--:-- [Theme music fades out]
--:-- Noel King: Welcome to Today Explained. I'm Noel King.
--:-- Kyle Cheney: Thanks for having me on the show.
--:-- Noel King: Today, we're talking about a very real scenario where Donald Trump loses the election, but still tries to take power. Kyle Cheney is a senior legal affairs reporter for Politico. He wrote a piece called "The Very Real Scenario Where Trump Loses and Takes Power Anyway."
--:-- Kyle Cheney: That's right. And it starts with a claim. If Donald Trump loses the election next week, he is going to challenge the results again.
--:-- Noel King: Why do you feel comfortable making such a claim?
--:-- Kyle Cheney: Well, first of all, that was the collective judgment of dozens of people we talked to about what they expect in that scenario. But really, the answer is almost obvious in that Donald Trump is essentially telling us that. He has said he can't lose unless there's some kind of massive cheating by Democrats.
--:-- Noel King: If the election's not rigged, we're going to win. He's describing massive cheating by Democrats, even though it's not based on any real evidence.
--:-- Kyle Cheney: We got to stop the cheating. If we stop that cheating, if we don't let them cheat, I don't even have to campaign anymore. We're going to win by so much.
--:-- Noel King: And has expressed such supreme confidence that he's going to win, that he's conditioning his supporters to believe that anything other than a win is stolen from him.
--:-- Kyle Cheney: So he's essentially saying it almost explicitly. And it's what we saw four years ago. So everyone expects it to recur.
--:-- Noel King: Politico did not write a similar piece about Kamala Harris. Why not?
--:-- Kyle Cheney: Similarly, the dozens of people we spoke to said, look, if Donald Trump wins the election, he wins. There's, you know, you'll see some protests. You'll see some legal challenges in a really close state. But if Donald Trump is the winner, he's going to be the winner.
--:-- Noel King: Let's go through the chronology as you laid it out in your story. You identified a bunch of discrete stages, starting with right about now, the end of October through November 11th. Where does the potential plan to steal the election start?
--:-- Kyle Cheney: Well, what we said in the story was, you know, if you look at if you count this as step one or phase one, it's already underway. And that is this effort to condition as many people as possible to not trust the election results.
--:-- Noel King: So that's happening. Donald Trump's talking about this Democrats registering massive numbers of non-citizen voters trying to solicit illegal votes from overseas.
--:-- Kyle Cheney: Our elections are bad. And a lot of these illegal immigrants coming in, they're trying to get them to vote. They can't even speak English. They don't even know what country they're in practically. And these people are trying to get them to vote.
--:-- Noel King: Again, no evidence of this.
--:-- Kyle Cheney: There are certain parts of the process that are being litigated, I think, in a more legitimate way about how different safeguards and what the right safeguards are. But there's no evidence that there's some massive orchestrated plot to get thousands and thousands of unlawful people to register and vote.
--:-- Noel King: But he's saying that in part because it creates that noise and pressure that he needs for later phases of the process.
--:-- Kyle Cheney: So I think that's really step one. Step two is election night itself when we expect, and everyone we talk to expect Donald Trump to either declare victory or at the very least cast doubt if it seems like there's a Harris victory in the offing.
--:-- Noel King: It's the same playbook he used in 2016 and again in 2020, where he still refuses to admit he lost.
--:-- Kyle Cheney: If you look at the facts, and I'd love to have you do a special on it. I'll show you Georgia, and I'll show you Wisconsin, and I'll show you Pennsylvania. And I'll show you, we have so many facts and statistics. But you know what? That doesn't matter.
--:-- Noel King: Americans are on edge. We're suspicious. Half the country is suspicious in one direction, half in the other.
--:-- Kyle Cheney: Where does it go from there? So the next phase in the process after election night, obviously, we'll see some states being called. You might see some states that are too close to call. It could be a couple of days before we get the final results.
--:-- Noel King: But assuming we're heading toward a Harris victory, probably be a very close one. But the next phase is for the county and state election boards to certify those results, canvas and certify the results.
--:-- Kyle Cheney: Four years ago, we saw Donald Trump try to intervene in that process, lean on allies and state and county boards and tell them not to certify.
--:-- Noel King: That didn't work, didn't get him anywhere.
--:-- Kyle Cheney: President Trump continued his assault on the 2020 vote today. And even as he claimed total election corruption in Arizona. All 15 counties have certified their results. The state's Republican governor was certifying Biden's victory.
--:-- Noel King: But in the intervening four years, we've seen a lot of turnover on these boards. And many of them are now populated with much closer allies.
