“I have just had the honour of calling my opponent, Joe Biden, and congratulating him on winning this election” …
Is how this election should have come to an end a few days ago, once it became clear that President Trump was set to lose to Joe Biden. That’s how every other American election in history has ended, with the gracious concession speech from the losing candidate, whether they are a sitting president or not.
But this is Donald Trump, and in 2020 why should we expect normal?
Rather than concede and admit defeat once it looked clear that he would lose, Trump has gone on the offensive, making unsubstantiated claims of electoral fraud, filing a slew of lawsuits across the states he lost by small margins, and you guessed it, playing golf.
The most significant legal defeat came in Pennsylvania – the state that tipped Joe Biden over the 270 Electoral College votes he needed to win the presidency, and the state Trump is contesting that is worth the most Electoral College votes (20).
In Pennsylvania, the Trump legal team spearheaded by former New York Mayor Rudy Giuliani sought to “discard millions of votes legally cast by Pennsylvanians” through “strained legal arguments without merit and speculative accusations…unsupported by evidence”, according to Judge Matthew Brann.
The Boston Globe summed up the state of affairs since the election on its front page last Saturday.
In addition, since Election Day, Trump has reportedly come close to bombing Iran’s main nuclear facility and pulled the United States out of the Open Skies Treaty, an aerial defence pact widely seen to mutually benefit both Europe and the United States.
By continuing to reject the notion that he lost, Trump is acting recklessly and dangerously. Sure, the president recently told his General Services Administration’s chief Emily Murphy that a formal transition period can begin with the Biden team. Yet Trump has also openly admitted that he won’t concede the election and will continue with his legal fights, even as Pennsylvania, Michigan and Nevada certified their election results over the past few days.
Trump’s behaviour signals to future presidents that it’s perfectly acceptable to reject election results if they can’t accept defeat. Of course, we should have expected this; it fits the mantra that any news that Trump doesn’t like is fake news. The reason we are seeing so many court cases regarding final vote counts is that Trump simply cannot accept that as many as five states he won in 2016 could have possibly voted against him in 2020.
It is true that in 2000, we had to wait just over a month to find out the winner of the election between George W. Bush and Al Gore, in a case that did make it to the Supreme Court. But back in 2000, there was evidence to suggest that the election count might have been done incorrectly. In 2020, there has so far been no evidence of systematic voter fraud.
Yet President Trump continues to Tweet things like this:
https://twitter.com/realDonaldTrump/status/1329054683441278977
Perhaps even more dangerously, many newly or re-elected Republicans in Congress have not yet been open in their disapproval of the president’s tactics. Sure, if Donald Trump admits defeat, it would mean that Republicans would lose control of the executive branch, but there comes a time when admitting defeat and putting country over party is simply the right thing to do.
There are some Republicans who have come forward and denounced the president’s legal actions and generally obstructive behaviour. Mitt Romney, President Obama’s Republican challenger in 2012, was one of the first to come forward and urge Donald Trump to concede, calling his actions “undemocratic”. Former New Jersey Governor Chris Christie, a candidate for the Republican presidential nomination in 2016, has also criticised President Trump, saying that Trump’s legal team are a “national embarrassment”.
Thanks to the president’s refusal to concede, and with a majority of Republicans remaining silent over the issue, almost half of registered Republican voters in a recent poll believe the election was stolen from them by the Democrats.
Democracy requires a certain amount of pride to be put aside when things don’t go the way you want them to. The freedom to choose who leads a country comes with the admittance that there will be winners and losers. Yet Donald Trump seems to only believe in this notion of democracy when it suits him. The margins by which he is now losing Wisconsin, Pennsylvania and Michigan are wider than the margins by which he won them in 2016. But in 2016 there were no calls for a recount from Hillary Clinton (although Green Party candidate Jill Stein did ask for a recount in Wisconsin, resulting in more votes for Donald Trump), nor were there any notions of electoral fraud or Twitter tantrums.
The question of why Donald Trump is really refusing to concede naturally then comes to the fore. There is reason to suspect that once Donald Trump is out of office he will face several legal problems, most notably from the Manhattan District Attorney’s office regarding his business dealings and tax evasion. Four years on from the infamous Access Hollywood tape, Trump still faces sexual assault allegations. All of these legal issues have so far evaded the president, as he is immune from civil litigation while in office. The minute Trump officially leaves office in January 2021, law enforcement officials are free to go after Trump, as they would do any other citizen.
If Trump continues to refuse to concede the election, particularly if we get into 2021, then we start to enter truly unchartered territory. Congress could of course enact the 25th amendment to remove President Trump from power. This amendment to the US constitution gives senior government officials the power to remove a sitting president if they are incapacitated or unable to perform their duties. However, this would require the agreement of Vice-President Pence and other Cabinet officials, all of whom were appointed by Trump and are Trump allies.
For the 25th amendment route to work, it would therefore require the curious and unprecedented situation where a vice-president agrees to remove a president, then somehow transfers power away from his own party to the Biden/Harris ticket. There is no constitutional framework for how the vice-president might hand power to someone other than the agreed order of precedent set out by the amendment itself. After the vice-president, the next in line to the presidency would be House Speaker Nancy Pelosi.
However, once Joe Biden is inaugurated as the new president in 2021, Trump will lose all executive power and return to regular citizenhood, and therefore authority will be transferred to Biden. That’s important. The 25th amendment cannot apply to private citizens (even ones who used to be president and are still living in the White House!). So if Trump refuses to leave the White House by the time – or even after – Joe Biden is inaugurated as the new president, there will only be one way left to remove him: by asking some form of law enforcement to forcibly eject Trump and his family from the White House.
When Joe Biden is inaugurated, he will become commander-in-chief and have the entire United States military, and Secret Service, at his disposal. He would therefore be able to rely on them to remove the current president from 1600 Pennsylvania Avenue.
Either of these options would look disgraceful on the part of President Trump and no doubt severely damage an image that Trump has worked so hard to cultivate over years in business and now politics. It is unthinkable that we might soon see televised images of the Trump family being evicted from the White House by Secret Service officials or armed military.
There is no shame in admitting when you have lost. It appears that the president is beginning to realise that his options for retaining the White House are dwindling day by day. Allowing a transition of power to begin is the first step, even if Trump continues to publicly deny an electoral loss. He could learn a thing about electoral grace and decorum from Hillary Clinton, or any other losing candidate in American electoral history.
