TRUMP CONFLICTS PLAN – Part 3

It seems like a long time ago. On January 11, Donald Trump’s lawyers revealed a plan to resolve the clash between his business interests and his presidential duties. Whether the result of impulse, intention, or incompetence, his subsequent chaos has accomplished one objective: He diverted attention from his plan’s assault on one of American democracy’s central pillars: a presidency free of institutionalized corruption.

This installment addresses his conflict of interest problems. They are related to — but distinct from — his constitutional Emoluments Clause violations addressed in Part 2 of this series. Part 1 described the unfortunate role that Sheri Dillon and her law firm, Morgan, Lewis & Bockius, played in shilling for Trump’s plan.

A Lawyerly Approach

Dillon, a tax lawyer, focused on a technical legal question: Does the federal conflict of interest statute applicable to all other federal employees apply to the president?

By its terms, the answer is no. But just because something is legal doesn’t make it right. And when it comes to preserving the integrity of the presidency in ways that protect it from corruption and impropriety, legal permissibility is just the beginning of the relevant inquiry. But not for Trump.

Trump’s attitude in making the deal that resulted in the Morgan Lewis Plan was that of a negotiator who held all the cards. Whatever he offered, his opposing parties — the office of the president and the country — could not refuse. He admitted it:

“[A]s you know, I have a no-conflict situation because I’m president….it’s a nice thing to have… I have something that others don’t have…”

Bigger Stakes

To counter Trump’s continuing conflation of the issues, Walter Shaub, director of the Office of Government Ethics, set him straight:

“Now, some have said that the President can’t have a conflict of interest, but that is quite obviously not true. I think the most charitable way to understand such statements is that they are referring to a particular conflict of interest law that doesn’t apply to the President…”

As Shaub explained, “Common sense dictates that a President can, of course, have very real conflicts of interest. A conflict of interest is anything that creates an incentive to put your own interests before the interests of the people you serve.”

Who Represents America? 

Shaub then cited Chief Justice Earl Warren’s opinion in a 1961 U.S. Supreme Court decision. The chief justice observed that a conflict of interest is “an evil which endangers the very fabric of a democratic society, for a democracy is effective only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of corruption.”

Shaub outlined the implications for Morgan Lewis’s assignment:

“That same Court referred to what it called a ‘moral principle’ underlying concerns about conflicts of interest. The Court cited…’the Biblical admonition that no man may serve two masters, a maxim which is especially pertinent if one of the masters happens to be economic self-interest.’ A President is no more immune to the influence of two masters than any subordinate official. In fact, our common experience of human affairs suggests that the potential for corruption only grows with the increase of power.”

“For this reason,” Shaub emphasized, “it’s been the consistent policy of the executive branch that the president should act as though the financial conflict of interest law applied.”

The question isn’t mere technical compliance with a statute; it’s preserving a central norm that underlies the moral authority of the nation’s highest office.

What Would Scalia Say

Even Trump’s model U.S. Supreme Court Justice, Antonin Scalia, lands on Shaub’s side of the argument. In a 1974 memorandum, then-Justice Department attorney Scalia concluded that the text of a particular conflict of interest law didn’t apply to the president. Remarkably, Dillon cited that memorandum to support her position. She didn’t discuss Scalia’s final recommendation in that memo:

“Notwithstanding the conclusion that neither the Executive Order nor the regulations pursuant to it legally bind the President or Vice-President, it would be undesirable as a matter of policy for the President or Vice-President to engage in conduct proscribed by [them]…. Failure to observe these standards will furnish a simple basis for damaging criticism, whether or not they technically apply,”

Shaub emphasized Scalia’s point: Those at the top of government set the example for everyone else — at least they should.

“The sheer obviousness of Justice Scalia’s words,” Shaub continued, “becomes apparent if you just ask yourself one question: Should a President hold himself to a lower standard than his own appointees?”

Missing the Big Picture

The Morgan Lewis Plan ignores that big picture. In waiving the attorney-client privilege by divulging Trump’s directives for developing a plan, Dillon opened the door to several unanswered questions:

— What limits did put he on removing himself from his business?

— Did his attorneys recommend additional steps?

— Did Trump reject them?

Here’s a directive that Trump did not give:

“I want to preserve the integrity of the presidency. There can be no basis for any claim that anyone — foreign or domestic — is trying to curry favor through my family businesses. Even the appearance of a bribe, corruption, self dealing, or other impropriety is unacceptable. Tell me what is necessary, and I will do it. The presidency demands no less.”

