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If He Loses

Episode 7










If He Loses

a novel in 22 episodes

by David Vigoda

Copyright © 2020 by David Vigoda

All rights reserved, including the right of reproduction in whole or in part in any form.

This novel is a work of fiction. Any references to historical events; to real people, living or dead; or to real locales are intended only to give the fiction a setting in historic reality. Other names, characters, places, and incidents either are the product of the author’s imagination or are used fictitiously, and their resemblance, if any, to real life counterparts is entirely coincidental.

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Navigation: At the bottom of this episode is a link to the next one. You can go to any episode by scrolling to the top of the page and clicking the “If He Loses” tab.

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Episode 7

The nation went wild.


For supporters of the Democratic president-elect, there was delirium. All across the country, there were spontaneous demonstrations that crowded out traffic on main streets for blocks. There were hastily arranged demonstrations that, in the aggregate, totaled at least 10 million people, with speakers and music and chanting and wild costumes and gigantic puppets. Everyone was giddy with joy, everyone became instant friends.


For supporters of the Republican outgoing president, there was a gnashing of teeth the likes of which they had never before experienced. They too massed in the streets, but their numbers were smaller as so many preferred to mourn at home or in church, and the mood was angry and forlorn. There was no music, just speeches that passed through anger to calls for action, to re-dedication, to keeping the faith. In the crowds everyone looked at everyone else and shook their heads. Everyone was livid with rage that the Supreme Court, this Supreme Court, the one they had built, justice by justice, could have upheld an election clearly, plainly, obviously shot through with corruption, malfeasance, and mismanagement.


Yet in fact the court had handed the president an astonishing victory, one even the most cynical Democrats had had trouble imagining, even for this court. The president had won at the Supreme Court. Yet the perverse result was that he had lost the election.


The commentary that followed at every media outlet, in every channel of communication, every conversation was incessant, all-consuming, reflecting ad nauseam on every particle of information, on theories, on speculations about what might have happened. For all of it, though, the result was no increase whatsoever in understanding what had happened. Nowhere was there a coherent account of the facts that explained why the Supreme Court had decided as it had. Had the five majority justices intended to endorse the president’s extreme legal theories or rebuke him? They seemed to have done both.


What came from the White House generally and of course above all from the president, that was the one element of the entire bizarre episode that was predictable. Words like ‘rage, vilification, tirade, denunciations, wild claims, lies, and contradictions’ were certainly accurate as descriptors, but failed to capture a unique experience: For the first time in the history of the nation, there was not an orderly transition of power.


The president at his wildest refused to accept the decision of the court, said there would be blood in the streets, insisted he would not vacate his office, demanded a new national election, threatened to declare a state of emergency that he claimed would allow him to remain president until he lifted it.


He fired all his lawyers, fired every adviser who had supported his legal strategy—which he insisted had never been his—and fired everyone else around him who didn’t immediately swear an oath of allegiance.


He tweeted, he talked to Fox, he screamed at journalists. He made another address to the nation, without any prepared statement, that said this was the worst political crisis the country had ever experienced. He charged unspecified elected and public officials with treason, suggested he would mobilize the military, ‘if necessary to keep the peace.’ He looked like he was hardly sleeping.


The path that led from the election to the Supreme Court was endlessly rehearsed, in case there was a breathing American above the age of five who didn’t know: One, the president had lost the popular vote. Two, in six states the vote was more or less close, depending on how flexible was the definition of ‘close.’ Three, the president contested the vote counts in those six states. Four, if the election results could be reversed, the vote in the Electoral College could swing from a large majority for the president-elect to a majority for the president. Five, how large that majority would be depended on how many states and which states had their popular election results switched.


The president had demanded recounts and challenged recount procedures using a variety of legal theories, tactics, and strategies. These varied from triggering automatic recounts to novel legal theories. They also varied from legal maneuvers to political maneuvers to intimidation. Much of this five justices of the court accepted, the five who happened to have been nominated by Republican presidents and confirmed by Republican-controlled Senates. Indeed, one could plausibly argue that the five had accepted everything the president proposed—with a single exception.


