'There's a potential for blood in the streets':  Here's what 2 top election lawyers think of Trump's lawsuits

ANNOUNCER: Welcome to Moyers on Democracy. President Trump still will not admit he lost. He tweets and repeats the lie that the election was a fraud, the vote rigged, the election stolen. There are fewer than ten weeks before he must leave office, but he refuses to cooperate with Joe Biden in the transfer of power, denying the man who beat him by over five million votes the resources usually provided to a president-elect. Trump has flooded the courts with lawsuits contesting the results, seeking recounts, trying to stop the certification of ballots in battle ground states. Washington grows more paralyzed, the country more polarized, the rule of law in limbo. Here to assess what's going on are two of the country's most experienced lawyers in election litigation. Daryl Bristow is the former senior partner of the multinational law firm Baker Botts LLP, based in Houston. A graduate of the University of Oklahoma and Harvard Law School, he worked for George W. Bush's legal team on two Florida lawsuits regarding balloting for the 2000 presidential election. David Berg founded the firm Berg & Androphy, with offices in Houston and New York City. He has recently taken Trump and others to court over their efforts to use the Postal Service to discredit and dismiss mail-in ballots. He's written two acclaimed books — the memoir RUN BROTHER RUN, and THE TRIAL LAWYER: WHAT IT TAKES TO WIN. Here to talk with Daryl Bristow and David Berg is Bill Moyers.

BILL MOYERS: David Berg and Daryl Bristow, thank you for joining me.

DARYL BRISTOW: Happy to be here.

BILL MOYERS: One headline after another in the last few days has described Washington in a state of chaos. Does it appear to you to be that bad there?

DARYL BRISTOW: The first thing I think about is the tense time we live in, because politics has gotten to be almost a religion. And it's turned people into a religious fervor. Friends, close friends, people that I have long-standing relationships with– there's a strain now when we even think about talking about politics because their views are extreme. And they're extreme in an atmosphere of mendacity; lies and liars. It seems like that's acceptable as long as you achieve the bottom line on the lawsuit, although, frankly, I don't see much to the lawsuits.

DAVID BERG: On the issue of these lawsuits, they're terrifying people. I've gotten emails the last few days asking if Trump's lawsuits are going to upset the results of the election. And, as Daryl and I both can tell you, the lawsuits are specious. The one that's gotten the most attention is the one filed in Pennsylvania where the lawyers are attempting to shut down the certification of the Pennsylvania vote, which I can tell you right now, for a number of reasons, that's never going to happen.

BILL MOYERS: Have the Trump lawyers won any of these many suits they are scattering across the country?

DAVID BERG: They've won a modest order out of the Supreme Court. Justice Alito agreed to refer the question of whether or not, in Pennsylvania, the ballots that were received after Election Day were segregated from those received before Election Day. But it's absurd because they were segregated. And the election was decided on votes received by November 3rd. So, it's absurd. If your listeners want to, go to the website of Democracy Docket and you will see that, of all the cases that have been filed– the case where they're asking to shut down the certification in Pennsylvania, one of the things that you'll find is that they drew a judge who was appointed by Barack Obama and he's got an excellent, scholarly past. And I disagree with Justice Roberts. There are Trump judges and there are Obama judges. So, we've got a hell of a shot at seeing that knocked out quickly.

DARYL BRISTOW: You know, David, I will say this. No question, you have judges who've been appointed and they have allegiances. But at least my experience in 2000 was that those judges did the right thing. we had concerns about some of the judges in a situation as serious as the one we were in. They did the right thing. So, I believe, in the end, although there's going to be a lotta speculation and a lotta fear, I think the system will work. And—

DAVID BERG: To your point, Daryl, I have what I call the Andy Hanen rule. Judge Hanen is a very conservative judge. And about a week ago, a couple of very right-wing plaintiffs filed suit in his court seeking to disqualify 127,000 votes that had been cast around Houston in Harris County at drive-through ballot boxes. And Judge Hanen's response was, first of all, the Supreme Court had approved establishing these ballot boxes where you could just drive through. But he said, you've come to me at the last minute, he was obviously perturbed with that, trying to change the rules. Secondly, he said, I have questions about the legality of these drive-through ballot boxes. It has to do with what's called legislative deference, that the local officials in Houston who set up these ballot boxes had no right to make that change. But he said, even if I found it illegal, I would still count those votes. And one of Daryl's points that he's made repeatedly that it's absolutely true, you have these innocent voters who rely on officials, for instance, in Pennsylvania on the Supreme Court, saying if your vote is postmarked timely and comes in after the election it'll be counted.

