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Welcome to 2020 Vision, the Yahoo News column covering the presidential race with one key takeaway every weekday and a wrap-up each weekend. Reminder: There are 61 days until the Iowa caucuses and 335 days until the 2020 election.
It is the nightmare Democrats never think about, except when they’re Googling obscure Supreme Court opinions at 3 a.m., or talk about, except once a week with their therapists: What happens if Donald Trump loses reelection — and refuses to go? As Democratic primary voters agonize over who is their most “electable” candidate, a slightly different question looms: Who would be the strongest standard-bearer if the fight goes on past the election, beyond the experience of history, and into the uncharted territory outside the Constitution?
Speculating on what Trump might do on Jan. 20, 2021, if he’s not taking the oath of office, is a fraught exercise that depends heavily on armchair analysis of Trump’s personality, his acute sensitivity to being seen as a “loser” and his insistence on treating every criticism and setback as a personal attack. Some people who know him well, however, believe that he would refuse to recognize electoral defeat and seek to avoid the consequences — especially since one of those would be the loss of presidential immunity and the risk that investigators from various law-enforcement agencies would be lined up waiting for him to leave the White House.
To be fair, there is nothing that suggests Trump is actually preparing for this eventuality. But these concerns have been raised by, among others, his longtime lawyer and fixer Michael Cohen, who told a House hearing back in February, “I fear that if he loses the election in 2020, that there will never be a peaceful transition of power. And this is why I agreed to appear before you today.”
House Speaker Nancy Pelosi is also skeptical, having “told associates that she does not automatically trust the president to respect the results of any election short of an overwhelming defeat,” according to a story in the New York Times published in May.
Of course, Trump has himself made the idea of staying in office beyond a second term a staple of his rally speeches, with the only-somewhat-reassuring qualification that he’s joking. This is, after all, a president who, three years later, is still disputing the popular-vote totals in an election he won.
“I don’t see much discussion about it,” Rutgers University distinguished professor of political science Ross Baker told Yahoo News, “but I am deeply concerned about the possibility that a close election that the Democrats win would be interpreted by Trump as not having achieved a mandate. The president controls the national narrative, and Trump is particularly good at that. He can demand recounts, do all kinds of things to raise doubts about the legitimacy of a Democratic victory.”
Baker added that “all kinds of complications present themselves” if a president refuses to surrender power — a situation the Constitution, which has elaborate provisions for resolving a tie in the Electoral College, does not explicitly contemplate.
A lot might depend on the margin of the victory; a close election obviously would be easier for Trump and his supporters to contest and discredit. “If the Democrats are to win they have to have a resounding victory,” Baker said, echoing the point Pelosi was making.
The scenarios would play out differently at different points in the process. If the Electoral College votes for one or more individual states are in dispute, the issue could go to the Supreme Court, as it did in 2000. After the Electoral College votes it is up to Congress, sitting in joint session, to “certify” the outcome — generally a formality, but no one can say how it might play out if enough members of either party are convinced they’re being cheated. Baker takes the cautiously optimistic view that even congressional Republicans, hitherto famously loyal to Trump, would regard a power grab at that stage as insupportable.
“I think they would look at that as so dire and so menacing that they would agree to respect the results,” he said. “But you never know.”
If Trump is still contesting the results as the end of his term approaches and refusing to participate in a transition of power, Baker pointed out, he could be impeached and tried in the Senate — even if he has already been impeached, tried and exonerated once.
Ultimately the resolution could be in the hands of Chief Justice John Roberts, who is responsible for administering the oath of office and presumably — although this again has never been put to the test — could refuse to swear in a candidate he regarded as illegitimate.
And if Roberts swears in Trump’s opponent, and Trump still tries to run the government and refuses to leave the White House … well, let’s not speculate any further. We’re not going to get the military involved, are we?
But here’s the thing: If it comes down to any of these eventualities, the memory of the election of 2000 is likely to weigh heavily on Democrats. In that year the Supreme Court, divided along partisan lines, halted a recount in the decisive state of Florida, leaving George W. Bush ahead by a few hundred votes. In the interest of national unity, Democrat Al Gore treated the matter as settled. He did not look for grounds for another lawsuit, or mount a public protest over the infamous “Brooks Brothers riot,” a noisy demonstration by dozens of Republicans that stopped an ongoing recount of ballots cast in Miami-Dade County, which could have reversed the results if it had been allowed to proceed.
Some Democrats still think Gore should have fought longer and harder — for vindication by public opinion, even if the legal battle was lost. And some of those may have that in mind as they make their decisions about a candidate for 2020. In simple terms, does the possibility that Trump might contest the results of next year’s election argue for nominating one of the candidates who cast themselves as a “fighter”?
Or does it suggest that a candidate whose brand is “unity” and centrism would be more likely to win the backing, however reluctant, of Republicans in Congress, of Supreme Court justices or even, should it come to that, of the military? What asset would be most useful in a fight that has no precedent in American law or history: Elizabeth Warren’s passion, Bernie Sanders’s loyal army of followers, Michael Bloomberg’s billions, Joe Biden’s reassuring geniality, Pete Buttigieg’s facile shrewdness?
A lot — or nothing — might depend on how the “what if” question is answered. And now, Baker believes, it’s being asked more and more. Even if silently.
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