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Professor David Cohen Discusses Options for Fighting Trump’s Inauguration on MSNBC

David Cohen appears on MSNBC's All In program with Slate editor Dahlia Lithwick in 2016 Chris Hayes, Dahlia Lithwick and David S. Cohen

December 16, 2016

Democrats should urge electors to do their patriotic duty and vote against Donald Trump when the Electoral College convenes on Dec. 19, Professor David S. Cohen said during an appearance on MSNBC on Dec. 15.

“When the founding fathers created the Electoral College, they put it in place as a failsafe against a demagogue like Donald Trump,” Cohen said on the All In program hosted by Chris Hayes. “And so the electors could be doing their patriotic duty on Monday by voting against Trump and we could have the Democratic Party leaders out there urging them to do so, but they’ve been silent.”

Cohen’s appearance came on the heels of the New York Times op-ed that he co-authored with Slate senior editor Dahlia Lithwick on Dec. 14, which argued that Democrats should fight for the presidency as if they were Republicans.  The op-ed lit up the Internet over the course of the week.  

Varied legal arguments could be made regarding the presidential election outcome, Cohen said, such as challenging the constitutionality of winner-take-all rules in the electoral college.

“We wouldn’t be making this argument if Mitt Romney had won in 2012 or John McCain had won in 2008,” Cohen said. “This is a particular threat to our democracy. Right now, Democrats are engaged in a game where Republicans are engaged in a war and it’s not a symmetrical battle. They’re against all norms, they’re against all basic precepts of good government and the Democrats are trying to shake their hand and compromise.”

Lithwick, also appearing on the program, said Republicans have successfully engaged in legal contortions to block the appointment of President Obama’s Supreme Court nominee Merrick Garland and achieve other aims.

“We have seen some of the strangest, most off-the-wall legal theories coughed up like a hairball to challenge Obamacare,” Lithwick said. “These do sometimes prevail.” 

Cohen agreed that Republicans have employed “wacky” legal arguments to powerful effect.

“Back in 2000, the theory that the Supreme Court adopted to anoint George Bush the president, no one ever thought that was going to win,” Cohen said. “The Supreme Court itself said you can’t use this again, because it’s so preposterous.”