is otherwise unable to legitimately exercise the powers of the office. And I fully expect that dynamic, along with all of the various accoutrement of Trump and Trumpism that I think will remain very much on the scene, to remain a source of deep dysfunction in our democratic system.
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