Oct 23, 2020

What If?

There’s plenty of speculation about what Donald Trump might do in the wake of the election. Would he dispute the results if he loses? Would he simply refuse to leave office, or even try to use the military to maintain control? Last summer, Rosa Brooks got together a team of experts and political operatives from both sides of the aisle to ask a slightly different question. Rather than arguing about whether he’d do those things, they dug into what exactly would happen if he did. Part war game part choose your own adventure, Rosa’s Transition Integrity Project doesn’t give us any predictions, and it isn’t a referendum on Trump. Instead, it’s a deeply illuminating stress test on our laws, our institutions, and on the commitment to democracy written into the constitution.

This episode was reported by Bethel Habte, with help from Tracie Hunte, and produced by Bethel Habte. Jeremy Bloom provided original music.

Support Radiolab by becoming a member today at Radiolab.org/donate.    

You can read The Transition Integrity Project’s report here.

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[RADIOLAB INTRO]

JAD ABUMRAD: I'm Jad Abumrad. This is RADIOLAB. Today...

BETHEL HABTE: OK, I'm holding. OK.

JAD ABUMRAD: ...We're going to start with a timely, thought-provoking, interesting conversation that reporter Bethel Habte and I got into a few months ago.

BETHEL HABTE: All right. I was wondering if you could introduce yourself - my name is, et cetera, et cetera, and however you'd like to be identified.

ROSA BROOKS: My name is Rosa Brooks. I'm a law professor at Georgetown University. I spent several years working at the Defense Department during the Obama administration. And I could say more, but...

JAD ABUMRAD: Suffice it to say, Rosa is pretty well-connected in D.C. political circles. And the reason we called her up is because this past summer, she found herself at the center of a kind of political choose-your-own-adventure adventure.

ROSA BROOKS: (Laughter) Well, I started thinking about this sometime last autumn.

JAD ABUMRAD: This was 2019.

ROSA BROOKS: I was at a dinner - one of those Washington, D.C., inside-the-Beltway dinners where everybody's wearing nametags and there are dinner speakers and, you know, you're eating bad chicken. And I was sitting next to a federal appellate court judge and various fancy D.C. lawyers, and we started chatting about Donald Trump, which is what people chat about, of course. And I said, you know, gosh, you know, what if Trump loses and he won't step down...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED REPORTER: Will you commit to making sure that there is a peaceful transferal of power after the election?

ROSA BROOKS: ...Won't leave?

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD TRUMP: We want to have - get rid of the ballots, and you'll have a very transfer - we'll have a very peaceful - there won't be a transfer, frankly. There'll be a continuation.

ROSA BROOKS: And the judge said, oh, that would never happen. The military would never let that happen. And I sort of thought, wait. Wait; what? The military would never let that happen. What do you mean by that?

JAD ABUMRAD: Rosa knew the military.

ROSA BROOKS: So, I mean, I spent - I'm married to a retired Army Special Forces officer. I spent several years working at the Pentagon.

JAD ABUMRAD: So she was sitting there, looking at this guy, thinking, what's behind that assumption? When you say the military would never let it happen, what exactly do you mean?

ROSA BROOKS: You know, the military has, you know, a million and a half people. They're stationed all over. Who do you think is giving what order that makes...

JAD ABUMRAD: Oh, were you, like, thinking - were you sitting there thinking about the chain of command and mapping it out, like, oh, this person would have to talk to this person, and then I guess they'd have to talk to that person?

ROSA BROOKS: Yeah. No, I'm sitting. Everybody else is sort of chattering away. And I'm kind of sitting there thinking, wait a minute. Wait, wait. And, you know, we all changed the subject because, you know, this was nearly a year ago, and I realized I was sort of sounding like a crazy person.

JAD ABUMRAD: This sort of casual dinner chat was long before Trump made the famous statements about how he might not commit to a peaceful transition of power. But there was something about that dinner and that guy next to her's response. The combination of certainty and vagueness just got her thinking, if a president did decide to go way off the grid and do something like not leave, what would happen? Like, what specifically would happen?

ROSA BROOKS: Just sitting alone in my spare time thinking about, OK, so that happens. Well, then what? Well, that happens. So then what? Well, if you make this choice, what happens? You know the choose-your-own-adventure book.

BETHEL HABTE: Yes.

JAD ABUMRAD: Oh.

ROSA BROOKS: You know, if you decide to start through the dark jungle path, turn to page 37. You know, if you decide to stay in the sunny clearing...