BILL MOYERS: Daryl, you mentioned your experience. The fight you were in, what was that, briefly?

DARYL BRISTOW: I represented Bush and Cheney. In 2000, we had three election contests — the Bush v. Gore case, which we all know well, and then two mail-in ballot cases, Seminole County and Martin County, where the Democratic people, were essentially attempting to invalidate 25,000 ballots because the ballot request forms had incorrect voter registration numbers. And the Republican representatives had gone in and corrected those numbers; a violation of Florida law. So, there was a technical violation. And the contention was that because the law had been violated with regard to process, that voter's ballot should be discounted. And if they won those cases, Bush would've lost the presidency. Our position was you cannot set up a system, have a supervisor of elections send out the ballot forms, have the voter actually cast the ballot– all of that, admittedly, the voter had attempted to cast the ballot, had casted the ballot and the Florida Supreme Court confirmed what was state, federal and constitutional law. And that is, you don't invalidate, you don't disenfranchise a voter after the fact when they have relied on the system in order to cast their vote.

BILL MOYERS: Does that experience connect in any relevant way to what's happening right now with all these suits that the Trump team has filed?

DARYL BRISTOW: Well, you know, think about the fact that the Bush campaign, back then, was defending the voting system, was defending the integrity of the ballot. The Trump administration basically is trying to dismantle the integrity of the ballot, disenfranchise voters who innocently cast their ballots. That experience was where the system was tested in one state where there was a few hundred votes' difference. Here, we're talking about five states and a huge amount of ballot difference, and over 5 million votes in the popular vote; a very different situation. A lot less room to stand up and question the election.

BILL MOYERS: David, the last time you and I talked you had just filed a suit against the Postal Service. Where does it stand?

DAVID BERG: We actually filed a suit against Trump, the Postmaster General DeJoy, and against the Postal Service. The object of the exercise was to reverse certain practices that DeJoy triggered. When DeJoy came on board at the Postal Service, DeJoy instituted policies that were, in fact, detrimental to the to on-time delivery of mail-in and absentee ballots. And he froze any more hiring at the Postal Service when thousands upon thousands of postal workers had been felled by the coronavirus or fear of going back to work because of it. Not just Judge Sullivan, the district judge in the district court of D.C. where we filed our suit along with three other suits, but three or four other federal judges issued preliminary injunctions. And by the way, there are eight preliminary injunctions telling the Postal Service, stop doing what you're doing. Reinstitute late delivery, extra trips, hire personnel. Stop this hiring freeze. And, in our case it told them, you've got to reverse these policies. You've got to hire the personnel to get these ballots, these mail-in ballots and absentee ballots delivered on time. This led to a lot of issues, Bill. In Judge Sullivan's case, we had hearings every day for two weeks or more, Saturdays and Sundays included, during which the Postal Service was required to produce evidence of the delivery rates of mail-in ballots and also absentee ballots.


DAVID BERG: And what's astonishing to all of us is that after these injunctions were sent to the United States Postal Service, the testimony was– from high-ranking officials, executive vice presidents who reported directly to DeJoy, a very critical factor– nothing happens there now without his approval. What we learned was that they treated the injunctions as suggestions. They did nothing different. And instead of improving on-time performance, instead of making sure these mail-in and absentee ballots were delivered on time, the performance rates deteriorated, degenerated badly. Now Judge Sullivan stayed very much on top of this. And he issued orders making sure that the various post offices were swept. In only about seven or eight jurisdictions, one example was Atlanta, where they had very sub-standard delivery of absentee and mail-in ballots. Houston, Detroit, astonishing low delivery rates. If I were of a conspiratorial mind, I would say that it's very suspicious. And this was the basis of our lawsuit. Those three are Democratic strongholds. All three of them, Detroit, Atlanta, Houston had sub-standard delivery. There were some other areas like central Pennsylvania that had sub-standard delivery. But that was the exception. And that's a Republican area. So, where does it stand now? We had this discussion with a court the other day. Are we now mooted? Biden has been elected. The ballots have been cast. No, it's not over. That's just one example. And this was my grave concern. We have a runoff in Georgia that could, as the judge pointed out, that could tip the scale of power in the Senate. I mean, it's a point that all of us know. And we cannot give the DeJoy-led Postal Service free reign over delivery of mail-in ballots. So, the case continues. And I think it will end in a consent decree in which the just the Postal Service, through its lawyers at the Justice Department agree that they will never institute the kind of destructive policy, the termination of extra trips by the Postal Service, of late trips, of hiring the personnel they need. That they never again will do that during an election season.

