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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. North Carolina is one of those swing states that's still considered too close to call in the presidential race by the AP and the networks, but its competitive US Senate race finally did get called yesterday for the Republican incumbent, Thom Tillis. The Democratic challenger, Cal Cunningham, did something that in normal times wouldn't be newsworthy at all, when the race was called, he conceded. Cunningham said, "The voters have spoken, and I respect their decision. While the results of this election suggest there remain deep political divisions in our state and nation, the more complete story of our country lies and what unites us."

That kind of simple and unifying concession after a razor-thin loss would barely make the news in other years, right? If you've seen the New York Times today, in print or online, it's one of those days with only one big headline at the top of page one, "Election Officials Nationwide Find No Fraud." Then, it says, "Statements amount to forceful rebuke of Trump's false claims." The Times contacted officials representing both parties in almost every state, who said that there were no irregularities that affected the outcome, then, it goes state by state.

Washington Post columnist, Henry Olsen, provides a simple but big picture analysis of how we can tell the election was not stolen. He writes, "Since we elect presidents through the Electoral College, if fraud were behind President-Elect Joe Biden's win, we should expect to see significantly higher turnout increases in key states when compared to the nation as a whole. Furthermore, we should expect to see higher turnout increases within those states in Democratic areas than in Republican areas since those regions are places where Democrats are more likely to be able to hide any stolen votes. Finally, we should expect to see significantly larger shifts in voter margins toward the Democrats from other previous elections, as the fraud alters the area's normal voting patterns. None of these early warning signs of fraud appear in the results," that from Washington Post columnist, Henry Olsen.

Here's one example of a suit that shows both how broadly they're trying to disqualify votes and how contradictory it can be when they go that broad. The Times reports that on Monday, the Trump campaign filed a lawsuit in the seven Pennsylvania counties where the president lost that claimed mail voting, mail voting itself, just the fact of mail voting, created an unfair two-tiered system during the election though the system, the Times reminds us, is also in place in counties the president won.

Can he really try to suppress every mail-in vote, but then, just pick off the counties he lost in? Can he really get whole states to nullify their results just on the basis of having used a lot of mail-in voting? Most legal experts doubt it, almost every legal expert doubts it, but that's what they're trying or part of it. Still, the campaign continues with another lawsuit filed in Michigan yesterday, and a big collection of rallies in support of these claims now plan for Saturday in Washington. They're calling it things like the Million Mega March. Have you heard that one yet? The Million MAGA March.

As POLITICO reports, "The disparate tribes of MAGA Nation, Oath Keepers, Three Percenters, Infowars fanatics, Groypers, Proud Boys, white nationalists, neo-Nazis and the people who would simply call themselves die-hard MAGA, have declared that they are simply going to show up in Washington en masse over the weekend to rally together, with the marquee event on Saturday," that from POLITICO. I guess it will be long on spectacle, short on evidence, what matters now is what happens in court?

With us now, Jane Mayer, chief Washington correspondent for The New Yorker and author of books including the 2016 bestseller, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, which began as a 2010 New Yorker piece about the Koch brothers' deep influence on American politics. She also wrote the 2008 bestseller, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals. Her current article is called, Why Trump Can't Afford to Lose. It details some of the more than a dozen lawsuits and criminal investigations plus daunting financial obligations that Trump will have to face once he no longer has the unique protection of being president of the United States. Thanks for coming on, Jane. Welcome back to WNYC.

Jane Mayer: Thanks so much, great to be with you.

Brian: Your article was written, we should say, a few days before Election Day and quotes various people who predicted exactly what Trump is doing now, for example, his former lawyer, Michael Cohen. What did Michael Cohen or anyone else see coming?

