#384 — Stress Testing Our Democracy

0:29Welcome to the Making Sense Podcast. And therefore, it's made possible entirely through the support of our subscribers. So if you enjoy what we're doing here, please consider becoming one.

0:45Today I'm speaking with Barton Gelman. Bart is a Pulitzer Prize-winning journalist and author. He currently serves as a senior advisor at the Brennan Center for Justice at the NYU School of Law. Previously, he was a staff writer at The Atlantic and The Washington Post. He's the author of Dark Mirror, Edward Snowden and the American Surveillance State, as well as Angler, the Cheney Vice Presidency, for which he won the Los Angeles Times Book Award. Anyway, Bart and I talk mostly about election integrity and the safeguarding of American democracy. We discuss the war games he's run to test our response to an authoritarian president, the prospect of such a president using federal troops against American citizens, the difference between laws and norms, state powers to resist the federal government, voter identification and election integrity, political control over election certifications, the Bush-Gore election, the Electoral Count Reform Act, the prospect of public unrest after the November election, the significance of January 6th, George Soros, the good people on both sides, calumny against Trump, what will happen to Trump and Trumpism if Harris wins in November, the presidential debate between Harris and Trump, the authoritarian potential of a second Trump term, Project 2025, and other topics.

2:16Just one note, we recorded this conversation before the second attempt on Trump's life, So if there's any place where it seems like we should have discussed that and didn't, that's why. And now I bring you Barton Gilman.

2:38I am here with Barton Gilman. Bart, thanks for joining me again. Pleasure to be here. So you've been busy since we last spoke. When I last spoke to you, you were a mere Pulitzer Prize winning journalist for The Atlantic. but now you have moved on to become a man of action, purpose toward protecting our democracy. What are you up to? You've left the Atlantic, and what are you now doing? I am in the office of the president of the Brennan Center for Justice, which is based in New York, and has a big presence in Washington. It's a think tank, a public policy advocate. It does litigation and so forth.

3:19And the main purpose is to protect democracy and civil rights. I was at the Atlantic for about four years, and I spent most of my time writing about how there were existential dangers to democracy. You know, I'd done a piece two months before the 2020 election, predicting that it could be a disaster if Donald Trump lost the election and refused to concede defeat. And I outlined many ways that might happen. And I would have wished that to be wrong, but it didn't prove so. I finally got tired of writing about how we're at this kind of generational challenge to democracy and decided to stop saying, you know, look over there, looks really bad over there and to kind of step in, step off the sidelines and try to do something about it.

4:15So to get to your question, my first big project at the Brennan Center was to run something we called the Democracy Futures Project, which was a series of five tabletop exercises, or you could call them war games, in which we had about 175 in all former officials and leaders of civil society. You know, we had a couple of governors, we had a couple of cabinet members, all retired, a senator, a couple of members of Congress, judge, generals, and so forth, coming in to war game. What would happen if an authoritarian president were elected and pro-democracy advocates kind of across a broad range of government and society tried to restrain that president.

5:06And instead of just saying, well, he may try to do this and then we would just do that, we gamed out how it would actually work with an iteration through multiple rounds of the game so that the red president who had run on Trump's agenda could respond to pro-democracy moves to try to stop him and they could respond to his responses. And how are these games conducted? I mean, so the person who plays the role of the president in this case, is it up to him or her just to be as bad as they want to be? I mean, are they just, is it just an exercise in extemporaneous gameplay and fiction making? Or is there some, are there parameters in advance that are ironed out precisely, and they're basically just following some kind of template in response to the various moves that are being made against them.

6:04Well, first of all, bad as they want to be could be a good band name. We had two of the five games were basically that. We called them everything, everywhere, all at once games. And the person playing the president was supposed to be modeling his or her behavior on Trump's declared agenda and the agenda of his closest allies. For example, Project 2025 is kind of written by over 100 former Trump administration officials. Yeah. It's amazing. Trump knows nothing about it. Yeah. He's never met these people. He's got no association with him whatsoever. Yeah. I think 22 of his chapters were authored by his former senior people.

