Now that Donald Trump's time as President is over, there remains the question as to what his next moves will be. Claire McMullen reports from Washington D.C.
ON SATURDAY 7 NOVEMBER at 11:25 A.M. EST, more than 75 million Americans let out a sigh of relief as Democrat Joseph R. Biden was declared the 46th President of the United States and his running mate, Kamala Harris, the first woman, Black and Indian-American, Vice President.
Here in Washington D.C., the streets erupted in celebration. People sang, danced and cheered along Black Lives Matter plaza and the tree-lined avenues of the National Mall. Cars blared their horns and Biden/Harris banners flew from windows and balconies. Even from behind our masks, the smiles shared between strangers and unbridled sense of elation was infectious. The city that had pulsed with rage and anguish over the death of George Floyd came alive in hope on Saturday.
Biden/Harris are victorious
Donald Trump was playing golf at his Virginia country club when the Associated Press and other U.S. media outlets called the Election victory for his Democrat rival.
The timing of this call is relevant as it helps explain the futility of Trump’s procrastination over the Election result. The call was made after it became clear to almost all independent statisticians that Biden’s lead in key Electoral College states had left Trump with no legitimate pathway to victory.
Biden, on the other hand, had cemented multiple pathways to victory. Born in Scranton, it was perhaps fitting that it was Biden’s home state of Pennsylvania that took him beyond the 270 Electoral College votes needed to secure the Presidency.
Trump litigates without a legal strategy
Rather than offer congratulations to Biden and Harris, President Trump refused to concede defeat, baselessly declared himself the winner and continued to launch a barrage of – so far meritless – lawsuits against the vote counts in numerous battleground states.
As the President hides his loss behind the unfounded conspiracy of widespread voter fraud, the insurmountable problem for him and his Republican allies is that without any proof, such Hail Mary lawsuits cannot be successful in “miraculously” winning him a second term.
These lawsuits will, however, drag out formal certification of the vote and create a tumultuous and even hostile transition period in a country that just surpassed ten million coronavirus cases and desperately needs stability.
Trump’s lawsuits have focused on preventing votes from being counted, a strategy that – while currently proving fruitless in state and federal courts – could be damagingly viewed as a presidential challenge against the democratic process and will of the American people.
Frivolous lawsuits threaten to erode the democratic process, public perception of voting, as well as U.S. credibility on the global stage.
Judges in Pennsylvania, Nevada, Georgia and Michigan have already dismissed multiple lawsuits brought by the Trump campaign. Noticeably, the lack of substantive legal arguments and persuasive evidence suggests that Trump’s litigation strategy is a desperate long shot, mostly gaining destructive traction as a PR campaign to preserve the Trump movement.
Clearly drawing inspiration from Bush v Gore in 2000, the President and his team want the ultra-conservative Supreme Court – with his three hand-picked Judges – to be the final arbiter of the Election result.
Unfortunately for the President, Joe Biden’s path to electoral victory was not only decisive but entirely distinctive to the circumstances in 2000 where the Supreme Court denied a recount of disputed votes in Florida, effectively awarding the presidency to George W. Bush.
Former Secretary of State, James A. Baker, who headed the legal challenge in 2000 for George W. Bush, underscored the “huge differences” between the circumstances that led to a Supreme Court challenge in Florida and the current legal battles being pursued by the White House.
Mr Baker told the New York Times:
“We never said don’t count the votes. That’s a very hard decision to defend in a democracy.”
The crux of Baker’s argument in 2000 was that the votes had been counted and it was “time to end the process”. By contrast, the White House today is litigating to disallow votes from being counted. “I think it’s pretty hard to be against counting the votes,” Baker added.
As such, it will likely be extremely difficult for the Trump campaign to litigate their way out of losing this election. Even if the lawsuit lodged today in Pennsylvania is successful in preventing certain votes from being counted, it is extremely unlikely to flip the outcome of the Election in light of Biden’s decisive victory in the Electoral College.
Former Republican President George W. Bush congratulated Joe Biden and Kamala Harris on their Election win in a seemingly calculated move to encourage current Republicans to acknowledge Biden’s victory.
Bush wrote in his public statement on Sunday:
‘Though we have political differences, I know Joe Biden to be a good man, who has won his opportunity to lead and unify our country.
The American people can have confidence that this election was fundamentally fair, its integrity will be upheld, and its outcome is clear.’
What happens if President Trump refuses to concede?
It is customary for a presidential candidate to concede but it is not required under the Constitution nor any U.S. law. Trump does not have to personally accept that he has lost in order to lose.
Of course, if Trump were to concede – in line with every losing presidential candidate in U.S. history – it would show respect for his victorious opponent and the democratic process. His concession would create a calmer atmosphere in a very tense (and over-armed nation), helpfully paving the way to a peaceful transition of power.
Given Trump’s track-record of non-compliance with presidential norms, it is unsurprising that he has so far failed to respect the implied rules of the election process and, on the contrary, attempted to bend the process, albeit unsuccessfully, to suit his agenda.