There were two states where the president had finally demanded that a new election be held. These of course were the states where the vote contests had not succeeded in changing the result. One was Florida, the other was Pennsylvania, and both losses infuriated the president. In Florida, nothing he did changed his original razor-thin loss. This seemed a betrayal after his substantial win in the prior election. In Pennsylvania the swing from narrow win to narrow loss was less dramatic, but the president still took it as a betrayal—or a conspiracy.


Four of the five justices, in their dissenting opinion, decided in favor of new elections in the two states. One of them, joining the four justices who happened to have been nominated by Democratic presidents and confirmed by Democratic-controlled Senates, decided against it.


The result was that the president picked up a substantial number of Electoral College votes. These were from Michigan, Wisconsin, Minnesota, and New Hampshire. They raised his total from 229 to 269. This was an impressive gain, an unprecedented gain. The problem was that he needed 270. He was one vote shy.


That this had been one of the scenarios predicted at the outset, when the president announced that he would be contesting votes, did not lighten his mood. Nor was he consoled by the fact that he had lost nationally by four million votes.


* * *


“Forgive me, Lord, but I just have to say this: God damn the Supreme Court. I mean what the...”


“I feel the same way,” said Bob, shaking his head. “Hell—forgive me, Lord—half the country feels that way.”


“You ask yourself, how could they have done this, did the liberals get to them somehow?”


“It’s just one of them. One guy who threw the election. What was that? Are they blackmailing him, threatening his family?”


“I know. You don’t want to turn into a conspiracy nut, but I hear you, there has to be some explanation.”


“And yet it’s inexplicable. So in come the conspiracy theories.” Bob made a head gesture that said it was inexplicable and took a slug of beer.


“What’s before us now is almost too terrible to contemplate,” said Eric bitterly. “A liberal takeover, murdered babies, hordes of illegal immigrants...”


“Denigrating marriage,” added Bob.


“Denigrating family, what it means to be a man or woman. And don’t get me started on government.”


“Crushing taxes...”


“Astronomic deficits, handouts to deadbeats, socialized medicine...”


They were in a bar adjacent to a hotel where many utility linemen were staying. Located on a strip outside of town, it had a parking lot large enough for all the rigs. They had been told about it by one of the guys the first day and moved from the dump where they’d spent the first night.


“I am for this president 100%. I trust him 100%,” said Bob. “I know he’s far from perfect—far from perfect—but it’s his very imperfection that makes you believe he’s sent by God. Look, admit it, when you hear about someone who’s supposed to be so good... You know, never sins, always forgives, never loses his temper... You’re just waiting for the veil to fall away, right? For the truth to come out. He’s got an illegitimate child or something. But when a sinner comes along... He’s a sinner like the rest of us, and he doesn’t hide it, he lets it all hang out... Somehow he’s on the right path, though the Lord only knows how he got there... That’s the one you trust, the one you believe in, the one you follow.”


“I hear you, brother,” said Eric, who took a large swallow.


The place was packed with guys, tired, exhausted even, but anxious to unwind, have a bit of fun. The last thing anyone would normally bring up was politics. This time, though, nobody wanted to talk about anything else. The TVs were tuned as always to the obligatory games, but no one was watching.


They overheard a nearby conversation that had gotten louder and louder. “I’m telling you it’s crap, us conservatives can’t do a damn thing, meanwhile you liberals are out there every day, with your protests and your drive-by media. It’s sickening to watch you hijack the election.”


“Except we didn’t. It was one of yours, a conservative justice who defected.”


“Yeah, and I’d like to know why.”


The ‘liberal’ shrugged and grinned.


The grin set off Bob. He jumped to his feet and confronted the man. “Say, bud, question for you. Don’t you get that hijacking a presidential election threatens our democracy?”


“I do, that’s why I’m so relieved. It was hanging by a thread, and one justice... Ironic, don’t you think, that it was one of yours?”


“Know this, buddy...”


“The name is Jim.”


“Got it. Know this, buddy, we’re going to see to it that your guy is out in four years. And between now and then, he gets nothing done, nothing. You can try to rule by decree, tell us what bathrooms we have to use, but we will fight you every step of the way.”