Jane: Well, Michael Cohen, it turns out, knew him quite well. He'd been working with him for years. I'd say his prediction was among the most accurate. He said that President Trump would never ever, ever concede, that he would claim fraud, he would claim that dead people voted, people who'd never been born had voted, come up with all kinds of excuses anything to say other than that he'd lost the election because the public had turned against him. He clearly was right about that. There were a number of people who also thought that it was possible that Trump might eventually flee the country or that he basically would try to pretend or suggest that he's running again in order to seem like he's got a movement that's still alive.

Brian: Cohen might deserve a hit-the-nail-on-the-head prize for telling you that Trump would challenge the validity of the vote in each and every state he loses, maybe he should have said each and every swing state, but that is just what we're seeing as is the example I was just giving. The media spends a lot of time covering the big-name Republicans, Jane, who won't dismiss Trump's claims, like Mitch McConnell and Mike Pompeo, despite the lack of evidence. You report on the people who are doing this work for him on the ground like William Consovoy and Cleta Mitchell, not names that people tend to know. Want to pick one and say what they're doing or where they're coming from?

Jane: Well, basically, the Trump team has assembled a rogue lawyer law firm that is litigating all over the country and making claims that this election was only won by Biden because of fraud. So far, though, I have to say, Cleta Mitchell's one of the lawyers and William Consovoy is another, he's a Supreme Court litigator, none of them have been successful when it really comes down to getting into court. They have to provide evidence. Evidently, there is no evidence, and that's what the New York Times is writing about again today.

If you take a look carefully at some of the court proceedings, there was an interesting little transcript of the Trump lawyers in front of a judge in Pennsylvania. The judge said, "Are you telling me that there is actually fraud? Have you seen fraud?" Trump's lawyer said, "No, sir." When it really comes down to it, they don't have the evidence. I think every expert I've interviewed will tell you the reason they don't have evidence is there is none. This is not an election that was won by fraud. This is an election that was won fair and square by Biden.

This is a lot of nonsense, really, sort of political guerrilla dust being thrown up by President Trump. It probably wouldn't have gotten very far, except for the fact that he's being humored and supported by the Republican establishment. His own party is a party now, we see, a party of enablers, who are making this possible, giving some kind of credence to this new form of denialism.

Brian: Where it really matters is in the courtroom right now, and when he runs out of options by the deadline to certify votes, that's when Joe Biden will really be the president-elect, officially, not just based on the obvious math and the lack of evidence to the contrary but officially when the votes are certified in the states, but I wonder sometimes about it just taking a few Judge Roy Moores or people like that going up the chain to a friendly Supreme Court and maybe something like that Pennsylvania suit trying to disqualify every mail-in ballot, that it might look rational and reasonable to just enough of a sliver of conservative judges. Does anything like that keep you up at night?

Jane: It literally kept me up last night.

[laughter]

Brian: I guess I asked the right-

Jane: I woke up at three in the morning and started doom scrolling on Twitter. I was so nervous about what's going on. I, like you, for somebody who finds this whole situation fairly alarming, it's so unusual. We've never seen anything like this in this country. It's beginning to have the feel of someplace like Belarus or some third world country, so, yes, I do worry about it. There are extreme and probably unlikely scenarios, but there are possibilities for making a terrible mischief in this thing, that it is possible, I suppose, that in Pennsylvania, the state legislature, which is dominated by Republicans, could try to disqualify the electors who've been elected and are supposed to deliver their votes for Biden and they could try to put up a new slate of their own that contest that.

One of the things that Michael Cohen, who you mentioned at the start of this interview, the former lawyer for Trump who knows him so well, said was that the reason that Trump rushed to put Amy Coney Barrett on the Supreme Court was because he wanted a friendly court there so that when he contests this election, he can win in front of the Supreme Court.

I mean, this takes elaborate conspiracy theory planning, and I'm not generally a believer in conspiracy theories, but there is the possibility for extreme mischief if things went horribly awry. There are beginning to be-- Some of the experts on the subject of authoritarianism, such as Timothy Snyder, who's a professor at Yale University, who studies autocracies in Eastern Europe and elsewhere in the world, who are beginning to sound alarm signals.

