Why Michigan’s Top Legislators Should Cancel that Meeting with Trump

In his continuing quest to remain president despite having lost this month’s election, President Donald Trump has been trying to wrest electoral votes away from Joe Biden in states that Biden won. Among the most aggressive tactics that the President might use is a direct appeal to the Republican-controlled legislatures of Michigan, Wisconsin and Pennsylvania to hand him those state’s electoral votes.

On Thursday, the post-election narrative seemed to edge further down that path, as the Republican leaders of Michigan’s two legislative chambers—Senator Mike Shirkey and Representative Lee Chatfield—agreed to take a meeting with the President in Washington tomorrow. Until that point Shirkey and Chatfield were signaling that they didn’t intend to second-guess Michigan’s voters, who chose Biden by more than 150,000 votes. But by taking the White House meeting, they indicated their possible openness to changing their minds.

Politically, it’s possible that they see taking the meeting as a smart move, showing unhappy Michigan Republicans that they’re on the president’s side.

But as a matter of statesmanship—and, legally, for their own sakes—they’d be smarter to cancel it.

The scheduled meeting threatens two kinds of danger. At the largest level, it threatens the system of democratic presidential elections: If state officials start claiming the right to overturn elections because of vague claims about “fraud,” our democratic system will be unworkable. But in a more specific and immediate way, it threatens the two Michigan legislators, personally, with the risk of criminal investigation.

The danger to democratic elections is well-understood. The Constitution authorizes state legislatures to decide how states choose presidential electors. For more than a century, every state legislature has chosen to do it by popular election. According to one school of thought, though, a state legislature could choose to set aside a popular vote if it doesn’t like the result and choose different electors instead. This is a pretty undemocratic idea, as well as one that misreads the history of election law: the National Review recently described it as “completely insane.” (State legislatures have the power to change the system for choosing electors in future elections, but not to reject an already-conducted election just because they don’t like the result.) Nonetheless, the President is pushing for it. By so far refusing to go along with Trump, Republican state legislators have been standing up for the idea that fair, democratic elections are more important than any individual president. If Shirkey and Chatfield are reconsidering that view, they are playing with the possibility of throwing out the results of a free and fair election. That’s not something that the system comes back from easily.

The scheduled White House meeting also poses another kind of danger—one hanging specifically over the two Michiganders whose minds Trump seeks to change. Consider: Why, exactly, does President Trump want to see these two men in person, in his office? It isn’t to offer evidence that Michigan’s election was tainted and should therefore be nullified. If he had any such evidence, his lawyers would have presented it in court, rather than abandoning their Michigan lawsuit as they did today. It’s also unlikely that Trump is planning to persuade the Michiganders through subtle legal arguments about their constitutional role. Subtle argument isn’t really Trump’s way of doing things.