6:49So we consider that fair game for guidance of what the president would do in office. So in those, the president did a lot of things all at once and tended to overwhelm the blue or the pro-democracy team by doing that with all the resources of the federal government. Three of the games we did with a narrower policy focus, and I should just mention here that none of the games modeled any kind of behavior that falls within the ordinary range of policy and political disputes. So we weren't testing what happens if he cuts taxes or pulls out of a climate accord again, or even an issue like abortion.

7:34We were testing only things that Trump has said he wants to do that would be threats to democracy and the institutions that uphold the rule of law. Like what specifically? Like, for example, use arms of the federal government to go after your enemies. So prosecute them, the Department of Justice, or bring antitrust actions against Amazon because you don't like what Jeff Bezos is doing with the Washington Post, which he's also the owner of, or sending the IRS to challenge the tax exemptions of nonprofits. like the Brennan Center for that matter, because they're advocating things that he doesn't like, among many examples.

8:20What about using federal troops or the military to quell protests or round up undocumented workers or that sort of thing? Well, those actually were the other two games. One of them was about the domestic use of military power, military force, to break up anti-Trump demonstrations on the grounds that they consisted of insurrections and riots and were threats to the rule of law that local and state authorities could not handle, even though actually the mayors and governors involved in those scenarios said they needed no federal help. That was one. The other was mass expulsion of migrants, sending federal law enforcement forces into cities all around the country to make mass arrests, to send migrants to detention facilities and to expel them back to their countries of origin, or just expel them back to Mexico, whether or not they came from Mexico.

9:32And what we were testing was, what could anybody do about that? And the answer wasn't always a happy one. I mean, for example, we had a former governor, I should say we did these exercises under the Chatham House rules, so we don't name participants unless they gave their consent. But in this case, Christy Todd Whitman, the former Republican governor of New Jersey, did give her consent. So I can say that she was one of the players. And she was looking for a way to prevent the president from using his authority to federalize the National Guard in her state. And one of the interesting things that emerged from this was that governors don't actually know where their power ends and the president's power begins because we haven't, as far as I know, ever had a case in which the president federalized the guard against the will of the governor of that state.

10:32Ordinarily, it's the governor who requests that the president do so. I thought there was nothing like that that happened during desegregation in the South. I mean, my history is a little wonky here, but just when the forcible integration of whatever that college was in Alabama or Mississippi, forgive the vagaries here, but didn't JFK have to bring in the National Guard to, I'm just assuming it was over the protest of the governor, but maybe that's not the case. Well, I am also not an expert historian on that subject. It's true that the president did send the guard. I'm not even sure it was JFK, but you may be right.

11:16Yeah, no, it was. JFK definitely was the president for, I mean, perhaps there are other episodes that I'm not thinking of, but for one of these, yeah, it was JFK was calling the shots. What I understood is that the governor did not try to prevent the federalization of the Guard in that instance. It might have been a lot. I think there was definitely somebody did. It was probably the mayor who was against it. And then the governor was probably acquiescing to the president. So, yeah. So it probably wasn't opposition between a governor and a president in that case. Well, it's not every day that you have a state adjutant general who is the senior commanding officer of the state guard who gets conflicting orders from the president of the United States and from the governor of that state.

12:04And it turns out that governors don't happen to have in their back pocket a clear understanding of where the boundaries are. And that's, I mean, it's one of the takeaways from our exercise is that governors and state attorneys general and state legislatures and potentially mayors are independent sources of authority who can offer some protection against an authoritarian abusing the powers of the federal government, but they need to actually study up on what the authorities are and what the boundaries of their authorities are. Right. But that's assuming that these governors and state officials are not part of the personality cult that is rooting for the aspiring authoritarian to wield as much power as he wants.

12:50Yes. So when you play these games, are there people on the side of the autocrat or aspiring autocrat too? Or was everyone trying to resist the president? No, we gave the president a full cabinet and executive agencies, and there were also supportive governors. There were supportive judges. The military was considered neutral, and in some cases did resist orders that it considered to be unlawful, or at least tried to slow things down to get clarity on what a lawful mission might be. But one of the interesting things about this exercise. We had Republicans and Democrats. We had conservatives and liberals.