He is saying today that it's not enough to just win the election, that that's only the first step in places where democracy is under attack. He's saying if the Democrats want to hold on to this Biden win, they need to start flooding the streets with popular protests and not just let the Proud Boys be the people protesting in Washington. They need to support the democratic outcome, Snyder is saying. It has a very dangerous feel to it.

Brian: One of the things that worries me the most is, one of the things you mentioned, that state legislatures my give themselves reason in Republican states, that are swing States, that Trump won like Pennsylvania, like Wisconsin, to somehow declare without a court ruling that the vote was inconclusive, despite lack of evidence of voter fraud that would close the margin, and say, "Well, it's inconclusive because we can't tell because there were so many mail-in ballots that could be subject to fraud or whatever and seize control of the electoral votes, and then, really be done with this whole 200-year experiment in democracy. That's the one that keeps me up at night. [laughs]

My guest is Jane Mayer, chief Washington correspondent for The New Yorker. We can take your comments or questions for her at 646-435-7280, 646-435-7280, or tweet @BrianLehrer. Jane, did you want to say something about what I just said?

Jane: I just wanted to say that I think it certainly would take us into uncharted waters where we've never been before, and it all comes down to whether you believe that common sense and decency are going to prevail in the country and the values of the enlightenment or not. I think what's shaking people up also is how close this election was. It shows that there's a lot of support for Trump. It's very strong out there still, and that's probably also why the Washington establishment, the Republicans, are not speaking up and supporting Biden as most people think they ought to.

Brian: My producer says I might've had a tongue go a minute ago and said, "States like Pennsylvania and Wisconsin where Trump won," instead of states like Wisconsin and Pennsylvania where Trump lost, so to be clear. I'm sure it was probably clear from the context anyway, but that's what I meant. Your article is called, Why Trump Can't Afford to Lose. Your article mentions that Trump's businesses have not done well while he's been president. What can you tell us about that since I think many people assume it's been a boon to his businesses? We hear about the Emoluments Clause and all these people who try to cozy up to Trump by staying at his hotels.

Jane: Yes. I think it's worth-- Before digging into the details, if you step back, why is Trump fighting so hard to stay in the White House? As long as he's in the White House, he has the presumption of immunity from lawsuits and certain protections that go along with that high office, but as soon as he's out, he faces a nightmarish number of problems, and among them are in his business empire, which now, thanks to the incredible reporting by the New York Times, we've had a look at his the details of his tax returns and we can see that he is about to face $300 million in loans coming due that he has personally signed for in the next four years. He's got to come up with that $300 million. He's personally backing it. It's actually over 300 million.

In addition, he's been fighting with the IRS, which is disallowing $100 million more in deductions that he took. So far, he's been losing that case, apparently. If he continues to lose it, he'll owe $100 million on top of the first $300 million. There're an additional many hundreds of millions of dollars of loans coming due on his business that he's not personally backing. Cumulatively, I think it comes to about $900 million. He's deeply, deeply in debt. He could sell off some assets, presumably, but at this particular moment, the kinds of assets he's got, which are resorts, real estate that are resorts, and office buildings, their value has plummeted because of the pandemic, so he is in a tight squeeze. It's not a place that anybody would want to be.

Brian: Your article got me wondering if a prime motivation for this whole post-election drama might be finance. I see the fundraising emails that go out. I don't know if you're on those lists, but there are many, per day, since the election, just like before the election. One has the subject line, "Voter Fraud," and when you open it, it doesn't make any kind of argument for that being real. It just says, "It's time to fight back. Can president Trump count on you?" Then, it asks for money.

Another one, just this morning, has the subject line, "Can you chip in?" When you open it, it says, "If every patriot chips in $5, President Trump and Vice President Pence will have what it takes to defend the election and win." They're making claims about voter fraud. They're making claims that they can still win and raising money off that. I'm wondering, Jane, if it might be that Trump wound up with a lot of campaign debt and that he's raising more money now than he's spending on the legal briefs, and that's a part of this, any idea?

