Electors’ lawyer: Founding Fathers ‘anticipated’ Trump

Heidi M Przybyla

There may be more than a few dissenters when the Electoral College meets Monday — though not enough to deny Donald Trump the presidency.

President-elect Donald Trump

That’s according to R.J. Lyman, the lawyer quietly advising a couple dozen Republican electors — all deliberating individually — about their right to break with their states’ majority vote to oppose Trump.

It’s the last gasp of the never-Trump movement, and it faces long odds. The 538 members of the Electoral College meet in their state capitals on Dec. 19 to cast their votes for president.

Trump dismisses the effort as sour grapes and insists he won according to the rules.

Yet a central purpose of Electoral College is to serve as a check on an electorate that could be duped by an unqualified or ethically compromised candidate, says Lyman. If the Founding Fathers wanted a simple points system, they wouldn’t have given the final say to a jury of “qualified” human beings, Lyman said in his first newspaper interview since beginning the consultations shortly after the Nov. 8 election.

“Spoiler alert: in 1789 they anticipated 2016,” said Lyman, a longtime friend and supporter of former GOP Massachusetts governor Bill Weld, who was the vice presidential nominee of the Libertarian Party. “They (electors) have to decide whether, in Hamilton’s words, the candidate to whom you are pledged is fit for office,” he said. Harvard law professor Lawrence Lessig is also providing legal assistance to potential “faithless electors." He estimates up to 20 electors could flip.

It’s the final hours of a broad effort to appeal to GOP electors that includes a separate web of Democrat-leaning activist groups pressuring electors.

Lyman is seeking to inform electors about their constitutional role at a critical moment in the nation’s history: the blessing of the nation’s first president-elect with no government or military experience who may face significant conflicts of interest in the White House due to his business empire.

Adding to the swirl of considerations are reports about Russian interference in the U.S. election.

“I’m not trying to undermine the legitimacy of Donald Trump’s ascendancy to the presidency. I am trying to make sure our institutions function the way they are supposed to,” Lyman said.

The framers of the Constitution created a pause of more than a month between the election and the Dec. 19 meeting of electors to give the “men most capable of analyzing the qualities” of the incoming president time to deliberate outside the hyper partisan rancor of a campaign, he said.

“They hold a constitutionally important obligation and every single one I’ve spoken with has understood that issue and that there’s reason for them not simply to follow the majority vote,” said Lyman.

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The effort seems unlikely to succeed.

Trump won with 306 electoral votes, with 270 needed, so 37 Republican electors would need to flip their votes. Just one GOP elector, Chris Suprun of Texas, has publicly said he’d vote against Trump. The one alternative to Trump, Ohio Gov. John Kasich, has told electors not to vote for him. Even if there were a mass defection, the matter would kick to the Republican-led House of Representatives, which is unlikely to override their own party’s president.

Further, the Republican National Committee has been conducting a parallel whip effort to make sure electors stick to the plan to vote for Trump — as opposed to Lyman, who describes his effort as educational and says it does not include regular contact with and pressure on the electors.

In his private conversations, many have expressed a major concern, said Lyman: fear of legal retribution.

Harvard law professor Lawrence Lessig, who is advising anti-Trump electors.

According to the Constitution, states are free to allocate electoral votes as they see fit. It was only during the 19th century that states acted — on their own — to grant their votes on a winner-take-all system. Of the 29 states with “faithless electors’ laws,” only four of them has a specified penalty, said Lyman.

“A number of them are concerned about lawsuits, suing them personally, whether it’s the state party or the presumptive president elect or his team. These aren’t rich people,” said Lyman, who is coordinating a legal defense fund.

“It’s a material amount of money” in the fund to cover legal expenses, he assured.

Trump will have lost the national popular vote by a larger margin of votes than any presidential winner in U.S. history. Further, the real estate billionaire is facing questions about potential conflicts of interest relating to his global business holdings that could violate the Constitution’s Emoluments Clause if he fails to divest.

Trump rescheduled until January a news conference originally scheduled for Thursday to clarify his plans for separating himself from his company.

A separate effort to pressure electors will include thousands of protesters who plan to descend on all 50 state capitals. Eighteen celebrities, including Martin Sheen and Debra Messing, a prominent Hillary Clinton supporter, also cut a video trying to rally the Electoral College.

More than 4.8 million people have signed a change.org petition calling on “Conscientious Electors” to vote Clinton into office. Websites have compiled electors’ email addresses, and more than 193,750 people have used the site asktheelectors.org to contact delegates.

If a couple dozen electors defect, that would be a “historic” revolt, said Ryan Clayton of Americans Take Action, among the progressive groups organizing the effort. It’s “why the RNC is doing a whip count of Electors and it’s why Donald Trump is threatening electors for using their Constitutional right to vote their conscience.”

In “The Federalist Papers,” Alexander Hamilton wrote the Constitution is designed to ensure “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Since the founding of the nation, there have been 23,449 votes for a future president of the U.S. In that time, just one of them — a protest vote for a philosophy professor in 1972 — has been for someone with no prior government or military experience, says Lyman.

Still, in a few random calls by USA TODAY to Ohio electors who might be most disposed to voting against Trump, there was no indication of dissent.

Mary Anne Christie, an elector from Cincinnati who supported Kasich, said she believes Russia was trying to help Trump. “I’ve been in this political arena for years,” she said. “You had to have known just watching the things coming out” since “all the emails were only about Hillary,” she said. That said, Christie said Trump hurt himself a lot, including his prior comments about women, and the voters chose him anyway.

“He was creating his own problems, but yet he won,” said Christie, who plans to cast her vote for Trump.

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