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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning, everyone. President Trump's fight for reelection and to remake the government in his image with any remaining days in office are not over. He fired his defense secretary yesterday, as you probably heard, really for not being loyal enough to Trump or to military basis named for leaders of the Confederacy. The FBI director who declared white supremacists, the number one domestic terror threat, maybe next.

Trump got his attorney general, William Barr, to tell all US attorneys they can look for voter fraud without any evidence of any triggering an investigation as would normally be the case. Barr's chief election fraud deputy resigned last night, over what looks to him like politicization of the justice department. Now, Democrats might see the post-election period as president Trump's zombie political campaign continuing to haunt risen from the dead to file a lawsuit after lawsuit, threatening to suck the blood from democracy by getting states to reject the voters will without evidence of voter fraud, but Senate majority leader, Mitch McConnell, sees it like this.

Mitch McConnell: Obviously, no states have yet certified their election results. We have at least one or two states that are already on track for a recount. I believe the president may have legal challenges underway in at least five states. The core principle here is not complicated. In the United States of America, all legal ballots must be counted. Any illegal ballots must not be counted.

The process should be transparent or observable by all sides and the courts are here to work through concerns. Our institutions are actually built for this. We have the system in place to consider concerns and president Trump is 100% within his rights to look into allegations of irregularities and weigh his legal options.

Brian: The networks are calling Joe Biden president-elect, but we remain in an uncertain moment. With us now, Zach Montellaro, who covers voting for Politico and writes their newsletter, the Morning Score, and Fred Kaplan, military columnist for Slate. His column is called War Stories. His latest book is The Bomb: Presidents, Generals, and the Secret History of Nuclear War. Zach welcome and Fred welcome back to WNYC.

Fred Kaplan: Thanks. Good to be here.

Zach Montellaro: Thanks for having me,

Brian: Zach, I'll start with you that Mitch McConnell clip, not from a campaign bus, but from the Senate floor. Is that a new signal of how much support Trump's attempts to nullify the vote count without evidence of voter fraud is starting to get?

Zach: Yes, I don't know if it's a signal that Republicans will ultimately stick with him through the end of this process, but it is at least a signal to sticking with him now. The Senator majority leader, Mitch McConnell is right, that campaigns do have a legal right to seek these things, but I just want to stress how extraordinarily unlikely it is that any of these actions will overturn anything.

I believe as of this morning, vice president or rather president-elect, Joe Biden has passed Donald Trump's margin in Pennsylvania, they're not particularly close in Michigan. In a state like Georgia, which remains uncalled by most media outlets, Joe Biden is ahead. In a state like Wisconsin, the margin is big there too. All these things that these campaigns can seek they're entitled to do so, but the margins at this point are larger than what Hillary Clinton lost by in 2016 and she conceded the election the next morning.

Brian: Let me pursue the paranoid line here, Zach. The newest lawsuit from the Trump campaign in Pennsylvania actually seeks to prevent the certification of the election based on process, not any demonstrable or demonstrated fraud. Can you describe on what basis?

Zach: Yes. The newest lawsuit in Pennsylvania that the Trump campaign filed, I believe last night, maybe in the afternoon times the flat circle,basically does what you say it does it. It's not alleging widespread massive fraud in the state. It's just saying there was a two-track system that male votes were treated differently than in-person votes so they shouldn't certify the results.

That is a remarkable thing for a presidential campaign to file, I'm not downplaying that, but at this point what are the odds of this actually going anywhere in the courts? I have not seen any arguments from anybody who's not directly connected to the Trump campaign even incredibly prominent Republican lawyers saying this is anything more basically than a press release with a filing fee attached to it. It's things like this. Yes, the Trump campaign is absolutely attacking Democratic norms, they're undermining faith in the election, but will this actually succeed in court? I haven't seen anybody yet who thinks that they really have any much of a snowball's chance of doing so.

Brian: Right. Every guest who's come on so far without an agenda has said that. In normal times we could take that as very likely predictive of the outcome and yet I think it's shocking to many Americans learning for the first time, how much power the state legislatures have over certifying or not the election results as counted by the poll workers.

You're a journalist, not a lawyer, but how much can you clarify what a Republican legislature in Pennsylvania could do if they want to, for example, just because they have the power and might stand up even after an unsuccessful court filing and say, "No, we really don't know what Joe Biden's margin of victory is because the observers aren't close enough to the ballots to see them."