--:-- Kyle Cheney: I don't know if you've heard, but the Georgia State Election Board is in a very positive way. This is a very positive thing, Marjorie. They're on fire.
--:-- Noel King: So if there a state where Donald Trump wants to protest or reject or challenge the outcome using those boards he can ask those same officials and make it a different result this time.
--:-- Kyle Cheney: Now what's interesting about that is we talked to a lot of secretaries of state and other election chiefs in different states and they said that not going to amount to very much. They will make a lot of noise but we will go to court and force these boards to certify the election.
--:-- Noel King: In their view, that's sort of a successful outcome.
--:-- Kyle Cheney: But if you're viewing this through the lens of Donald Trump and what he wants to accomplish, in some ways that's actually right on target because that gets him to say, these state and county boards have been forced to certify an invalid election under pressure and duress by the courts, not because they think the election is legitimate.
--:-- Noel King: That's why I need help from other elected Republicans to reverse the outcome.
--:-- Kyle Cheney: All right. Then the next date in your chronological timeline is December 11th. What goes on on December 11th?
--:-- Kyle Cheney: So that is a really important dividing line in this process. That is called the safe harbor deadline. It's something set out in federal law that says states have to send their certified election results to the federal government by December 11th in order for the results and their electors to be counted.
--:-- Noel King: And so that's when you go from the sort of this very, again, administrative process where you're just tabulating votes and certifying them, and then to the next phase, which is where you have state legislatures and ultimately Congress receiving those results and acting on them.
--:-- Kyle Cheney: That's when the sort of the counting process is over and you're in this sort of political power process of this entire situation.
--:-- Noel King: What did we see in 2020 that makes you think December 11th is such a key date here?
--:-- Kyle Cheney: Sure. So in 2020, I think what people didn't appreciate was that once the state certified and sent the results in, Donald Trump was not going to be done trying to reverse his defeat.
--:-- Noel King: That was when the sort of pressure campaign really ramped up again on state legislatures.
--:-- Kyle Cheney: The accusation, like much in the Trump case, is unique. Federal prosecutors point to these seven states which Trump lost, but where they allege he plotted to subvert the results with false slates of electors.
--:-- Noel King: And this is interesting. This was a process that was sort of overlooked in 2020 and now is very highly scrutinized.
--:-- Kyle Cheney: But state legislatures under the Constitution essentially have the power to decide who gets their presidential electors. And now most constitutional experts say they've already made that choice. They've said it's a popular vote.
--:-- Noel King: And so the winner of the popular vote gets those electors.
--:-- Kyle Cheney: But what Donald Trump did was surround himself with a bunch of lawyers who adopted a sort of fringe theory and said those state legislatures can take that power back at any time.
--:-- Noel King: They can say we don't trust the election results. We think it's tainted by fraud and irregularities. And we actually want to decide immediately, you know, that we should appoint a different set of presidential electors and send those to Congress alongside the electors certified by the governor.
--:-- Kyle Cheney: That is the point in the process where that would happen. If the governor certifies a slate that Donald Trump disagrees with and he wants an alternative slate, he can lean on those state legislators to do that.
--:-- Noel King: What happened with the fake electors after the 2020 election?
--:-- Kyle Cheney: So this is interesting. So in 2020, no state legislature did this. Trump wanted them to. He asked them to over and over again. And they all said, show us your evidence of fraud and we'll think about it.
--:-- Noel King: And he could never get them anything that was remotely convincing.
--:-- Kyle Cheney: And so the state legislature is balked. This is sort of similar to what I said earlier. A lot of those state legislators who stood in his way four years ago are gone and have been replaced by much more compliant, closer Trump allies.
--:-- Noel King: That's number one. Number two is what Trump did four years ago was appoint or have his campaign essentially in the state Republican parties assemble slates of Republican activists who called themselves legitimate presidential electors, signed documents saying they were legitimate presidential electors, but were not.
--:-- Kyle Cheney: And they sent those documents to Congress. And what happened was a lot of those people got charged with crimes for signing false documents.
--:-- Noel King: 16 people in Michigan now facing felony charges for acting as fake electors for Donald Trump during the 2020 presidential election.
--:-- Kyle Cheney: And it amounted to nothing because Mike Pence, then presiding over Congress, refused to even recognize them. They had no legitimacy at all.
--:-- Noel King: What we point out in the story is if a slate of electors is backed by their legislature, it's a little bit of a different story. They actually have some legitimacy in the sense that a government authority has given them its backing.
--:-- Kyle Cheney: That was the big thing that was missing in 2020.