BETHEL HABTE: And get eaten by a tiger (laughter).

ROSA BROOKS: Yeah, precisely.

JAD ABUMRAD: So Rosa starts thinking about all this, spinning out on the what-ifs. At some point, she ends up on the phone with a colleague of hers, Nils Gilman, who works at the Berggruen Institute.

ROSA BROOKS: And so I told Nils this. You know, I'd been thinking about ways to really explore these branching pathways. And Nils said, that's a great idea.

JAD ABUMRAD: Two of them decide, maybe we should do a war game.

ROSA BROOKS: You know, and the military does them all the time on issues like, gee, you know, if we had to fight two conflicts at once, would we be able to? Or what would happen if Iran did such and such? Would we be able to respond effectively?

JAD ABUMRAD: They thought, maybe we should just do that.

ROSA BROOKS: Around the possibility of a disrupted election.

(SOUNDBITE OF MUSIC)

JAD ABUMRAD: So they made a bunch of calls to a bunch of people who have been in those kind of rooms.

ROSA BROOKS: People who had experience that was similar - you know, so John Podesta, who obviously has worked on multiple Democratic presidential campaigns, and Michael Steele on the GOP side, former chair of the RNC.

JAD ABUMRAD: They got generals, lobbyists, think tankers, people in the media - 67 people in all - gathered them all together and divided them into teams.

ROSA BROOKS: We had a Biden campaign team, a Trump campaign team. We had a GOP elected officials team, the Democratic elected officials team.

JAD ABUMRAD: A media team, a team of career public servants. And the idea, very simply, was that they would present all of these teams a scenario, and then they'd watch the teams respond.

MATTHEW SANDERSON: How's this? I just switched to AirPods, which I actually find to be better.

HOWARD OPINSKY: Yeah, it's going. When I hit the mic, it's going off the charts.

BETHEL HABTE: Amazing.

JAD ABUMRAD: We got so into this game that we ended up talking to about 20 of the different players.

MATTHEW SANDERSON: My name is Matthew Sanderson, Republican election attorney.

HOWARD OPINSKY: Howard Opinsky. I'm managing director of S-3 Group, a communications and government relations firm. I spent decades in Republican politics.

JAD ABUMRAD: Now, these meetings all went down last summer, June 2020, pandemic in full swing. So the war games, you know...

HOWARD OPINSKY: We were all on the screen together.

JAD ABUMRAD: ...Were on Zoom.

RAJ GOYLE: We had a live Zoom chat going.

JAD ABUMRAD: That's Raj Goyle, former state representative of Kansas.

ROBERT RABEN: It was, hi, how are you sort of stuff.

JAD ABUMRAD: Robert Raben, former assistant attorney general.

ROBERT RABEN: Then there's the gossip and who had a baby.

JAD ABUMRAD: Anyhow, there was some friendly chitchat.

RAJ GOYLE: Some people coming off and on video, including myself when I had to go take care of my kids or something like that.

ROSA BROOKS: People started off kind of cheery, kind of thinking, oh, this is kind of fun. You know, this is a game. It's a game. And then, of course, they got bored because we gave them half an hour of game instruction (laughter).

ROBERT RABEN: Three minutes for this and five minutes for this.

ROSA BROOKS: It was very complicated.

ROBERT RABEN: And then we're going to put on a green shoe, and then everybody's going to turn around twice. And there was a breakout room.

ROSA BROOKS: There was a lot of, wait; what? You know?

RAJ GOYLE: You definitely needed to stay alert and stay on your toes or else you would have missed something.

JAD ABUMRAD: But the essential rule - sort of the gist of it - was pretty simple.

ROSA BROOKS: You know, your job is to pursue what you perceive as your interests. And we're not going to define them for you. You know, that's your job.

JAD ABUMRAD: Each player was supposed to act the way that they thought the people who they were on the team of would act.

ROSA BROOKS: You know, you can't do things like say, you know, there was just a nuclear attack from China or something. But you can spread rumors. You can make allegations.

JAD ABUMRAD: And just to make sure things didn't ever get too implausible, after every move, Rosa actually had a team of people she called the White Cell, which were lawyers, experts, people who could look at each move and evaluate whether it was realistic and could happen.

ROSA BROOKS: And to some extent, that's a probabilistic call. We literally had a 10-sided die that we rolled.

JAD ABUMRAD: Oh, my God - D&D flashbacks. Wow.

ROSA BROOKS: (Laughter) OK.