Zach: I think in Pennsylvania specifically, there is actually a state law that mandates that the electors go to the popular vote winner, so that removes a lot of the authority from the state legislature to do so. In fact, I think the Republican state legislative leaders, because it's a split government, they're Democratic governor, Republican state-controlled legislature, the legislature leaders even said we affirmed that, that we don't have a hand in appointing electors. That in Pennsylvania, the state it goes to the popular vote winner as certified eventually by the state.

The state legislative leaders there already announced they're going to try to audit the results. I don't think we really even know entirely what that means, but the path for any state really to overturn the popular vote is incredibly, incredibly, incredibly slim. I want to stress that over and over again that I think the real danger with these cases is not that it will somehow change the results of the election that Joe Biden's president-elect. I suspect he'll be president-elect a week from now. It's how much does this chip away at trust in the system and create more long-term damage.

Brian: Fred Kaplan people don't generally know much about Mike Esper. Why did Trump fire him his defense secretary yesterday?

Fred: Mark Esper became secretary of defense about a year-and-a-half ago and initially he was as cow-towing a lapdog to Trump as any official. In fact, Trump himself started mocking him, calling him secretary Yesper.

Then after June 1st, that incident during the demonstrations over the killing of George Floyd and when Trump roped Esper and the chairman of the Joint Chiefs of Staff into posing with him for an op-ed outside St. John's Church across from the White House, just after police had scattered protesters in Lafayette Square with tear gas, that's when he flipped and he started saying things like he would not approve using the Insurrection Act to bring active-duty US troops into the streets. He started criticizing Trump's objections to changing the names of the 10 US army bases in the South that are named after Confederate generals.

He just started standing up. Trump has made it clear for quite a while that he would probably fire Esper, it was published a couple of days ago that Esper had written a letter of resignation and put it in his drawer. Primarily, I think this was an act of pure spite that Trump was firing Esper before Esper could resign.

On the other hand, there are some things to be concerned about, and I don't think this is going to happen, but if Trump were in the mood to launch some kind of attack on somebody in his final desperate days, these orders go through the secretary of defense. Esper probably would have slow-rolled it and I don't know what his replacement acting secretary Christopher Miller would do. He would have to consult with the Joint Chiefs of Staff. They would know that they would be held accountable if something went South afterwards, and they could maybe put it off by calling it an unlawful order, but then there are other things going on as well.

Brian: No, wait, before we go to other things you just dropped a little rhetorical, a bomb in there about possibly a physical bomb. Before we get further into other things or to the new guy, Christopher Miller and who he is, you said if Trump was in the mood to launch an attack, this is the guy who ran on disentangling us from foreign wars or at least not getting us involved in new ones. Who would Trump attack as a lame-duck president?

Fred: Again, I don't think it's going to happen, but I do know that there are military people, serious military people worried that he might do something in Iran, probably not North Korea. These days he still thinks Kim Jong-un is a good friend of his, but just something to mess things up for his successor. Again, I think it's highly unlikely, but he does have the ability to do that and if he wanted to it would go through the secretary of defense who is no longer a person that Trump had considered a member of the resistance. Let me just say people in power are genuinely worried about this. I'll just say that.

Brian: Genuinely worried about Trump's starting a war between now and January 20th. Listeners, we have Fred Kaplan, the War Stories columnist from Slate, and Zach Montellaro, who covers voting for Politico. We can take your comments and questions at 646-435-7280, 646-435-7280. Zach, you wrote about 10 Republican state attorneys general throwing in on one of Trump's lawsuits. Which one is that?

Zach: Yes, that's interesting, is that lawsuit actually predates the election. It was filed initially by Republicans in Pennsylvania, the Republican state party, the state legislature. It's a technical lawsuit, but it's seeking to basically exclude ballots in Pennsylvania that arrive after polls are closed but before Friday, last Friday not this upcoming Friday, because usually in Pennsylvania ballots have to be received in light of the pandemic, in light of all of the [crosstalk]

Brian: You just cut out there for a minute, I think at a key moment so I'll just summarize for the listeners. This is that lawsuit that people have been talking about for weeks regarding whether ballots need to be received by election day in Pennsylvania as the legislature had it or can be postmarked by election day and received three days later as the Pennsylvania Supreme Court overruled them for. Go ahead.

Zach: Yes, that's but a quicker way to do it. The Trump campaign intervened with this case last week and now these Republican AGs are signing on. The interesting part of this is I don't think actually what's going to happen with the Pennsylvania election again, president-elect Joe Biden margin in that state is large enough that I don't think that this case could possibly overturn it even if the Supreme Court does decide to drop these ballots. It could have these down the hill effects though for future election litigation.