--:-- Noel King: Could Donald Trump get legislatures to do in 2024 what they wouldn't do in 2020?
--:-- Kyle Cheney: That could actually change the equation a little bit.
--:-- Noel King: And if he did, if he was able to do that in 2024 this year, what would happen next?
--:-- Kyle Cheney: I mean, then you're going to Congress. Congress receives electors that are, you know, after they meet, the electors meet on December 17th this year and cast their ballots and send those ballots to Washington.
--:-- Noel King: If there are competing slates of electors, you know, endorsed by state legislatures, presumably they would meet too and similarly send their documents to Congress.
--:-- Kyle Cheney: So when Congress starts counting electors, you may get to a state that has two slates.
--:-- Noel King: Now, that presents a sort of unprecedented controversy that we haven't really seen, where you have two government-backed slates of electors that come before Congress at the same time.
--:-- Kyle Cheney: Now, one of the things that's also happened since 2020 is a federal law was passed by Congress and Joe Biden that tries to prevent this scenario, basically puts a heavy thumb on the scale in favor of the electors backed by the governor.
--:-- Noel King: But there is an open constitutional question about whether state legislatures do have that authority.
--:-- Kyle Cheney: And it would certainly have to go to court and be a big battle over whether those alternate electors would also have to be considered by Congress.
--:-- Noel King: And as you said, who controls Congress would really matter here.
--:-- Kyle Cheney: This to me is probably the most important question of all. Who controls Congress after the votes are counted on Election Day and the days thereafter?
--:-- Noel King: Because if you have a Democratic-led Congress, number one, Kamala Harris is going to be the one presiding over the January 6th session where they count electors.
--:-- Kyle Cheney: And so even if she had to introduce a slate backed by a state legislature there no universe in which Congress is going to count that alternate slate for Donald Trump in a state where Harris was the popular vote winner.
--:-- Noel King: It just doesn't compute.
--:-- Kyle Cheney: And so if Democrats control the House, and even if they narrowly lose the Senate, but you have senators like Susan Collins and Lisa Murkowski and others who have been averse to these efforts by Donald Trump, you are not going to see this plan go anywhere.
--:-- Noel King: If you have a Republican House, that's when you get into some of these sort of wilder scenarios where this effort could still succeed.
--:-- Kyle Cheney: The final date in your timeline is January 6th. Close listeners of the podcast may recall what happened four years ago on January 6th.
--:-- Noel King: What would an attempted steal look like on January 6th, 2025?
--:-- Kyle Cheney: Five. So assuming you have a Republican Congress, assuming all these other steps in the process go, as we sort of, again, very hypothetical for many reasons, but that's when you get wild scenarios.
--:-- Noel King: It depends on who's the speaker. Is Mike Johnson going to be speaker again?
--:-- Kyle Cheney: You know, but let's assume that he is the speaker and that he is totally on board with any effort by Trump to continue challenging the election as late as January 6th.
--:-- Noel King: Well, then you have to have a situation where Mike Johnson says the federal law that passed in 2022 to prevent these election challenges, I don't think it's constitutional.
--:-- Kyle Cheney: I don't think it binds Congress.
--:-- Noel King: Because if it does bind Congress, then we have to basically accept the results certified by the governors.
--:-- Kyle Cheney: If we don't accept that it binds Congress, then we have a much messier situation where we may have to think about these legislatively endorsed electors.
--:-- Noel King: We may not have to accept the process for challenging electors and which ones we're supposed to accept, we can actually prevent Congress from counting electors for Kamala Harris.
--:-- Kyle Cheney: And if we prevent either candidate from reaching 270 electoral votes, then the election goes to the House.
--:-- Noel King: But in a weird sort of way, where instead of just a majority vote, it's actually a vote by state, where each state gets one vote.
--:-- Kyle Cheney: And that process favors Republicans pretty heavily.
--:-- Noel King: And so that's the scenario. That's sort of the ultimate capper on this, if you get to that contingent election, they call it, you'd probably have a Donald Trump presidency.
--:-- Kyle Cheney: Donald Trump and his associates are famously disorganized. They have been in the past.
--:-- Noel King: Does the Trump campaign know everything that you're saying or are you giving them ideas?
--:-- Kyle Cheney: Yeah, that's come up in a couple of my interviews. They know all this. They've gamed these scenarios out in 2020.
--:-- Noel King: Some of the lawyers who were involved in that process are still out there saying similar things.
--:-- Kyle Cheney: Some of the things I've talked about were scenarios they contemplated but didn't come to pass, partly because those legislatures never acted for them.