BILL MOYERS: You're looking to the future as well as to the recent election.

DAVID BERG: Absolutely. We want to not only put an end to what they've been doing that impedes the delivery of mail-in and absentee ballots. But we want to stop it from now on in every election year. We can never have this kind of interference.

DARYL BRISTOW: David, a question I have about the lawsuits– when we're sitting here now in a situation where most mail-in ballots tend toward President-elect Biden, even if ballots didn't make it to the polling places, what difference does it make, and what's the endgame for your lawsuits at this point?

DAVID BERG: We had this discussion with the court. Judge Sullivan has issued orders compelling the post office to do sweeps to make sure nothing is left behind. And what the endgame is now, at least from my legal and a political viewpoint– we've got the Georgia runoff and we have to keep our foot on the pedal to make sure that all the mail-in ballots are counted.

DARYL BRISTOW: Got it, got it.

BILL MOYERS: What did the two of you think when Attorney General Barr gave prosecutors around the country to investigate voter fraud claims? It's unusual, isn't it, since Justice Department policy prohibits any action that could influence the outcome of the election until the vote is formally certified, which will be December the 8th? Couldn't the investigations provide the president more information for his lawsuits, if they uncover serious wrongdoing?

DARYL BRISTOW: Well, let me preface my comments by the obvious. I'm a Bush Republican. I represented Bush and Cheney. I knew H.W. Bush well. And Barr was the attorney general under President Bush. I believe that how he has acted is unforgivable. I think he is simply fanning the flame to spread misinformation and speculation about something that is obvious anyway. If there were real fraud, if there was a real malfeasance, the Justice Department would be investigating it. You don't need Bill Barr to make a comment like that to expect your Justice Department to do what they need to do. The point is there isn't any real hard evidence of fraud. There really isn't anything that we can see. You know, if Barr were going to be helpful, he would say, "All right, I'm ordering the Justice Department to step up because…" and then "Here's the meat." Well, where is the meat? It's just not there.

BILL MOYERS: Does it resonate with you in any way that the morning before he issued that letter the attorney general was seen entering and leaving Mitch McConnell's Capitol Hill office and that, earlier, 40 Republicans in Congress sent a letter to Barr, asking him to get to the bottom of the voter fraud claims? Does that raise any suspicion on your part?

DAVID BERG: I see a different kind of conspiracy, Bill, that really troubles me. If you connect the dots, the object of this exercise I think is twofold by the Republicans. They are attempting to undermine the belief that Biden was elected lawfully. There are 71 million people in this country who voted for Donald Trump. And I think Donald Trump is going to preside over his 71 million voters as if it's a mini country. It is anti-democratic. I don't know why these Republicans are so scared of him now. He's toothless. But there's two issues that really trouble me. The lawsuits themselves are designed to undermine confidence so that Trump can claim after the election Biden was not elected lawfully. And it's racist at heart. What they're saying is black folks have to cheat to be able to win an election. That's the underlying appeal of the attack on the election. The second thing is, I'm terribly worried that the Biden folks are doing what they can. But the refusal to allow Biden full access, to be able to send his folks in to each department. You send folks in to find out what the hot spots are. In Trump's case, he's handcuffing Biden and I would be very fearful of some sort of terrorist attack or some incredible failure of security. I know Biden knows where the bathrooms are in the White House, as they say. But he can't know all the dangers we face from the forces arrayed against the United States.

