A month ago, the Electoral College blocking Donald Trump was a Democratic pipe dream. Now, the electors who will convene across the country on December 19 have a sacred duty to withhold their votes from Trump, and three constitutional reasons to do so.
Such an action would be unprecedented, and our shared religious, ethical and cultural values weigh very heavily against reversing one’s promises or oaths. But there is an overriding value here: the Electoral College’s role as a protector of American democracy. And since November 8 we have seen three examples of Trump compromising the sovereignty of the United States and flouting our Constitution. These demand such an action.
First, the CIA and several other national intelligence agencies have established Russia’s interference in the election. This is not “fake news” or some conspiracy theory; this is the Central Intelligence Agency making a reasoned conclusion based on evidence and on the identification of known hacker profiles.
The CIA also observed that the Russian hackers released Democratic emails but not Republican ones, strongly suggesting a bias toward the Republican candidate.
These acts were clearly a factor in the election’s result, but we will never know if they were dispositive. The hacked emails were only one of many reasons that Trump won — I counted 25. The Russian interference alone is insufficient grounds for an Electoral College revolt.
Trump’s response to the revelations, however, has been utterly disqualifying. He has continued to deny the clear, evidence-substantiated conclusion that Russia was behind the hacking. He has impugned the integrity of the nation’s intelligence services and the people who risk their lives on the nation’s behalf. He has rejected bipartisan calls for an investigation into the matter. Why?
And, in a shocking act of audacity, he has appointed Rex Tillerson, CEO of Exxon Mobil Corp., to be secretary of state. Tillerson was awarded one of Russia’s highest honors given to foreigners, the Order of Friendship — and for good reason. He headed Exxon Mobil’s Russia desk, directing the company to invest billions in Russia, and he has subsequently lobbied against economic sanctions opposing Vladimir Putin’s regime after Russia invaded and annexed the Crimean peninsula. Putin has already gone on record stating that he would welcome Tillerson as a U.S. diplomat.
Meanwhile, we have no idea what information Russia now holds over Trump. At a minimum, that includes thousands of Republican Party emails. But what we don’t know is likely greater than what we do know. We don’t know the extent of Trump’s business and debt entanglements in Russia, because he won’t release his tax returns. We don’t know which Russian oligarchs have invested in Trump’s projects and remain his creditors.
“These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils,” Alexander Hamilton wrote in Federalist #68. “How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?”
The protection against such a risk, Hamilton wrote, is the Electoral College. The election of the president is “referred… in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office.”
For the first time since the founding of the Republic, precisely this situation has come to pass. Russia has meddled in the U.S. election, and Trump has strenuously defended it, while acceding to Russia’s foreign policy agenda, including weakening NATO and withdrawing from the American support of democracy around the world. It appears that foreign power has indeed gained “an improper ascendant in our councils.”
2. Conflicts of Interest
Even apart from the unknown conflicts of interest involving Russia, Trump’s refusal to divest from his business interests — not simply to stop managing them, as he has recently promised — violates the Emoluments Clause of the Constitution, which prohibits government officials from receiving money or gifts from foreign powers.
This includes Trump’s Washington, D.C., hotel soliciting business from foreign embassies. It includes income from foreign governments flowing to the Trump network of businesses. And it includes governments’ expediting of permits for Trump properties, as has already taken place in Argentina and Georgia. All these trigger the founding fathers’ concern that foreign governments would attempt to influence U.S. government policy by currying favor with government officials.
It’s bad enough that the Trump campaign paid Trump-owned businesses over $11 million during the campaign, that the Secret Service must now lease space in Trump Tower, and that organizations such as the Conference of Presidents of Major American Jewish Organizations are falling over themselves to patronize Trump-owned hotels. These may all violate government ethics rules, but they are neither impeachable nor constitutional offenses.
Transacting business with foreign leaders, however, is absolutely unconstitutional, even if Trump doesn’t sign the deals personally. It is a further compromise of America’s sovereignty, and is another reason that electors must not cast their votes for Trump.
3. Unfitness to Serve
Hamilton, in Federalist #68, wrote that “the process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union.”
Clearly, Trump possesses the talents of which Hamilton wrote. But we have seen, in the past month, several terrifying examples of Trump’s lack of fitness to serve as president. Refusing to consult with intelligence services, Trump singlehandedly endangered 40 years of U.S.-China relations by questioning the “One China” policy, provoking China to fly bombers over the South China Sea in a show of force. He has likewise made a mess in Pakistan, where his bizarre comments included an embrace of a reluctant ally that still shields Islamist radicals, and in Kazakhstan, where he praised a dictator.
And here at home, Trump has spread outright lies: that “millions” of people voted fraudulently, for example. He has intimidated artists, cultural figures and journalists in a way no president has done in 150 years, undermining respect for the First Amendment. His senior staff members have spread wild conspiracy theories, including “Pizzagate,” and bizarre claims about Trayvon Martin, Michael Brown and other victims of violence.
This is not about ideology. It’s not about Trump’s views on climate change, or immigration, or any other issue. I may not like them, but that’s how democracy works.
But acting in collusion with Russia, brazenly flouting the Constitution and recklessly, ignorantly and seemingly pathologically destroying decades of bipartisan foreign policy? That is how democracy dies.
It’s still a very long shot that 37 electors will reverse their pledges to vote for Donald Trump, even though he lost the popular vote by 2,676,670. But we have learned a lot since they made those pledges — and, without hyperbole, we now see how Trump threatens the constitutional order he is meant to preserve and protect. Rejecting Trump is not a violation of the electors’ duty, it’s a fulfillment of it.
Jay Michaelson is a contributing editor to the Forward. Follow him on Twitter, @JayMichaelson