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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Yesterday was Pearl Harbor Day in America. Today is "safe harbor day." On Pearl Harbor Day we remember the 2,403 Americans were killed in a sneak attack by Japan on December 7th, 1941. This year for the week ending December 7th, an average of 2,259 Americans died each day from the coronavirus according to the New York times COVID tracker, we're basically having a Pearl Harbor every day in this country now.

After Pearl Harbor, the US entered World War II, despite protests by a group who said they stood for America first. Today, public health officials are asking people to stay home and close risky businesses temporarily, despite protests led by the president who says he stands for America first. We'll talk later about what's new from Governor Cuomo and Governor Murphy about COVID prevention measures in New York and New Jersey, but yesterday was Pearl Harbor day, December 7th. Today is "safe harbor day," December 8th.

According to a Washington Post article published just after midnight as "safe harbor day" began, it's called "safe harbor day" because it's an insurance policy by which a state can lock in its electoral votes by finishing up certification of the results and any state court legal challenges by a congressionally imposed deadline, which this year is today.

The article notes that other than Wisconsin, every state appears to have met today's deadline in federal law, that essentially means Congress has to accept the electoral votes that will be cast next week and sent to the Capitol for counting on January 6th. Those votes, the article says, we'll elect Joe Biden as the country's next president, got from The Washington Post today, but as with so much else about this year's election, President Trump is trying to nullify "safe harbor day" by working the political system around it.

Another Washington Post article today says President Trump called the Speaker of the Pennsylvania House of Representatives, man named Bryan Cutler, twice during the past week to make an extraordinary request for help reversing his loss in that state, reflecting a broadening pressure campaign, says The Washington Post, by the president and its allies to try to subvert the 2020 election result.

The article says a spokesman for Cutler says, Cutler told the president that the legislature has no power to overturn the state's chosen state of electors, but ominously, that same article says that, late last week, that same Pennsylvania House Speaker, Mr. Cutler, was among about 60 Republican state lawmakers who sent a letter to Pennsylvania's congressional delegation, urging them to object to the state's electoral slate on January 6th, when Congress has set to formally accept the results.

It says, although such a move is highly unlikely to gain traction, at least one Pennsylvania Republican Congressman Scott Perry said in an interview yesterday that he will heed the request and dispute the state's electors in Congress, dispute Pennsylvania's electors in Congress. How safe is "safe harbor day?" With me now, Aaron Blake, political reporter for The Washington Post politics section known as The Fix. Aaron, thanks for coming on w NYC, and happy "safe harbor day" if it is a happy "safe harbor day."

Aaron Blake: Happy "safe harbor day," Brian, thanks for having me on.

Brian: Your article today is about three court rulings in one day yesterday, from Michigan and Georgia, getting in under the wire before today's "safe harbor" deadline, all three court rulings offering brutal or scathing rebukes of the president's claims your words. Can you tell us about the one from the two federal judges who Trump has considered for the Supreme Court?

Aaron: Yes, maybe this was maybe the least surprising of the ones we're talking about here, but significant nonetheless. Bill Pryor is an appeals court judge who was on the president's shortlist for Supreme Court dating back to when he was first a candidate, of course he's been passed over for those. Then the other judge who took part in this decision was Barbara Lagoa, who was maybe the chief competitor to Amy Coney Barrett this last time around when Barrett was selected for the Supreme Court.

Basically, those two presidential Supreme Court short-listers ruled against a suit by Lin Wood, a Trump-aligned attorney in Georgia, seeking to decertify that state's election results. Now, not a terribly surprising outcome given this was kind of a Hail Mary, but I think it's very worth noting that the president's legal effort, and this is something we saw in these other cases we're talking about in this article, has forced allies or people who you'd think to be allied with the president or at least sympathetic to him in certain ways to rule against him and not go along with his claims.

I think we've seen that most demonstrably in Georgia, especially with Brian Kemp, the governor, of course, has long been a Trump ally.

Brian: Yes, very interesting stuff in Georgia, and now with these two judges, federal judges who, for anybody who did follow the Supreme Court nomination process, those names, Pryor and Lagoa, were in the news and reportedly very high on the president's before he actually chose cabinet, that Amy Coney Barrett. In the other case in Georgia, you note that the opposition to the president filed its case in court representing Republican Governor Brian Kemp, who used to be a close ally of Trump's, Trump now rips him every day, and Kemp's rebuttal to the president includes what you call the "pièce de résistance" involving a mythological monster. What is that mythological monster?