DARYL BRISTOW: Bill, let me weigh in on what's happening with the Republicans now in terms of their support of these conspiracy theories. I really believe that the Republican party is panicked over the proposition that they may lose the two races in Georgia for Senator, and that they have got to whip that base into a frenzy and energy them so that they can get that vote out in Georgia. And if they don't get that vote out you may have a Senate controlled by the Democrats. I think that's much of what's going on. It's shameful that that would be the case, but it is politics.

BILL MOYERS: There's a political scientist of note at the Hoover Institution at Stanford University. And he's in a conservative environment. He told Evan Osnos of THE NEW YORKER recently, quote, "There's no other way to say this. The Republican party, with notably few exceptions, has become a party of semi-loyalty to democracy. If you want to stop this, the answer is very simple: The Republican politicians who know better in the House, the Senate and the governorships have to speak up. If they don't put the preservation of democracy and civility over their own political careers, we're going to keep sliding down the path." Does that make any sense to you as a Bush Republican?

DARYL BRISTOW: I say amen to that. I voted as Biden had put it, as a character issue, as an issue of integrity, as an issue of what do we want to stand up and represent the face of our nation no matter what the politics are. I couldn't find a 401K issue or a tax issue or another issue that was important enough for me to see a continuation of the personality that has put such a bad face on this country for four years.

BILL MOYERS: David, I think I heard you say that the president as a lame duck has no ammunition in his rifle, that he's just a noise-maker now.

DAVID BERG: I did say that. I said there was a second thing that concerned me, Bill—

BILL MOYERS: Yeah, yeah.

DAVID BERG: And that's his takeover of the Defense Department. There's a lot of speculation about why he made the move with Secretary of Defense Esper who was a stalwart, a bulwark, against some pretty irrational moves that Trump wanted to make. Moves that would harm our defense. I think that Anne Applebaum's TWILIGHT OF DEMOCRACY should send chills through any country where virtually 50% of the electorate is in, basically, in my mind, a cult following of Trump. I'm sure some percentage of the 71 million votes were not cast because they believe everything that Trump has to say. But there's grave danger, as she points out, in the growing rise of right-wing governments. And Biden's victory is a victory for democracy. The number of voters is a sign that democracy may in fact survive this. But I have grave doubts that our country is going to stop the slide toward an autocratic government, toward– we came so close. We've had a man in government who has crushes on strongmen, on Putin, Duterte, on Kim Jong-un says we had love letters. And how can people, how can 71 million people, my fellow citizens, vote for someone that obviously crazy?

DARYL BRISTOW: Let me speak to it along the conservative side, on the Republican side–


DARYL BRISTOW: I don't feel quite the way David does about all 70 million of those people who voted for Trump. I believe there's a very substantial percentage that held their nose when they voted for Trump. Much of that vote is reflective of a concern that perhaps the Democratic party could go too far to the left. We have strong views, far left; we have strong views, far right. And I believe we are basically a in-the-middle, slightly-left country. And those people who were in the middle and even slightly left may have been voting for Trump out of fear that the political system may move too far to the liberal side. I don't give up on the American people yet. I do not. I do believe we have a significant percentage that we've got to find a man like President-elect Biden to lead our country into a more moderate view and accepting the fact that we are a very different country than we were 200 years ago, in terms of the makeup of the people who live here and who must be cared for here.

DAVID BERG: May I– Daryl disagrees with me so may I rebut my former friend, Daryl Bristow? Obviously, what this presidency has done for the American people, at least for my side of the aisle– I was brought up, Daryl knows, and you know, to believe that Republicans were born without opposable thumbs. I mean, we were a family of yellow Democrats. And what this has done for people like me–

BILL MOYERS: I think in Texas, we call them yellow dog Democrats

DARYL BRISTOW: That's exactly right.

BILL MOYERS: In Oklahoma, we call them yellow dog Democrats. But Arkansas may have a slightly different definition of a yellow Democrat than a yellow dog Democrat.

DAVID BERG: Oh my God, I'm with two Oklahoma natives. I don't know what to do, how to rebut two hillbillies who are ganging up on me. Okay? And Arkansas– I came from the highly educated part of the Arkansas because I got through grammar school. But what troubles me so deeply is, as a liberal Democrat, and I may be the only liberal Democrat, Daryl, you'll be happy to know, really worried about the national debt. I think we have huge problems facing us and Biden has an extraordinary opportunity to become the FDR of this age. We have huge structural problems. We have huge societal problems. And I don't give up on the American people at all. But I do think if you underestimate the people who believe blindly that what Trump says to them about fraudulent elections, you'll never go wrong. They are absolutely a drain on democracy.

