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.