13:34We really did have a pretty broad ideological spectrum, people who disagreed on a lot of things, but we didn't have any sort of strong current Trump supporters. We had former officials who served under Trump, but everyone in the room in real life was a pro-Democrat with a small d. But it was remarkable how much fun they had playing an autocrat. They really delved into the part and there was something about the transgressiveness of ordering the prosecution of your political enemies. They were coming up with ideas, some of which we're not even going to publish because they were ideas we don't think Trump has had yet.

14:18They're so diabolical. Yeah. Well, I can imagine. It's just, as a creative exercise, it's got to be a ton of fun playing the bad guy. I think it's why they say actors in Hollywood enjoy those villainous parts more than the kind of, I don't know, there's something very ordinary about playing someone with good intentions. In any case, these folks, including people who are well-known critics of Trump or quit his administration in outrage, certainly played the role with relish. So I think we like to imagine that we have a system that is so good that it doesn't require good people to run it, right?

15:04That it should be impervious to the intrusion of a malicious, narcissistic jerk who just wants to enrich himself and hold on to power. But I think one lesson I drew from the Trump years was that where we thought we had laws to cover all of these contingencies, in many, many cases, all too many cases, we only had norms, right? And norms on some level were more flexible then and more important than laws. But because they're not laws, when somebody blows right past them, you're left with not much you can do. Is it too cynical and paranoid a lesson to have drawn from Trump's presidency, or do you agree with that assessment?

15:51You know, I think we got mixed results from the Trump administration in terms of the value of having sort of right-thinking people, people who believed in fulfilling their duty to follow the law and to follow longstanding ethical rules and to follow the governing norms that were consensus norms between the parties. There were times when people like that were absolutely critical to stopping bad things from happening. So that's why you had all these leaks from the people around Trump during his presidency. And that way you found out, for example, that his treasury secretary had removed a document from his desk before Trump could see it and sign it.

16:45because it was so crazy and hadn't gone through the usual governing processes. And in the effort to overthrow the 2020 election, there were people at even not terribly senior levels who drew a line and said, I won't do that even though I'm a Republican, and prevented the overthrow. I mean, there's a guy whose name I can't recall, but I wish I could because he deserves celebration. It was Vander something, a guy on the Michigan State Board of Elections. And the way the board works is it had, I think it was three and three, it had an equal number of Republicans and Democrats on it. And if all of the Republicans had refused to certify the election as Trump was asking them to do, then Michigan's electoral votes would be in controversy.

17:38It might be arguable in courts or in Congress that the electoral votes had not been cast, although that probably wouldn't have worked. But this one Republican on the board, not a very senior guy, some guy in his 30s who did this as literally a part-time gig, said, I'm not going to refuse to certify the election. The votes have all been counted and double-checked. And everything is in order, and I'm going to vote to certify. And for that reason, Michigan was taken out of the unknown category and the man who won it, Joe Biden, got those votes. You had the same thing with the elected Secretary of State in Georgia, who's better known, Brad Raffensperger, and more junior people in the state secretariat who refused Trump's request to quote unquote find 11 ,780 votes that could be flipped so that he would win the state.

18:35state of Georgia. So you did have these people who I think were real heroes and upheld the law, but you also found out, as you say, that a lot of the stuff that we don't want presidents to do because it would be a huge abuse of power, there's actually no law against it. And Trump has a kind of genius for finding stuff where nobody ever wrote down, you can't do that. For example, if he had wanted to put a giant banner over the White House to advertise Trump goods for sale, there's nothing written down anywhere that says you can't do that. This might be one of those ideas you don't want to leak out lest he get into his head.

19:23leave it to him to sell Trump steaks and other crap from the facade of the White House. So what did you find after these games were run? What was the punchline with respect to what the system could do to contain the overreach of a rogue president? Well, the unhappy conclusion was that the blue team seldom found a way to stop the autocrat in his tracks. They seldom found the one weird trick that lets you cage him up and prevent him from abusing his power. But we did find things that could delay or deflect or diminish the damage of authoritarian acts. So one thing I've mentioned already, which is that if you have a governor or a state attorney general who believes in the rule of law and is willing to resist an overreach of federal executive power, those people have a lot of power and need to be doing their homework now so they're not in the middle of an episode and unaware of what they can and can't do.

