It isn’t an overstatement to say that Trump has done more to chip away at the strength of our democracy in the last week than anyone in the last one-hundred years. Since Trump has seen polling showing him tanking – losing even worse to Biden. the issuance of even more brutal economic numbers released this week, the worst economic quarter ever, and COVID killing the country, Trump has now thrown the entire election process into doubt, indeed the election itself is now hanging, by hinting that he would put off the election.

He cannot do so, at least by law as we know it.

To that end, Senator Tim Kaine had Secretary of State Mike Pompeo on the stand yesterday in the Senate. Most people associate the federal Secretary of State with foreign affairs. That is true in certain aspects, but the federal secretary of state also has some of the same roles as your state’s secretary of state – and we all know who runs elections in your state. The U.S. Secretary of State does have a role in federal elections and the tabulation of votes for who sits in what elected positions.

So it was not a bad time to ask Pompeo about the date of the election. Pompeo had a disturbing answer:

“Can a president delay the November presidential election, Mr. Secretary?” Sen. Tim Kaine (D-Va.) asked during a Senate hearing.

“Senator, I’m not going to enter a legal judgment on that on the fly this morning,” Pompeo replied.

Kaine had trouble believing what he had heard, and thus ran down Pompeo’s credentials, which include a degree from Harvard law school and service at various levels in the federal government.

“You are one of the most highly trained and accomplished lawyers who are part of this administration,” Kaine summarized, “Can a president delay a presidential election?”

Pompeo said:

In the end, the Department of Justice, and others, will make that legal determination. We all should want–I know you do, too, Senator Kaine–want to make sure to have an election that everyone is confident in.

That is incorrect. We do want an election in which we have confidence, but that has nothing to do with the date of the election. Congress sets the date for elections, and then the states set their dates (they all hold them on the same day, obviously), the president and attorney general have nothing to do with it. Many legal scholars immediately chimed in. From Law and Crime:

“The Constitution gives Congress the power to set a date for the election, Congress has already set a date, and the states are going to run the election process like every other cycle,” national security attorney Bradley P. Moss told Law&Crime in an email. “DOJ can issue all the opinions it wants and the President can issue all the tweets he wants: it changes nothing.”

University of Texas Law Professor Steve Vladeck was a bit more animated in his response. “NO. THEY. WON’T,” he tweeted in response to Pompeo’s suggestion that DOJ officials will be the final arbiters on the issue. “Congress already made it in 3 U.S.C. § 1,” Vladeck noted–before citing the law on point here. “‘The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.’”

So the answer is “No,” Trump and Barr do not have the authority to move the election … legally … in any normal scenario. IF one wants to get conspiratorial and assume that Pompeo wasn’t just trolling Kaine, as he might have been, then one has to wonder if these people aren’t thinking about invoking some sort of State of Emergency declaration, giving Trump legal powers he doesn’t have – nor shouldn’t have – in any real world. They might be making it up on the fly, using Barr to go to court to enforce some kind of state of emergency declaration.

It is all a matter of how far these people are willing to go and what they might have up their sleeves. It all may be a bluff. Trump may be about to resign. What is certain is that Trump has already caused huge damage to our democracy, because that’s been his goal all along. He’s just gotten better at it or the people around him have.

"In the end, the Department of Justice and others will make that legal determination" — Mike Pompeo on Trump's tweet suggesting the presidential election should be delayed pic.twitter.com/lmCoolwAg0

— Aaron Rupar (@atrupar) July 30, 2020

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Peace, y’all
Jason
[email protected] and on Twitter @MiciakZoom