I. Will Trump step down if he loses?
The fact that President Trump has refused to categorically affirm that he will accept the election results if Joe Biden wins the presidency in November 2020 has raised a serious debate as to what US government officials—and what the US military—should do in case Trump refuses to step down peacefully from the Presidency.
This is not Fake News. There is a real possibility that Trump will refuse to step down from the Oval Office in accord with the US Constitution. There is enough evidence based on Trump’s own statements that he hates to lose and despises “losers.” His own sister, Maryanne Trump Barry, has stated that Trump cannot be trusted, that “Donald is out for Donald, period.” Mary Trump, his niece, has stated that Trump’s re-election will be the “end of American democracy.”
Trump has repeatedly stated, not entirely joking, that he will seek more than two terms in office: Trump 4(EVA). At the August 2020 Republican convention, after the crowd cried “4 more years,” Trump boomed, “If you really want to drive them crazy, you say, 12 more years…”
Michael Cohen, Trump’s former attorney, asserted in his congressional testimony “Given my experience working for Mr. Trump, I fear that if he loses the election in 2020, there will never be a peaceful transition of power.” In his new book, Disloyal: A Memoir, which the White House has dismissed as “fan fiction,” Cohen has likewise claimed that Trump “cheated in the election, with Russian connivance… because doing anything — and I mean anything — to ‘win’ has always been his business model and way of life.”
Given his power hungry, anti-social, paranoid, self-righteous, and malignantly narcissistic personality, there is a real danger that Trump will do “anything” to prevent himself from losing the presidency.
Trump could be plotting a new form of election coup.
A mix of several scenarios is possible.
Trump will most likely lose the popular vote, much as he did in 2016, but he could nevertheless try to claim victory in the Electoral College in key swing states particularly if the votes are very close as they were in Pennsylvania, Michigan and Wisconsin.
In order to challenge the votes in swing states, Trump could claim that millions of illegal aliens voted for Biden, among other possible fabrications, such as significant election interference by China. He has already claimed that Beijing “will do anything they can” to make him lose the election through both covert and overt activities.
By contrast, Democrats could claim that Moscow interfered in the election in key states in favor of Trump. For his part, Joe Biden has claimed that Putin does not want him to be president.
In effect, prior to the November presidential elections, both Trump and Biden believe that their claims that Moscow and Beijing will interfere in US elections will appeal to the anti-Chinese and anti-Russian biases of their respective constituencies—even if possible foreign government interference will have very limited impact on US election results. Accusations of foreign interference make it easier for both Parties to claim that votes were not properly counted due to domestic political manipulation, human error, voting machine break downs, etc.
If disputes over ballots arise as they have in the past, legal battles could then drag out the results of the election—a process that Trump hopes would favor him as the incumbent.
A second scenario concerns Trump’s efforts to obstruct the postal service. It is possible that mail-in ballots could either come in too late after the filing deadline in a number of states or that the mail-in votes may take too long to be counted. Trump (and the pro-Trump media) could then claim victory based on the votes that were counted on time—even if it were eventually proven that the majority of ballots were for Biden. Trump appears to be calculating that his supporters will take the risk to physically vote in a reduced number of polling places and not be afraid of Covid-19—even if he himself mails in his ballot.
A third—and not entirely unlikely—scenario is that neither Trump nor Biden will obtain a majority of Electoral College votes (270) that are needed to win the Presidency. This scenario could lead to what is called a “contingent election”—in which the Presidency would be decided in the House of Representatives and the Vice Presidency in the Senate.
III. A “Contingent Election”?
The first scenario could lead to something like the 2000 US presidential election in which the Republican candidate George W. Bush defeated the Democrat Al Gore in the Electoral College (271 votes to 266) after Bush won the key swing state of Florida by a mere 537 votes out of almost six million cast.
Despite the fact that the Democrat Al Gore had won the national popular vote by over 500,000 votes, the 2000 Presidential election was ultimately decided in the US Supreme Court by a split 5 to 4 decision which upheld the Florida election results and thus gave the presidency to George W. Bush by the Electoral College vote. The late Justice John Paul Stevens observed that the 2000 presidential election had undermined popular confidence “in the judge as an impartial guardian of the rule of law.” More than that, the 2000 election had, in effect, de-legitimized the American system of democratic governance.