BILL MOYERS: What both of you have said takes me back to the opening of our discussion. Every headline I've seen almost in the last two days talk about it. And one of my favorite writers, Tom Engelhardt, says "We're in a gridlocked, post-election moment of previously unimaginable extremity in an increasingly over-armed, ever more divided country that used to be known as the "last superpower."" He says, "With Donald Trump's America still fully mobilized and ready for… well, for anything… don't count on good tidings ahead." Does that have your teeth grinding?

DARYL BRISTOW: It does. It does. I wear my mouth guard during the day now.

BILL MOYERS: Here's another headline, David, from yesterday: "Trump's Transition Chaos is National Security Nightmare." He "…remains commander-in-chief for only ten more weeks, until President-elect Biden takes office in January. But during that time, he's in a position to make destabilizing foreign policy choices that could… restrict Biden's future policies." So, while the president's been tweeting like crazy on Twitter, his administration is elevating the risk of mayhem and alarming experienced officials across Washington, D.C. And as you know, he signed an executive order recently that to place political loyalists in some very influential roles usually held by civil servants. So, what, in a sense. they're suggesting is a kind of slow-motion coup, which many people (conservatives) would say is a conspiracy on the left. What do you think about that, both of you?

DAVID BERG: Let me address that Bill, because it's inherent in what I mentioned about the transition; the failure to engage in a logical, orderly transition of government. So, obviously, we have President-elect Biden who is not being armed with the proper daily briefings. That may come that may happen as of next week. Senator Lankford, a Republican Senator from Oklahoma says he's going to make it happen. But you also have hotspots. You have issues within every department, if you just look at the Defense Department, there's speculation about why he's got his cronies there. I realize several of the people under Esper resigned. But he has his man, Miller, at Defense now. What's to stop him from picking a fight, picking some sort of military action, to try to galvanize the country? You can't get rid of a president in the middle of a war. Some folks dismiss that as paranoia. But there are many gifted thinkers in the political science field who are concerned about that. Or is it that he just wants to get all our troops home by Christmas? And that, itself, presents defense problems. The concern I have– I think it's absurd to think that there's a coup from the left. They're accusing now Dr. Fauci and, of course, the old standby, George Soros and I've forgotten whom else, maybe Aaron Judge from the Yankees of being involved in a coup. I think the real problem, the real chaos that's being created is designed specifically to convince some huge portion– maybe not 71 million people as Daryl rightly points out, but some huge portion of this country, that this election was stolen. I know how I felt after the 2000 election. But I lived with that because the Supreme Court, while I didn't agree with their decision, put an end to the fight. I did have the suspicion that the election was rigged because the Republicans controlled the processes. But can you imagine now having people at the highest level of government telling so many Americans this election was stolen from you? There's a potential for blood in the streets, Bill.

DARYL BRISTOW: I might comment on something David said with regard to at least 2000 and the fear that something was rigged. The MIAMI HERALD commissioned a national accounting firm to go conduct a recount in Florida as though the Florida Supreme Court decision had held. Bush won that recount. So, the Supreme Court did not make George Bush president. The voters in Florida made George president. And to move to today, my overarching disappointment in people that I knew, for example, John Cornyn, someone that I knew pretty well when he was a Texas State Supreme Court justice. The idea that these people would sit back, even be complicit, in some of the irrational things that Trump does simply because they are fearful about some element of their radical, right-wing base, to keep them in office has caused, as far as I'm concerned, the destruction of the Republican party that I knew and that I loved and that I felt was a good counterpoint in terms of conservatism versus liberalism. I think that there's a reason for both sides to argue those points. But we've lost that and as long as Trump can fan that fire and these people are not willing to stand up and do the right thing then, Bill, we have real reason for concern about how President-elect Biden can pull this country back together, how we can have civil discourse.