They're advancing a legal theory basically called the independent legislature theory, arguing that state legislatures and really only state legislatures can interpret a state election law, saying state Supreme Courts overstepped its bounds, it's out of line and even if it doesn't ultimately affect the final margin in Pennsylvania, what this could do is open up a whole new class of litigation going forward on election laws in states and it would really with strict state court's ability to change election law, anyway that big state legislature Supreme and the last authority on state election law.

Brian: Interesting in the tug of war between the legislative branch and the judicial branch in general, but worth repeating what you said this for all the publicity it's gotten in recent weeks and the fact that it's at the Supreme Court already, and that Justice Alito the other day instructed Pennsylvania to segregate those ballots that came in in that three-day period after election day just in case. It actually seems like a pretty minor challenge in the scheme of this election, because for all that people focused on this as an issue, not that many people voted in that last-minute period so the number of votes at stake is pretty minor.

Fred, there's a scenario where the firing of Esper as defense secretary might become related to contesting the election. Esper opposed sending in federal troops to quell violent protest or alluding in Portland, as you mentioned before, but Ron Suskind had a dystopian scenario piece in The New York Times about how the election disputes could prompt violent unrest on whatever sides if it gets hot enough, and then Trump could deploy the military and I guess that leads to some form of martial law in his attempt to nullify the election or stay in office and that would have to go through the defense secretary. Are you familiar with that scenario?

Fred: Yes, I think it's a little far-fetched, but what that's happened in the last week isn't far-fetched. I don't know, every time I say, "Well, I don't see that happening", sometimes it happens. One thing though or one result of Trump's attempt to send out troops to active-duty military troops to quell the protests last June was that some military officers who usually don't think about such things because they're not supposed to, started thinking about the propriety of presidential orders. General Mark Milley, the chairman of the Joint Chiefs of Staff apologized for appearing with Trump at the photo op outside the church.

There were lots of National Guard units where there was active discussion among the troops about whether this was a good idea to do this. If Trump did this, aside from the direct effect of putting troops on the street like that, he would be unleashing what could amount to a constitutional crisis within the US military. I've heard theories that McConnell is doing this because he really has his eyes on the Senate runoff race in Georgia in January and he wants to keep the base all riled up for that. That may be true but these guys, they're fanning the flames.

They are playing with fire. The long-term implications of rally, he knows this is nonsense, but rousing say 80% of the Republicans out the country who believe that this election is fake, this is going to have just tremendously unsettling implications for going ahead and really resolving a lot of the very serious and not at all partisan crises that we're facing as a nation in the next few years.

Brian: You know Fred, when we were kids during the Cold War, we used to think that it would be the generals who would take too much power and the civilian leadership, meaning the presidency that needed to keep them in check. Now it looks like the other way around, like the generals, are the ones with level heads who actually respect the constitution, who somehow have to keep the president in check.

Fred: Even as long as a decade ago, I remember hearing that some of the biggest dubs in the Pentagon are generals. Most of these guys really don't want to go fight wars that they don't have to fight. They've done that. Again, when you and I were growing up, there hadn't been a big war for quite a while and the big war was the good war. They were prepping for that but since then there's been Vietnam and Afghanistan and Iraq. Most military people, it's usually the civilians who get us wrapped up in this kind of nonsense.

Brian: With Fred Kaplan from Slate who covers the military and Zach Montellaro from Politico covers voting. Gloria in Somerset, you're on WNYC. Hello, Gloria.

Gloria: Hi, Brian. Thanks for taking my call. My question is I understand Republicans wanting to please Trump all the time because he appeals to their base who is also the base for Republicans, but why do they seem so afraid of Trump? They just seem to want to please him and keep him happy and just seem so terrified of offending him on any level. What is the worst he can do? He can fire them and they already know that's coming.

Brian: Fred can I give that to you.

Fred: Yes, sure. What's happened in the last four years is that Trump has fired or accepted the resignations of just about every independent cabinet officer who was there. About a year ago he said, "I'm now getting the kind of cabinet that I want", which is basically a cabinet full of loyalists. You're right, it is insane that everybody's in a cabinet position now could easily go out and get another job someplace. Their livelihood does not depend on dealing with this guy, but these are lap dogs that he has working for him now. I can't think of anyone in a position where his or her resignation would really set off fireworks, who's inclined to do it? They're loyal by nature.

