Since Election Day, President Trump has stayed on the attack, repeatedly accusing Democrats of seeking to steal the election and calling the continued counting of votes a “fraud on the American public.”
He has said he would appeal to the Supreme Court to intervene, and promised to carry on the fight.
Now, with Joe Biden declared the next president, Trump has a choice: Will he concede, making the hard and humiliating choice all his predecessors as presidential also-rans have had to make?
Or will he continue to wage a scorched-earth battle in an effort to overturn the results or to poison the well as Biden takes over?
So far Trump has remained on form, issuing a hot denial within minutes of the announcement from major news outlets Saturday morning that Biden has secured enough electoral votes.
“The simple fact is this election is far from over,” Trump said in a statement that was issued while the president was reportedly out playing golf. “Joe Biden has not been certified as the winner of any states, let alone any of the highly contested states headed for mandatory recounts, or states where our campaign has valid and legitimate legal challenges that could determine the ultimate victor.”
Legal and presidential scholars have already raised concerns about the damage an embittered Trump might cause to the nation, noting that he has already applauded supporters who have engaged in violent behavior.
“I would expect that Trump and his supporters will not go quietly into the night,” said Martin S. Flaherty, a professor of international human rights law at Fordham Law School.
He cited how last weekend Trump defended supporters who encircled one of Biden’s campaign buses and tried to force it off the road. In a tweet, Trump said, “In my opinion, these patriots did nothing wrong.”
Flaherty and others raised concerns about Trump’s seeking to further delegitimize the outcome, roiling the nation’s civil service by firing anyone he believes opposes him, and issuing questionable pardons of political allies, possibly even himself. In a Twitter post on Monday, Trump said allowing an extended count of mail-in ballots in Pennsylvania would “induce violence in the streets.”
Fears that Trump would refuse to accept the results have already come to pass, as the president’s campaign has filed a flurry of lawsuits, which Flaherty called “frivolous” and “premature.” And despite seeing a number of those lawsuits already thrown out of court, Trump on Saturday vowed to continue to legally challenge the vote-counting.
“Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated,” Trump said in his statement.
Trump may have personal reasons for clinging to power at all costs. He’s facing hundreds of millions of dollars in debts, lawsuits, and a growing criminal investigation in New York.
Lawrence Douglas, a professor of law at Amherst College and author of a new book about Trump titled “Will He Go?,” said the president has repeatedly shown that he’s willing to “foment discord and chaos, and . . . send out dog whistles to his supporters.”
Douglas worries that in an effort to keep hold of the limelight, Trump will “attempt to remain relevant by unrelentingly attacking the legitimacy of Biden’s presidency.”
“I can easily imagine him working overtime to create domestic havoc” before Biden’s inauguration, he said.
Ian Bassin, who worked in the White House counsel’s office during the Obama administration and now serves as executive director of the Washington-based nonprofit group Protect Democracy, worries more about Trump’s legacy.
“While I think the president poses an immediate danger to the functioning of the federal government ... I’m actually more concerned about the threats Trump, and especially Trumpism, will pose to our country in coming years,” he said.
Democracy can survive smaller anti-democratic movements, he said, but when they grow to represent large swaths of the population, there are grave risks.
“He has unleashed a toxic political virus on the nation — a mix of white supremacy and authoritarianism — that is not going to be so easy to contain, even if he leaves office,” Bassin said. “So while Congress, courts, and responsible executive branch officials will have to protect our institutions from any Trump-led assaults during a potential lame-duck period, the rest of us have our work cut out for us.”
But there may be more pressing concerns, especially if Trump leans on Republican legislatures in Arizona, Pennsylvania, and Georgia to dismiss the results and submit a slate of electors to Congress who favor him, as some right-wing commentators have been suggesting.
Such a move may be unlikely, but it’s allowed by the Constitution, which designates that states appoint electors “in such manner as the Legislature thereof may direct.” Since the 19th century, the popular vote in each state determined the slate of electors. But as recently as 2000, after the deadlocked election in Florida, the Supreme Court affirmed in Bush v. Gore that states “can take back the power to appoint electors.”
William John Antholis, director of the University of Virginia’s Miller Center, which specializes in presidential scholarship, said the size of Biden’s lead would make that approach more difficult, given that it would require multiple states to take the unprecedented step of overturning the will of voters.
“Every state that Biden wins will reduce the possibility of something crazy happening,” he said.
While Trump has lost the popular vote decisively — by more than 4 million votes, so far — some 70 million Americans voted for him, or nearly 48 percent of the electorate. His ultimate fate in the Electoral College, however, won’t be clear until the tight races in several swing states are certified.
Antholis hoped the margin would be great enough for other elected Republicans to recognize that the election was lost and persuade Trump to do so as well.
“Trump’s decision-making sometimes appears mercurial, but he does talk to a lot of people, and the messages those people provide to him, I think, will determine the fate of the country,” he said.
No matter what he hears, Trump is facing legal peril if he leaves office and loses his immunity from prosecution as a sitting president.
Trump is facing two investigations by law enforcement officials in New York. Manhattan District Attorney Cyrus Vance Jr. and New York’s attorney general, Letitia James, have been independently investigating potential crimes in Trump’s business practices before he became president.
Part of Vance’s investigation includes hush money payments to keep former porn star Stormy Daniels from speaking publicly about an affair she allegedly had with Trump. A previous investigation by federal prosecutors about those payments concluded with Trump’s personal lawyer, Michael Cohen, going to prison, and Trump being identified as an unindicted co-conspirator. Justice Department rules prevent the indictment of a sitting president.
Trump could seek a pardon for federal crimes after he leaves office, or seek to preemptively pardon himself in an effort to protect himself from future prosecution.
Jack Goldsmith, a professor at Harvard Law School, said it’s unclear whether a president could pardon himself.
But presidential pardons don’t extend to charges emerging from state investigations.
If Trump were to try to escape charges by fleeing to another country, it’s unclear what would happen. Trump has mused about leaving the country if he loses.
“Extradition treaties will determine this,” Goldsmith said.
As the president continues to discredit the election results, the future of the nation’s democracy could hang in the balance.
“This is an extraordinarily fractious and fragile moment in our nation’s history,” said William Howell, chairman of the department of political science at the University of Chicago. “At such a time, above all, we need leaders who reaffirm our democracy, our shared political heritage, and our unity."