Aaron: Since the start of this whole process, of course, Sidney Powell, who was for a brief period on Trump's legal team, then was excommunicated for reasons that aren't entirely clear, made a bunch of very far-flung claims about a communist plot and Venezuela and Hugo Chavez. She's called her election contests the "Kraken." She said she's releasing the Kraken, which of course is a mythological monster that doesn't actually exist, which is something that Brian Kemp's legal team made a very pointed note of in their filing this weekend.

They said that much like the mythological Kraken monster, after which plaintiffs have named this lawsuit, their claims of election fraud and malfeasance belong more to the Kraken's realm of mythos than they do to reality.

Brian: Ouch.

Aaron: Yes. Brian Kemp has not been willing to go along with what the president has asked of him clearly, but like many other Republican politicians, he has been treating the president with kid gloves, not necessarily disputing these things forcefully, but just saying that it's not within his power to do anything else essentially.

I think that this response over the weekend, which actually happened the same day that the president called Brian Kemp, apparently trying to apply some pressure, really crystallizes the manner in which these Republican officials have not been willing to go along with what the president wants them to do.

Brian: Yes, listeners, we're going to get to the big but section of this interview in a few minutes, but what about Congress members like Scott Perry from Pennsylvania being willing to overturn these electoral vote outcomes? First, we're going through these three Supreme Court- not Supreme Court, three various court rulings yesterday that seemed to help put nails in the coffin of the president's cases.

We've got one more to go with Aaron Blake from The Washington Post. You have a few juicy quotes in your article from this judge's ruling in Michigan, including that the pro-Trump case consisted of "Nothing but speculation and conjecture that votes for President Trump were destroyed, discarded or switched to votes for Vice President Biden." In other words, a Michigan judge, yet again, has ruled that they have no evidence?

Aaron: Yes, this was maybe the most significant of the three rulings that we saw in the last several days here. This was a district judge named Linda Parker who, like many judges before her, has essentially said, "There is no real evidence here. This is based upon hearsay." I think what was most interesting about her decision was when she speculated a little bit about the purpose behind the lawsuit. She said that she didn't necessarily believe that it was actually about changing the results of the election.

Indeed, the lawsuit was filed rather late for that purpose. She said, "She thought that it was more about the impact of the allegations on people's faith in the democratic process and their trust in government."

I think this has been a question throughout this effort, whether the president truly believes that he can overturn this election result, or whether this is merely a means to rally his base, to claim that he never lost, and to build a political movement moving forward. I think the judge really nodded to that second possibility in this decision in a way that we haven't necessarily seen the courts do before.

Brian: Judge as political analyst. Is the timing here relevant? The fact that this latest trio of losses for the president in court came on the day before "safe harbor day?"

Aaron: Yes, I think, obviously the "safe harbor" deadline is a significant one because legally speaking, states aren't allowed to change their results after that. They're not allowed to change the electors that they send for the Electoral College. These didn't need to be resolved in some fashion before then. I think, more than anything though, this trio of rulings is a reflection of the desperation that we're seeing from the legal teams behind these lawsuits, and the judges seem to have less and less patience for the tactics that they're using to really throw things at the wall and hope that they stick.

Brian: Aaron, here's the money question. As far as you can tell, how safe is "safe harbor day" really? Because that other Washington Post article about Pennsylvania, as we cited at the beginning, said Trump has called the Speaker of the Pennsylvania House of Representatives, Bryan Cutler, twice in the last week, asking him to help overturning outcome in the state. Cutler did write to Pennsylvania's congressional delegation asking them to do so. One of those members of Congress, Republican Congressman Scott Perry, said he will. I'm confused how safe is "safe harbor day" from Republican Party politics in Congress, if they want to go down that road?

Aaron: As with so much of what we're going through right now, it's just unprecedented in many ways, we haven't seen this kind of an electoral contest for a race that, yes, was decided by less than 1% in the decisive states, but it's not a situation in which there really seems to be any question, at least what the evidence shows, when it comes to the fact that Joe Biden won this.

We have a deadline coming up, not just "safe harbor day" today, but December 14th, when the electors in these states will formally cast their votes, then we have the January 6th date, which is when Congress will convene. There, I'm guessing, are going to be a number of members. You mentioned Scott Perry from Pennsylvania.

