“If we prevail, there would be no place to which Trump could appeal” Attorney Mark Small, Esq.
There are only 3 main scenarios playing out right now which could lead to the ousting of Trump. Two of these scenarios are unlikely to occur as they require either the executive or the legislative branches of government to act – removal due to disability using the 25th amendment which requires Pence to sign off, or impeachment, which requires the House of Representatives. It is not going to happen. Supreme Court Justice Ruth Bader Ginsburg said yesterday on the BBC that the legislature is compromised, and we, the resistance, know that the executive branch is toast. The only scenario that can oust Trump is the one remaining functioning branch of US government, the judiciary – specifically, the Supreme Court.
A resistance critical “conference” before the Supreme Court on March 17th is the only scenario that can lead to the immediate removal of Trump. The “conference” will discuss the case: to nullify the 2017 election and to hold a revote. We interviewed the attorney behind the court case, Mark Small, and put forward nine questions.
- In the process to nullify the election, how many steps are there and what step is the “conference” in March?
Small said that there are no set number steps as this has never been done before, but that the “conference” is one of the steps. The Supreme Court has intervened in a Presidential election once before, Bush v Gore, 2000. However, it has never issued a revote.
The first important step was to file a writ of mandamus, which has already been written about. The second part was the filing of a motion for the appointment of a “Special Master”, “an independent person to inquire as to any wrong doing in elections”. Small stressed that this is important as there is “only one branch of government that is functioning”. He said that “the legislature has been compromised by the allegations we have raised”, echoing Justice Ginsburg.
- Do you present evidence of vote tampering at the “conference”?
Small said that no evidence can be submitted at a conference.
- What do you hope to achieve?
The current primary legal aim of Small and the group behind the nullification efforts (Revote 2017) is to have a “Special Master” appointed. Small filed a motion for the court to assign a “Special Master” to investigate the Russian Interference with the election. This is critically important as the Special Master would be completely independent. This would not be the case in the current scenario where Jeff Sessions, Trump’s new Attorney General, has refused to recuse himself from investigating the interference. This is also important because new evidence has emerged of the Trump administration attempting to tamper with the FBI’s impartiality in relation to Russian interference allegations. Both this and the Russian interference allegations themselves should lead to impeachment. However, these will both fail because the House is controlled by Republicans. They benefit from a Trump presidency and are unlikely to impeach. Therefore, the appointment of a “Special Master” is more critical than ever.
- As this has not been done before at a Presidential election, what precedent will you use – i.e., do you have a federal example?
Small says there is no precedent, however, he cites Federalist Paper 43 which addresses the issue. The Federalist papers are a group of 85 articles and essays which argued for the ratification of the US constitution – the 3 authors included Alexander Hamilton, James Madison and John Jay. Federalist paper 43 located here, is written in old English, however, the meaning is clear. It deals with treason and it also deals specifically with a minority party and secret assistance from a foreign power:
“May not the minor party possess such a superiority of pecuniary resources, of military talents and experience, or of secret succors from foreign powers…”
This case is about Russian interference in the election and about the impartiality of a perpetrator investigating itself. We did not get a chance to discuss the local examples, however, this website has a list of dozens:
Also, this is an easy read of an election recount in the Houston Mayoral contest from 2007.
- If the court decides to uphold the finding and Trump appeals, could there be remedies in place to stop him from using Nuclear weapons? Could this case be used in conjunction with an impeachment hearing?
Small emphasized that this is a widely-shared concern and it has echoes of the latter part of the impeachment of Nixon. We discussed how during the latter part of Nixon’s Presidency, he was drinking heavily and that while he did have the ability fire nuclear weapons, there were several barriers to keep him from being able to do so.
This from a Guardian article from 2000.
“We had to go on nuclear alert without his permission,” the admiral recalled in 1997. “The reason we had to do that was because he could not be awakened. Nixon obviously had too much to drink… “
We discussed how there was a special army unit setup to stop Nixon during the final stages of the impeachment process from starting a nuclear war. However, there is no such unit in place for Trump.
- Isn’t that terrifying?
Small remarked that “If we prevail, there would be no place to which Trump could appeal to”. In other words, the United States Supreme court is the furthest the pendulum can swing to.
- Have you considered the effect of Presidential Disability and the 25th amendment? If the President is found to be mentally ill, will you proceed with the case regardless. Are you wanting a new election or are you just wanting Trump removed and would settle for a Pence Presidency?
We did not get to ask this question in full as Small commented that he believed that Pence would not seek to remove Trump. Small is from Indiana, the home state to Mike Pence, so he has a deeper understanding of the Vice President. We discussed how McCain appeared to be making overtures to a Pence Presidency last week in Germany. McCain specifically praised the VP but outwardly criticized Trump. The bottom line is that it is unlikely that either Pence or the newly Trump appointee-dominated cabinet would seek to replace Trump with Pence by using the 25th amendment on Presidential Disability.
- What about winning by default?
We raised the argument that “Trump cheated” so does that not make Clinton, the winner by default? Small argued that this is “not a game”, that it is not like football. Small said that this is about the “illegality of the election” itself, not about rules of a game.
- What happens if you win? Who is President in the interim?
In the case of a revote, an interim caretaker government would need to be in power for the duration of the election process. We asked who this would be. Small said that in that instance it is not clear, but it could be a member of the senate. We did not discuss this in full. However, Republican Mitch McConnell is the senate majority leader and Democrat Chuck Schumer is senate minority leader – so does this mean a McConnell Schumer Presidency / Vice Presidency? This would mean the President and Vice President were of opposite party affiliations which has only happened once before in 1796 with Adams and Jefferson.
While it is clear that there is only one branch of government that is functioning, we still have hope. The constitution explicitly protects the media and gives the people freedom of speech. We think this means the social media as well. We must do our part. Let your voice be heard. This motion must be made national news, so spread this article.
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Attorney Mark Small has been selected to represent the plaintiffs before the Supreme Court. Mr. Small has been a sole practitioner since 1989, with the majority of his cases being Appellate-level advocacy. He has been admitted to argue cases before the Indianan State and U.S. District Courts since 1989, the U.S. Court of Appeals 7th Circuit (1990), 9th Circuit (1990), and D.C. Circuit (2002), the Federal Circuit (2002) and the U.S. Supreme Court since 1998.