Facing Electoral College vote, Trump continues election attack, but without risks to him, experts say

WASHINGTON – President Donald Trump shows no sign of ending his assault on the results of the November presidential election, even with his legal options dwindling and the Electoral College just days away from sealing his fate.

In yet another move aimed at overturning a democratically held election he lost, Trump blasted out a barrage of messages on Twitter on Friday calling into question the election results and urging the Supreme Court to throw out millions of votes in four battleground states – a move the court rejected Friday evening.

“Follow the Constitution and do what everybody knows has to be done,” Trump implored justices on the nation’s highest court.

“Show great Courage & Wisdom,” he demanded.

But beyond the usual rage and ridicule such tweets elicit on social media, Trump likely faces no real consequences – legally or politically – for his constant attacks on one of democracy’s most basic tenets.

“For Trump, there may be little fallout save for his legacy as president, which will undoubtedly be stained by his conduct,” said Lauren Wright, a political scientist at Princeton University.

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President Donald Trump in the White House Oval Office

The newest front in Trump’s attack on electoral process opened on Wednesday, when his attorneys asked the Supreme Court to let him intervene in a lawsuit brought by Texas Attorney General Ken Paxton and endorsed by 17 other Republican state attorneys general.

The lawsuit claimed that four battleground states – Pennsylvania, Michigan, Georgia and Wisconsin – illegally expanded mail-in balloting that helped his Democratic opponent, President-elect Joe Biden. The lawsuit asked that votes cast in those states be tossed out and that state legislatures be allowed to appoint new electors.

Legal experts said the lawsuit lacked legal merit, just like more than four dozen lawsuits Trump or his supporters have filed since the election – and that have been dropped or rejected in the courts.

The court agreed in its brief order: "Texas has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections."

Analysts said Trump does not face any substantial legal consequences for continuing to pursue court challenges and suggested that the window for winning any relief in the courts is closing quickly.

“Unless the Supreme Court acts on the Texas case, which I think is highly unlikely, there are no legal avenues left for President Trump and his supporters,” said Erwin Chemerinsky, dean of the Berkeley Law School at the University of California. “After (the Electoral College) votes, it is inconceivable that a court would overturn its decision.”

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Chemerinsky said the “only remaining avenue” for Trump then would be for Congress to refuse to recognize electors from particular states.

“But that would take agreement of the House and the Senate, and that obviously won’t happen,” Chemerinsky said.

The president or his attorneys could face sanctions if they continue to pursue lawsuits after they’ve been rendered meritless, or file new ones making the same baseless claims, said Jon Greenbaum, chief counsel and senior deputy director of the Lawyers’ Committee for Civil Rights.

Under federal rules, judges may impose sanctions against attorneys or parties if they file frivolous claims by ordering them to pay for the other party’s expenses. While sanctions may very well be warranted, they’re unlikely to happen, experts say.

Judges rarely issue such sanctions and may not want to do so in the current political environment because of the risk of being perceived as partisan, said Paul Smith, vice president of litigation and strategy at the Campaign Legal Center.

And defendants that Trump sued in several swing states don’t have an incentive to seek sanctions, which would only lead to more proceedings in which they must prove, again, that the president’s claims are frivolous, Smith said. Such sanctions are more common in commercial cases, where private parties are more inclined to make sure the other side pays everything it owes, he added.

“These are government defendants. They don’t have a lot of (personal) incentive to start the case all over,” Smith said. “Does the secretary of state or the governor of a state want to go to another whole process of litigating for a relatively small amount of money? I think they’ll probably just let the matter drop and let this whole controversy boil over once we have a new president.”

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'Electoral McCarthyism'

On Monday, the nation will edge closer to getting a new president when members of the Electoral College convene in statehouses across the country and cast their votes for either Trump or Biden, reflecting the popular votes in their states.

Biden and Vice President-elect Kamala Harris are set to end the day with 306 electoral votes, topping Trump's 232, giving the Democratic ticket a comfortable margin for victory.

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The Electoral College vote effectively forecloses any further legal challenge to overturning the election, said Edward Foley, director of Ohio State University’s election law program.

“After Monday, the forum moves to Congress,” Foley said.

Foley characterized the president’s continuing election challenges as akin to “electoral McCarthyism."

“He certainly shouldn’t be pursuing litigation, if he had an ounce of patriotism in him,” Foley said. “Elections are to be decided by the will of the people. Everything he is doing is antithetical to that.”

While Foley said he was not aware of any meaningful legal consequences for Trump’s pursuit, it should not absolve him of potential political risk.

“The kind of conduct he has engaged in, I believe, is an abuse of office more egregious than (the conduct resulting in his impeachment),” Foley said. “It should be perceived as disqualifying in 2024.”

Politically there are few risks for Trump in relentlessly attacking the election results, analysts say.

“I don't think that this hurts Trump with his most ardent supporters,” said Jennifer Mercieca, a historian of American political rhetoric and an associate professor in the Department of Communication at Texas A&M University.

Trump’s diehard supporters tend to think the democratic rules of the game already have been broken, “and so it is more democratic for Trump to break them than to follow them,” said Mercieca, author of "Demagogue For President: The Rhetorical Genius of Donald Trump."

“They like him because he fights for them, and in fighting for his reelection he's really fighting for them, for the chance to keep fighting for them,” she said. “He's promised them that he'd never stop fighting for them, so for them, he's just fulfilling his promises. Others, of course, see what he's been doing as the actions of a sore loser and a would-be authoritarian who violates democratic norms.”

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'Election-trutherism'

While Trump himself may face no fallout, the immediate and future consequences for the Republican Party are “material and substantial,” Wright said.

“In the short term, baseless claims about election fraud could very well suppress enough votes to cost the GOP two sorely needed Senate seats in a close race,” Wright said, referring to two Senate runoff elections in Georgia on Jan. 5.

The races pit Republican incumbents, Sens. David Perdue and Kelly Loeffler, against Democratic challengers Jon Ossoff and Rev. Raphael Warnock. If Democrats win, the Senate will be split 50-50, with Vice President-elect Harris having the power to cast a deciding vote.

A Democrat in the White House would typically be a rallying cry for Republicans, who could easily point to the importance of winning the two Georgia seats to protect Trump-era policies, Wright said.

But, “election-trutherism makes this more difficult,” she said. “Trump's voters are asking an understandable question: If this is all rigged like you say, why would we bother to vote?”

Trump’s relentless attacks on the election process could further undermine Americans’ faith in the institutions of government, Mercieca said.

Trump, who became a political figure with his "birther" conspiracy against President Barack Obama, circulates and amplifies fringe content from conspiracy websites and messaging boards, Mercieca said.

“All of this has served his interests very well,” she said, “but it's corrosive for democratic stability.”

Trump set the stage for his current attacks on the democratic process all summer long, essentially priming his followers to believe that the election would be corrupted so that, when he later claimed that it was rigged, they would believe him, Mercieca said.

“His followers do believe him,” she said, “and even though legal scholars have explained that his legal challenges have offered no compelling evidence of voter fraud and, thus, have no merit, his followers either don't get those messages or don't believe them.”

Conspiracy theories pose risks to public safety, weaken democratic institutions and make Americans vulnerable to threats from foreign adversaries, Wright said.

Trump’s assault on the elections process may not hurt him personally, she said, but there are consequences for the country as a whole – “the scale of which we may not yet perceive.”

Contributing: Joey Garrison and Tom Vanden Brook

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