Published by The Lawfare Institute
in Cooperation With
And so it has come to this: The president of the United States is trying to overturn the results of a national election he unambiguously lost with a combination of petulant whining, spiteful and flailing executive action, and magic.
No, it’s not ultimately going to work, at least not if working is defined as allowing President Trump to maintain power in the face of expressed voter will.
But it is working better than I would have believed possible: in undermining confidence in American democratic processes, in damaging President-elect Joe Biden’s ability to govern in the short term, and in raising questions in the minds of the faithful as to whether Trump’s defeat was real.
The president’s gambit starts with his refusal to concede an election that is significantly less close than the one he won four years ago and which he declared a “landslide.” There exists no law or rule that compels a president to acknowledge the legitimacy of his defeat—or even the fact of it—except in the very limited sense that he has to vacate the office. The attempt to continue occupying the White House after noon on Jan. 20, after all, would certainly constitute trespassing and might even constitute sedition to the extent it was intended illegally to hold power. (“If two or more persons ... conspire to overthrow ... the Government of the United States ... or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”)
So yes, the president is allowed to sulk. He is allowed to be the sorest of sore losers. He is allowed to once again display before the entire world the complete triumph of ego over patriotism, of self-interestedness over public-spiritedness, within his heart. There is, actually, nothing to do about it if he wants to play it this way; there is no way to stop him. And in and of itself, it’s not even a particularly grave problem. It is certainly sad that the United States has a president who so completely fails the basic tests of honor and decency. It would be lovely to see him just once rise to some occasion, any occasion. But it’s hardly a surprise that he can’t or he won’t or he doesn’t want to. He is, after all, Donald Trump.
The bigger problem than the president’s refusal to concede the race is the toleration of that refusal by the overwhelming majority of congressional Republicans. Yes, a few senators—Susan Collins, Lisa Murkowski, Mitt Romney and Ben Sasse—have congratulated Biden, and a few others have said that Biden should have access to transition resources and intelligence briefings.
But the Republican leadership in both houses of Congress have played along with the president’s obstinate refusal to face reality, pretending that there are still important questions about the integrity of the vote to litigate and resolve. “Let’s not have any lectures, no lectures, about how the president should immediately, cheerfully accept preliminary election results from the same characters who just spent four years refusing to accept the validity of the last election and who insinuated that this one would be illegitimate too if they lost again—only if they lost,” Senate Majority Leader Mitch McConnell said on the Senate floor. “Until the Electoral College votes, anyone who is running for office can exhaust concerns in counting in any court of appropriate jurisdiction,” he said in response to a reporter’s question.
Let’s leave aside the obvious factual problem with McConnell’s words: Both Hillary Clinton and Barack Obama, in fact, promptly accepted the preliminary results of the 2016 election. Clinton did not launch a spree of frivolous lawsuits in an attempt to overturn them. Nor did Obama delay the beginning of the transition of power; indeed, he met with Trump at the White House immediately following Trump’s apparent victory. McConnell knows all this, so arguing the matter is pointless. He is providing cover fire for the president’s refusal to engage reality. And the president is capitalizing on the opportunity that McConnell and other congressional Republicans are providing.
This is where the matter goes from being one of mere personal petulance on the part of an incumbent who lost his bid for reelection into something more menacing. Because Trump is using state power to frustrate an orderly transition of power. Over the past few days:
- The administrator of the General Services Administration, Emily Murphy, has refused to “ascertain” (in the language of the law) that Biden is the “apparent” winner of the election, thus blocking transition funding and preventing certain other transition activity from beginning.
- Secretary of State Mike Pompeo on Nov. 10 publicly stated that “[t]here will be a smooth transition to a second Trump administration,” before chuckling and then stating that all the votes would be counted and the State Department would be ready for any outcome on Jan. 20. When Fox News anchor Brett Baier asked that evening whether Pompeo had been joking, the secretary did not answer in the affirmative but reiterated that all the votes weren’t counted and that the department would be ready for whatever happened.
- The president-elect is still not receiving intelligence briefings. The Office of the Director of National Intelligence (ODNI) issued a statement on Nov. 10 saying, “ODNI follows the statutory direction provided in the Presidential Transition Act, which requires ascertainment of the candidate by the administrator of GSA prior to supporting a potential presidential transition.” The statement goes on: “ODNI would not have contact with any transition team until notified by the GSA administrator.”
- More generally, the Washington Post reported on Nov. 9 that “[t]he Trump White House on Monday instructed senior government leaders to block cooperation with President-elect Joe Biden’s transition team.”
- The White House has even gone so far as to instruct agencies to continue preparing its annual budget proposal—which does not come out until February.
- According to the Daily Beast, “the White House Presidential Personnel Office (PPO) is [also] still in the process of vetting candidates for job openings in various parts of the federal government, positions that the White House intended to fill by early next year.
- Attorney General William Barr sent a memo authorizing immediate investigations of election fraud “if there are clear and apparently-credible allegations of irregularities that, if true, could potentially impact the outcome of a federal election in an individual State.” The memo prompted the department’s top election crimes prosecutor to step aside, describing Barr’s move as “an important new policy abrogating the 40-year-old Non-Interference policy of ballot fraud investigations in the period prior to elections becoming certified and uncontested.”