That command would not have produced the plan that Dillon tried to sell Americans on January 11:

— Rather than divest Trump from his business, it allows him to reap its benefits while in office.

— Rather than establish an independent trustee to manage his business assets, it places control in the hands of his two adult sons and a current Trump executive.

— Rather than maintain even the pretense of a blind trust, it permits Trump to see periodic reports of how his business is doing.

The plan’s failures are equally evident from its illusory window dressing: a “trust” that is far from blind; a promise that the Trump Organization won’t do any new foreign deals; an “Ethics Advisor” to sign off on new domestic deals (backsliding from Trump’s December 12 tweet, “No new deals will be done during my term(s) in office”); an unenforceable assurance that Trump will learn about new deals “only through the media, as the American people would.” (The last promise is another violation of a blind trust principle, namely, that he should know nothing whatsoever about his personal financial affairs while in office.)

And then there is the ultimate window dressing in human form — Fred Fielding, who served as associate and deputy counsel for President Richard Nixon from 1970 to January 1, 1974. He was there for Watergate. He was there for the “Saturday Night Massacre” when Nixon fired his attorney general and deputy AG before finding someone willing fire independent counsel Archibald Cox, who had asked Nixon to produce his White House tapes.

“Mr. Fielding has been extensively involved with and approved this plan,” Dillon declared at the press conference.

Fielding didn’t say a word.

It’s hard to believe that it was only three weeks ago. I wonder what Fred Fielding thought on January 30, when Trump fired acting Attorney General Sally Yates. In eroding the integrity and dignity of the presidency, Trump has already made Richard Nixon look like an amateur — and a saint.

TRUMP’S CONFLICTS PLAN – Part 2

On January 22, 2017, Kellyanne Conway confirmed what everyone should have known all along: Donald Trump is never going to release his tax returns. Lawyers who rose to defend Trump’s silly “under audit” excuse from a man seeking the nation’s highest office might want to think twice before embracing his plan to deal with his business conflicts of interest.

“Fool me once….”

The first installment in this series dealt with the unfortunate role of Sheri Dillon and her firm, Morgan Lewis & Bockius, in shilling for Trump. This and future posts detail some of the Morgan Lewis Plan’s deficiencies.

The clash between Donald Trump’s businesses and the integrity of the presidency creates three separate issues: violation of the U.S. Constitution’s emoluments clause prohibiting federal officials from accepting benefits from foreign countries, conflicts of interest generally, and federal statutes relating to those conflicts.

Trump conflates and confuses these three issues with a single imprecise and inaccurate phrase: “The President can’t have conflicts.” Let’s keep the issues straight, starting with the emoluments clause.

Emoluments

In the final minutes of her speech, Dillon discussed Trump’s constitutional problem. Her framing of the issue adhered to an accompanying Morgan Lewis “White Paper” that was as masterful as it was disingenuous:

“Some commentators have claimed that the Constitution prevents the President-elect from owning interests in businesses that serve foreign customers. In particular, they object to the Trump International Hotel in Washington, D.C.”

In that nifty sleight-of-hand, Dillon elided past Trump’s even bigger foreign-state problems: loans from banks to the Trump Organization and its projects, tenants paying rent for office space in its buildings, investors, and unknown other foreign-state connections to his assets. Never mind Trump’s tax returns. Ascertaining the financial structure of Trump’s empire goes far beyond whatever they might show. Just ask any real estate developer.

Dissecting the Plan

The Morgan Lewis White Paper’s emoluments defense starts with this premise: “The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text.”

Yes and no. The late Justice Antonin Scalia championed such “originalism.” The White Paper’s sole supporting citation for its premise is a book that Scalia co-authored. But as recently as 2005, even Justice Scalia acknowledged that originalism was a minority view:

“I am one of a small number of judges, small number of anybody — judges, professors, lawyers — who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people.”

More importantly, Justice Scalia noted that even for originalists, the text is only the beginning of constitutional interpretation, not the endpoint. In a 1988 lecture, he offered this example:

“What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge — even among the many who consider themselves originalists — would sustain them against an eighth amendment challenge.”