Al Gore could have challenged the Supreme Court decision. And had he demanded a full statewide recount of all disputed Florida ballots, he might have won Florida by a few hundred votes. Yet he never requested such a statewide recount. By contrast, if Trump in 2020 finds himself in a somewhat similar situation to that of Gore in 2000 in one or more of the swing states, Trump will most likely challenge the vote.
Despite Trump’s complaints about voting by illegal aliens, the reality is that Hillary Clinton had won the popular vote in 2016 by roughly 3 million votes, but she then lost the presidency by a mere 80,000 vote total in three states, Pennsylvania, Michigan and Wisconsin—leading her to lose the Electoral College vote.
As was the case with Al Gore, Clinton could have challenged the votes of the above states—as computer experts proposed at the time in the belief that the election results may have manipulated or hacked.
There were also reports of voting machine breakdown and malfunction in a number of districts. A scenario like this could repeat itself in November particularly as polling places are understaffed and underfunded and the postal service cannot deliver mail ballots on time.
A third possible scenario is a “contingent election.” In this scenario, the choice of the president is decided by a vote of the U.S. House of Representatives among the top three candidates who received the most electoral college votes. The 12 amendment, which was modified by the 20 amendment, Section 3, established new (and not very helpful) rules for choosing a president if a President, for whatever reason, has not been chosen before the time fixed for the beginning of his term (January 20).
The Speaker of the House, now Nancy Pelosi, would become acting president until either the House selects a president or the Senate selects a vice president. In this situation, it is theoretically possible for the President and Vice President to be chosen from different parties—a situation not too much unlike that which took place just after the founding of the country.
Although there were only three “contingent elections” before 1824, a relatively small shift of votes in a few key swing states could have led the presidential vote to go to the House of Representatives in contingent elections in the years 1948, 1968, and 2000.
If there is a “contingent election” in 2020, one might think that Joe Biden would win in the House of Representatives—in the assumption that the House is dominated by a larger number of Democrats. But this might not prove to case. In a contingent election—in a situation in which the deliberative process could take a very long time as each state must decide on only one candidate—each state in the House of Representatives is given an equal vote. This means that the least populous state, Wyoming, will obtain the exact same vote as most populous state, California.
As the 12th amendment put it, in a contingent election, “the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”
If the 2020 presidential elections do go to the House for consideration, the majority of states could accordingly vote for Trump as long as Republican districts dominate! In the 2016 election, Republicans dominated the Senate with 2 Senators in 20 states, the Democrats dominated in 18 (plus Bernie Sanders in Vermont)—with 12 States split with one Republican vs one Democrat (or Third Party). But in the House of Representatives, Republicans dominated in 32 states, the Democrats in just 17—with Maine split 1-1—even if Democrats possessed more Representatives overall from the larger states than did Republicans.
IV. Trump could face criminal charges once he steps down
The major concrete reason that Trump could refuse to step down peacefully from the White House is that he could face a number of Federal criminal charges once he no longer possesses presidential immunity.
Both the Manhattan District Attorney and New York’s Attorney General have begun to investigate the Trump Organization for major fraud. Trump has also been accused of violating the Emoluments Clause of US Constitution that bars federal officials from accepting gifts from foreign governments. After the Democrats failed effort to impeach Trump on the basis of Treason, Bribery, or other high Crimes and Misdemeanors, these additional accusations of illegal actions could eventually lead Trump to be convicted.
It appears dubious that Biden or another Democrat would pardon Trump—much as Gerald Ford, once he became President, agreed to grant Nixon a full and unconditional pardon for any crime that he might have committed against the United States as president. Trump may find himself with few options to avoid sentencing.
Gerald Ford had ostensibly pardoned Richard Nixon for the “future of the country” and because the more moderate Ford was a fellow Republican and “friend” of the Nixons. Yet the country never really healed after Ford’s pardon. And now the country is perhaps even more polarized than it was during the Vietnam war.
