Former DOJ Official Warns of Potential “Election Crisis”

CHRISTIANE AMANPOUR, CHIEF INTERNATIONAL ANCHOR: With early voting already happening in the United States, candidates Trump and Harris are both reaching out to Latino voters in swing states, but as the election date nears, fears are growing about how the country will cope with what could be a very close result, especially in a key state like Pennsylvania, which might not be able to announce a final tally until days after November 5th. Former Acting Solicitor General and Georgetown Law Professor Neal Katyal tells Haris Srinivasan what concerns him.

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HARI SREENIVASAN, INTERNATIONAL CORRESPONDENT: Christiane, thanks. Neal Katyal, thanks so much for joining us. You wrote in a recent op-ed for The New York Times, in case of an election crisis, this is what you need to know. You’re warning for vigilance ahead of November. How come?

NEAL KATYAL, FORMER ACTING U.S. SOLICITOR GENERAL AND PROFESSOR, GEORGETOWN UNIVERSITY LAW CENTER: Yes. Look, I’m normally someone who urges calm, who thinks that most political reactions are overblown in our country and so on. But this is one which I feel the opposite about. I don’t think that Americans are thinking through what Donald Trump has said, what he did before in 2020, and how all of that relates to the law around elections and what unfortunately might take place on November 5th and the days afterwards. So, you know, it’s I think we’re looking at the possibility of a really serious constitutional crisis, one that makes January 6, 2021 look like a dress rehearsal. And I hope I’m wrong about that, and I certainly could be wrong about that. But every indication that Donald Trump has given is that he will fight and contest the election, even if he outright loses. And of course, that’s what happened last time.

SREENIVASAN: So, what if someone’s watching this and says, well, of course, this guy’s in the tank. I mean, he was, you know, acting SG for — during the Obama administration. This is his partisan take.

KATYAL: Oh, yes. I don’t — this is not a partisan thing. I mean, I’m not even a particularly partisan guy. You know, that’s very much a centrist, but I am someone who deeply, deeply believes in the rule of law. And I saw what happened on January 6, 2021 and it devastated me, because the essence of this country is the rule of law in the peaceful transfer of power. And when you have Donald Trump now running and can’t admit he lost, when you have the vice president — his vice presidential candidate you know, J.D. Vance, who says in the presidential debate, can’t admit that Trump lost in 2020, all of that is indicia to me of what might happen in the next month. And if Harris had said similar things, if she had acted in similar ways, you can be first to — you know, I’ll be the first person out there saying, this is just as bad. Peaceful transfer of power, the right to vote, these are enduring American values that don’t — you know, that aren’t about party.

SREENIVASAN: Remind people who might not have the recollection. What were the legal challenges that the Trump team posed after the lost election? And what happened to all those challenges?

KATYAL: Right. So, back in 2020, Donald Trump lost the Electoral College 306 to 232, and you need 270 votes to win. So, he had to file challenges in multiple different states in order to have a hope of overturning the election. And he did so. He did so in state court and in federal court. I think 62 different cases. He lost them all, but he still tried. He pressured state legislatures and state governors to try and throw out the votes and have fake slates of electors and things like that. And then, he pressured local officials, state election boards, to try and throw out individual votes in various counties, all with the hope of trying to flip several different states. And when all of that failed, he went to the Congress, because on Congress on January 6th, they have a duty to open all of the electoral votes and count them. And what he had tried to do was have Pence — his vice president, Pence, impugn the vote and throw out the votes of certain states. Vice President Pence famously refused to do that. Nonetheless, Republicans in the Congress tried to do that and take up these voting objections, but they did so against the backdrop where they had to run the table, because it was 306 votes that Biden had. He had such a margin that they couldn’t just impugn the election integrity in one state or two, it had to be in many. The worry this time around is that the election might be closer in the Electoral College, than any one state might swing the election. And if that’s the case, then any one court decision or a decision by the United States Congress on January 6th to throw out any one state’s vote, all of that could swing the election. Now, it’s the case that Congress in 2022 passed something important, the Electoral Count Reform Act, to try and prevent that. In my view, is it should prevent it. The law is written in a way to stop. bogus objections. But the question — you know, law is only as good as the people who are applying it and the people who are trying to enforce it. And if you have some faithless actors in the system, in Congress or elsewhere, you could have a deep constitutional crisis.

SREENIVASAN: Right now, the public perception of the impartiality of the Supreme Court is probably at its lowest point in our lifetimes. And if something like this has to be adjudicated by the Supreme Court, will people automatically just say, well, you know what, these justices are X and Y ideologically? And this is just another sign of a government illegitimate in its different courses. It is no longer representative of my view or the people’s view.

