As Trump pursues an electoral do-over, should Biden pick Obama as AG?

The New Year is upon us, and many Americans hope the turning of the calendar page will signal an end to two great uncertainties — the threat of the pandemic to our bodies, and the threat of domestic strife to the body politic, precipitated by the deep division between Always- and Never-Trumpers over who won the 2020 election.  

While both threats are real, the second may call for an unusual solution from the president-elect — calling upon a former president for help.

On the first, the media are doing their best to ascertain whether the various vaccines actually prevent COVID-19 or, more modestly, limit its severity and duration. The truth is that, at this moment, science doesn’t know the answers and the best we can do is wash hands, stay at an appropriate distance, wear a mask and get vaccinated when possible. 

As for the second, the president has had no success in convincing state and federal courts that the wide distribution of unrequested mail-in ballots, the alleged rigging of voting machines or the storage of uncounted ballots under a table proves voter fraud. The Washington Post compiled an exhaustive and legally exhausting list of individual fraud allegations and the scrupulously fair manner in which all were denied.  

But those arguments were always secondary to questions surrounding the significance of the Constitution specifically assigning state legislatures — not courts or other state actors — the power to decide how a state’s electors are chosen. Does this constitutional assignment leave no room for the role typically played by state courts and other state election officials? The U.S. Supreme Court avoided this difficult question in 2000 in Bush v. Gore and again, this year, in a challenge brought by Texas and 17 other states.

On Jan. 6, the action will move to the House and Senate. The states’ certified electoral ballots will be opened by Vice President Mike Pence in his role as president of the Senate before a joint session of Congress. Many people overlook the unique position of the vice president; in the present context, his role in handling objections to electoral votes is pivotal. Will he be the equivalent of the hometown ref breaking ties in favor of the executive? That’s what President Carter thought of Vice President Mondale, and that was the George Bush-Dick Cheney relationship. It is ironic that the Founders’ conception of the VP was not as a deputy president but as a legislative officer physically situated in the Capitol. If that historical memory could be revived, it conceivably could be the basis for Joe Biden’s partisans to ask for Pence’s recusal. Were Pence recused, his replacement in succession is House Speaker Nancy Pelosi (D-Calif.).

But let’s not get too far ahead of ourselves. Normally the Jan. 6 event is largely ceremonial, and President Trump may come to realize that his loss is necessarily subordinate to not stoking a million unknowns and bringing down America’s democracy. Because the president has yet to surprise his fellow citizens in this Jimmy Stewart kind of way, we cannot overlook that the Jan. 6 forum allows written objection to the votes being opened and, if such objection is joined by at least one representative and one senator, it must be taken up. That’s a relatively low threshold to have a substantive objection considered — far less than the rigorous legal rules that limited Trump’s arguments in the courts. But it appears to be crossed: Rep. Mo Brooks (R-Ala.), joined by 21 sitting congressmen and 12 congressmen-elect, and Sen. Josh Hawley (R-Mo.) have indicated they plan to object.

Yet, an objection being considered is still short of an objection being sustained. The Jan. 6 proceeding allows two hours for the Senate and House to separately consider the matter. An objection is sustained only if both chambers find it to be valid. 

Trump’s objective is to have enough objections sustained to individual states’ electoral totals to reduce Biden’s 306 electoral votes to fewer than 270. The likelihood of Trump prevailing in this great subtraction effort seems extremely remote. But even then he would not yet be reelected, since an election with no winner is sent to the House, which votes as state delegations — not as individual members — to choose the 46th president from among the top electoral vote-getters. There are more Democrat-held seats in the House, but 26 state delegations are controlled by Republicans, 20 by Democrats, three evenly split, and one remains undecided.

This is obviously complex, only a skeletal outline of what conceivably lies ahead. But does complexity favor Trump or Biden? The president has demonstrated unquestioned ability to work a crowd into a frenzy. Biden’s “nice guys don’t have to finish last” demeanor, especially when delivered at COVID-19 distances, is more sedative than rallying cry.

Should Biden prevail, which seems likely, he will need to be highly capable at reassuring estranged voters — Democrat, Republican or independent — that he is governing in the national interest. Biden’s almost-plagiarized overuse of the red state/blue state metaphor from the 2008 election needs a definite boost of authenticity and actual demonstration of applied fairness. Instead of continuing to borrow Barack Obama’s trade line, he needs Obama himself. The fastest way to re-establish the rule of law is for Biden to nominate Obama as attorney general. If Biden simultaneously kept Christopher Wray as head of the FBI and made Justice’s current inspector general, Michael Horowitz, head of its Office of Legal Counsel, he would remove much division, doubt and uncertainty.

Will Trump yield power or won’t he? Will he continue to place his pardoned cronies above the law? Claim he can pardon himself? Continue to place his personal economic profit over national security? In the run-up to the 2016 primaries, Trump bragged that his supporters would stay loyal even if he committed a capital offense. No one expected Trump to act upon it. But a different kind of capital offense is exactly what he and a few supporters now seem to be contemplating on Jan. 6. 

Appointing Obama certainly would be unprecedented, but so is the need. We have never had a former president take on the leadership of an executive department for a successor president, but nothing precludes it, save, possibly, Michelle Obama. We must leave those domestic relations to the former president — but he has the intelligence, youth and character to do the job. Besides, it’s perfect preparation for subsequent additional public service on the Supreme Court.

Douglas Kmiec is professor emeritus of constitutional law at Pepperdine University School of Law and founder of the Notre Dame Journal of Law, Ethics and Public Policy. He served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Office of Legal Counsel during the Reagan and George H.W. Bush administrations. Follow him on Twitter @dougkmiec.