“I think what my friend is trying to say,” said Eric arriving, “is ‘eat shit and die.’”


Jim’s adjusting posture indicated that he knew where this was headed, and that he was ready for it. Others stepped in, as Eric put a restraining hand on Bob’s shoulder. He threw it off, saying, “Don’t you get it, Eric, these people are bent on destroying everything we believe in.”


“I hear you, but what is this going to get us?” He saw the moment pass in Bob’s shoulders. “We just took a major blow. That doesn’t mean it’s over. But we’re here to support our families. What’s a bar fight gonna do?”


They parted without looking at each other.


When there was nothing more to say about the election, the guys could get to sports. And when they were done with that, they would talk about the storm: How much damage it had caused, how much work was left... That done, they drained their last glass and crawled off to bed. Eight hours later, they would be back on the job.


* * *


“Jillian, please don’t hang up.”


She did hang up.


He called again. “Jillian, please!” She heard the torment in his voice and couldn’t bring herself to disconnect. Then there was silence. She couldn’t speak, and he was stunned that she hadn’t hung up. “Thank you,” he said finally.


“What do you want?” she asked meaninglessly.


“Just to talk? If you don’t mind. I could use a sympathetic ear.”


“Is something wrong, Richard?” She struggled to sound more sympathetic than angry.


“I can’t blame you for being angry with me.”


“I’m not angry with you. At least I shouldn’t be. I should be angry with myself.”


“For feeling lonely?”


“For betraying my husband. Is something wrong?” she repeated.


“Aside from my world collapsing? Your world too, I presume.”


“Richard, what are you talking about?”


“The election. I’m sorry, I thought... I guess I just assumed...”


After another pause she said, “You called to discuss politics? I have to say, Richard, I can’t believe I’m your go-to person when it comes to politics. Especially when you know I’ve been questioning my allegiance to this president.”


“Still, it’s good to hear your voice.” She sighed, loud enough for him to hear it. He was trying desperately to figure out what to say next. “May I ask how your family is?”


She admitted to having unloaded her concerns on him and apologized.


“Jillian, you don’t owe me an apology. For this or anything else. It’s just, you did express some... anxieties. I realize that in some ways we’re practically strangers... but we did share some very private thoughts.”


“You’re saying it wasn’t just sex.”


“Lord, of course it wasn’t just sex.”


“Okay, tell me this. Is this what you do? Go to retreats without your wife and see whose pants you can get into?”


“Do I sound to you like that’s all you mean to me, Jillian? Unless I am completely mistaken about you—and I don’t believe I am—I think you know that what happened was not just sport. I think you know it wasn’t for me, and I don’t believe it was for you.”


“Okay, let me ask you this.” She hesitated. “Did you pick me because you saw...?”


“What? Please say it.”


“...How needy I was. That I felt lost.”


“Okay, I’m just going to say it. And you can do with it whatever you want. What I saw was a beautiful woman who was seeking what I was seeking—a true companion.”


“A female companion. One who would jump in the sack with you.”


“I’ve confessed my sin, Jillian. I’m not going to deny it to you.”


“You confessed?”


“Yes. I confessed to Jesus, and then I found the strength to confess to my wife.”


“What did she...?”


“She confessed to me.” Jillian was silent until she started laughing. Richard laughed too.


* * *


The women in the typing pool of the West Wing resigned en masse, citing an unsafe working environment. Those willing to talk to reporters said the screaming by the president and his aides had become unbearable. Men were storming up and down the corridors, barking orders, contesting orders, getting into loud, angry arguments. There were even physical scuffles.


Papers were thrust before them with demands for instant re-typing. One employee had been fired for insubordination. The woman who worked next to her said, “All she did was say, ‘I’ll get to it as soon as I can.’”


“That’s all she said?”


“Well, she said, ‘You can see we’re a little busy here.’ Which we were, to say the least. He went ballistic.”


* * *


“Damn it, Jesse, I mean, with respect, Jesse, you’re wrong. I don’t care whether you think the president is a genius or an idiot, the point I’m trying to make is this: He realizes that, even as his legal strategy has failed, his political strategy has won.”


“What do you mean, ‘It’s won?’ How can you say that?”