DAVID BERG: I think that we need a phalanx of prominent Republicans to do what Goldwater and his colleagues did when they went to the White House and told Nixon he had to resign. It's going to take a change of heart. I've talked to people in politics who privately tell you they can't stand what this man is doing. Oh, I wouldn't have him to my house. And you hear reports of Republicans who know this election is over. I think that one of the hallmarks of this period in history will be the Republican Senatorial cowardice in the face of Donald Trump and angry tweets. We had a discussion right after the election, Bill, and it stuck with me. You pointed out that the coalescing around an individual, a personality by the populace, is the first step. The second step is when big business– and I use the analogy that as Hitler got the backing of the Krupps and the German billionaires of the time– and all that remains was the coalescing between Trump and the military. And I was brought up to be suspicious of the military, and now I'm just grateful as I can be because they have been a bulwark against extraordinarily divisive politics. Look at General Mike Esper at Defense apologizing for their involvement in that hideous display in Lafayette Square where Attorney Barr, like some scout for an army troop, goes ahead and makes sure that the area has been cleared of peaceful protesters, cleared by the use of military. Look at what happened. You had Esper and Milley apologizing for their conduct. They have been the main bulwark against what could've been a coup from the right. And I do not believe that that was out of the question.

BILL MOYERS: Earlier this year Trump told a reporter, quote, "I have the right to do a lot of things that people don't even know about." And then Alan Dershowitz wrote this piece with the headline, "Does President Trump Have the Power to Declare Martial Law?" Both of you have spent much of your lives at this intersection where the Constitution meets politics. Does the president, a lame duck, does he have the power to declare martial law?

DARYL BRISTOW: The short answer to that is if the rest of the government sits back and does nothing, he can do whatever he wants to do. Unless our courts step in, unless our Justice Department steps in, unless our Senate and our Congress steps in, unless we step up and say, "No–" he can do a lotta damage. But if we turn around and say, "Wait a minute. We've got a system that is the bright, shining system of the world. We cannot let it disappear," then he won't have that power.

DAVID BERG: Specifically, under the emergency powers, the president can declare martial law. Lincoln, for instance, suspended habeas corpus during the Civil War. He can do that. But I think Daryl's right. The danger of martial law would be that all ordered to stay in our houses. The Electoral College is not allowed to proceed. And the president just stays in office. But we have safeguards, as the Biden campaign aptly put it, there are ways to escort a trespasser out of the White House. I do not think the public will is there to allow him to invoke these emergency powers. I want to ask both of you a question if I might. What is the moral movement in the country now that meets Biden as the right man at the right time to bring us together?

DARYL BRISTOW: Well, we live in a country now that is a country that has a make-up very different from the 1950s. And so, there is a moral imperative. And I am not going to give up on the American people. I am not going to give up on the on the hope that there is going to be a leader that can ignite those feelings and that we can come together, left toward the right, right toward the left, to get to what's meaningful. And that is meaningful health care. It is meaningful advancements for minorities. It is meaningful changes in terms of the vast disparity of wealth and poverty. There are so many issues like that out there that are so dramatic right now. And they've been masked by four years of rhetoric that is just hard for me to take.

DAVID BERG: Can I respond to Trotsky, Bill, for just a moment? My friend Daryl and I go way back. My faith in the American people comes from having been in front of so many juries and see them work so hard and do the right thing. What troubles me, and I don't want to be Pollyanna. And I don't think you're being Pollyanna, Daryl, at all. I have great hope, a great belief in the American people. Like Churchill said, you know, after trying everything else, Americans always do the right thing. But what troubles me– and we haven't talked about this. But as you both know, there is a straight line in this country over a 400-year period that goes from slavery to the Civil War, to Reconstruction, to the deconstruction of Reconstruction, to Jim Crow laws, lynching. You can go right through to the high moment of, "One man, one vote." It all goes back to the issue of voting. And you bring it through to the present day. And let's just look at Georgia– Governor Kemp, when he was the Secretary of State, he was the king of voter suppression. I think that one of the most extraordinary moments in American history, and I think that the historians will agree, is the moment when the umbrella was taken down from the storm. The analogy that Justice Ginsburg utilized in the case of Shelby County v. Holder. There was a provision that said that any change in election laws, any at all, had to be approved by the Justice Department in certain states. It was all the Confederate states, all the Southern states, some northern counties in New York, and some in California where there'd been a history of voter suppression. And virtually everything that Justice Ginsburg predicted: purging of polls, the new poll taxes, the identification, the causes– all of the impediments to voting. This is the central issue in the division between those who believe as you do, Daryl, and I do, that racial justice has to come at last. And it's extraordinary that people in Georgia overcame impediments to voting. Georgia has more procedures that impede voting, suppress voting. What a miracle that the Democrats won there. That Biden flipped that state and just parenthetically, you think that the Republicans are turning out their base with this attack on mail-in balloting. Wait till you see what happens now that Democrats, especially the African American community in Georgia realizes, "We can win." But I am terribly concerned. Anyone involved in politics, anyone who thinks about this country. I would rename Dr. James Cone's book. The title should be extended from THE CROSS AND THE LYNCHING TREE to, "The Cross and the Lynching Tree and Shelby v. Holder," where a majority of the Supreme Court just unleashed the gates of voter suppression by striking down important provisions in the Voting Rights Act, just gutted it.