JAD ABUMRAD: Anyhow, after everybody was in the Zoom room and chitchat was over and everybody knew the rules, Rosa and her team would lay out a scenario.

ROSA BROOKS: You know, it's 2 in the morning on election night or whatever, and here is what we know so far. Go. And then the teams took turns. We gave the Trump team first turn, and then the Biden team did a turn. And then we went to the elected officials and so on down the line in each round.

JAD ABUMRAD: Meanwhile, with each move, the media teams are covering what's happening.

ROSA BROOKS: Fox News says such and such. The New York Times editorial board denounces this. Social media rumors spread on Twitter that such and such is happening. And what happened, you know, is that in each of the games, things got worse than we expected faster than we expected, and the mood kind of shifted to a little bit shocked. And in all of the games, we kind of called them early. OK, you know, (laughter) let's just...

BETHEL HABTE: Whoa.

ROSA BROOKS: Let's stop now, and let's talk about what just happened. And let's...

JAD ABUMRAD: In the end, Rosa and her diverse group of powerful people ran four different games...

UNIDENTIFIED ANNOUNCER: Game 1 - ambiguous result. Game 2 - clear Biden victory.

JAD ABUMRAD: ...Each one exploring a different outcome.

UNIDENTIFIED ANNOUNCER: Game 3 - clear Trump win. Game 4 - a narrow Biden win.

JAD ABUMRAD: And then she and her team wrote a report detailing...

UNIDENTIFIED ANNOUNCER: The Trump campaign team asked the Department of Justice...

JAD ABUMRAD: ...What happened in each of those games.

UNIDENTIFIED ANNOUNCER: The Biden campaign quickly dispelled this information, but Facebook kept posts about the heart attack up.

ROSA BROOKS: These are not predictions at all. The purpose of this was let's do some more rigorous thinking about the what-ifs.

JAD ABUMRAD: And honestly, when we talked to the people who played in these games, it was immediately clear that this wasn't actually about Trump at all. I mean, obviously, the fact that he ignores political norms and does and says whatever he wants kicked the whole thing off. But right away, it was clear that what was being revealed here was something about the deep nature of our laws and our institutions and, really, us.

BETHEL HABTE: So a lot of these games sort of start in one place and then start to poke at all of the same things.

JAD ABUMRAD: Now, we're not going to play all four scenarios in full, but there were things that popped up in several of the scenarios that are definitely worth highlighting. We're going to focus mostly on the first one...

UNIDENTIFIED ANNOUNCER: Game 1 - ambiguous result.

JAD ABUMRAD: ...The ambiguous result scenario. There, what you had is what many people predict will happen.

UNIDENTIFIED ANNOUNCER: The first game investigated a scenario in which the outcome of the election remained unclear from election night and throughout gameplay. The election outcome turned on results of three states - North Carolina, Michigan and Florida.

JAD ABUMRAD: Three swing states. Oh, and one thing I think it's important to say before we launch in - everyone we talked to told us that when it comes to the actual election that's about to happen...

HOWARD OPINSKY: It's certainly unlikely to be over on election night.

JAD ABUMRAD: ...We're going to need to adjust our expectations about time.

MATTHEW SANDERSON: People regularly refer to this as Election Day...

HOWARD OPINSKY: But you have many, many, many ballots that aren't even counted yet.

JAD ABUMRAD: That's Howard Opinsky and Matthew Sanderson.

MATTHEW SANDERSON: I think you should start thinking about this as an election quarter. I would anticipate that this process will take about three months to fully play out.

JAD ABUMRAD: Deep breaths, deep breaths. OK, Scenario 1 - ambiguous result. This is a scenario where it is not clear for a while who has won. As we mentioned, the game consists of each of the different teams taking a series of turns.

UNIDENTIFIED ANNOUNCER: Turn 1 - November 3 to November 10. The Trump campaign began the game by calling on Biden to concede based on the election night in-person voting returns...

JAD ABUMRAD: In this scenario, early results of in-person voting...

UNIDENTIFIED ANNOUNCER: ...Skewed toward President Trump and the GOP.

JAD ABUMRAD: Which, again, many people predict will be the case.

BETHEL HABTE: And he's like, let's call it. I've won. We should move on now.

UNIDENTIFIED ANNOUNCER: The Trump campaign also used the bully pulpit of the presidency and its influence with right-wing media to lock in the election night returns.

JAD ABUMRAD: So we can imagine 9 p.m. election night, an anchor might declare...

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED NEWSCASTER: Donald Trump will be president of the United States.