Mo Brooks from Alabama has been saying many of the same things about this, who are going to try to object, but the math for Republicans just really isn't there in the House. It would take something extraordinary for the results to actually change. I think, again, we're talking about something that's more in the realm of making a political statement and building a movement than something that actually has a possibility of overturning the results.

Brian: All right. That's going to be reassuring to a lot of Democrats. You answered what was going to be my next question, which is, whether you all at The Fix or elsewhere at The Washington Post politics desk done a head count of congressional Republicans and what they'll do on January 6th, because someone did one the other day that found a majority of Republicans in Congress won't say out loud that Biden won the election. You saw that, right?

Aaron: Yes, our story surveyed every Republican in the House and the Senate, about 250 members in total, and ask them 3 questions. The first was, do you recognize that Joe Biden won this election? Will you accept it if Joe Biden wins the Electoral College? The overwhelming response was, no comment? We have 25 members who said that they believed Joe Biden won the election.

Only two said that they believed Trump won, which, I think, is telling in its own way, but the vast majority are keeping their powder dry, and that's really a reflection of how uneasy this is for Republicans. They don't want the president's wrath. They don't want to take a position on this until they actually have to. I think it's one of those things where we talk about the Brian Kemps of the world.

We talk about the Secretary of State in Georgia, Brad Raffensperger-

Brian: Republican.

Aaron: -yes, a Republican, who have become front and center in this because they've certified their state's results. The reason they've been front and center is because they've had no choice, they've been involved in this and they had to make some kind of a decision.

These other Republicans, until they have to make that decision, have overwhelmingly declined to get involved at all. What's going to be interesting is if Mo Brooks and Scott Perry do press this issue, when things actually come to Congress, just how many Republicans are going to go along with it, because, at that point, they will have to make some a decision about the sanctity of the election and the validity of the election results.

Brian: Listeners, we can take some phone calls for Aaron Blake, from The Washington Post, everything you always wanted to know about "safe harbor day," but had nobody to ask, or anything else for Aaron, 646-435-7280, 646-435-7280, or a tweet a question @BrianLehrer. The phone number again, 646-435-7280. To follow up on your last answer, Aaron, if a few members of Congress can try to get other members of Congress to flip on January 6th, when they're supposed to formally accept the electoral vote, then what is the meaning of "safe harbor day?"

Aaron: I think, as with many things in the US election code, "safe harbor day" is a guideline. Of course, we're seeing in Wisconsin that they're not going to meet that deadline. They have a hearing later this week that is going to require them to take some more time with this. The question becomes, what's the punishment for not meeting that deadline? It's not really clear that there is one.

I think what "safe harbor day" really does though, is once we see further court cases filed, the judges are going to be able to point to "safe harbor day" and say, "Look, this race has not only been certified," which is something that some of these judges have said, saying that these lawsuits are moot because of that certification, "but also we are past the deadline in which that certification can be rescinded in any way." I think it's less a question of what it means as far as a deadline goes in a state like Wisconsin, and more what it means for continued litigation on these issues.

Brian: I guess I could lay out what I call a "Mitch McConnell scenario" here, that goes like this, McConnell has privately believed all along the Trump is somewhere between weird and dangerous and crazy, but McConnell is interested in one thing and one thing only, at least mainly, increasing Republican power, so he does what he does.

You can tell me if you disagree with that analysis of Mitch McConnell, but if enough state legislators around the country and/or enough Republicans in Congress think like McConnell and that Pennsylvania Congressman Scott Perry, they will subvert the will of the people if they can, if they have the legal avenue to increase Republican power. That's my Mitch McConnell scenario that rests on how many Scott Perrys there are [unintelligible 00:17:36].

Aaron: Right. I think your analysis of McConnell's political style is completely accurate. We've seen this, of course, most pronounced when it comes to the Supreme Court nominations, which Republicans refuse to consider in the 2016 election year, and then did it with Amy Coney Barrett this year when they had the power and the nominee. I think one question worth asking here is not just, what's a possibility as far as getting a Republican president in office versus what's good for Mitch McConnell politically?

If he views this as a lost cause, as something that will hurt the Republican party moving forward and maybe damage the Republican Senate majority, especially when it comes to those Georgia Senate runoffs, I think he's going to go with the thing that makes sure that Republicans have that last vestige of power in Washington.

I don't know that he's necessarily believing that this effort is hurting the Georgia Senate runoffs, but I think that there is a prevailing theory in the Republican Party, at least the more establishment campaign consultant class that this continued pressing of the idea that the election was invalid or suspect in some way could depress the Republican Party in the Georgia Senate runoffs. We haven't seen McConnell say a whole lot when it comes to backing up the president. I think, perhaps that's a little bit of a commentary on how productive he thinks that is for his quest to maintain control of the Senate personally.