Jane: Oh, I think for sure you're onto something there. If you take a look at the fine print in those solicitations that Trump is sending out to people, he's saying that this money is going to go to his defense fund and fighting these election cases. In fact, if you look at it carefully, that money is going to retire his campaign debt and God knows where else. This is going to be just a huge engine for raising money for Trump and already is. We can see that.

Brian: On the other hand, isn't it very easy for an ex-president to make money? They can charge hundreds of thousands of dollars for speeches. Hillary Clinton, even as an ex-first lady and a senator, an ex-secretary of state, or whenever exactly those speeches to Goldman Sachs were, that got blowback during the 2016 campaign for $250,000 and things like that. It's really easy for an ex-president to make gobs of money, isn't it?

Jane: Well, ever since-- It really started with Gerald Ford. He started going out on the speaking circuit and making money. Sure, they can make money. It's money that looks like big, big money to someone like me, who's a reporter, but for Donald Trump, $250,000 for a speech here and there or even a million or $2 million, which is what some of the other former presidents have gotten, it's not that big of money when you owe $300 million on your debt's coming due and $100 million more to the IRS. He's going to need a lot of money.

In addition to the problems, of course, in his business empire are the legal problems he's got. I mean, it's going to be expensive to pay the legal bills and it's also-- I mean, the case, particularly the one in New York, is a serious case that the Manhattan DA seems to be investigating against Trump. He's facing some very serious perils.

Brian: Andrew in Manhattan, you're in WNYC with Jane Mayer, chief Washington correspondent for The New Yorker. Hi, Andrew.

Andrew: Oh, hello, first-time caller, longtime listener.

Brian: Glad you're on.

Andrew: I'm glad am on too. I just wanted to say that, didn't the Pennsylvania legislature already declared that they would abide by the vote count and that they would not try to subvert bring their own slate of delegates-

Brian: Electors.

Andrew: -electors to challenge what the state voters have already-- I don't know about Wisconsin, but I read somewhere or heard somewhere that the Pennsylvania legislature already agreed to the will of the vote and will not bring their own slate of delegates on.

Brian: You know, I hadn't seen that, but we will double-check that now. That would be extremely reassuring. Jane, are you aware of that one way or another?

Jane: I believe that there was some move along those lines. I agree, it would be very reassuring and seemed very reassuring when I saw it. I also think that the situation seems politically fluid. I think, legally, it's a very clear situation and that it leans very hard against President Trump, but politically, there seems to be this gasoline being poured on the fires, and that's what's getting everybody nervous.

Brian: I've got a couple of articles here. Let's see, should I do this in real-time? POLITICO, yesterday, "Pennsylvania GOP rallies to Trump's defense. Republican state legislators are calling for an audit of the presidential election results to be completed before electors are seated." Gee, that's not reassuring. It starts by saying, "Jake Corman has said for weeks that the rumor that Pennsylvania lawmakers would intervene in the presidential race by directly appointing presidential electors is not true. Corman, the majority leader of the GOP-run state Senate, wrote in an October op-ed with another legislator,that the General Assembly "does not have and will not have a hand in choosing the state’s presidential electors."

Jane: That's it, yes.

Brian: Go ahead.

Jane: But you've got some rogue members of the legislature, correct, there, and you've also had a run at the secretary of state in Pennsylvania. I think her name is Kathy Boockvar. She's holding firm. I mean, you consider this mostly positive news so far, but also, troubling.

Brian: Right. That was just the first paragraph of this POLITICO article from yesterday. The second paragraph says, "But with--" It starts with a but so we know where we're headed, "But with President Donald Trump refusing to concede the election to President-elect Joe Biden and top Republicans rallying around his baseless claims of widespread voter fraud, pressure has begun mounting on Corman and other GOP state leaders to reverse course and somehow overturn the results of the race." I think that backs up what you said, which is that it's still politically fluid, unfortunately.