Moving Beyond the Words

Justice Scalia understood that a slavish adherence to the Constitution’s language can produce “medicine that seems too strong to swallow.” (Scalia also had things to say about presidential conflicts of interest generally, but we’ll get to those next time.)

Morgan Lewis’s argument qualifies as originalist medicine “too strong to swallow.” Among the founding fathers’ foremost concerns was foreign influence over America’s political leaders. In Federalist No. 68, Alexander Hamilton wrote about the necessity of protecting elections from foreign interference. In Federalist No. 22, he wrote, “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.”

Discussing the emoluments clause in 1986, then-Assistant Attorney General Samuel A. Alito, Jr. wrote, “[T]he answer to [an] Emoluments clause question must depend [on] whether the [arrangement] would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition.”

None of those principles made the cut in the Morgan Lewis presentation. But consistent with Sheri Dillon’s expertise as a tax lawyer, technical legal arguments did.

Words Not Found in the Constitution

“So long as foreign governments pay fair-market-value prices,” the Morgan Lewis White Paper continues, “their business is not a ‘present’ because they are receiving fair value as a part of the exchange.” It argues that any transaction at “fair-market-value” between Trump businesses and foreign states is not a violation of the emoluments clause.

That’s another nifty and unpersuasive sleight-of-hand. For good reason, the words “fair-market-value” are nowhere in the Constitution. The concept does not satisfy the Constitution’s core concern. Any foreign state patronizing a Trump-owned or licensed business knows that it confers a financial benefit on Trump. So does Trump.

As Sheri Dillon put it, “President Trump can’t unknow he owns Trump Tower….” And as her client told The New York Times on November 22: “The brand is certainly a hotter brand than it was before.”

Self-Refuting Arguments

“The Constitution does not require President-elect Trump to do anything here,” Dillon asserted. Nevertheless, he’ll “donate all profits from foreign government payments made to his hotel to the United States Treasury.” The Morgan Lewis White Paper broadens his largesse to include “his hotels and similar businesses,” whatever that means.

In one sense, that concession is a tacit acknowledgement of his larger problem. How about other Trump enterprises? Foreign loans to his projects? Royalties and licensing fees? And how will the Trump Organization calculate profits from foreign governments’ individual stays at his hotels?

On January 18, 2017, The Wall Street Journal reported Trump spokeswoman Hope Hicks’ response to some of those questions: Accounting and financial personnel “will perform the profit calculation and would track payments from foreign governments” which will be done “through its accounting systems.”

Pressed for clarification, Hicks answered, “Profit is calculated as revenues minus expenses = profit.”

Winners and Losers

The January 23 complaint against Trump details just some of his known business interests that collide with his presidential duties. It’s a safe bet that Trump’s attorneys will do everything they can to avoid testing the substantive arguments that Sheri Dillon and the Morgan Lewis White Paper presented on January 11.

Instead, they will try to prevent any court from reaching the merits of their originalist argument. They’ll probably focus on whether the plaintiff in this and other cases has suffered a sufficient injury to sue (“standing”). They might assert that only Congress can resolve the issue because it presents “political questions.” Perhaps they’ll urge that the only remedy for a presidential breach of the emoluments clause is impeachment.

One great danger is that if any of those preliminary defenses prevail, Trump will overstate his victory as proof that he was right all along: “The president can’t have conflicts.”

If a court gets to the merits of the claims, the Morgan Lewis legal arguments will get a severe test that they aren’t likely to pass. If Trump’s lawyers lose, their client still wins: Trump will have lawyers to blame.

However it turns out, the country is the loser. It already is.

TRUMP’S CONFLICTS PLAN – Part 1

Someday, Sheri Dillon and her colleagues at Morgan, Lewis & Bockius may regret her performance at Donald Trump’s January 11 press conference. Public relations people saw the event as “beautiful” and “the best thing ever.” It wasn’t. For the legal profession, it was ugly.

Everyone Gets a Lawyer

Dillon represents a controversial client. So did Clarence Darrow. That’s part of any attorney’s job description. Like all citizens, Donald Trump is entitled legal counsel. In fact, the country’s best hope is that he heeds sound advice from lawyers who aren’t afraid to tell Trump when he’s wrong.

Sheri Dillon is Donald Trump’s tax lawyer. Again, that’s fine. His complex financial affairs require capable tax counsel. But on January 11, Dillon allowed herself and her great law firm to become Trump’s prime public defender of a patently insufficient plan to address his business conflicts of interest and wholly separate Emoluments clause problem under the U.S. Constitution.