Brian: Here are a couple of questions via Twitter that are along the same lines as each other. One of them says, "Aren't these suits and calls to Republican politicians just a money grab by Trump appealing to the base for money?" Another one says, "Trump always has a personal financial motivation. I'd love if you asked your guest if 75% of political donations he can legally keep in his own bank account, figures into his calculus."

Aaron: There's no question that this has been a huge, huge fundraising boon for the president. His campaign has sent about 500 fundraising emails, just since Election Day. We had the post-election financial reports this week that showed he had raised more than $200 million in that period, just since the election. That's a number that used to be enough to run an entire presidential campaign, much less a post-election effort. I think that it's clear that regardless of the success of challenging the election results, this has given the president the money to continue being an entity in politics.

As the question here mentioned, 75% of these donations can go to his political action committee, 25% goes to the Republican National Committee, and only if a donor gives more than $6,000, does that money actually go to the official legal defense fund. This is pretty clearly an effort that is geared less towards the legal defense than it is towards a broader continued presence for the president and also the Republican Party, and it's been very successful, at least in that regard.

Brian: Gerard in Queens, you're on WNYC with Aaron Blake from The Washington Post. Hi, Gerard.

Gerard: Yes, hi. My question is, prior to the campaign, we heard that the Biden team had scores of lawyers ready to fight any legal challenge brought up by the Trump campaign and as to the legitimacy of the vote. Now that we've heard that the Republicans have basically lost every fight that they've had, have the Democrats had to play defense in any of these cases or are they just been summarily just shut down by the courts and just because the Trump campaign's argument has been so lame was efficient? I'm just wondering, the Biden team that we heard was ready to go out there and fight. Have they had to do anything?

Aaron: I think Marc Elias is the big Democratic election lawyer and has been around for a very long time, has been spearheading this from a national perspective. He hasn't been involved in these cases on a personal basis because they're all over the country, and that would be very difficult for him to do. I think that the questioner's right, that this is a lot about the complete lack of evidence that we've seen here, maybe more so than the genius of the Democrats legal defense strategy here.

The judges have over and over again, not just projected the claims, but basically called them baseless and said that there was nothing to substantiate them. When you bring a case to court, the lawyers on the opposite side can be very good at what they do, and undoubtedly Democrats did lots of preparation for what we've seen now, because the president telegraphed it for a long time, but I think that the prevailing picture of what we've seen over the last four weeks here has been, there's just not a whole lot to these lawsuits. There's just nothing there to grab hold of and really for the judges to struggle in any significant way with these questions.

Brian: Here are two more tweets from two different listeners that are in a theme. One of them from somebody tweeting as, "Beware swooping from randoms, beware swooping from randoms, right? Let's talk about the political bet that undoing the votes of the actual majority will be a game. It stuns me," writes that listener. In other words, that it could be a political gain to undo the will of the majority of the people in America, if they would actually do that.

Then another one is aimed at me from a listener, and it says, "I think you misspoke a moment ago when you said Democrats will be relieved that there's no chance of overturning the election. This is about our democracy, not about what party you're in. A lot of people who aren't Democrats will be relieved." Aaron, my question to you is, does your reporting bear that out, because I see these surveys of Republicans. 70%, 75%, 80% in the survey say they believe the election was stolen by Biden?

Aaron: Yes, and this is the question, politically speaking, of this effort for Republicans is, is it ultimately wise when it comes to appealing to people in the broader electorate, or is it just a very concerted-based strategy? Of course, the president, throughout his time in office and dating back to the 2016 campaign, has been basically only concerned with that base strategy. I think we saw, in the 2020 election, the limits of that. Now, as I said, it was a close election in the decisive states, but a significant popular vote margin for the Democrats is certainly one of the biggest anti-incumbent votes that we've seen in many decades in American politics.

You do wonder how much that base strategy is, what the Republicans want to do going forward. At the same time, they are hamstrung by the president's whims. They are hamstrung by what the president does, because they don't feel like they can speak out against him in public, and thus they can't really arrest the momentum of this legal challenge in any real way.

