“Imagine the damage a president could cause”: What would happen if Trump refused defeat?

US legal scholar Lawrence Douglas has examined how well prepared American political institutions are for a president who doesn't want to go.

By Emily Tamkin

Lawrence Douglas is the James J. Grosfeld Professor of Law, Jurisprudence and Social Thought at Amherst College in Amherst, Massachusetts. Photographed at his home in Massachusetts via FaceTime. Assisted by Milo Douglas

After winning the 2016 presidential election, Donald Trump did something strange: he challenged his own victory.

“In addition to winning the Electoral College in a landslide,” Trump tweeted on 27 November, “I won the popular vote if you deduct the millions of people who voted illegally.” This was a bizarre thing for a president-elect to claim. There was no evidence that millions of people had voted illegally.

For Lawrence Douglas, professor of law and social thought at Amherst College, the tweet was a worrying sign. “Whatever damage a candidate could cause,” he recalled thinking at the time, “imagine what kind of damage a president could cause.”

“Let’s say you do have a candidate who represents a threat to peaceful succession of power,” Douglas said when we spoke recently by phone, “what tools do we have at our disposal to troubleshoot a problem like that? We don’t have them. Those materials don’t exist.”

The US constitution, Douglas explained, does not ensure a peaceful succession of power; it presupposes that peaceful succession.

How Trump might challenge an electoral defeat in 2020 is the subject of Douglas’s new book, Will He Go?, in which he examines how well prepared US political institutions are for a president who refuses to concede defeat.

His conclusions were grim when he submitted the manuscript to his publishers on 1 December 2019. They make for grimmer reading when set against the backdrop of a pandemic and economic collapse. Douglas, 60, said that the scenarios he outlines in his book are now “much likelier”.

This is partly because Trump has become a “more vulnerable” candidate. But so, too, has the US electoral process. The pandemic means that people will probably need to vote by mail. Trump has already tried to discredit this method, claiming that it leads to widespread illegality and fraud. (Trump himself voted by mail in New York’s 2017 mayoral election and in Florida’s primary in 2020.)

Postal voting presents another complication, too. In his book, Douglas quotes Tom Stoppard’s 1972 play, Jumpers: “It’s not the voting that’s democracy; it’s the counting.” Postal votes aren’t counted ahead of time, and some states, such as California, accept ballots after election day.

This is a problem, Douglas explained, because people are more likely to vote by mail in densely populated urban areas, which are traditionally Democratic enclaves. This means it is possible that Trump starts out on election night with a lead, which then vanishes a few days later.

“Imagine. On 3 November, it looks like Trump has a very narrow lead,” Douglas said. “And yet one of the things we also know [is that] mail-in ballots are not counted ahead of time. If a slender Trump victory turns into defeat ten days later, he’s going to have spent those ten days trying as hard as he can to delegitimise those votes.”

Nor will he be alone in trying to do that, Douglas added. He’ll have right-wing media on his side, too. What’s more, “they’re going to find support for challenging the result among state legislators and Republicans in the Senate”.

What would the military do if Trump refused to accept defeat? Douglas said that he spoke to a prominent general (he would not give their name), who “just did not want to touch the subject”. The military follows the orders of the commander-in-chief – it doesn’t decide who that commander-in-chief should be.

“It’s not as if I’ve written a political thriller,” Douglas said. This is not the story of a military uprising or coup; of the president surrounded in the White House. It’s a book about norms and what happens when leaders don’t internalise them. “The real thing I’m writing about is the incredible damage Trump can inflict on constitutional democracy by making the election result a protracted fight which leads to a crisis of succession.”

Douglas thinks that if Trump loses in 2020, he will eventually depart the White House. But he could do so in a way that leaves American democracy in “a weak and imperilled state”.

What would Douglas advise US voters to do to avoid a catastrophic succession crisis?

The first, he said, is that people should vote, so that the election result is decisive. The second is that senior political figures should warn the electorate about what is at stake in the election. He points to recent statements by former defence secretary James Mattis and former secretary of state Colin Powell on the threat Trump poses to US democracy as examples.

The third piece of advice is aimed at pundits. As everyone these days considers themselves to be a “John King”, Douglas said – referring to the news anchor who operates CNN’s “Magic Wall” on election nights (the US equivalent of Jeremy Vine) – it would be helpful if “these pundits remind us that results are provisional. Especially if the result looks tight, they should be saying, ‘we’re not calling this election’.”

That more cautious style of commentary would go against the traditional, high-octane spirit of US election night. But the risks of making any kind of prediction on the night of who has won, before all the votes are cast are, with this president, far too high. “That,” Douglas warned, “will fuel his conspiracy theories.”