- Perhaps most importantly, there’s been a nearly complete purge of senior leadership at the Pentagon, and the replacement of removed officials with Trump loyalists. It’s not just that Defense Secretary Mark Esper is out. It’s also a trio of senior officials replaced by staffers who have long made news as conspiracy theorists and bomb throwers. It’s the installation of a former staffer for Rep. Devin Nunes as general counsel at the National Security Agency over the objection of the agency head. It’s the perhaps-related threatened declassification of material related to Russia’s interference in the 2016 election over the objections of the CIA director and the attorney general. And it’s the possibly impending removal of the current leaderships of the CIA and FBI, firings the White House has also dangled.
If this list has you feeling a little anxious, it should. It’s a response to an electoral outcome on the part of a sitting president that is genuinely unprecedented in American history. As Bill Kristol asks in an article in the Bulwark:
[W]hat do we make of Mitch McConnell refusing to acknowledge the election results today? And of the two Georgia Republican senators attacking their (Republican) secretary of state, with no basis in fact? And of the Republican governor of Georgia echoing those attacks? And of Attorney General Bill Barr announcing a Justice Department willingness to investigate if there are “allegations” (even, apparently, if no evidence) of election irregularities.
Are we 100 percent certain this doesn’t soften the ground enough so that what seems almost unthinkable now becomes thinkable? Are we 100 percent certain the state legislature in, say, Georgia, won’t start considering things that now seem outside the realm of the possible? And if the unthinkable actually happens in Georgia, are we certain that it could not then happen in Wisconsin? And Pennsylvania?
Such anxiety has sensible people asking questions about coups and election thefts. And it’s hard to be quite as dismissive of such talk as I would like to be and as such rhetoric normally warrants. The president, after all, is actively threatening not to respect the results of a clear electoral defeat. He is taking steps consistent with that refusal, including the installation of partisan loyalists in senior positions in the Defense Department, and the overwhelming response of his political party—for whatever reason—is to humor his course of action, to tolerate it, or to actively to back his rejection of democracy’s verdict on his presidency. In such circumstances, Kristol is asking the right question. And his answer to that question—that things will probably be okay but that we need to be vigilant in defense of democracy—is not alarmism, though he embraces the term. It’s just good democratic hygiene.
That said, I want to stress the part here that Kristol acknowledges but does not emphasize: It is exceedingly difficult to steal an election in the United States. And while I agree with Kristol that “complacency in the defense of democracy is no virtue,” it is worth emphasizing the key bulwarks, so to speak, that operate to protect Biden’s win. They are robust.
First, there are a set of processes currently in operation to count and certify the votes. The margins here, while close, are not plausibly within the range that a recount may be likely to upset. As of this writing, according to the New York Times, Biden leads in states where victory would bring him to 306 electoral votes. These leads include the following margins:
- 47,710 votes in Pennsylvania
- 14,111 votes in Georgia
- 12,813 votes in Arizona
- 36,726 votes in Nevada
- 20,539 votes in Wisconsin
- 148,645 votes in Michigan
These are close margins in electoral terms, but with the possible exception of Arizona (where it is unclear how many votes are outstanding or the extent to which they may favor Trump), they are not vulnerable margins. Without outside interference, Georgia will certify its result on Nov. 20, after a hand recount ordered today; Pennsylvania and Michigan will certify their results on Nov. 23, according to Ballotpedia. Arizona will follow on Nov. 30, Wisconsin and Nevada a day later.
Could litigation interfere with these certifications? Theoretically, sure. But so far, anyway, no lawsuit has been filed that even colorably calls into question any result in any state—though the latest one in Pennsylvania does seek to enjoin the certification of the results. And plaintiffs have made exactly zero headway in court in challenging the integrity of the election. A key “whistleblower” in Pennsylvania turned out to be a fraud. Dead voters in Michigan turned out to be alive and eligible to vote—or not voters at all. There simply is no viable legal claim here that might flip states. And unlike in Florida in 2000, the margins are not close enough that a recount could flip the result depending on precisely how the state conducts it.
Note that exactly none of the officials responsible for counting these votes reports to Donald Trump. Note as well that the officials who do report to Trump are not responsible for counting votes. So while Barr can enrage Justice Department officials by making it easier for federal officials to investigate voter fraud allegations quickly, by his own memo’s admission, he still would need a plausible allegation of sufficient magnitude to make a difference to get involved before certification—and his involvement would not remove the authority of state officials to count and certify their votes in any case. Pompeo, for his part, can joke all he wants about a second Trump administration, but the secretary of state has no role in the electoral process at all.
Could an official in some state go rogue and, say, refuse to certify the results? I suppose it’s possible. But remember that Biden depends on no single state’s electoral vote anyway, and some of the key officials in some of the states are Democrats.
When certification happens, the Biden electors will have been, well, elected. And on Dec. 14, when the Electoral College formally votes, they will thus get to cast their votes for president. There will inevitably be talk of the possibility of faithless electors, but it’s not going to happen. For one thing, the Supreme Court clarified this year that states can bind their electors to vote as the voters did, and many states do this. More importantly, electors are party activists and loyalists. Which group of such Democratic activists do you imagine is going to stab Biden in the back by flipping to Trump?