Future installments in this series will detail the flaws in the Dillon/Morgan Lewis plan. Based on Dillon’s remarks and an accompanying Morgan Lewis memo, here’s a bottom-line preview from Office of Governmental Ethics Director Walter Shaub:

“[T]he plan does not comport with the tradition of our Presidents over the past 40 years.”

The Lawyer’s Role

Like any client, Trump set the parameters of Sheri Dillon’s engagement and the limits of her authority. Faced with those constraints, she did what lawyers do: Dillon created a plan and then defended it. On January 11, she made a closing argument, just as an attorney would to a judge, a jury, or the IRS.

But this time her audience was the American people. And she had no adversary arguing the other side of the case. In fact, her opposition was a central norm of democracy, namely, an Office of the President free of even the appearance of institutionalized corruption. Until Office of Government Ethics Director Walter Shaub responded with his accurate observations of the plan’s wholesale failures, no one was representing that norm.

This is the first in a series that examines the myriad problems with the Dillon/Morgan Lewis plan and Dillon’s effort to defend it. Along the way, Sheri Dillon morphed into yet another public relations spokesperson for Trump’s talking points.

A Summary of the Plan’s Major Failures

The press conference came complete with theatrical props — piles of papers on a large table near the podium. But Dillon did not provide the pubic with any documents implementing the Dillon/Morgan Lewis plan. Without the ability to scrutinize the various trust instruments and related materials, it’s impossible to verify any of the claims she made about her plan’s ability to do any of the things she promised. But even based on her description, a brief summary of the fatal shortcomings include:

— Trump is not divesting. He will retain all benefits that flow from owning assets that create his massive conflicts of interest. Those conflicts compromise the integrity of the Office of the President. While in that Office, Trump and his family will benefit from any increase in the value of those assets.

— Trump’s children remain active managers of his assets.

— Trump plans to resume management of those assets after his presidency.

— Trump’s agreement to give away hotel profits from foreign governments does not solve his wholly separate Emoluments clause problem. And it’s a red herring that doesn’t even attempt to address the issues arising from his numerous other foreign entanglements — bank loans on Trump structures, payments from building tenants, royalties, and the like.

Dillon was more precise, but Trump conflates his conflicts and Emoluments clause problems. He lumps everything together and talks about “conflicts” that he “cannot have” because he’s president. The truth is that the scope and magnitude of both problems remain unknown because Trump has not revealed the detailed financial structure behind his empire. That includes loans, investors, and other information that even his personal tax returns would not disclose.

About Those Tax Returns

Trump hasn’t released those returns, and he probably never will. At his press conference, Trump reiterated, “I’m not releasing the tax returns because as you know, they’re under audit….”

As he spoke, Sheri Dillon stood nearby. She had co-signed a March 2016 letter, stating that the IRS audits had been completed through 2008. He hasn’t released those earlier returns, either. Her letter explaining why probably presages the argument that Trump will make to withhold all of them forever:

“Your returns for these years report items that are attributable to continuing transactions or activities that were also reported on returns for 2008 and earlier. In this sense, the pending examinations are continuations of prior, closed examinations.”

Hers was a lawyer’s argument. And not a particularly good one for a client who was seeking — and now has won — the Presidency of the United States.

Dillon As Trump’s Newest Minion

Dillon’s completed her transformation from legal adviser to just another Trump spokesperson with her concluding lines:

“We believe this structure and these steps will serve to accomplish the president-elect’s desire to be isolated from his business interests and give the American people confidence that his sole business and interest is in making America great again, bringing back jobs to this country, securing our borders and rebuilding our infrastructure.”

The final words in that sentence — “bringing back jobs to the country, securing our borders and rebuilding our infrastructure” don’t appear in the accompanying “White Paper” on Morgan Lewis letterhead. They’re certainly extraneous to any reasoned professional legal opinion. So are Dillon’s concluding sentences:

“The American people were well aware of President-elect Trump’s business empire and financial interests when they voted. Many people voted for him precisely because of his business success.

“President-elect Trump wants to bring this success to all Americans.”

Donald Trump, Kellyanne Conway (who has a JD), or some other Team Trump person probably wrote that ending. But Dillon spoke it, so whatever fees Trump paid Morgan, Lewis & Bockius for this assignment, he got his money’s worth.