20:40And there are a bunch of questions that may not actually be settled law that they need to be ready to take position on. Like, are there any limits you can impose on, you know, someone from the Bureau of Prisons or from DHS or from a militia that the authoritarian president has deputized to enforce federal law and comes into your city or your state and starts rounding people up. Can you impose any limits on how they exercise police powers in your state? Does state law or do the state courts have the power to limit those things? What would happen if you refused a federal demand for state data that might help them find migrants who they're looking to expel and so on?

21:41I mean, they just need to do a kind of broad-reaching sweep of their legal and operational authorities. I have to think that there's an army of Democratic and never-Trump lawyers who are at work on this and have been at work on this for some time to try to prepare our democracy for a coming stress test in reality should Trump get four more years to take a crack at it. Is that too hopeful a notion? What are all the lawyers doing who are equally worried about this? Well, you know, it's sort of a yes and no. I'll tell you a story from the beginning of 2024. I was thinking about making this career change, and I called up Michael Waldman, who's the president of the Brennan Center, and said, you know, do you have a place for me there?

22:36and he said, what do you want to do? And I said, well, I'd like to protect the November election and I'd like to do planning for what happens if Trump wins and tries to carry out his authoritarian agenda. And he told me we're doing a lot of the one already and we're not doing a lot of the other. And that's why I started where I started. Now, since then, there are a lot of organizations and people in the kind of democracy and rule of law space who are thinking and planning ahead for how you would restrain an authoritarian president. But they're trying to do a lot of things at once. They're trying to protect, for example, the integrity of the November election.

23:22They're doing planning for what happens if a Democrat wins or even if there's a Democratic trifecta. I mean, the Brendan Center, for example, would put huge priority on passing the Freedom to Vote Act and the John Lewis Voting Rights Improvement Act. And so there are people doing that kind of planning. And for a while, there was a time when people just didn't really want to think too much about things going wrong after the inauguration of the new president in 25. I think that's changed quite a bit in recent months, but there's plenty more work to be done. Okay. Well, let's take it from the top here.

24:01I'd like to talk about the November election and the various outcomes that we might expect. But before we do, is there any sympathetic construal we might give to the right-wing slash populist slash Trumpist concerns about the integrity of our elections? I mean, so you've got a lot of people out there that have come to the Trump circus from Trump himself and Elon Musk on down, who are making noises about, that seem to signal the legitimacy of concerns about election integrity. We should have paper ballots, the computers can be hacked. There are people who are voting, who shouldn't vote, and the Democrats want to bring in lots of non-citizens to vote effectively and therefore voter ID laws just make abundant sense?

25:02I mean, just take a voter ID. What is wrong with passing a voter ID law? I mean, we need ID for so many things that are far more trivial than voting. Why does anyone resist the need to have proper identification when you go to vote? Well, the question is, what's proper identification? How are the standards set and for what purpose? And I'm going to give a very broad answer to your meta question here. It is almost universally the case that when people talk about the need to protect election integrity as a political issue, they are trying to prevent people from voting who are not on their side. Election integrity, the idea that they have to stop an election from being stolen, premised on the idea that the 2020 election was stolen, which is nonsense, are almost universally proposed by people who are, in fact, trying to steal the next election.

26:09So let's come back to voter ID. The big idea on the table right now from the Speaker of the House who is trying to attach it to funding the federal government and threatening to shut down the government if it's not attached is called the SAVE Act. And it is ostensibly to stop non-citizens from voting. So here's what's really going on. First of all, non-citizens are not voting. They claim, the proponents of this bill claim, that there are millions of non-citizens being shipped in to vote for Democrats. They can't name millions or thousands or hundreds or even dozens of occasions on which a non-citizen has ever voted in a U.S.

27:00election. They have completely garbage. The truth is we have the opposite problem. We have citizens who can't be bothered to vote, right? I mean, it's the idea that voting is such an attractive thing to do that even non-citizens by the millions would want to do it is just patently ridiculous. Well, right. So we have citizens who can't be bothered to vote. That's true. And it would be better if we had a democratic culture, small d democratic culture in this country in which more people wanted to vote, wanted to participate, and believed that there was something in it for them, that they could have some impact on the way our government is run and the way society functions and some way to improve their own lives by participating.