UNIDENTIFIED ANNOUNCER: Trump officials call into question mail-in ballots or the legitimacy of post-Election Day vote counts and enlist the support of Republican officials in several states to immediately halt further vote counting.

JAD ABUMRAD: So Trump declares victory, tries to get the vote count stopped. The Biden campaign says, whoa, whoa, whoa.

UNIDENTIFIED ANNOUNCER: The Biden campaign called for every vote to be counted.

JAD ABUMRAD: What about the millions of mail-in ballots?

EDWARD FOLEY: Mail-in sources have to be counted by hand.

BETHEL HABTE: And depending on when people mail those in, they come in at different times.

EDWARD FOLEY: Most people don't remember that in 2008, it took Missouri a long time to declare whether John McCain won or Barack Obama won.

JAD ABUMRAD: That's election law professor Edward Foley. He says it took two weeks.

BETHEL HABTE: And those later votes tend to shift blue.

ROSA BROOKS: That's the working assumption of election and polling experts.

BETHEL HABTE: It's been a trend for the last two decades.

EDWARD FOLEY: The blue shift.

JAD ABUMRAD: Wait; let me ask a question. Why is it that that happens? I mean, why wouldn't later votes shift red rather than blue?

BETHEL HABTE: The reasoning for that is, like, kind of, like, sketchy. Like, there isn't, like, clear political science around why that happens. One of the reasons is, like, the main reason you'd use a provisionary ballot is if you've changed addresses in the last year. And a lot more Democrats, I guess, move around or are not homeowners.

JAD ABUMRAD: Oh, so it's socioeconomic. More Democrats are renters, so they move around, don't have a consistent polling place...

BETHEL HABTE: Yeah.

JAD ABUMRAD: ...So they do the mail-in.

BETHEL HABTE: Yeah, that's the thinking.

JAD ABUMRAD: Oh, that's interesting. I did not know that.

OK, so back in the scenario, officially, results are ambiguous, but Trump declares victory. And Biden, anticipating a blue shift, says, keep counting. Eventually, he declares that he will win.

UNIDENTIFIED ANNOUNCER: GOP elected officials publicly supported Trump's victory and claims of voter fraud. Democratic elected officials were proactive in the states where they held offices to ensure votes would be counted and to build bipartisan coalitions to oversee and protect the count. Attorney General Barr instructed the DOJ to support litigation that would prevent further counting of mail-in ballots.

JAD ABUMRAD: OK, so far, if you ask me, no huge surprises yet, but this was actually just the first turn from each team.

UNIDENTIFIED ANNOUNCER: Turn 2 and 3.

(SOUNDBITE OF MUSIC)

UNIDENTIFIED ANNOUNCER: The Trump campaign team attempted to federalize the National Guard to end further vote counting and called on supporters to turn out in large numbers. The Biden campaign established a bipartisan transition team and mobilized supporters to ensure vote counting was completed thoroughly.

JAD ABUMRAD: So at this point in the gameplay, both campaigns call for supporters to get out in the streets - protest, protest, protest. Again, not a huge surprise. But then something very weird goes down.

ALAN DAVIDSON: There was a moment where I almost needed to take a break from the game for a minute because it was so unsettling.

JAD ABUMRAD: This is Alan Davidson, senior adviser at Mozilla.

ALAN DAVIDSON: In the middle of that chaos, there was a moment of clarity that we could all see a path for how the Trump team could actually sway the election in their favor.

JAD ABUMRAD: He's talking specifically about this move.

UNIDENTIFIED ANNOUNCER: Turn 3 - officials from both parties sought to block or overturn results in key states, including seeking to use friendly state legislatures and governors to send alternate or additional sets of electors.

ROBERT RABEN: So this is the first baller move.

JAD ABUMRAD: Robert Raben again.

ROBERT RABEN: I mean, this is where we're in uncharted territory.

JAD ABUMRAD: And Raj Goyle.

RAJ GOYLE: We do act as if, somehow, this is incredibly unprecedented. These political power plays happen.

JAD ABUMRAD: OK, so the baller move in question - trying to get a state to send an alternate set of electors. Initially, it was a little bit hard for us to wrap our brains around, but let me take it in stages. The first thing to really stare at is the Electoral College. Like, the easy-to-gloss-over fact is that we don't vote directly for president. We - when a voter in, say, Nevada pulls the lever for Joe Biden, they're really just voting to send a small group of people - Nevada electors - to the Electoral College. And it's those people who vote for Joe Biden.