What bothers me even more I think is in the Congress. I think three or four Republican senators have congratulated Biden on his victory. An election just happened, these guys aren't facing an election the day after tomorrow, not for another two years, or four or six years. The fact that they are still shivering in their boots about this guy, or maybe just liking everything that he does, that's concerning me even more. I think we're seeing the collapse of institutions that are supposed to protect us from this sort of thing.

Brian: I think we have a call to that point. Spencer in Berkeley Heights, you're on WNYC. Hello, Spencer.

Spencer: Good morning, Brian. How are you today?

Brian: I'm doing okay. How about you, except for the collapse of American institutions?

Spencer: [chuckles] Well, it’s just another day. What I've been feeling for a long time now is that the single worst thing that Donald Trump has done for the office of the presidency, and for the country as a whole, since the start of this campaign was he exploited the incredible populist dissatisfaction with the state of the country. Then channeled that into basically a distrust of all existing norms and institutions to basically say the reason why all of you are so downtrodden and having such a hard time gaining any ground personally, is because all of the institutions are doing that.

Which has now resulted in distrust of experts, and government institutions, and corporations that are actually trying to do the right thing. Now, you fast-forward all of that distrust out the better part of four years, and we're at the point now of him saying-- While he's this really perverse parody of The Music Man, saying pay no attention to what's going on with me personally, it's all the other people, all the secretaries of state and all the people in charge of the elections. They're the ones that are really the problem.

If you tell or point to the people in Wisconsin what's going on in Georgia, then the people in Wisconsin can worry about was the same thing happening in Wisconsin and vice versa. It's the absolute worst elements of the movies beautiful things and The Music Man combined into one, and January 20th of next year can't get here soon enough.

Brian: Spencer, thank you for that good distillation of a central thing that's been happening the last four or five years. On that point, Zach Montellaro who covers elections for Politico, with the two-senate runoffs looming in Georgia, with control of the US Senate at stake and how they come out, the two Republican candidates are calling on Georgia's Republican secretary of state to resign. There's a Georgia version of the attack on institutions, the attack on the perception of the integrity of the vote, in this case, being lobbed by the two Republican candidates for US Senate in Georgia against the Republican Georgia secretary of state, what's up with that?

Zach: Yes, I'd say your guess is as good as mine as what's up with that. I think probably the most telling part of what they did was that they didn't actually allege any specific cases of irregularities, they didn't allege any problems. They just said there was problems. By and large, there hasn't been problems, not only in Georgia, but countrywide. This has been a remarkably smooth election considering we're in the middle of a pandemic, and that pandemic has gotten, frankly, a lot worse over the last month or so. It's the same thing. It's what the president is doing on a state level that Republicans didn't necessarily get the results they wanted.

The Republican senators didn't get the result they wanted. They're both heading to a runoff, and the president didn't carry the state. They're attacking the Republican secretary of state without providing any sort of evidence of what he did wrong. Of course, Secretary Brad Raffensperger, the Republican, said he's not stepping down. He took a potshot at Senator David Perdue saying, “I would be upset too if I was also in a runoff that I shouldn't be.” It's the same thing. It's what the president is doing. It's attacking democratic norms, it’s attacking the democratic system without any sort of evidence to back it up.

Brian: There's a cartoon in the New Yorker Zach, a couple, a husband and wife in their home, and somebody is at the door serving them a piece of paper. The husband takes and he turns to the wife and he says, “Trump is suing us because we voted for Joe Biden.”

Zach: [chuckles]

Brian: There's the satirist Andy Borowitz, who makes up these fake news stories and he's got one, “Trump on his lawsuits. No one knows more about fraud than me.” Just putting that out there, we need a little comic relief at times like this. Fred, take us to the next step after the firing of Esper, the firing of CIA Director, Gina Haspel, the firing of FBI Director, Christopher Ray.

Fred: A lot of people are anticipating that and one thing that happened is as reported by Ellen Nakashima in the Washington Post, and I've since confirmed it and even got some elaboration on it this morning. Trump has installed one of Congressman Nunes’ hacks, a real bad guy [crosstalk]

Brian: This is Devin Nunes from the Intelligence Committee, who is defending Trump in the Russia thing.

Fred: Right. He's installed one of his worst henchmen as the general counsel of the National Security Agency.

Brian: What does that mean?

