The attorney currently representing Sen. Luther Strange (R-AL) in the election law ethics complaint filed by the Alabama Secretary of State with state’s Ethics Commission provided a public guide to candidates who wanted to deprive President Donald Trump of the Republican nomination for president in 2016 by manipulating the delegate selection process.
“Megan Newton and Ben Ginsberg . . . lawyers from Jones Day . . . are tasked with ensuring the Senator’s compliance with Federal Elections Commission laws,” Yellowhammer News reported in May of Strange’s response to the complaint filed against Strange with the Alabama Ethics Commission by the Alabama Secretary of State.
In March 2016, Ginsberg wrote an op-ed at Politico in which he outlined how President Trump’s opponents could derail his nomination at the Republican National Convention:
The March 15 winner-take-all primaries in Florida and Ohio have been billed as make-or-break for the Republican candidates still holding out hope that they can topple Donald Trump. But those contests are also make-or-break for Trump, and for the Republican Party: They will determine whether there’s chaos or a coronation at the Cleveland convention.
If Trump can win both states, he’s on a glide path to earning a majority of delegates ahead of the July 18 convention. The only way to dethrone him at that point would be for the GOP to throw out its existing convention rules. A move that dramatic won’t happen. It would divide and destroy a party that has always prided itself on adhering to rules.
But if Trump doesn’t win both states, the GOP is likely to find itself in Cleveland with no candidate above the 1,237-delegate majority needed to claim the nomination. If that happens, the Republican Party’s own rules lock in a quagmire in Cleveland—and likely a multi-ballot, no-holds-barred convention.
Though Ginsberg did not specifically call for an effort to stop Trump’s nomination, he provided a detailed and step-by-step guide in that Politico op-ed to the supporters of other candidates who wanted to deprive Trump of the Republican nomination for president at the Republican National Convention held in Cleveland in July 2016:
As things stand now, however, Trump would need to win over a dauntingly high portion of the 166 unbound delegates—nearly 90 percent—in order to get the 149 delegates he would need to reach an overall majority. And many of these unbound delegates are likely to be supporters of candidates Trump has defeated, and could have a less-than-kind view of him.
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If Trump does not get a majority of delegates on the first ballot, the rules make his hunt for a majority even more difficult on the second ballot. At that point, nearly three-quarters of the delegates—more than 1,800 of the 2,472—become instantly unbound. They are free agents who can vote for any nominated candidate, with no obligation to Trump even if he won their particular state. The national convention has no authority to amend these binding rules because they are set by each state, and the deadline for states to change their rules has passed.
On the third and subsequent ballots, things would get really unpredictable. Not only would even more delegates become unbound; the current rules also do not require the candidate with the smallest number of votes to drop out, meaning the deadlock can last for endless ballots until a remaining candidate bends.
At that point, a convention can have a mind of its own. The delegations will be a hotbed of rumors, deals and rumored deals. The absolute nightmare scenario is a convention so fractured with so many false rumors spread so quickly and repeatedly—all the more so thanks to social media—that no consensus can be reached. That’s a multi-ballot convention that stretches days beyond the scheduled adjournment.
“With so many delegates becoming unbound after the first ballot, campaigns will need both data and human interaction of unprecedented sophistication in order to know each delegate’s true loyalties, whom they might listen to as they vote and what positions on what issues most motivate them,” Ginsberg wrote in his Politico op-ed.
“Don’t think for a moment that the rules were designed to create any of these scenarios. But stuff happens, and a new codicil for the Law of Unintended Consequences is more likely than ever. What’s clear is that if the front-runner doesn’t have a majority by July 18, convention goers should check if they can extend their hotel reservations in Cleveland,” Ginsberg concluded.
The following month, in April 2016, “New York hedge fund billionaire Paul Singer, who donated $1 million in February, organized a meeting of major donors last month in Palm Beach that, while not billed as an anti-Trump get-together, did include many attendees who are ardently opposed to Trump,” as Politico reported:
New York hedge fund billionaire Paul Singer, who donated $1 million in February, organized a meeting of major donors last month in Palm Beach that, while not billed as an anti-Trump get-together, did include many attendees who are ardently opposed to Trump. The donors got a briefing on the delegate process from Ben Ginsberg, a GOP lawyer who is perhaps the leading expert on the convention rules.
One attendee said that Ginsberg’s presentation was not a how-to for defeating Trump, but rather a neutral explanation of the complicated rules of an open convention.
Ginsberg — whose law partner represents Trump’s campaign, but who has said that he is walled off from that work — said of his presentation to the donors “what I told them was exactly what I wrote in a Politico op-ed published March 12.”
That same month, “In state after state in recent weeks, the Cruz campaign has trounced Trump in those battles, building on work to identify and organize supporters that Cruz began months ago,” the Los Angeles Times reported:
Those successes are improving Cruz’s odds of emerging as the Republican nominee if Trump falls short of winning a majority of delegates.
“You have to think of this whole process as having two different tracks to it. There’s the primary process — that’s about winning and allocating delegates,” said Ben Ginsberg, a veteran Republican election lawyer.
But “the story that will really be more important to what happens in Cleveland,” he said, “is the delegate-selection track. They’re two connected but separate skill sets.”
In October, when the Billy Bush tape controversy emerged and many prominent Republicans wanted Trump to withdraw from the race, “Ginsberg said that the Republican Party did not have a mechanism to replace a nominee just because it wants to,” the New York Times reported:
“It’s the equivalent of a triple bank shot, really,” said Benjamin Ginsberg, a lawyer at Jones Day who was national counsel for the presidential campaigns of Mitt Romney and George W. Bush.
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The party’s rules state that “the Republican National Committee is hereby authorized and empowered to fill any and all vacancies which may occur by reason of death, declination, or otherwise of the Republican candidate for president of the United States.”
That essentially means that Mr. Trump would have to die or become incapacitated for the Republican Party to replace him.
Ginsberg, a partner at the prestigious law firm of Jones Day, “served as national counsel to the Bush-Cheney presidential campaigns in the 2004 and 2000 election cycles and played a central role in the 2000 Florida recount,” according to the firm’s website:
In 2012 and 2008, he served as national counsel to the Romney for President campaign. He also has represented the campaigns and leadership PACs of numerous members of the Senate and House as well as the national party committees. He serves as counsel to the Republican Governors Association and has extensive experience on the state legislative level through Republican redistricting efforts.
Strange faces Judge Roy Moore, favorite of conservatives, in a September 26 Republican primary election runoff to select the party’s nominee to face Democrat Doug Jones in the December 12 general election to select a permanent replacement for former Sen. Jeff Sessions (R-AL), who now serves as U.S. attorney general.
The Real Clear Politics average of polls shows that Moore currently enjoys a double digit lead over Strange. The Senate Leadership Fund, a Super PAC associated with Senate Majority Leader Mitch McConnell (R-KY) has spent millions of dollars during the past several months to promote Strange’s candidacy and attack Moore.
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