“I can say it because every official and every reporter feels compelled to comment on the merits of his claims.”


“That’s just what they have to do. It doesn’t mean...”


“If it’s what they have to do, then it does mean. It means he is framing the debate, he is setting the agenda. We are playing defense—even though we won the election!”


The sign on the conference-room door said that inside was the Democratic National Committee. The angry, frustrated conversation that could be overheard by hotel employees even in the corridor indicated that inside was the president-elect’s inner circle of advisers.


“I’m sorry, I don’t buy it.”


“Neither do I,” said a third.


“You should,” said a fourth, “because roughly half the country believes him.”


“Seth is right,” said a fifth. “Depending on how we phrase poll questions, we find that a large majority believes the election was deeply flawed.”


“Well that doesn’t...”


“So deeply flawed that the reported results were not always trustworthy.”


“That’s because our side distrusts election procedures as much as the other side—precisely because of what the other side does.”


“That’s true,” persevered the pollster, “but it doesn’t matter. All that matters is that they doubt the result. Think about that: Even our side isn’t totally convinced that we won.”


After considerably more wrangling, it was decided that the president-elect had no choice but to respond to the president.


After more wrangling, it was decided that this should take the form of a national press conference.


After yet more wrangling, it was decided that the call should be for national reconciliation. The rejected call was for national unity. That was considered by many to be unwise, because supporters of the current president, and even many ‘independents,’ might consider it a provocation. As if the president-elect were saying, “You lost, get over it.”


Democratic Party insiders praised the address. “Just what the country needs right now,” “Perfectly pitched for a time of trouble,” “Holding out the hand of friendship,” were the usual fare.


Call-in shows delivered the people’s verdict. Supporters of the president took away, “You lost, get over it... loser.” For many of the rest, it was a weak attempt to appeal to those who supported the president no matter what he said or did, and who now supported his wildest demands and threats and claims. Those people, it was felt, should have been told, “You lost, we don’t care whether you get over it or not, because what you tried to do was exactly what you accused us of trying to do.”


* * *


At the trendy DC bar where the young man who called himself the ‘fisherman’ went to pick up women, he was at it again, bragging about how ‘his’ legal team had driven the president’s Supreme Court ‘victory.’


“You won by losing?”


He shook his head slightly with a contented smile. “We never expected to take the whole thing in one round. We won that round, and now we’re on to round two, which we will also win. We’ve already worked it out.”


“And you’re going to tell me all about it.”


“Indeed I am.” He was smiling triumphantly at the woman he found so sexy, because she was in this trendy bar showing a lot of leg, a cocktail or two ahead of him, and obviously there for the same reason he was. She was smiling triumphantly too, because she knew the fish controlled the fisherman. “It started today, with a call to the Florida statehouse.”


“Yet I seem to recall that the president fired his legal team.”


“Yeah, he didn’t really. With him it’s all theater. Trust me, we didn’t miss a beat. Let me buy the next round. Barkeep?” She was seated, he was standing, leaning far enough so he could see down the front of her dress. After the first swallow, he continued. “Yeah, after, quote, firing everyone, he screamed at his people to find another strategy. And what was the first thing they did? They called us.”


“And you called the Florida statehouse.”


“Yeah, it was quickly arranged without burdening the president, and all it took was one meeting to work up the strategy.”


“Were you there?”


He gestured as if to indicate he’d been as good as there. “Does it matter?”


“I like to know who’s staring at my breasts.”


“Sometimes I hand the brief to the one who sits at the table, sometimes I sit behind the one at the table, sometimes I sit at the table. So let me ask you a question. After the popular vote, where does the election go?”


“Where does it go?” He nodded expectantly. “Like what happens next?” Nods again. “You mean the Electoral College?”


“Bingo. So one strategic phone call from us and the state GOP leadership announces that they’re calling the legislature into special session to, quote, ‘consider the need to pick electors.’ Electors are the voters in the Electoral College. They’re appointed by the legislatures. So what does that mean, ‘consider the need to pick electors?’”


“Well, gee, Mister Lawyer, I do not know. And I cannot wait to find out.”