In effect, Ford’s pardon of Nixon worked to restrain more radical demands for major social and political reforms in the American system of governance. Nixon’s “Imperial Presidency” did not undergo a major overhaul at the time and then grew even stronger in the post-Cold War period following NATO expansion and the Global War on Terrorism. And now Trump 4(EVA) hopes to strengthen that Imperial Presidency under his command— by engaging in the greatest military build-up in world history—a new “Butter Battle”—at the risk of a global war.
With very little possibility of a pardon (unless Mike Pence somehow became President in a contingent election), it is possible that Trump will not step down peacefully as did Nixon—if Trump does lose the November 2020 election.
V. The possibility of a Trump election coup
Trump is a pale imitation of Julius Caesar (as stated in one editorial). And he is not Mussolini. Among real life politicians, he can perhaps be best compared with the media tycoon and former Italian Prime Minister Silvio Berlusconi—but in charge of the most powerful country in the world. At the same time, as I argued in World War Trump, he appears more like the bumbling Buzz Windrop, the fictional character in the 1936 novel It Can’t Happen Here by Sinclair Lewis written at a time when fascism was rising in Germany, Italy and Japan. Windrop becomes U.S. president and then seizes absolute power backed by a private army.
The possibility of a Trump coup is not exaggerated. In the name of a Nixon-like “law and order” campaign, Trump has already used militarized Homeland Security agents— often without official insignias—while also publicly supporting armed vigilantes—to repress Black Lives Matter and other protest movements which have gained popular support in the aftermath of the asphyxiation of George Floyd and the shooting of Jacob Blake, among other acts of police brutality.
In the name of “law and order,” Trump will continue to break the law and use every possible trick to be re-elected. And in so doing he will actually undermine the possibility of a more just social and political order and reconciliation at home—while concurrently undermining a more just and peaceful global order abroad.
VI. Will it happen here?
What happens if all of Trump’s ostensibly “legal” actions fail to prevent him from losing the presidential election? Will Trump refuse to accept defeat and try to remain in the Oval Office illegally and forcibly?
During the House impeachment investigation, Trump tweeted that there would be a “Civil War like fracture” if he were removed from office. A Trump election coup—leading to even greater civil strife and repression than is taking place in the United States now—is a real possibility.
The dilemma is that the Constitutional rules are no longer very clear—if they ever were—and no longer appear legitimate. The US now possesses a population of roughly 330 million as compared to almost 4 million in 1790 with a far more diverse population and with 50 states of highly unequal wealth up from 13—since the Constitution was written!
How will the majority of American people react if Trump does not win the popular vote and yet is once again chosen by the Electoral College process? How will they react if he is chosen by the House of Representatives in a “contingent election”? Even if the process is considered “legal” and “legitimate,” will the majority of Americans accept the outcome?
Yet what if Trump is clearly defeated, but does not accept that defeat? Should the US military simply step to the side, remain neutral, and passively accept Trump’s efforts to impose a dictatorship—if Trump does try to remain in power? Or should the US military actively defend the Constitution and seek to prevent Trump from illegally seizing power protected by his gang of militarized Homeland Security agents much like the militias of Buzz Windrop—or previous real-life dictators in history?
To be clear, it is American political authorities who must make sure Trump follows the rules and steps down from power. And it is those authorities to whom the military is responsible. The point is the military cannot act on its own, but in accord with the chief justice who needs to swear in the newly elected or appointed president, removing any authority from their predecessor.
Yet, the dilemma remains: What if Trump does not “play by the rules”? Or more to the point, what if the rules are no longer so clear? After Trump has essentially packed the Supreme Court in his first term of office, will the Chief Justice and Supreme Court necessarily act against Trump—particularly if the 2020 presidential election ends in an uncertain result and there are opposing viewpoints as to whether Trump’s actions can be considered “unconstitutional”—or not?
And if Trump does try to seize power illegally, would US government workers and other employees go on strike to prevent him from executing a series of fiats—as the first American dictator? And what would the US military do? What position— and whose side—would the Supreme Court, the Congress, the American people, and the US armed forces take?
It is time for the overly complex American system of highly indirect democratic governance to engage in major reforms. The American people—and the world—deserve a better model of Democracy! Yet that will not happen very soon…
Much more to say in my October Philippic.