Fred: Now, two things about that. One, it's a civil service job, so he's in there. He can be removed from that particular position but he's there. Second, I wrote a book a few years ago called Dark Territory about cyberwar, and I did a lot of reporting on the NSA. One thing that struck me that I hadn't known before is that the lawyers in the NSA are very powerful. They keep that place which is, it has the technical potential to do all kinds of illegal stuff. They keep them pretty much on the straightened level. A lot of the potential crimes that say, Edward Snowden talked about, very, very few instances in which they’re actually exploited.

To have someone like this in the General Counsel's Office it's concerning. A former senior NSA official told me this morning that what Trump is doing, is that he's burrowing his own people into the deep state, as he would call it. By the way, I think that by January 20th, I think Joe Biden will be the president, but if not to stay in power than to have people who represent him, and his interest, and his desire for renewed power in crucial positions in the government. I hope that the Biden people are tracking all of this and expunging them as you would a foreign virus as quickly as possible upon taking office.

Brian: Before we run out of time Zach, what's the significance of Attorney General Barr telling all the US attorneys last night that they may go ahead and look for voter fraud? Aren't they already able under the law to prosecute voter fraud as US attorneys?

Zach: I think this was maybe a slight tweak of policy that he’s saying, normally we don't open these investigations until after the election is certified. He's saying, if it's big enough, basically, you can do it. I will readily own up to not being the most in-tune with the DOJ’s in and out of policy on this but I think maybe the most concerning part with it is that the career attorney who overseen the election-crimes branch of the Public Integrity Section of the DOJ, resigned from his post after Attorney General Barr announced this.

That was I think the thing that brought up the most concern that even if this is at best a messaging play to the president face saying, "Look, we're looking for this voter fraud to be clear. We have seen no widespread evidence of it", is that career civil servants within the DOJ who would know this best are resigning rather than sticking by the policy.

Brian: Yes, when I first saw the Barr thing, I thought it was more rhetorical than anything else since US attorneys are able to investigate voter fraud. He's saying, “Don't forget, you're able to investigate voter fraud.” I thought the nuance there was that the trigger for some kind of investigation, the line for that was being moved from somebody has to present you with some credible theory of something. Normally, somebody has to present a prosecutor with something before they go poking around to see if it's true. In this case, he seemed to be involved in them to just go poking around, so I don't know how big a difference that is, but then his number two, in charge of actual voter fraud investigations, resigned in protest, so he must think it's serious. Fred, did you want to weigh in on that?

Fred: Well, I was alarmed initially, then I looked at the full quote, and in fairness, he did say these allegations must be credible and not just going around chasing stuff. Then he released a subsequent statement saying, "I did not mean to suggest that there are any such allegations right now", so I don't know if he's just playing both sides. I also read, I think, in The Daily Beast today that the White House, that Trump is very upset with Barr's statement because it didn't go far enough, so I don't know.

I think there was some people trying to play both ends of this thing, but again, yes, the initial take on Barr's remark is, "Oh my God, he's going to corrupt the election." This just creates such mayhem out in the world. By the way, not just the American populace, if you're talking about dealing with the rest of the world, and one theme that Biden has played is that he's going to go to our allies and our adversaries and say, "Hey, we're back. The Trump years were just a blip, it's an anomaly. We're now going to support democracy. We're going to stay true to our allies. We're going to deal with threats."

If I'm out in the world and looking at the United States right now, I'll say "Well, okay", and I'm an ally, "Glad to have you back, glad to hear these words, but I don't know whether to believe you, that half the country seemed to vote for this guy, there's all this mayhem going on." You could imagine writing a news story about this, Brian, if it were happening in another country, it'll be like covering a banana republic or something.

The allies have got to be thinking about this point, "Okay. Biden is saying this. I've known him for a long time, I know what he's about, but how much is he really reflecting the United States at this moment, and are the American institutions solid enough that we can count on them again, or do we have to go find our own alliances from now on."

Brian: We will give the last word in this segment to listener KG on Twitter, and you will be glad to hear how your words resonated. It says the guest on Brian Lehrer Show just now compared Trump to Harold Hill and The Music Man. That's the only take I really needed to hear today. We thank Zach Montellaro who covers elections for Politico and Fred Kaplan, who covers the military for Slate, and is author of The Bomb, Presidents, Generals and the Secret History of Nuclear War. Thank you both very much.

Fred: Thank you.

Zach: Thank you.

Brian: Brian Lehrer on WNYC. Much more to come.

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