The Atlantic Daily: What Trump Could Try Next

This election is close. Paths to victory remain for both Donald Trump and Joe Biden. And yet the president is already casting doubt on the results.

We caught up with Barton Gellman, who warned earlier this year that this election could break down into chaos, to discuss how messy things could get in the coming days.

The conversation that follows has been edited and condensed.

Caroline Mimbs Nyce: You predicted that Donald Trump would not concede this election, no matter the outcome. His speech and tweets early this morning suggest that you could be right. What will it mean if he doesn’t?

Barton Gellman: It’s not quite time for a concession speech, because the first vote count is still under way. What Trump is doing now is making spurious claims of victory and fabricating claims of fraud. There is nothing abnormal about counting votes until the count is done, and I expect the extended count to favor Biden. If Trump refuses to concede when the count is complete, he can throw sand in the gears with litigation and rouse his supporters into the streets. I expect things to get much worse before they get better.

Caroline: In the worst-case scenario, could Trump use force to retain his power if he loses the Electoral College?

Bart: Trump is talking like a dictator, but he doesn’t have the muscle to act like one—not completely. He did not send troops or law-enforcement agents to take control of the ballots, and if he had tried they probably would have balked. But if Attorney General Bill Barr throws the weight of the Justice Department behind Trump’s false claims, he can write a legal document that orders the federal government to treat Trump as president-elect. Trump could try to issue an executive order to the same effect. Whether government agencies would go along with orders like that, which are ordinarily binding but would be transparently unlawful now, remains to be seen.

Caroline: Should this contest devolve into a court battle, can you give us a quick preview of what to expect?

Bart: There is no precedent for litigation that tries to prevent an ordinary, orderly account of ballots cast. But good lawyers are paid to find ambiguity where none has been detected before. The Trump campaign will look for any technical flaw in the procedures or in the mail ballots yet to be counted. The Supreme Court conservatives have signaled that they may give primacy to the exact words of state statutes, and Trump will look for interpretations of those that conflict with the current practices of election authorities.

Caroline: How might team Biden respond?

Bart: The Biden team has the easier task in court: to defend a normal vote count that is proceeding normally. Biden’s lawyers have gamed out every argument they can imagine Trump making, and have pre-drafted legal responses. Bob Bauer, a former White House counsel who is helping lead Biden’s legal team, said that Trump is heading for one of the most embarrassing defeats ever suffered by an American president if this election reaches the Supreme Court.

Caroline: What's your best advice to Americans right now?

Bart: Take a deep breath, be very cautious about believing sensational reports on social media, and insist that our democracy follow normal procedures. We count every vote, always have, and the election is not over until that happens.

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