Specifically, Dillon confirmed publicly the soundness of a fatally flawed plan. When things go badly for Trump under that plan, he’ll have lawyers to blame. For him, it’s a win-win. For Dillon and the reputation of a great law firm, not so much.

By The Way…

OGE Director Walter Shaub’s reward for his uncommon courage in speaking the truth about the Dillon/Morgan Lewis plan was an immediate summons to the principal’s office of Rep. Jason Chaffetz (R-UT), chairman of the House Committee on Oversight and Government Reform. After the infamous Access Hollywood tape surfaced, Chaffetz declared that he would not vote for Trump. Three weeks later, he reversed himself and reboarded the Trump train, promising years of investigations into Hillary Clinton if she won.

In light of Dillon’s performance at Trump’s press conference, the most ironic sentence in Chaffetz’s letter to Shaub was this: “Your agency’s mission is to provide clear ethics guidance, not engage in public relations.”

Then came the most threatening passage: “OGE’s statutory authorization lapsed at the end of fiscal year 2007 and the Committee has jurisdiction in the House of Representatives for reauthorizing the office.”

Just when you think Trump’s conflict of interest and Emoluments problems can’t descend to some frighteningly new level, they do.

BIG LAW RESISTS THE ASSAULT ON DEMOCRACY

Call them unsung heroes.

When attorneys in big law firms get things right, they deserve more attention than they receive. Recently, some of them have won important victories in the profession’s noblest pursuit: protecting our republic. And they’re not getting paid anything to do it.

Start with North Carolina. On July 29, a unanimous court of appeals threw out that state’s voter ID law. In an 83-page opinion, the court wrote that the law had targeted African Americans “with almost surgical precision.”

Behind that monumental win was an enormous investment of money and manpower — all of it pro bonoDaniel Donovan led a team of lawyers from Kirkland & Ellis LLP through two trials over a four-week period. More than fifty witnesses testified. After losing in the trial court — which issued a 479-page opinion denying relief — the plaintiffs appealed. On July 29, they won. Think of it as Kirkland & Ellis’s multi-million dollar contribution to democracy.

On, Wisconsin!

The same day that the court of appeals threw out North Carolina’s unconstitutional voter ID law, a federal judge in Madison invalidated Wisconsin’s effort to disenfranchise African Americans and Latinos. Big law firm partner Bobbie Wilson at Perkins Coie LLP was at the center of that effort. A nine-day trial and more than 45 witnesses (including six experts) culminated in Judge James B. Peterson’s 119-page ruling in favor of the plaintiffs.

On August 22, the seventh circuit court of appeals denied the request of Governor Scott Walker’s administration to stay Judge Peterson’s ruling.

North Dakota

Three days later, Richard de Bodo of Morgan, Lewis & Bockius LLP won a challenge to North Dakota’s voter ID laws. The targets of that legislation were Native Americans.

Like similar statutes enacted throughout the country since 2010, voter ID laws in North Carolina, Wisconsin, and North Dakota were products of a Republican-controlled legislature and governorship. The real motivation behind such restrictions on a fundamental right is as ugly as it is obvious.

Fighting Against the Demographic Tide of History

In 2014, the Brennan Justice Center noted that North Carolina and Wisconsin were in select company: “Of the 11 states with the highest African-American turnout in 2008, 7 have new restrictions in place: Mississippi (73.1 percent), South Carolina (72.5), Wisconsin (70.5), Ohio (70.0), Georgia (68.1), North Carolina (68.1), and Virginia (68.1).”

Of the 12 states with the largest Hispanic population growth between 2000 and 2010, North Carolina was one of nine that made it harder to vote. The others were South Carolina, Alabama, Tennessee, Arkansas, North Carolina, Mississippi, South Dakota, Georgia, and Virginia.

Rigged Elections? Yes, But in Whose Favor?

Now that the Republican nominee for President of the United States is pushing a dangerous and destructive new theme, the battle to vote has now assumed a great significance.

“I’m afraid the election is going to be rigged,” Donald Trump warned at a rally in Columbus, Ohio on August 1, right after the North Carolina federal appeals court ruled.

That evening he told an interviewer: “I’m telling you, November 8, we’d better be careful, because that election is going to be rigged. And I hope the Republicans are watching closely, or it’s going to be taken away from us.”