Jane: That is the concern. Again, to me, the thing that jumps out is that this would not be happening, if not through, as the POLITICO article notes, the Republican leaders in Washington. If Mitch McConnell had stood up and congratulated Biden on winning the election, I don't think we'd be having this conversation. It's because the leadership of the Republican Party is going along with this charade, that there is a possibility somehow that Trump won, that's why we are in this situation.

Brian: Question from a listener via Twitter. It just disappeared from my screen as another one popped in. Wait, I'm going to get it back. Here it is. It says, "Hasn't it occurred to anyone yet that Trump is waiting to be offered a no-jail immunity deal in exchange for leaving peacefully like Nixon?" Do you think that's a possible scenario?

Jane: That was actually floated-- One of the people I interviewed for the story I did for The New Yorker, Joe Lockhart, somebody who had been in the Clinton administration, suggested some global deal. Exactly that, "Go peacefully, in exchange for that we'll drop the prosecution that seems most serious," which is the one in New York, the DA's office in New York. That would require side-bands, that Manhattan district attorney going along with it.

There seem to be, the people I interviewed, quite a dispute about whether he would consider such a deal. He's a lawyer, and this is a criminal case, and what message does it send if you can make a deal and just drop charges against someone because they're too important to prosecute? That's one way of looking at it. The other people were arguing, "Before he's a lawyer, he's a politician." He may see this as a way to unify the country. I don't know how that will play out, but I think it's a possibility.

Brian: Yes. Related to that, you tackle the idea in your article of a pardon of Trump, which could be by Trump himself or he could resign before Biden takes office if Mike Pence agrees to pardon him. You also examine the possibility of Biden pardoning Trump, through the lens of President Gerald Ford, having pardoned Nixon to help the country move on. One detail that caught my eye was that Ford cited an old Supreme Court decision that said, "Accepting a pardon implies an admission of guilt."

You remind us in your piece that Ford had gotten so much blowback for pardoning Nixon that one of the ways that he justified it in future public appearances was to say that, to say that there was there was an old Supreme Court decision that said, "Accepting a part and implies an admission of guilt." That made me wonder if you think Trump's psychological makeup might resist a pardon for himself, for exactly that reason, because it comes with a taint of an admission of guilt.

Jane: Well, I think what we know about Trump is that he will do what he sees as in his best interest. If it's maybe a choice between Rikers Island and pleading no contest of some sort, I don't know how he would choose. Again, the best I could do, as a reporter, was talk to people who know him well, and again, Michael Cohen among them, said, "He will never ever, ever, ever concede." President Trump's niece, Mary, said to me that he cannot ever accept losing. In their family, losing was a death sentence, practically. He won't ever take responsibility for this.

I can imagine very much that he might try the self-pardon route. It's never been done by a president, but the pardon powers that the president has under the Constitution are very broad and they don't necessarily prohibit a president from trying to pardon himself, according to legal scholars that I talked to like Jack Goldsmith, who is a professor at Harvard Law School, and he's looked at it closely. It's never been tried. Nixon apparently thought he had the legal power to pardon himself, but his Justice Department, at the time, did this quickie memo, where they said they thought it seemed illogical because no man can really stand in judgment of his own case.

Again, it hasn't been tried, and that same Justice Department memo that suggested that it might not work for a president to pardon himself did lay out the possibility that a president could temporarily step down and make his vice president, president, then, the newly-appointed president, who'd been vice president, pardon the former president, and then, the former president could step back up and resume his powers. That's the only Justice Department memo that's ever been done on this particular subject, but it does lay out that scenario as a possibility.

Brian: Very interesting. Becky in Rockland County, you're on WNYC with Jane Mayer. Hi, Becky.

Becky: Hi. Are you getting me in?

Brian: Yes, that's you.

