Will Donald Trump concede? A law professor on what might happen next

In June, I interviewed Lawrence Douglas, a law professor and author of a premonitory book, Will he go? Trump and the looming electoral crisis in 2020.

Among other things, Douglas predicted that postal votes counted in Pennsylvania would fuel the false perception of foul play, that President Trump would exploit that perception and claim he won despite evidence to the contrary, and that the right-wing media would peddle a baseless plot. theories to help Trump reverse the results.

Douglas didn’t do everything right – he thought the turnout would be low because of the pandemic and the networks (except Fox) would have a call on election night – but the aftermath of election day that he painted certainly unfold. The counting process, delayed in large part because postal votes take several days to count (and GOP state legislatures have blocked laws allowing an earlier start of mail-counting), has been exploited by Trump and his allies to cast doubt on the election. Trump, predictably, refused to concede and spent the last week tweeting about how the election was fraudulent.

Douglas’s concern was that this scenario would prepare us for a protracted constitutional crisis, without any clear resolution.

As it stands, it seems unlikely the election will go unresolved – Joe Biden is clearly the winner. But once unthinkable scenarios are now at play, and the big question is whether the flaws in our system, a president unwilling to accept reality, a party willing to test the limits of our democracy, and a flood of legal challenges will lead to political collapse.

Since Douglas has anticipated our current crisis as well as anyone, I’ve reached out to him again to discuss what’s going on, where he thinks it’s going, and whether he’s more or less confident that we will avoid the crisis any longer. ‘he predicted.

A slightly edited transcript of our conversation follows.

Sean Illing

Did the reality of the 2020 elections confirm your worst fears about how they would go?

Lawrence douglas

I would describe Trump’s refusal to concede as shocking but not surprising – shocking because it represents such a fundamental attack on the democratic process; not surprising because it was too predictable. In my book, I imagined the following scenario:

As Michigan, Wisconsin and Pennsylvania continue to count their absent and tentative ballots, a clear pattern is beginning to emerge. President Trump’s lead over Joe Biden is diminishing, and within days it completely disappears … Biden now leads in all tri-states. If these leads hold up, he will benefit from an electoral majority and become our next president.

None of this catches the President off guard. Since [declaring himself] victorious… on polling day he tweeted relentlessly…

“In the interests of fairness, elections must be called NOW! We must PREVENT CORRUPTED Democrats in PA, MI & WI from STEALING our VICTORY with THOUSANDS of FALSE VOTES !!! “

“DEMS will never stop trying to STEAL an election he CANNOT win HONESTY!” MUST go with NUMBER OF ELECTION DAYS !! “

“TASTING FRAUD stories are pouring in from MICHIGAN !! The Dems can’t honestly win, so they are DECEIVING !! Courts must STOP ”

While Trump’s fraud allegations lack merit, they find support among his various megaphones in Congress and the media and gain traction with his supporters, who, like millions of other Americans, cannot understand how tens of thousands of votes can apparently materialize after election day.

Trump’s tweets and the right-wing social media echo chamber amplify … small acts of incompetence and confusion into a big plot to overturn election day results … Trump’s lawyers aided by the Justice Department, are suing to strike the provisional ballots in the three battlefield states.

Not bad for a forecast written over a year ago.

Sean illing

No, not bad at all. So how is our system handling the crisis so far?

Lawrence douglas

I think it is important to appreciate the good conduct of the elections. I was deeply moved by the webcam images of election officials working tirelessly to count all of the postal ballots. These workers are the unsung heroes of the democratic process. The courts have dismissed Trump’s baseless lawsuits with due diligence.

Only Republican leaders have demonstrated the predictable and dismal failure to condemn the president’s baseless attacks on the integrity of the elections.

Sean Illing

What has worked? What has failed?

Lawrence douglas

The count worked well. The fact that it took days to declare Biden the winner was not a sign of the system’s malfunction, but a sign that election officials across the country were working with due diligence to count all legally cast ballots. The pandemic put a lot of strain on the system, and the system has held up remarkably well – much better than it could have. was predicted based on the missteps and fouls that plagued the primary season.