Donald Trump may well go down in modern history as the first President to never concede.
The material questions are:
- how will a lack of concession be interpreted by his more than 71 million supporters?
- how will it shape the President’s behaviour – and executive priorities – during his remaining two and a half months in office?
The race for the White House is – objectively – over, but the U.S. election process is far from complete.
As I write, legal ballots are still being counted in some states. Recounts of close outcomes are normal and expected.
In Georgia, two crucial Senate runoff races will take place in January 2021 that will determine the balance of power in the Upper House and, ultimately, the extent to which a Biden/Harris administration can progress their legislative agenda.
Once the votes are counted, each state is required to certify their votes. On 14 December, appointed electors cast their electoral vote based on the certified result in their state. While this post-Election process is spelled out under the 12th Amendment, there is unquestionably room for sabotage because both the election and transition processes depend – to a large extent – on good faith adherence to democratic and procedural norms.
In accordance with the Presidential Transition Act of 1963, the General Services Administration must now “ascertain” who won the Election, that is, formally declare an election winner on behalf of the Federal Government. Noticeably GSA Chief Administrator Emily Murphy, who was appointed by President Trump, as of Monday evening ET, still has not provided acknowledgement of the Biden/Harris victory.
This delay – if prolonged – could frustrate the transition. Without the formal acknowledgment, the Biden-Harris transition team lack access to the millions in federal funding, information-sharing, computer systems and office space needed to expediently build their new administration and prepare to hit the ground running from midday 20 January 2021.
Perhaps anticipating such procedural impediments, the Biden-Harris transition team led by Ted Kaufman (who previously headed Biden’s transition as Vice President in 2008), began public fundraising early. They have released a transition plan and appear to be moving quickly to build their Cabinet and political agenda. Already on Monday, the Biden-Harris team announced its Transition COVID-19 Advisory Board led by distinguished public health experts.
What does Donald Trump do now?
Trump may be a lame-duck President, but he remains the most powerful man on Earth and one of the most unpredictable American presidents in the nation’s history. The next 70 days could be his most destructive yet.
Whether or not Trump concedes electoral defeat, he knows that his loss of the Presidency – and its presumption of immunity – will open the door to legal liability. He also has more than $300 million dollars in personally guaranteed loans about to come due. It’s a frighteningly long way he could fall.
As Jane Mayer wrote in the New Yorker:
‘Trump has famously survived one impeachment, two divorces, six bankruptcies, twenty-six accusations of sexual misconduct and an estimated four thousand lawsuits. Few people have evaded consequences more cunningly. That run of good luck may well end, perhaps brutally, if he loses to Joe Biden.’
Previous outgoing presidents have used this transition period to pass executive orders, broker trade deals and administer Presidential pardons. Trump will likely mass administer pardons – perhaps to members of his family, cabinet, federal agencies and friends (such as Steve Bannon) who face or could face federal charges of corruption, malfeasance or destruction of records.
While no president has ever attempted to self-pardon, we may see Trump try.
Before the Election, Trump threatened to fire prominent members of the civil service, using his recent – potentially unlawful – executive order. On Monday, he announced by tweet that he had ‘terminated’ Defense Secretary Mark Esper. Dr Anthony Fauci, Dr Deborah Birx and members of the public health, science and intelligence agencies seen as “disloyal” to the President may also be, at least temporarily, removed from their positions. This is the vengeful Donald Trump.
“Could you imagine if I lose?” Trump said in a campaign rally speech in November:
“My whole life — what am I going to do? I’m going to say, I lost to the worst candidate in the history of politics. I’m not going to feel so good. Maybe I’ll have to leave the country, I don’t know.”
AXIOS reported on Monday that Trump had privately told his advisors he is thinking of running again in 2024.
It is impossible to predict what Trump will do next. Based on the desperation of his subversive rhetoric and lack of coherent political or legal strategy, it is plausible that Trump himself does not know what he should do at this moment. Reportedly even within his own family, the President has received conflicting advice on whether to concede.
What is clear is that his “presidential priorities” will be a marketing strategy to build an image he can sell. If not from the Oval Office then perhaps from his Florida hotel.
The 20th Amendment to the U.S. Constitution states that:
‘The terms of the President and Vice President shall end at noon on the 20th day of January… and the terms of their successors shall then begin.’
The President-elect and Vice-President-elect will be sworn into office by the Chief Justice of the Supreme Court, John Roberts, in an inauguration ceremony traditionally held outside the Capitol building. Whether Trump will attend is now the subject of conjecture. As the pandemic gathers deadly pace, the 46th President of the United States will be sworn in while facing unprecedented multiple challenges.
From Wilmington, Delaware, President-elect, Joe Biden addressed a deeply polarised American people:
“Now let’s give each other a chance. Our nation is shaped by facing the constant battle between our better angels and our darkest impulses.”
These forces seem writ large at this critical hour.
Claire McMullen is a lawyer and writer who recently completed a Masters in International Legal Studies at Georgetown University Law School in Washington DC.
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