Dedicated attorneys — especially those in big firms willing to donate enormous resources to the cause — have worked hard to protect the right of every eligible person to vote. If they hadn’t, then the North Carolina legislature might, indeed, have rigged the election in a key swing state that President Obama had won. But that’s not what Trump meant, was it?

No, he sees a different enemy.

“[P]eople are going to walk in, they are going to vote 10 times maybe. Who knows?” he said in an August 2 interview.

He now has a website page: “Help Me Stop Crooked Hillary From Rigging This Election.” Such whining is actually much more than that. It’s a campaign tactic uniting two sinister and pervasive themes: racial division and attacks on the rule of law.

Facts Don’t Matter

Trump began stoking fear and division with a promise to build a wall to keep out Mexicans, whom he called rapists and drug dealers. He then coupled it with a “deportation force” to “round ’em up,” sending 11 million illegal immigrants “back where they came from.”

Then he professed ignorance about David Duke. (“I don’t know anything about David Duke… I know nothing about white supremacists.”) Before long, he unleashed hostility toward “Mexican” Judge Gonzalo Curiel. After scaring people, it was a short step for him to becoming their self-professed “law-and-order” savior.

Now he is wrapping his message in a long-discredited canard. Defenders of unconstitutional voter ID laws persist in fomenting “election fraud” paranoia, even though it lacks any factual basis. Professor Justin Levitt at Loyola Law School, Los Angeles tracked all claims of alleged voter ID fraud and found a grand total of 31 credible allegations – out of more than one billion ballots cast.

In the North Dakota case, Judge Daniel L. Hovland wrote, “There is a total lack of any evidence to show voter fraud has ever been a problem in North Dakota.”

Likewise, in the Wisconsin case, the judge ruled. “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.”

And in the North Carolina case, a unanimous court of appeals concluded, “The record thus makes obvious that the ‘problem’ the majority in the General Assembly sought to remedy was emerging support for the minority party.”

Mob Mentality

The cry of phantom election fraud feeds Trump’s narratives, while taking them a perilous step farther: de-legitimizing an election that polls now show Trump is losing “hugely.” As his prospects sag, his vile rhetoric escalates.

Shortly after an August 10 poll showed Trump trailing in Pennsylvania by double digits, he went to that state and told an Altoona crowd, “Go down to certain areas and watch and study and make sure other people don’t come in and vote five times… The only way we can lose, in my opinion – I really mean this, Pennsylvania – is if cheating goes on… ”

Never mind that Pennsylvania hasn’t voted for a Republican Presidential nominee since 1988. Even an incumbent, George H.W. Bush, couldn’t carry it in 1992.

Trump then continued waving his red herring: “Without voter ID there’s no way you’re going to be able to check in properly.”

Scorched Earth

The real danger to democracy isn’t election rigging or cheating. It’s Donald J. Trump. De-legitimization – the ultimate ad hominem attack on a process to undermine its outcome – is a standard tactic from his deal-making playbook. When it appeared that he might not arrive at the Republican convention with enough delegates to secure the nomination, he warned about “riots,” if someone else won.

Never mind the rules; they’re for losers. Anyone fearing that Trump will win should fear more that he won’t.

Trump knows that facts don’t matter because – true or false – the branding sticks. For example, there was never any evidence to support Trump’s wild “birther” claims about President Obama in 2011. But five years later, 20 percent of Americans still believe — today — that he was born outside the United States.

Some people will always believe anything Trump says, even as he contradicts himself from one moment to the next. His infamous line was pretty accurate: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.”

Perhaps he is discovering that “any” was an overstatement. But his de-legitimization strategy worked against most Republican politicians, who folded like cheap suits rather than break from the man-baby who would be king. Now the stakes are higher. His targets are the rule of law, the essence of democracy, and the peaceful transfer of Presidential power that occurs every four years.

The Real Losers

The eventual victims of Trump’s scorched earth approach will be the American people. If, as with his false “birther” claims five years ago, 20 percent of voters – about half of his current supporters – believe that Trump’s defeat results from a “rigged” election that “cheaters” won, the collateral damage to the county will be profound.

Donald Trump lives in a simple binary world of winners and losers – and he’s all about winning at any cost. He measures success in dollars. His latest tactic makes democracy itself the loser. Try putting a price on that. And thank some big law firms and their attorneys who are willing to make the investment required to stand in his way.