It is easy to think that what is happening in America this week is a purely constitutional crisis or some kind of a crisis of law itself. After all, Republicans in state legislatures and the Trump campaign are declining to concede that the election is over and that they lost; they are filing lawsuits around the country that are being bounced like Super Balls out of their various courtrooms; and they are turning on their own secretaries of state as they make demonstrably false, empty claims about rampant election fraud. But it’s not in fact a crisis of law. The law is managing the lawsuits precisely as it ought to: taking them seriously enough to reject them outright. As elections lawyer Marc Elias continues to tweet, 0–12 is a pretty sound legal outcome nine days postelection.
The better way to describe what is taking place is that we are in a political crisis. The following is what is currently happening in the GOP-led government: There are firings at the Pentagon, a persistent refusal to allow Joe Biden and his transition team to have access to security briefings, and mealy-mouthed contentions by the Republican leadership that the president has some kind of “right” to file endless meritless lawsuits rather than participate in an orderly and peaceful transition of power. It’s not simply that there is a last-minute looting effort to enrich Trump’s 2024 presidential campaign or to froth up the base in time for the Georgia runoff. The GOP is actually presiding over a dismantling of an effective national security system and a functional federal bureaucracy. For fun. Even with the tiny feints at concern for the damage being wrought, the past week has evinced a GOP that will take more joy in peeing on the carpets on the way out than in handing over the reins of leadership in a way that would put country first. Construing what has taken place in the days since the election was called for Joe Biden as a legal problem obscures that the authentic breakdown here is in politics, not in law.
That’s why looking to the courts to stop this is an error. The courts are stopping it. They have stopped it already. The chance of a huge denouement on the marble steps of the Supreme Court the likes of which we witnessed in the winter of 2000 is close to nothing; that would require a close election in a single state and a margin of victory that would make a difference. That situation did not occur, so a court showdown is not going to happen. The lower courts are ably backstopping the stupid, but it’s not the courts that can serve as the adults in the room, as much as we sorely need adults right now. And pause to note that the big law firms once helming the stupid are peeling off not because of dignity or even law but because capitalism is proving effective in these last few innings.
The reason the present moment is destabilizing isn’t because the rule of law isn’t holding. It’s because American faith in the rule of law is being cynically deployed to run out the constitutional clock. Legal scholars can debate the question of whether the Electoral Count Act of 1887 does or does not allow any number of fantastical efforts to set aside the election results until the cows come home, but that too is not a legal problem. The defining inquiry of the Trump era long ago stopped being whether this or that is legal, or constitutional, but rather whether anyone would stop it. That’s a leadership problem. Which means Trump’s refusal to accept electoral defeat should not be construed as a failure of law, or maybe even as a failure of politics, but in fact as a failure of adulting. Playing footsie with authoritarian gambits is not a game or a moneymaking enterprise or a piece of theater. It’s stupid and childish in ways we can’t yet quantify.
Whether it’s Mike Pompeo’s was-he-kidding references to Trump’s second term, or the sly messaging that has current Republicans in the Senate whispering to Sen. Chris Coons that they’re functionally on board but merely pretending to stymie Biden’s victory, what we’re witness to this week is the complete absence of serious, sober leadership, all in service of Donald Trump’s gargantuan ego and a tragic fear of his base. It’s a winking, smirking performance that suggests none of this is really serious, it’s simply a joke everyone is in on, that’s been made to look serious on television. It’s a fitting end for the reality show presidency—all of the actors know it’s a put-on. The viewers, on the other hand, remain confused. They don’t know it’s a joke. They may not be grateful to eventually learn it all was.
Because the courts have not been the problem this election, the courts will not be the solution. The solution is something simpler than a lawsuit or a court order. It would be that the GOP grows up and stops playing with fire—and tells the president directly to his face that he has lost the election and it’s time to move on. But if we’ve learned anything from the past four years, it’s that Republicans won’t do that. Leadership and adulthood in the Republican Party now pull in opposite directions. Don McGahn wouldn’t testify unless a court forced him. John Bolton felt the same. The rule of law has gone from being a requirement of citizenship to a thing these surly wannabe teens look at when they sneer, “Make me.” Nobody can make the next days and weeks end as a matter of constitutional command. And Republicans will continue to hide behind sham legal proceedings and let the country suffer if it spares them from finding the courage to act as adults.
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