RAJ GOYLE: Well, the way that the Electoral College works is that actual human beings vote in the Electoral College. So a human being actually is an elector and votes the vote of that state's electoral vote. But they're human beings, and so they have their own mind. So what they can do is they cannot abide by the vote of their state.

JAD ABUMRAD: Really?

RAJ GOYLE: And they can actually then, in a sense, become a faithless elector and do what they want, despite the fact that they are bound by the results of that state.

JAD ABUMRAD: Just look at 2016, Trump v. Clinton.

RAJ GOYLE: You know, what happened is that, actually, it looks like in Hawaii, there was a faithless elector and two faithless electors in Texas and then four in Washington state.

JAD ABUMRAD: These are seven people who just freelanced, basically? They were just like, I'm going to go my own way?

RAJ GOYLE: So I'm just looking at it right here. The Hawaii faithless elector voted for Bernie. In Texas, they voted for - one voted for Kasich, one voted for Ron Paul. So those would probably be never-Trumpers. Obviously, the Hawaii elector must've been an anti-Hillary person and was pro-Bernie. And then in Washington State, three of these electors voted for Colin Powell.

JAD ABUMRAD: What?

RAJ GOYLE: And then a fourth voted for a Native American candidate, Faith Spotted Eagle. It gets a little bit nuanced...

JAD ABUMRAD: Now, in one of the war game scenarios, the idea of trying to influence one of the electors to make them faithless - it did come up, but it wasn't allowed. And the Supreme Court has just, literally a few months ago, ruled that electors can't do that. But then both campaigns tried a different tact to influence the electors that turns out is way more powerful and very much allowed.

(SOUNDBITE OF MUSIC)

JAD ABUMRAD: See, these electors are not actually accountable to the voters. They're technically appointed by each state. The only reason we have the system we have now is that back in the day, each state, somewhere along the way, decided that electors should be connected to the popular vote. But that's a decision each state made, and it's a decision they can unmake at any time.

So what happened in Game Scenario 1 is this. There was chaos. As we mentioned, competing news reports, competing claims of victory. The Trump campaign then used that chaos to go directly to the state legislatures and say, hey, given all this chaos, all this uncertainty, we think that you should...

EDWARD FOLEY: Distrust the popular vote - that the popular vote failed, that it was just untrustworthy because of this blue shift and that just - who knows? And we just can't trust it. It could be fraud. It could be rigged. It could be not. We just can't trust it.

JAD ABUMRAD: That's Edward Foley again. He was actually on Rosa's team of experts that decided what was plausible or possible or not. And he says if the Trump campaign could make the argument that the popular vote can't be trusted, well, then they can urge the state legislatures to throw out the electors and appoint their own.

BETHEL HABTE: Why is it that state legislatures are allowed to send alternate or additional slates of electors?

EDWARD FOLEY: Yeah. So it goes back to this old provision in the Constitution, supreme law of the land that has never been changed, which says state legislatures can determine the manner of appointing electors. So they get to decide whether we have these popular votes or the legislatures appoint electors directly or some other method.

What can happen is a state legislature could say, we can't trust the popular vote anymore because who knows who really won, so we're just going to appoint electors ourselves. This was something that the Florida Legislature considered back in 2000, decided not to do it once Vice President Gore conceded defeat. But it is a plausible move under Article II of the Constitution.

JAD ABUMRAD: Now, in the war game scenario we've been following, as we mentioned, both teams tried to do this - convince state legislatures to totally swap out electors. But when Ed and the rest of Rosa's White Cell team slapped a probability of success onto these moves and then had the teams roll the dice...

UNIDENTIFIED ANNOUNCER: After dice rolls, most of these efforts failed.

JAD ABUMRAD: But that's not to say that things got any less weird because at this point in the game, as the teams are pressuring elected officials and giving competing press conferences, it was clear that Michigan was going to be the deciding state.

UNIDENTIFIED ANNOUNCER: There, a rogue individual destroyed a large number of ballots believed to have supported Biden, leaving Trump a narrow electoral win.

JAD ABUMRAD: Now, what was that? Was that part of the scenario that you guys set up? Or was that one of the moves that one of the teams made - the Trump team, I guess?

ROSA BROOKS: That was actually something that the player teams generated. I believe in the scenario itself, it was a National Guard major decided to destroy a truckload of mail-in ballots. And the Trump team, if I'm recalling correctly, left it a little bit deliberately ambiguous. Hey, it's a rogue National Guard major. He, you know, acted on his own initiative - wink, wink.