--:-- Noel King: Mike Pence, in one of his memos, his final memo from his lawyer before January 6th, said, look, if a state legislature gives the green light to an alternate slate, we might have to consider them.
--:-- Kyle Cheney: But it never happened because no legislature did that.
--:-- Noel King: And so they're well aware of these these plans. And so are the Democrats, too.
--:-- Kyle Cheney: And they're also gaming out these contingencies and these these wild scenarios, I think, because some of them feel crazy to say, but some of but we almost saw them come to pass four years ago.
--:-- Noel King: And I think they don't want to get caught flat footed should crazy things happen.
--:-- Kyle Cheney: That's Politico's Kyle Cheney.
--:-- Noel King: Support for today's show comes from Adio. What is Adio?
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--:-- Noel King: You can go to atio.com slash today explained to get 15 percent off your first year.
--:-- Kyle Cheney: That's A-T-T-I-O dot com slash today explained.
--:-- Noel King: It's Today Explained. We're back with Kyle Cheney of Politico.
--:-- Kyle Cheney: Kyle, we talked in the first half of the show about how Donald Trump could attempt to steal this election. There has been a lot of preparation for that scenario. What kind of safeguards do we have in place four years later?
--:-- Kyle Cheney: Well, the number one safeguard is the federal law that passed in 2022, signed by Joe Biden, passed by the Democratic-led Congress called the Electoral Count Reform Act.
--:-- Noel King: Buried in the 4,000-page $1.7 trillion spending bill is the Electoral Count Reform Act, which Maryland Democrat Steny Hoyer says will ensure that we never see a repeat of the shameful and malicious attack on our democracy.
--:-- Kyle Cheney: And what that did was it looked at the experience of 2020 and tried to close off as many routes as possible to stealing an election in 2024 and beyond.
--:-- Noel King: It affirms that the vice president's job on January 6th is administrative. It's ministerial is the buzzword.
--:-- Kyle Cheney: And that just means she opens the envelopes, reads what the number says and counts them.
--:-- Noel King: Essentially, it doesn't have any discretionary role in deciding what to count, what not to count or how the process should work.
--:-- Kyle Cheney: A lot of Democrats believe that was the case in 2020, but they wanted it explicitly written into the law.
--:-- Noel King: It hardened some of the deadlines throughout December for when states must certify when the electors must meet which is a double-edged thing.
--:-- Kyle Cheney: It ensures that there no gamesmanship on these things but also means if you miss a deadline that could have pretty severe consequences.
--:-- Noel King: And that's, you know, one of the things we didn't really talk about was if there are lone wolf attacks or bomb threats or riots or efforts to block some of these procedures from moving forward and you miss a deadline as a result, that creates a whole different sort of chaos.
--:-- Kyle Cheney: But those deadlines are meant to ensure that there's no gamesmanship around when these steps in the process take place.
--:-- Noel King: So we do have this new federal or national law. What about at the state level? Are there any new safeguards there?
--:-- Kyle Cheney: There are. I think a bunch of states saw the chaos of 2020 and realized that they had to update their processes.
--:-- Noel King: And so that includes things like pre-canvassing votes that were received early.
--:-- Kyle Cheney: A lot of states didn't even look at the votes they received until the polls closed on election night.
--:-- Noel King: And what that did was lead to massive delays in counting votes.
--:-- Kyle Cheney: And of course, what that does is fuel conspiracy theories.
--:-- Noel King: All these vote drops overnight and the, you know, why are we counting votes after Election Day?
--:-- Kyle Cheney: And like there will be absolutely be some of that this time around, too.
--:-- Noel King: However, I think states mostly accounted for that in an attempt to at least limit or minimize that.
--:-- Kyle Cheney: Hey, and more news tonight. And a late night deal in Lansing will give local clerks more time to process absentee ballots before Election Day.
--:-- Noel King: Number two is you have state courts have recognized that some of their processes were too slow.
--:-- Kyle Cheney: Post-election, you have very tight windows, very tight deadlines that we just talked about.
--:-- Noel King: And if courts aren't operating at the speed of those deadlines, you may have challenges that linger.
--:-- Kyle Cheney: And that fuels conspiracy theories, too. Why aren't the courts taking up our challenges? Why aren't they looking at the evidence? What are they afraid of?
--:-- Noel King: So courts have expedited their election-related procedures to ensure that challenges get heard.
--:-- Kyle Cheney: The Electoral Account Reform Act that we mentioned actually includes a provision on that, that if a presidential candidate wants to challenge the outcome in a state, it gets expedited through the courts in a different way than it has in the past.