My suspicion is that a lot of political consultants in the Republican Party and the ones that I've talked to are less comfortable with this than the president's advisors are, but whether it's ultimately something that is going to swing votes in future elections or really turn off independent voters from the Republican Party moving forward, I think is an unsettled question. Certainly we've seen Republicans to be competitive in politics by being pretty ruthless when it came to stuff like the Supreme Court.

Brian: Roger in Tamworth, New Hampshire, you're on WNYC with Aaron Blake from The Washington Post. Hi, Roger.

Roger: Hi Brian, what a surprise. I never have even gotten an answer, but I was just at the gas station, getting my tires changed where they run Fox News all the time, and I don't even watch television, but it's a little shocking to see this stuff. I saw Mitch McConnell give an ad for- what was it? battleground Georgia. He seems to be very intent on saving us from the far-left agenda of the possible democratic Senate. I think that that's where his energy is. Is that all?

Brian: First of all, Roger, it's a little late in the season in New Hampshire to be getting your winter tires put on just now, isn't it?

Roger: Hey, we're all in the same climate anomaly.

Brian: [laughs] It's a little warmer in New Hampshire on December 8th than it used to be. I hear you. We're going to run out of time soon. Let me help frame Roger's question about what he saw on TV, on Fox News at the gas station this way, because it's certainly not illegitimate from McConnell to say battleground Georgia, with respect to the Senate races. There really is battleground Georgia. What's your take on the role of Fox News at this point in the president's battle?

I see your newest article is about the media outlets, pushing the Trump prod election narrative in a way that even Fox News won't do, Newsmax and OAN, One American Network, but I watch a fair amount of all three main cable channels. I see Fox as in the state of cognitive dissonance. They called Biden the president-elect that seems to be stationed policy.

They used that label, and they report in a pretty straightforward way, to my eye, about these court rulings, and they talk about the Biden transition, like it's real, but then many of the news shows as well as the opinion new shows will use some of Trump's flimsy arguments to raise their eyebrows at the election result and suggest it all look suspicious to them. What is Fox's position?

Aaron: Yes, it has been- I think the way you framed it is exactly right. When it comes to voter fraud claims, you can put them out there and let people decide, but a lot of times these are very arcane procedures. There's a lot about this that people don't understand. If you just broadcast these claims, without fact-checking them or evaluating them, it can have the effect of essentially seeding doubts in people's minds when really the information doesn't back that up.

I think Fox has been less willing than those other outlets that you talked about to question Biden's status as the president-elect, but we've also seen, particularly with its prime time programming, a lot of interviewing Sidney Powell, a lot of talking about supposed anomalies in the election results, the votes that were counted after midnight on election night. So much of this has been dealt with and fact-checked extensively, including on The Fix, The Washington Post, but it keeps surfacing over and over again.

To your average person, a lot of it probably does sound suspect, but as a news organization, it's really your responsibility to look at these claims in detail and decide whether they're worth broadcasting in the first place, because of the things that they can lead people to believe when the information may not actually back that up. I think that it's a very voter fraud, unlike a lot of other things is something that you need to deal with very carefully as a news organization, and we're not seeing as much care as perhaps that the issue would warrant.

Brian: The last thing in our last minute, Giuliani got diagnosed with COVID. He had been maskless in close contact with people from three state legislators where he participated in those various hearings in the last week, Arizona, Michigan, and Georgia. He was maskless, he was in a closed room, speaking loudly. Obviously, that projects rudy droplets.

He was hugging people, people were taking their photos with him, all this stuff. I see the entire Arizona legislature has now been ordered to quarantine until they can get negative tests after a number of days. I don't know if the same thing is happening in Michigan and Georgia. How's Giuliani? I hear that he's going to keep pressing this case from his hospital bed.

Aaron: Yes. It makes me think back to the tail end of the campaign when the president came down with the coronavirus, and several people around him in the White House also came down with it. It took him off the campaign trail for a couple of weeks and that the campaign trail is what he loves. There certainly is a little bit of irony here when it comes to how the coronavirus has sidelined.

The president late in the campaign now appears to be sidelining his lawyer late in this process, also sidelining the legislators in Pennsylvania and Arizona. I don't know that they would have done anything differently even if they were in session, but certainly, the fact that this is the coda to this legal effort when it comes to how laws they fair and how much they haven't been wearing masks in these hearings, I think is really a pretty telling end to that whole process.

Brian: Aaron Blake from The Washington Post Politics section and blog called The Fix, they also put out email newsletters under the name The Fix. Aaron, thanks for the clarity.

Aaron: Thank you, Brian.

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