JAD ABUMRAD: It's funny. This is one of those moments in the game where I thought, that's not going to happen. Wait; could that happen?

ROSA BROOKS: Think about the - you know, think about the June protests in Washington. And, you know, so one of the things that happened in D.C. was that an Army helicopter, U.S. Army markings, flew very, very low over city streets, dispersing crowds. There was later a Pentagon inquiry into who the hell was that?

JAD ABUMRAD: She says in the end, there's no way to know whether this was a coordinated action or just one guy having a bad idea. So she says it's very plausible that a single human could have that kind of influence. And because in the scenario this destruction of ballots is happening in Michigan, you now had a Democratic governor step in and say, hey, this is not OK.

UNIDENTIFIED ANNOUNCER: The governor of Michigan used this abnormality as justification to send a separate pro-Biden set of electors to D.C.

JAD ABUMRAD: So in the end, what you have is the deciding swing state, Michigan, offering up two separate results. The Republican state Legislature sends a slate of electors that says Trump wins. The governor of Michigan sends a slate of electors that says Biden wins.

EDWARD FOLEY: That's how you would get these two competing submissions going to Congress.

(SOUNDBITE OF MUSIC)

JAD ABUMRAD: Ed Foley says not only is this allowed under state law, it's actually happened before.

EDWARD FOLEY: The scenario I'm imagining looks like exactly what happened back in the disputed election of 1876, where you simultaneously had both teams of electors claiming to be the lawful electors, both meeting on the same date. So back then, it was the Hayes electors meeting in one room and the Tilden electors meeting in a different room.

The imaginary scenario that we're hypothesizing now is that the Biden electors would meet on December 14 and claim the authority to meet from the secretary of state, and they would vote for Biden. On the same day, the Trump electors would meet, claiming the authority to meet from the state Legislature, which is purported to directly appoint them.

JAD ABUMRAD: What the hell happens then?

EDWARD FOLEY: Congress would have to deal with it.

UNIDENTIFIED ANNOUNCER: The outcome of the scenario hinged on how the elected officials from the two parties addressed the separate slate of electors from Michigan.

JAD ABUMRAD: Wait; so this - is this process, this refereeing process that Congress now has to do - is that written down in the Constitution?

BETHEL HABTE: Yeah. So this is actually just the count of the electors.

JAD ABUMRAD: What does it say? Wherever it's written, what does it say?

BETHEL HABTE: Yeah, yeah, yeah. In the 12th Amendment, which I have in a tab here, among thousands of tabs...

EDWARD FOLEY: The 12th Amendment to the Constitution says that Congress has a joint session. So it's both the House of Representatives and the Senate meeting together. It's kind of like a State of the Union address. And the presiding officer is the president of the Senate, which is the Vice President of United States. And then there is a statute called the Electoral Count Act. And the statute says you take Congress - this joint session - first of all, it says it's January 6, so we know the date. We know it's at 1 p.m. So it's quite choreographed. If you read the relevant provisions of the U.S. code, there are some things that are very specific, including the speaker of the House sits right next to the president of the Senate, but the president of the Senate gets to sit in the speaker's chair 'cause (laughter) - I mean, it's that detailed.

JAD ABUMRAD: But when it comes to the pivotal question - the pivotal question - all we get is a little clause in the 12th Amendment.

EDWARD FOLEY: It says the president of the Senate opens the submissions that come from the states and then uses the passive voice. It says the vote shall be counted.

BETHEL HABTE: And the votes shall then be counted. The president of the Senate shall, in the presence of the Senate and House of Representatives, open - so that's modifying the president of the Senate.

JAD ABUMRAD: So the Vice President opens the envelopes.

BETHEL HABTE: Opens all the certificates.

JAD ABUMRAD: OK.

BETHEL HABTE: And the votes shall then be counted.

JAD ABUMRAD: By who?

BETHEL HABTE: It does not say.

EDWARD FOLEY: It doesn't - the Constitution doesn't say.

JAD ABUMRAD: What?

EDWARD FOLEY: The risk there is, what if the U.S. Senate wants to count one submission and the U.S. House of Representatives wants to count the other? That's the real problem. How do you break that tie?

UNIDENTIFIED ANNOUNCER: GOP officials asserted that as the president of the Senate, Vice President Pence could legally choose to accept or reject electors as he wished.

EDWARD FOLEY: The argument has been made historically that the 12th Amendment gives the vice president that kind of prerogative, even if the vice president is a candidate in the very election that we're talking about. I mean, the Electoral Count Act that was adopted in 1887 I think is correct to say was drafted on the premise that it should not be the vice president who gets to make a decisive determination of which votes get counted, that this should be a congressional process, but that could be contested, potentially, in a real antagonistic fight.