DARYL BRISTOW: Let me add one specific in terms of my hope that we may turn a corner. It is in the youth of our country.


DARYL BRISTOW: As the younger people, they are accepting of the America that we live in. They are concerned about the rights of minorities and about economic disparity. We may not get there tomorrow. But I really do believe that the bright spot is the hope that our younger people as they come in will make a big difference.

BILL MOYERS: I am an optimist about America. A conservative I admire is an economist name Bruce Bartlett. He moved away from the Republican party some years ago because he got concerned about the economics that the conservatives were following. He wrote a piece for the present NEW REPUBLIC that says, "Every four years Americans get a little lesson in Constitutional law when they're reminded that presidents are not actually elected by the people. The winner of the popular vote nationally doesn't necessarily win the election. The official winner is chosen by the Electoral College." Now there are people out there writing right now that that's Trump's and the Republican's strategy is to try to frustrate the election so that some states send their electoral votes to whom they choose to be. Do either of you think there's any credibility to the argument that the Republicans are trying to get this shifted from the popular vote in their states to the electors that they can send if they want to?

DARYL BRISTOW: There is no question in my mind that the lawyers and the administration are aware of those states. And if you do not have the Electoral College that has been selected by the vote by November 23. The legislature votes on its own slate of electors and says, okay, these are the electors that are going to elect the president. You can bet that the Trump administration has got those issues in mind. And they're not easily answered.

DARYL BRISTOW: Let me add one thing. And that is in order for the horribles that I talk about to come to pass, you would have to have a serial pollution of the system. And it's not going to happen. You'd have to have the courts doing things they shouldn't do, legislatures doing things they shouldn't do, Congress doing things it should not do. I don't believe it's going to happen. Not with this vote, not with this many states, not with this mandate. I think President-elect Biden is going to be President Biden.

BILL MOYERS: What happens if Donald Trump refuses to leave?

DAVID BERG: There will be nothing more satisfying to 77 million Americans who voted for Biden to see him do a perp walk right out of the White House. He will be removed. He is not going to have squatter's rights to the White House.

BILL MOYERS: There are 71 million who don't want him to leave the White House.

DAVID BERG: Well, I under–

BILL MOYERS: That's a lot of people.

DAVID BERG: No, but my point is somewhat different. And that is that we would be pleased to see what is inevitably going to happen. And I believe it was Michael Cohen who said that Trump is going to go to Mar-a-Lago at Christmas and never return. There's no institutional support for him to stay in the White House unless there's a military coup. And that's not happening. I have no fear of that. I'm with Daryl 100%. On January 20th, we will see President Biden and Vice President Harris sworn in.

BILL MOYERS: Daryl Bristow, David Berg, thank you very much for joining me. I learned a lot and I enjoyed being with you.

DAVID BERG: Thank you, Bill.


ANNOUNCER: Thanks for listening to Moyers on Democracy. You can find more information about the 2020 election lawsuits at Until next time, you'll find all this and more at

What will it take to shock people out of their routines?

The US is enjoying a nice little simulation of what life is like in a failed state, in the midst of a national crisis. The top of the government has been essentially rendered non-functional, if it ever was. Donald Trump is using the White House solely as a TV room, and has completely disengaged from the coronavirus outbreak. When he said that you wouldn't hear about COVID after November 3, he must have meant from him. Beyond raging at the "medical deep state" for announcing progress on a vaccine after the election, there's been nary a word.