Becky: Okay, hi. I have two questions. First of all, if by some weird reason Trump were to gain the electoral votes in Pennsylvania, by going county by county or whatever, would that even make a difference if he had 20 electoral votes?

Jane: Let's see. At 306, subtract 20, I think he still would be-- Assuming that Biden held onto the other states, he would still be the winner.

Brian: That's true. It would take more than one state in that scenario.

Becky: Oh, okay.

Brian: That's assuming that he won Arizona, which some networks have called and some networks haven't called, and then, of course, there are the various mathematical scenarios with the various states that are unresolved, but yes, he couldn't-- The way things stand now, it couldn't just be Pennsylvania.

Jane: Which, again, shows you how completely remote the possibility is that there will be a reversal in Trump's favor of this election.

Becky: Exactly.

Brian: Becky, you had a question.

Becky: Yes, I did. I was wondering, what is the likelihood of Trump running again in four years?

Brian: They're talking about this. That's part of the chatter on cable news now.

Jane: Yes, it's something that was-- The first person I heard floating that possibility was Steve Bannon, the former political advisor to Trump's 2016 campaign and to the Trump White House. I hear from people who are close to Trump in the White House that it's really unlikely that this is something he would actually want to do, but at the same time, it's a very useful storyline to put out because it makes him seem viable. Rather than a loser, it makes it seem like he's still leading a movement that could reclaim power.

It also helps them potentially legally, in that, he would be able to argue that if there was an effort to go forward with this criminal prosecution in New York, he could argue that it's just a political dirty trick because he's a potential candidate. It helps him with that. Then, also, as Brian was saying earlier, helps him fundraise. He can create an independent expenditure group or PAC and start just asking for money all over the country and it will surely come flowing in. it's a very useful narrative for him. I'm skeptical of whether it's a for-real narrative.

Brian: One of the going theories on cable news channels, not named Fox, is related to what you were just describing, that Trump is setting up to start a new right wing network of his own, and he gets more of a business boost for launching that by having this fight before he leaves, rather than just accepting the results. Your article mentions the Trump news network concept, but I wonder how that coexists with all the other stuff. As we run out of time, Jane, I wonder if you have a take on the role of Fox News in any of this.

I've been watching them a fair amount, along with many other things, in recent days, and they seem to have a lot of cognitive dissonance on Fox right now. On the one hand, they are calling Biden the president-elect like everybody else. They're referring to him as President-Elect Joe Biden in their news segments. The more hard-hitting opinion shows are tending to knock Democrats on hypocrisy coming into office, things like, "Joe Biden says unify the country, but then, look at all these Democrats saying they want Trump prosecuted and things like that," rather than really trying to make the election fraud claim.

Jane: Well, I think cognitive dissonance is a perfect way to put it. There seems to be confusion within the Murdoch empire. You've also got the New York Post and the Wall Street Journal, all hitting slightly different notes, even hitting different notes on different days. There's long been an argument within Fox and Trump, really, about which one of them needed the other more. Trump's view has been that he made millions and millions of dollars for Fox because he was such a good box office and Fox needed him more than the other way around.

Fox has always said, "No, we existed before you, and we will exist after you." I think you're seeing that play out here, where basically the Murdoch empire is beginning in a messy way, to break up with Trump and move on to a new future without it. That's why Trump is also talking about creating his own- or the people around him, at least, are talking about creating his own TV network that would be just even more loyal and more pro-Trump than Fox is. He's got potential backer there for that, a very big one, Bernie Marcus, who's the co-founder of Home Depot and a multi, multi-billionaire. I interviewed him for my piece and he basically endorsed the idea, said he thinks it's a good idea for the future to have a pro-Trump network other than Fox.

Brian: Jane Mayer, chief Washington correspondent for The New Yorker. Her latest article is called, Why Trump Can't Afford to Lose. Jane, thank you so much.

Jane: Thanks so much for having me.

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