BETHEL HABTE: There's this ambiguity. There's this huge hole where, like, something that I've never thought about, I don't think a lot of people have thought about could actually happen.

And what's so crazy about this is, like, as of press time - I don't know - today, our managing editor, Soren, had sent us this magazine article from The Atlantic that says, according to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. So they're actually thinking about this.

(SOUNDBITE OF MUSIC)

JAD ABUMRAD: This is RADIOLAB. I'm Jad Abumrad.

OK, where we left off, we were following one of Rosa Brooks' war game scenarios that she ran with a bunch of political insiders, high-powered people. She ran four different scenarios. We followed Scenario 1.

In the game, we end up with a situation where the election comes down to Michigan. Michigan offers up two different sets of electors because of all of these kinds of shenanigans. They send two sets of electors to Congress - one set for Biden, one set for Trump. Congress meets. They cannot resolve the dispute. And we have what they call a constitutional crisis.

UNIDENTIFIED ANNOUNCER: There was no clear resolution of the conflict in the January 6 joint session of Congress. Neither campaign was willing to accept the result and called on their supporters to turn out in the streets to sway the result. President Trump also invoked the Insurrection Act.

BETHEL HABTE: What's the Insurrection Act?

ROSA BROOKS: So the Insurrection Act allows the active-duty U.S. military to be used domestically, you know, to put down an insurrection, maintain order, protect federal property.

JAD ABUMRAD: At this point in the scenario when President Trump summons the military - he is still the commander in chief, after all - we arrive back at the question that got Rosa started with all of this when she was sitting at that bad chicken dinner.

ROSA BROOKS: I mean, it's a really tricky issue. And I think if you have the Republicans saying Pence decides and Trump wins and the Democrats saying, no, the evidence is that Biden won fair and square, what does the military do?

LARRY WILKERSON: Hello.

BETHEL HABTE: Hello. You're there.

LARRY WILKERSON: Yes.

JAD ABUMRAD: That question led us to call a guy named Larry Wilkerson.

BETHEL HABTE: How may I address you? I know you're retired.

LARRY WILKERSON: You can call me Professor, Colonel, Larry.

JAD ABUMRAD: He's a retired Army colonel.

LARRY WILKERSON: Thirty-one years a soldier in the United States Army. Roughly 2002 to 2005, I was chief of staff of the U.S. Department of State.

JAD ABUMRAD: And these days, he teaches at the College of William & Mary.

LARRY WILKERSON: Yeah.

BETHEL HABTE: OK. So I'm just wondering if I could take you through...

JAD ABUMRAD: Anyway, we asked him about this moment where, you know, the president, commander in chief, tries to activate the military in the middle of a still-uncertain election.

BETHEL HABTE: How does - what happens then?

LARRY WILKERSON: First, let me say that I don't think the military is going to get substantially involved in the election or the aftermath of the election. But let me hastily add we have put troops or federalized the National Guard and put them in the streets many times in the past. I was in Detroit in 1968 with a loaded .50-caliber machine gun on an APC with a National Guard platoon sitting there, trying to keep people from shooting American citizens in the streets of Detroit. We have done this before. We killed people in Oklahoma - over, as I recall, over 200 people in the insurrection there.

JAD ABUMRAD: This is 1921 - Tulsa Massacre.

LARRY WILKERSON: We almost killed quite a few veterans in the Bonus March when MacArthur took the military to Anacostia Flats and was all for machine-gunning them.

JAD ABUMRAD: This is 1932.

LARRY WILKERSON: So this is not a country that hasn't done this before. Let's get that straight. But we don't want to do it, but we very well could. One of the insights we gained from the simulations was there is a fairly logical path to real conflict.

JAD ABUMRAD: And in the scenario we've been following, Game 1, the military did, in fact, deploy in major cities, ready to step in on protests as needed. And, in fact, in many of the scenarios they played, things did end with the military stepping in. In one scenario, according to Rosa...

ROSA BROOKS: The Joint Chiefs of Staff...

JAD ABUMRAD: These are the most senior military officials in government.

ROSA BROOKS: ...They sort of let it be known unofficially through leaks that they had decided that Biden was the legitimate winner and that they were going to - that he was the guy who was getting the nuclear codes and so on. And that was the thing that proved decisive.