“Humor. Cute. So right now, Florida law says the electors have to vote for the Democrat, because that’s the one the Supreme Court left as the winner of the popular vote. But that’s statutory law, not constitutional law. Our team asserts that, under the Constitution, a legislature retains the authority to change state law.”


“Even after the election?”


“Even after the election. Sweet, right? So here’s what’s going to happen...”


“I’ll tell you what. This is getting kind of long. Why don’t you tell me what’s going to happen in the taxi? Hopefully you’ll be done by the time we get to your place.”


“Why my place?” he asked after missing only a beat.


“So I can leave as soon as I’m done with you.” She gathered up her things and they were heading out when she asked his name.




“Is that your real name?”






“Of course not. Why would I hide my name? It’s Barry. What’s yours?”




“Is that your real name?”






“Of course. Why would I give you my real name?”


Despite a certain amount of groping and petting in the car, Barry kept talking. He told Martha that in Florida the Republicans had complete control of state government, and since the president’s loss there was razor thin, it was the perfect place to challenge the Electoral College vote. Also, a special session had been called there before, in 2000, when there was a risk that the state would go to the Democrat. Pennsylvania, on the other hand, had a Democratic governor.


Martha was curious. “So the Republicans’ grand plan is to have Florida pass a law—after the election—that allows it to repudiate the popular vote.”


“Yeah,” he said excitedly, “and they have to do it ASAP, because there’s a time constraint. The Electoral College votes on December 14.”


“That’s less than two weeks from now.”


“Hey, you’re good at math. Yeah, and under rules pursuant to the Twelfth Amendment, controversies over appointment of electors must be decided at least six days prior, which means December 8. Do the math on that.”


“But that’s... Isn’t that ridiculous?”


“If by ‘ridiculous’ you mean ‘bold’ and ‘brilliant,’ then yes. We’re flying down first thing in the morning.”


“Really. After I keep you up half the night screwing your brains out?”


“It’s a sacrifice I’m prepared to make.”


She thought about this while they tongued. “I’m still not sure I get the point of this. Say the legislature does this and its electors vote Republican. Don’t you think this would be immediately challenged in court?”


“Probably. But obviously it wouldn’t be decided till after inauguration, probably long after, so the...”


“But surely the court would issue a stay.”


“Right. So the real issue is not the ultimate decision of the court, but whether it would issue a stay of execution, pending a trial on the merits.”


“Which it obviously would.”


“Which we think is actually unlikely. Why?” he added quickly. “Because the court in question is the District Court for the Northern District of Florida, where seven of the ten sitting judges were appointed by Republican presidents—two by this president.”


Martha was still working this out. She even pulled away briefly. “So the Florida vote goes forward—provisionally in some sense. Then what?”


“Then, my dear, there are any number of scenarios, all of which favor us. We like to think of the EC as a target-rich environment.”




“There are lots of steps in the EC process. Every one of them presents an opportunity. Then each state submits its EC vote to Congress. There the political wrangling gets so fierce, the

roof gets blown off.”




“Let’s just say that when you get a situation like what’s about to happen, a two-way race where both candidates claim an Electoral College majority, it’s not clear under the Twelfth Amendment which chamber has final authority to decide. We’re betting on the Senate. Republicans control the Senate. But if it’s not the Senate, we can still win.”


“I don’t buy it. Talk about far-fetched.”


“About as far-fetched as the Supreme Court buying the legal theories we argued, and reversing the popular vote in no less than four states. Not to mention four of nine justices calling for new elections in the other two.” Martha was dumbfounded. Barry was very pleased with himself, as they arrived at his apartment. “Don’t you get it?” he continued, as they headed inside. “All we need is one state to submit a second slate of electors. Once all hell breaks loose in Congress, we like the odds.”


“That’s pretty cynical.”


“It is, if by ‘cynical’ you mean a willingness to aggressively challenge rules, norms, and laws, and accept that in politics the ends justify the means.”


A few hours later, Barry awoke to find Martha getting ready to leave. “Do you have to leave now?”


“Actually I don’t.”


“Then why...”


“Because, asshole, I work for the Democratic National Committee.”

Go to Episode 8.

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