KATYAL: That’s such an important question. I want to say two things about it. One is it may not even get to the Supreme Court because Congress on January 6th might throw out the votes from a particular state. And even if it’s challenged by Vice President Harris, the Supreme Court might take the position that’s what we call a political question and not something for the courts to decide at all and leave Congress’ judgment in place of striking out a state, say, Pennsylvania with its 25 electoral votes or something like that. So, it might not get to a decision on the merits at the U.S. Supreme Court. That’s point one. And point two is, I think, you’re right to point to the kind of polls that say that the Supreme Court is at its lowest credibility in our lifetimes. And that really worries me. Back in — you know, one of my very 1st cases, I was a junior lawyer on Al Gore’s legal team in 2000. And I remember vividly when, on December 12th, the Supreme Court ruled against Vice President Gore, and he right away said the Supreme Court spoken, I’m going to go concede. And that demonstrated the reverence that he had, the country had, the party had for the Supreme Court. You just maybe disagreed with the decision, but you accepted it. I am worried that even if the court today acts in a totally nonpartisan way, half the country isn’t going to view it that way. And that is something very scary, because the Supreme Court has been such an important stabilizing influence, like in 2000, in playing that role in our democracy. Again, you know, I disagreed with the way they decided things on December 12th, but I and, you know, Americans respected it and moved on.

SREENIVASAN: Here we are. We’ve kind of established that there has not been any evidence of widespread voter fraud. The different tactics that the Trump team took through the legal challenges, through the electoral challenges, did not work in their favor. Yet here we are four years later, and there seems to be a pretty significant gap between what really happened and the perception of that. There’s a quote that you have here, “The rogues are no longer amateurs. They have spent the last four years going pro, meticulously devising a strategy across multiple fronts, state legislatures, Congress, executive branches, and election judges to overturn any close election.” Explain the kind going pro.

KATYAL: Yes. So, like, as I said, I’m not a particularly political person but I have watched what’s happened to the Republican Party, which used to really stand for law and order and stand for the right to vote. I had the privilege of arguing the Voting Rights Act case on the Supreme Court, and it had just been recently reauthorized 421 to 3 in the House of Representatives and 98 to 0 in the Senate. That’s the reverence with which both political parties took the right to vote back just a few short years ago. And unfortunately, what’s happened in the last years is that the Republican Party has purged many of its members, Liz Cheney, Adam Kinzinger, you know, others, who’ve tried to say, hey, you know, these shenanigans on January 6th, that’s not America. That’s not the democratic way. That’s not the peaceful transfer of power. Just look at the images that were beamed around the world and what happened at the Capitol. And unfortunately, those folks are now not part of the party. And so, some of the institutional checks that we had last time around, think about, for example, Vice President Pence, who on January 6, 2021, played such an important role. People like that aren’t there. Instead, you have people like J. D. Vance to replace Pence, who are fully in on, you know, the notion that Donald Trump won in 2020. And if you believe that, then you’re certainly going to believe in 2024 now, whatever election nonsense he cooks up, and that’s what’s going to lead to, I fear, this crisis in state legislatures, in state governor’s mansions, in the United States Congress, and indeed in the courts, both state and federal.

SREENIVASAN: In this election, we’re having this conversation a couple of weeks before the election, and there are already different lawsuits challenging different elements of how the vote is counted, which districts count, and so forth. Walk us through some of this, and what’s the strategic benefit of doing this?

KATYAL: Yes. So, I think there’s at least 90 different lawsuits that have been filed, which is up, you know, about 300 percent from 2020. Some of them challenge new procedures in voting. You know, like the elimination of mail drop ballot box ballots or the inclusion of them or voter I.D. laws like in North Carolina. So, some of them are challenging some new practice that’s come in as a result of the law. Some are saying the law has changed and the new practice authorized by the legislature hasn’t been fully implemented, and so they’re failing on the job. Either, for example, restricting mail-in ballots or permitting them. So, you’ve got those types of challenges. And then you have, well, what we will see, I fear, on November 5th is challenges to the actual execution of voting on that day, whether polling places are open too long and they’re open too short, whether there’s any sort of natural disasters or anything like that, which keep polls closed or open, you know, there’s any number of possibilities and then, of course, the allegations of fraud that few many people voted, too few people voted and the like. All of that’s going to play out in courts, and some of those courts are going to be state courts, which have actually partisan elections. So, I know most people think about judges in America as nonpolitical, and that’s certainly true at the federal level. Once you wear that federal robe, you — you know, you’re not member — a member of a political party. That’s not true at the state level. Indeed, many states, including Pennsylvania, and Georgia, which both may play an outsized role on November 5th, both of them have elections for judges in which you run as a Democrat or a Republican. So, imagine if these cases are filed and you have either a Democratic court or a Republican court making decisions that may benefit one political party or the other. That can become very scary very quickly. It’s the analog of the question you were asking me before about the United States Supreme Court, but now at the state level, and that’s something I think we really need to worry about as well.

