What If Trump Loses But Refuses To Leave The White House?

By JERRY H. GOLDFEDER  and LINCOLN MITCHELLDEC 03, 2018 | 5:00 AM  

Will he know when to get off the stage? (JIM WATSON / AFP/Getty Images)

With the midterm elections now in the rear-view, we continue to have this nagging thought: If President Trump appears to be headed toward defeat in his presumed bid for re-election, which is he more likely to do: Give a graceful concession speech, and resume his wheeling-dealing life, or claim that the election was stolen from him and refuse to move out of the White House?

Some may call this neurotic speculation. Unfortunately, the facts compel us to consider that the second option is a definite possibility. The first option, which has been the choice of every American President defeated for reelection, runs counter to Trump’s personality and distorted view of our constitutional democracy.i

In 2016, when he thought he would lose, Trump threatened to reject the outcome as “rigged.” This year, in support of Florida senatorial candidate Rick Scott and a slew of other Republicans, the President bellowed about “fraud,” “stolen elections” and the like — all but guaranteeing that a Democratic victory would not be accepted as legitimate by his followers.

We have never seen this level of attack on the legitimacy of our elections from the White House. In 1960, then-Vice President Richard Nixon had every reason to believe that Sen. John Kennedy’s supporters fixed the outcome in Illinois and Texas, but, nevertheless, gave short shrift to Republican election lawyers who wished to pursue litigation on his behalf. Nixon simply conceded.PAID POSTWhat Is This?

Similarly, Vice President Al Gore undoubtedly felt that the Supreme Court’s ruling against him in 2000 was not justified, but congratulated Gov. George W. Bush nonetheless. President Gerald Ford similarly accepted defeat gracefully upon losing his race by a very close margin.

Indeed, in every election since 1800, when President John Adams lost a bitter race to his own vice president, Thomas Jefferson, presidential losers — whether or not they actually believed in the outcome — stepped aside. Armed forces have never been called out to protect the White House; supporters of a losing candidate have never stormed the barricades.

Vehement feelings were expressed; marches and protests occurred. But, unlike so many other countries, peaceful succession has always prevailed.

There is no doubt Trump will soon start raising the specter that the 2020 election is going to be rigged against him, thus attempting to lay a dubious legal groundwork for his refusal to leave office if he is defeated.

After all, if he loses, it is highly unlikely that he would retire to a life of philanthropy or building houses, as former Presidents have done. Instead, he and those closest to him may face years of litigation on issues ranging from their relationship with Russia to a variety of questionable real estate dealings. For Trump, the best — and perhaps only — way to avoid the wheels of justice turning against him is to remain in office. In that context, it is very possible that Trump will conjure up whatever rationale is required to hold onto office.

Can’t happen here? In politics, as in most of life, the unimaginable can become real very quickly. All we need to do is take a quick look around the world at other countries as parliaments and courts have been upended by autocrats.

The first step in ensuring that this nightmare scenario does not occur is to understand its possibility. Our constitutional democracy’s survival may depend upon it.

Goldfeder is an election attorney and adjunct professor of law at Fordham Law School. Mitchell teaches in the political science department at Columbia University and is the author of several books, including “The Democracy Promotion Paradox.”

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Brad Karp and Robert Atkins’ article about the importance of voting is a welcome reminder to the legal community of our role in preserving the rule of law (“Democracy Itself is On the Ballot,” N.Y.L.J., Oct. 26, p.6). Unfortunately, New York has trailed behind in voting access.

Thirty-seven states have early voting; New York does not. Twelve states and Washington D.C. have automatic registration; we have an unnecessarily long waiting period before new registrations or change in party enrollment take effect. Twenty-six states and D.C. permit no-excuse absentee voting; New Yorkers must attest to illness or absence from their county to exercise this basic voting procedure. And fifteen cities and the state of Maine have Instant run-off elections; for city-wide primaries in New York City, we have costly, low-turnout run-off elections.

As the outgoing chair of the New York City Affairs Committee of the New York City Bar Association, I recently testified at the City Council’s Charter Revision Commission, proposing that it adopt our “Democracy Agenda”—mandating early voting, enhanced registration and enrollment opportunities, no-excuse absentee voting and instant run-off for our municipal elections. Without having to wait any longer for Albany to enact these reforms, the city should exercise its state constitutional and statutory authority to do so on its own. That is how we achieved the finest campaign finance law in the nation, term limits, non-partisan vacancy elections and more liberalized ballot access requirements.

As the Charter Commission meets throughout the next year to consider various ways to improve city government, the bar has the opportunity to play an active role in supporting voting and other reforms

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