Trump has always been unforgivably lazy, and that's part of why we're in the third wave of this crisis instead of the second. But the consequences are even greater right now, given the skyrocketing numbers of cases and hospitalizations across the country. You may see Trump as a moron but 72.6 million people (and counting) thought he was good enough to be president, and if the coronavirus doesn't exist for him, it doesn't exist for them either. NPR had this heartbreaking story yesterday of an ICU nurse in central Michigan who said she constantly hears regret in her patients, just before they're placed onto ventilators. "I didn't know COVID was real, and I wish I'd worn a mask," they say, struggling to breathe. That's the result of an utter lack of leadership.

That leadership is urgently needed. We had 34,000 COVID hospitalizations across the US a month ago; there are 67,000 and rising now. The system will be at capacity within a couple weeks, on that trajectory; some regions are already there. Thanksgiving is about to "pour gasoline on a fire," as one Biden task force member puts it, with more travel than at any point in the crisis. The medical profession has done exemplary work, and we have strategies and treatments we didn't have in the spring. If people can't get the medical care they need, none of that matters.

Let's put lockdowns aside for a moment, as I'm dubious that any elected official is willing to go there right now. In the spring, New York and other locations set up field hospitals and called in retired health care workers to increase capacity. Outside of mobile morgues in El Paso I don't see any evidence of that happening right now. There's no federal assets or even interest in this basic function of keeping people alive, and not much activity I can see at the state level, particularly in parts of the Midwest that are hit the hardest.

So what can stand in for an absentee government? What's left is personal responsibility, a lot to ask of a public that's adrift. Really we're on our own now. And we can actually make a difference. The public health measures are not unknowable: wear masks, avoid close congregations to the extent possible, don't eat indoors at restaurants or work out indoors at gyms. That would cover an overwhelming majority of this and slow the spread, giving the sick a chance to actually get treatment. With a vaccine in sight, it wouldn't even be an open-ended commitment.

At many moments of the crisis, personal behavior has actually led the way. Restaurant demand was collapsing before any lockdowns took hold. Mask usage has actually been decent, though obviously not good enough. People starting to hoard food again could actually be a positive sign. But the real moment when the public took the lead was during that first phase of lockdowns, where everyone actually paid heed, went inside, and engaged in a collective action, a rare moment for this country.

That came right after the NBA reacted to one positive test from a player by shutting down the season. Tom Hanks' positive test happened around the same time. That was the news needed to get everyone to take things seriously. What is the antecedent to that now? What is going to shock people away from their normal routines?

I mean, it's probably football, our secular religion in America. There is active talk now about the college football playoff being delayed. The majority of the SEC schedule was postponed for this weekend, along with several other games. With quarantine and contact tracing protocols being what they are, it's entirely possible there aren't enough bodies available to finish the season, and at some point you'd expect players to just start opting out. They're not being paid to risk their health, after all.

In the NFL, at least one practice facility is closed, but there's so much damn money involved that you'd have to see a league-wide outbreak before the season is derailed. The college game, though, is probably different. And that's as important, if not more so, to a significant portion of the population.

It's beyond sad that I'm sitting here strategizing over whether we can see enough leadership—or really resignation—among athletic directors and football coaches, because there isn't any in Washington or state houses. But the prospect of 100,000 more people dying before Inauguration Day has me grasping at straws. There's a vast leadership desert in America right now, and I'm looking for an oasis.

Days Without a Bailout Oversight Chair


Today I Learned

  • Elon Musk has it and is blaming the tests, which are antigen tests and admittedly not that accurate. (Reuters)
  • The oldest member of Congress has it. (Washington Post)
  • These billionaire Trump donors have it. (The Guardian)
  • Rand Paul, a doctor (OK an eye doctor), thinks all those people above are lucky duckies because they'll have immunity. (Talking Points Memo)
  • The liberal wonk consensus appears to be that real fiscal relief will only happen by giving Republicans more tax cuts in exchange. (Vox)
  • Avoiding canvassing seemed like the right public health move but may have been wrong for winning the election, Democrats admit. (HuffPost)
  • The mutation of the virus in minks won't be a problem for the vaccine, Dr. Fauci asserts. (CNBC)
  • Thoughts of rage about the third wave. (ProPublica)

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