The more realistic possibility is that Republican state legislatures might intervene to appoint their own slates of Trump electors. Many commentators have tossed off this possibility casually as though it’s a simple act a partisan legislature might contemplate. But it’s not an easy thing to do, even in one state—let alone in several. There are state law obstacles in some states, to start. And as Lawrence Lessig and Jason Harrow argued in Lawfare recently, such a move may also run afoul of the same recent Supreme Court precedent that allows states to bind their electors. Perhaps most importantly, the Electoral Count Act gives priority to any electoral votes cast under rules established in advance of the election—meaning that if a state legislature were to send its own slate of electoral votes to Congress to compete with those reflecting the popular vote, the national legislature should accept the latter. As Scott Anderson explains, this rule is not absolute; Congress has the authority to count the votes as it pleases. The point is that it is by no means a simple matter legally or politically for a state legislature to overturn the results of an election.
Notably, there does not seem to be a serious state legislative groundswell to try. In Pennsylvania, a group of Republican state legislators have called for an audit of the vote before certification, but the legislative Republican leadership has so far shown no interest in supplanting the electoral vote slate or stopping the count. In Georgia too, while the state’s two senators have called on the secretary of state to resign—and the governor has piled on—there seems to be no legislative action and certification will follow hard on the heels of the hand recount ordered today. A state legislator proposed a legislative slate of electors in Wisconsin, but the idea seems to have gained no traction. In Michigan, legislators are investigating the vote and even issued a subpoena, but so far that’s as far as it’s gone. There is little sign that I have discerned of state legislative machinations, at least so far, in Arizona. And Nevada’s legislature is controlled by Democrats, who would presumably be uninterested in handing the election to Trump.
Critically, any such effort in any state will confront an overwhelming political obstacle: an electoral result reflecting no substantial evidence of fraud. The New York Times reports that it “contacted the offices of the top election officials in every state on Monday and Tuesday to ask whether they suspected or had evidence of illegal voting. Officials in 45 states responded directly to The Times. For four of the remaining states, The Times spoke to other statewide officials or found public comments from secretaries of state; none reported any major voting issues.”
In other words, to appoint a pro-Trump slate of electors, a state legislature would have to proceed in the face of (1) a known popular vote that went for Biden by some thousands of votes, (2) official certification of that result by the elected officials of the state, (3) public statements by responsible state officials conceding that the election had not seen substantial irregularities, let alone fraud, (4) court actions rejecting challenges to any claims of fraud, (5) in some states, state law obstacles to such a course, (6) possible federal constitutional law obstacles to such a course, and (7) the clear preference in federal statute for electoral votes certified under rules established in advance of the election.
It would be, in other words, a very heavy lift. And Republicans would have to pull it off in at least two states in order to get Trump across the finish line.
In short, the harm here is almost certainly not the threat to the fact of the transition of power. Every day that goes by, more votes come in, and states get closer to certification of results that have their own logic and momentum and will lead to Biden’s taking the oath of office on Jan. 20.
The harm here, rather, has several dimensions.
First, it is a harm to the orderly transition of power. Merely raising the specter of not honoring the results of an election, merely inducing democratic anxiety such that as serious-minded a person as Bill Kristol could write a piece like the one quoted above, is a democratic harm. Denying information to the Biden transition makes it harder to govern coming in. Conveying uncertainty to foreign actors is dangerous; it invites misunderstanding, and misunderstanding can be deadly.
Second, like so many aspects of Trump’s presidency, Trump’s response to the election has unsettled public expectations of what it means to lose a presidential election in the United States, what a patriotic transition looks like and what outgoing presidents owe to their successors—and to the public. This is that old, pesky issue of norms. And once again, Trump is showing that presidential behaviors taken for granted are actually voluntary acts on the part of successive holders of the office—things that presidents do because they’re the things presidents have always done.
But what happens some years down the line when an election is a little bit closer than this one, the evidence of voting irregularities is a little bit better, and the legal questions are a little less open and shut? What lesson will some future president take from Trump’s behavior now and his party’s support for it?
Third, the president’s behavior will undermine trust among many people in the integrity of the election. It already has. An astonishing 70 percent of Republicans polled by Morning Consult report not believing the election was free and fair. Sustained campaigns to undermine trust run by entire political movements tend to work. And Biden will suffer from a lost perception of legitimacy among a major segment of the electorate as a result of this one.
Finally, fourth, there’s the chance that I’m wrong that Biden’s prevailing in the election’s aftermath—that the automatic processes I have described are just a little bit less automatic than I think they are. There’s the chance that Republicans, having dug themselves into the Trump hole, don’t stop digging when the results are certified, that they don’t quite know how to back down. There’s the chance that state legislatures are little more aggressively partisan than I imagine, or that a few courts go off the deep end.
There’s a chance, in other words, that things spin out of control.
This chaos factor is one of the reasons leadership is so important. And it’s why failures of leadership, even when they seem to be relatively harmless posturing worth tolerating, are so dangerous.