SREENIVASAN: Just last week state that judges in Georgia upheld voting rights, but does that give you confidence? Is that something, you know, you’re looking forward to optimistically?

KATYAL: That was a great decision by a single judge. My concern is that those decisions will go up on appeal and then they could, you know, come out the other way. But that’s exactly what I think about when I think about, you know, my common calling as a lawyer, what my profession is about. In that case, it was a Republican judge, who runs as a Republican, who looked at the challenge that was at issue and ruled a certain way to protect the right to vote, even if it may have hurt his party. And that’s the way, you know, my legal education’s always trained me to do, just to go back to your first question. And that’s what I hope the United States Supreme Court will do and the other judges around the country. What I’m less sure about is what Donald Trump and his minions are going to do on November 5th, because they have signaled that they will be all in on attacking the integrity of the right to vote, and that will put enormous pressure on our institutions. And if there’s one thing to think about, as your viewers listen to this, it’s the role of the United States Congress on January 6th, because that’s where Trump tried last time and failed, and he’s going to try again, and if he can get a majority of the House and Senate to throw out a vote from a particular state, like Pennsylvania, it can swing the election.

SREENIVASAN: You posed a hypothetical in your article, what if a no candidate wins the majority, that it gets sent back to Congress and that’s where this opportunity for mischief lies, what’s the mischief that could happen that we should be prepare for?

KATYAL: Yes. So, that’s a different one. That’s not the January 6th mischief that I was talking about earlier. That’s mischief under the 12th Amendment. So, the 12th amendment to the United States constitution, which has been around for a couple of hundred years, although it hasn’t been kicked in in two centuries, but what it says is, if there is no one who gets a majority in the Electoral College, then the decision for the presidency is made by the House of Representatives and for the vice presidency is made by the Senate. And there are some very arcane voting rules there. I’ll walk you through in one second, but just think about that. You could have a circumstance in which the president is a Republican and the vice president is a Democrat because the Senate picks one and the House picks the other or vice versa, which is incredibly unwieldy, and perhaps even potentially dangerous to have — you know, to have people of different political parties occupy those two roles. So, the 12th Amendment says that if there is a tie or no one gets a majority, then it goes to the House of Representatives. But it does so under a specialized set of voting rules, which don’t exist elsewhere. Each state has one vote. And so, you count up the number of members of Congress of the House of Representatives and look and see, are they more Republican or more Democrat? And that’s how that state will ultimately vote. And so, if that were to take place today, I think there are 26 delegations in which Republicans have a majority. And so, if it were to take place today, Donald Trump would win. Because the House of Representatives would give him that vote. Obviously, you know, it’s the new Congress that will decide that thing, not the old Congress, and so things may change.

SREENIVASAN: So, what do we do to try to strengthen our institutions? I know you mentioned that Congress had passed the Electoral Reform Act, but even there, there seem to be some shortcomings there as well.

KATYAL: Exactly. There are — you know, there are some I think — you know, I don’t think it’s ambiguous, but certainly Trump’s lawyers are already suggesting that it’s ambiguous and that the objections for voting could be broader than what most people think. They’ll also try and argue that that 2022 law is unconstitutional and so it should be set aside and it should just be the raw political power in Congress that decides these things. So, all of that could very well play out. To me, the most important thing, because look, we’re only, you know, two weeks away from the election, is to really begin a conversation about just how important your right to vote is as Americans. It’s the most precious thing we have. It’s why people like my parents came to this country. And we’re behind the veil of ignorance now, and we don’t know who’s going to win, and we don’t know what the accusations of fraud and the like will be, and I think we need a national conversation about how whatever happens in that vote — when those votes occur on November 5th, we have to take them seriously, not discount them for partisan advantage, because there’s something bigger at stake than winning or losing this particular election. It’s about the future of our democracy. And if we want these shenanigans to be played, we saw them played in 2020, unfortunately they failed, they may not fail this time, and that’s why I think a conversation now is so important.

SREENIVASAN: Professor at Georgetown University Law School Neal Katyal, thanks so much for joining us.

KATYAL: Thank you.