--:-- Noel King: So that should help as well, at least show everyone that those challenges are being taken seriously.
--:-- Kyle Cheney: And then finally, we have the other candidate. What is the Harris team doing to stop an attempted steal? How ready are they?
--:-- Noel King: I mean, she was asked about this, and I think that the problem is they don't want to talk about what happens if Donald Trump tries to steal an election, because they're just worried about winning in the first place.
--:-- Kyle Cheney: And I'm very much grounded in the present in terms of the task at hand.
--:-- Noel King: And we will deal with election night and the days after as they come.
--:-- Kyle Cheney: And we have the resources and the expertise and the focus on that as well.
--:-- Noel King: So they're hesitant to get into these sort of wargaming scenarios of if I win, but Donald Trump doesn't accept it.
--:-- Kyle Cheney: They just want to say, we need to win first.
--:-- Noel King: So she has expressed confidence that she has teams of lawyers ready for every contingency.
--:-- Kyle Cheney: I think that's true. Both parties have really marshaled their best lawyers for all of these processes.
--:-- Noel King: What we don't know is who's the sort of team that will be around Trump if he takes some of these extreme steps.
--:-- Kyle Cheney: He had a team four years ago, you know, John Eastman and Ken Cheesebro and some of the people who have actually been charged criminally over some of their actions at that time.
--:-- Noel King: Who's going to step in and fill those roles this time?
--:-- Kyle Cheney: I assume they will have learned from what was deemed to be criminal last time and would operate a bit differently.
--:-- Noel King: But they may still have strategies that get into some of these parts of the process.
--:-- Kyle Cheney: The attitude of the Harris campaign right now, how would you characterize it? Confident, nervous? What do you think?
--:-- Kyle Cheney: I think confident that they're prepared for these contingencies, but I think they are expressing at the very least like they have people whose job it is to think about these things.
--:-- Noel King: And that includes not just lawyers for the court battles, but people in Congress who are strategizing how to handle the January 6th session.
--:-- Kyle Cheney: And, you know, allies in states that they're particularly confident because every secretary of state is either a Democrat or a Republican who has shown they're serious about the process, like a Brad Raffensperger in Georgia.
--:-- Noel King: Not going to fold to these sort of undemocratic efforts.
--:-- Kyle Cheney: For the record, this year, if the presidential candidate of the other party wins, will you enforce election certification for that winner?
--:-- Noel King: I'm going to make sure that whoever wins this race, that is what gets certified.
--:-- Kyle Cheney: I'm going to follow the law and follow the Constitution.
--:-- Noel King: I'm going to do my job.
--:-- Kyle Cheney: And that's what the people of Georgia have elected me to do.
--:-- Noel King: You have laid out that this is a long shot scenario. It is a long shot scenario for Donald Trump to successfully steal the election should he lose.
--:-- Kyle Cheney: There will be a lot of steps here. Why indulge this? How concerned should we be that this long-shot scenario becomes reality?
--:-- Kyle Cheney: I think it's important to keep that in mind. It is a long shot scenario. It really depends on a lot of things falling into place in exactly the right way.
--:-- Noel King: The reason to take it seriously is because of what we saw four years ago.
--:-- Kyle Cheney: The system has adapted to that and tried to do things that would prevent it again, but it's not impossible.
--:-- Noel King: We've seen, you know, extremism on the rise, threats on the rise at every phase of the process.
--:-- Kyle Cheney: We see a candidate who's going to be more motivated than ever should he lose to try to, A, again, claim fraud, and B, do whatever he can to reverse it.
--:-- Noel King: Because one thing, you know, this is just an obvious fact you pointed out, Donald Trump loses, he's staring down four criminal cases that could define the rest of his life.
--:-- Kyle Cheney: And so he, at the very least, is going to be highly motivated in a scenario where he thinks he has a path to reverse an election to do that.
--:-- Noel King: It's worth being aware of all of these eventualities.
--:-- Kyle Cheney: I mean, no people are thinking about them at every level. States, Congress, at every phase, they're thinking about these already.
--:-- Noel King: So it's important to sort of air out the things that they're thinking about and concerned about.
--:-- Kyle Cheney: That was Politico's Kyle Cheney.
--:-- Noel King: Miles Bryan produced today's episode.
--:-- Kyle Cheney: Matthew Collette edited.
--:-- Noel King: Patrick Boyd and Andrea Kristinsdottir engineered.
--:-- Kyle Cheney: I'm Noelle King.
--:-- Noel King: It's Today Explained. Thank you.