27:42That's one thing. But it's also true that citizens who do have the right to vote are prevented from voting by some of the things they want. So the proposal in the SAVE Act, in order to solve a non-existent problem of non-citizens voting, is that you should have to be able to present a birth certificate or a passport in order to vote. So there's good data that shows that poor people and racial minorities are disproportionately unable to present documents like that. I mean, they've never traveled abroad. They don't have a passport. How many people can actually put hands on their own birth certificates?

28:28And so you're going to prevent some rich Republicans from voting if they can't find their birth certificate. But the point of it is to remove from the voting rolls a lot of people who the Republicans think are going to vote for Democrats. And so by trying to solve a problem that doesn't exist, they're creating a new one of disenfranchisement, of preventing people from voting. And in litigation and in hundreds of statutory changes around the country, laws passed by state Republican legislatures, laws proposed by others. They are, in every case, every is a big word, I'll say virtually every case, they are designed to reduce the number of people voting, to take people off of voter rolls.

29:15And it's grotesque and it's fundamentally sort of undemocratic, anti-democratic behavior. Yeah, I guess my intuition here is a little, I guess it cuts across this problem, you know, what I imagine is certainly a nonpartisan way, but I just feel like given that this keeps coming up and there is so much that we do require identification for in our society, I mean, to get on an airplane, you need identification now, right? So this is, you know, that's got to pose a problem for all the people who can't figure out how to get ID who want to fly, right? So the question is, is there a way to solve this problem?

29:54We're not going to solve it in advance of November's election, but for future elections, it just seems that we should figure out how to get people the identification they need to vote and remove this as this perennial object of partisan gamesmanship so that people can vote with the idea that we have agreed on is sufficient for the situation. In every state, in every county, in every jurisdiction, you do have to present local election officials with sufficient evidence that identifies you as a person who lives in the district and is entitled to vote. Sometimes it's a utility bill. Sometimes it's some other form of photo ID.

30:40And for example, in Texas, not so many years ago, the Republican state legislature imposed an ID requirement in which a university ID with photo would not count to allow you to vote because college students might not be citizens. Well, college students are less likely to vote Republican. But they did allow a gun license, which doesn't even have a photograph on it, to count. That's genuinely funny. That is something that would have produced a laugh in one of your war games had it been produced for that purpose. Yeah. Well, there are a lot of things that you either laugh or cry when you see it. But the latest thing that's happening now in the election integrity front, quote unquote, is you have a move in multiple states, including several swing states around the country, most kind of paradigmatically in Georgia.

31:44to impose political control over certification of election results. So that's a new legislative and litigation-related front in this war. You have a member of, I'm trying to, I want to get this right. There was a member of the elections board for one of the counties in Georgia, a woman named Adams, who refused to certify the results of a primary election in 2022 and demanded to be given the power to investigate. This is someone who was a longtime election denier, someone who was propounding the lie that the 2020 election had been stolen from Trump. And she wanted the power to sort of to command the production of all this data from election officials, sensitive data that's kept private for a reason and refused to certify.

32:42Then the governor appointed three Republicans to the five-person state election board who passed a new rule for elections in Georgia that enabled the Republican administrators of elections in the counties to refuse to certify and to investigate instead. Now, certification has always been a kind of a ministerial function. There's lots of good law from around the country that's more than 100 years old that election officials don't have the power to investigate elections. If there's a controversy over whether there was foul play in an election, it goes to the courts where they have standards and rules of evidence.

33:32And in 2020, ruled 60-some times that there was no evidence that the election had been stolen. But they want that function now to be exercised by partisan officials on election boards. And that offers a lot of opportunities for mischief and chaos and at least delaying the outcome of an election and potentially to overturn the vote of the people and say that the loser actually won. Yeah, so that's another level at which the integrity of an election can be attacked. And again, I have to think that there are Democratic lawyers who've been all over this for quite some time. From now, from the top down, we've got Kamala Harris and her husband, both of whom are attorneys, right?