The failures are those of the Republican leadership, which, once again, failed to condemn Trump’s reckless, baseless and toxic attacks on a central pillar of constitutional democracy.

Sean Illing

So, despite all of your precise predictions, we’re not really close to the “crisis” you imagined?

Lawrence douglas

I don’t think so, and for two reasons. First, because the election itself went smoothly and fairly, Trump’s attacks on the charges are unlikely to gain enough force to materially affect the outcome.

Second, Biden’s margins are large enough in places like Michigan, Wisconsin, and Pennsylvania to discourage Republican state lawmakers from succumbing to pressure from the president to award the state’s electoral votes to Trump.

Sean Illing

Some people (including on this website) think we are witnessing an attempted coup. Others say it’s an exaggeration. Where are you at on this issue?

Lawrence douglas

Admittedly, the president behaves as if he had been educated by Lukashenko [Alexander Lukashenko is the authoritarian ruler of Belarus] on the meaning of “peaceful transfer of power”. But Trump is distrusted, if not insulted, by the country’s top military leaders, despised by the intelligence community, and looked down upon by much of the Justice Department. He has installed loyalists in many federal bureaucracies and in the federal judiciary, has a powerful adjutant in the person of [Attorney General] Bill Barr, but he lacks the institutional backing to challenge the election results.

Sean Illing

Could Republicans prevent a constitutional crisis if they wanted to? Is this the problem right now?

Lawrence douglas

Republicans are currently doing what they have been doing for the past four years – aiding and abetting Trump’s assaults on the normative underbelly of our constitutional democracy. I suspect that once Trump has exhausted his legal remedies, the main Republicans will lukewarmly suggest that it is time to move on.

Sean Illing

What Can Democrats Do? Should Biden take a stronger stance right now?

Lawrence douglas

I think Biden adopted precisely the correct answer. In his victory speech, he didn’t just mention Trump by name. No need to do it.

Sean Illing

If, as you feared, we still don’t have a consensus among the parties on who won in December or January, do you see a path to a settlement?

Lawrence douglas

I think there will be consensus long before January. Members of the electoral college will vote on December 14. Before this date, States will have certified their results. I don’t see Trump’s electoral challenge gaining ground in state legislatures.

Sean illing

There seems to be no The There is, legally speaking, no plausible case that the election was stolen, but is there any chance that it somehow gets to SCOTUS?

Lawrence douglas

It is exceptionally unlikely that a case will be taken to the Supreme Court, and if it did, the court’s decision would have no material impact on the outcome of the election. And I think Chief Justice John Roberts would bend over backwards to make sure the court doesn’t make any ruling that could be interpreted as supporting Trump’s attacks on the election.

Sean illing

Are there any disputes in any of the states that concern you?

Lawrence douglas

Negative. As far as I know, they are all baseless and frivolous, with no chance of affecting the outcome. But even if they fail to achieve anything legally, they can serve Trump politically by further muddying the waters and casting doubt on the legitimacy of the outcome.

Sean Illing

Do you feel more or less confident that we will now achieve a peaceful transition of power?

Lawrence douglas

Trump will eventually submit to defeat – he won’t need to be kicked out of the White House on January 20. We can be grateful for that. But he will never concede defeat; he will never recognize Biden’s victory as legitimate.

In the short term, the multiple lawsuits justify Trump’s refusal to concede. But at no point will Trump give up on insisting that he is a victim of the same infamous ‘deep state’ forces and ‘fake news’ that have allegedly been lined up against him since the moment he took office. .

By refusing to concede, he is propagating the myth that he is forced to step down precisely because he has kept faith in his base. In the event of defeat, his brand will remain irresistible to his supporters. And if he commands his base, he commands his party – and leaves open the possibility that, like Napoleon returning from his exile on Elba, he will run again in 2024.