JAD ABUMRAD: And so in that game, Biden was eventually inaugurated. But in our game, Game 1...

UNIDENTIFIED ANNOUNCER: The partisans on both sides were still claiming victory, leading to the problem of two claims to commander in chief power, including access to the nuclear codes, at noon on January 20.

JAD ABUMRAD: And it was left totally unclear what the military would do.

ROBERT RABEN: The possibility that at noon on the 20th, the Pentagon, the Joint Chiefs of Staff have to hand the nuclear codes to someone.

JAD ABUMRAD: Robert Raben again.

ROBERT RABEN: Who holds the nuclear codes? They can come in and take them from Trump and hand them to Biden. They can do nothing, which means Trump holds them. But it was sobering as a sort of a non-warmongering, peaceful American citizen to realize that it's the Joint Chiefs of Staff of the military who will decide who the president is.

HOWARD OPINSKY: What institutions are left to try and carry out a transition of power?

JAD ABUMRAD: Howard Opinsky.

HOWARD OPINSKY: You can see our democracy hanging in the balance here.

ROBERT RABEN: And that was both amazing and, also, as a strategist - oh, well, then we got to work the military. Those are the refs, and you got to work the refs.

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ROSA BROOKS: I think we collectively put a little too much faith in the law and in institutions as if they exist outside of politics and power, but they don't.

JAD ABUMRAD: In the end, what you're left with is a simple realization, especially when you get into some of the wonkery about slates of electors and the vote shall be counted, that you realize that democracy is often just a series of habits.

BETHEL HABTE: Yeah, a lot of these election things are. Like, it's a norm that the popular vote reflects who ends up in the Electoral College, but it's not written down...

JAD ABUMRAD: Yeah.

BETHEL HABTE: ...That it's required for legislatures.

JAD ABUMRAD: It's also interesting that, like, the thing that makes a norm a norm is the exercising of power. Like, how else do you get a norm?

BETHEL HABTE: Well, that's a...

JAD ABUMRAD: You know what I mean?

BETHEL HABTE: Yeah, like George Washington set the norm that you are in power for two terms as president. And from then on, nobody ran for a third term. It wasn't written down anywhere.

JAD ABUMRAD: Yeah. And, in fact, people wanted him to stay on. They were like, George, don't go. But he said, no, I've got to dethrone. And then that decision, which in many ways is the bedrock of our democracy, it wasn't really written down anywhere or enshrined in law - at least not for a long time. It was just a choice that he made that then the next guy made and then the next guy made.

BETHEL HABTE: So it was - it's magnificent how much - I mean, it's a little bit worrying now, but, like, it's kind of wild how much we are, like, just dictated by these things that normally happen.

JAD ABUMRAD: But might not. Thank you, Bethel.

This story was reported by Bethel Habte, with help from Tracie Hunte. It was produced by Bethel. We had original music from Jeremy Bloom. And I should also say that since we started this story, Bethel has unfortunately left us here at RADIOLAB, which is a very sad thing for us. And the lucky people who get to work with her now are over at Gimlet making a podcast called "Resistance." Check it out. We definitely will be. And we wish Bethel the very best of luck, and we miss her already very much.

Big thanks to a ton of people who were part of Rosa's game. We only used a small fraction of those people in the story, but we are so thankful for all the people who gave us their time - Liz Mair, Norm Eisen, Reed Galen, Yael Eisenstat, Trey Grayson, Eli Pariser, Nilmini Rubin, Max Brooks (ph), Ed Meyer (ph), Edward Luce, Reverend Leah Daughtry, David Harsanyi (ph) and Carrie Cordero.

I'm Jad Abumrad. Deep breaths. Go vote. And thanks for listening.

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KEITH: Hi. I'm Keith (ph) in Montreal. This is, like, my seventh attempt at all these names. RADIOLAB was created by Jad Abumrad and is edited by Soren Wheeler. Lulu Miller and Latif Nasser are our co-hosts. Dylan Keefe is our director of sound design. Suly (ph) Lechtenberg - Suly - no, Suzie Lechtenberg is our executive producer. Our staff includes Simon Adler, Jeremy Bloom, Becca Bressler, Rachael Cusick, David Gebel, Tracie Hunte, Matt Kielty, Tobin Low, Annie McEwen, Sarah Qari, Arianne Wack, Pat Walters and Molly Webster, with help from Shima Oligee (ph) - no, Oliaee - Sarah Sandbach and Jonny Moens. Our fact-checker is Michelle Harris. Thank you so much for your work, folks.

 

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