Three weeks after a tumultuous national election, the American presidency — and indeed, democracy itself — is facing one of its most serious legitimacy crises in this nation’s history.
Let’s start with the most obvious sign of illegitimacy: The candidate with the most votes in this year’s presidential election didn’t win. And it’s not a close margin. Hillary Clinton leads by more than 2 million votes in the popular vote tally, and she may end up winning by more than 2.5 million votes, or 2 percentage points. That’s a bigger margin of victory than John F. Kennedy in 1960, Richard Nixon in 1968, Jimmy Carter in 1976, and, of course, George W. Bush in 2000, who lost the popular vote by 500,000 votes.
I get that the Electoral College is the system we have in this country and that you have to fight an election by the rules that exist, which allowed Trump to prevail. But this also isn’t a football game. It’s democracy, and when the person who “wins” gets 2.5 million fewer votes than the person who “loses,” that brings into question whether the United States truly is a representative democracy. Clearly, a healthy plurality of Americans wanted Hillary Clinton to be their next president. This will make the second time in the last 16 years that the winner of the popular vote did not become president. That’s a crisis of political legitimacy — and yet it’s unlikely that any effort will be made to reform this anarchic system and ensure that the will of the American people is upheld.
To make the situation even worse, in the last 24 hours Trump has further undermined the validity of an election he won by dishonestly claiming that 3 million illegal voters cast ballots. This is one of the most direct attacks against America’s political system that we’ve ever seen from a major political figure. Even worse, it could lay the groundwork for a full-scale assault on voting rights in America.
All of this is a problem, but a much bigger issue is at stake here — the manner in which Donald Trump won the presidency.
First, there’s the issue of FBI Director Jim Comey’s letter to Congress less than two weeks before Election Day, which by all accounts shifted public opinion against Clinton and almost certainly cost her the presidency. Comey’s unprecedented actions were prejudicial toward Clinton, cast undue suspicion on her, and violated a longstanding FBI tradition of not releasing information about a criminal investigation within 60 days of an election. Further, as I wrote at the time of Comey’s letter, this isn’t just about Clinton, for if this last-minute intervention were perceived to tip the election to Trump, he would enter office under a permanent stain, and the sense among millions of Americans that the FBI put its finger on the scale to help him win. Will there be any reckoning for Comey and his reckless behavior? At this point, it certainly doesn’t appear so.
Second, according to US intelligence agencies, we know that the Russian government interfered in the presidential election, through hacking both the e-mails of the DNC and of Clinton’s aides, as well as the planting of fake news stories intended to help Trump. The involvement of a foreign government in successfully disrupting a US election is unprecedented, but so far, there is no indication that a Trump administration or Congress has any intention of delving more deeply into this issue. Indeed, there is little evidence that Trump and his Republican cohort are all that bothered by Moscow’s electoral intervention.
Lastly, there’s the even more disturbing fact that the president-elect has made clear he has no intention of truly disengaging himself from his vast business interests — and that he intends personally to profit from becoming president. In the month since he was elected, Trump has met with his Indian business partners, pushed a British MP to change a law in the United Kingdom that would benefit his golf course, allegedly lobbied the Argentinian president over an issue with one of his projects there, and is claiming that he doesn’t believe conflicts of interest apply to him as president. When Trump becomes president in January, he will probably be in violation of the Constitution’s Emoluments Clause, which prevents a president from accepting “any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state” unless Congress agrees. In short, Trump will be open to impeachment the moment he takes the oath of office.
Yet even though Trump will enter the White House under this extraordinary cloud of illegitimacy, helped along by the nation’s foremost law enforcement agency, a foreign government, and an undemocratic electoral system, he and his Republican allies in Congress are preparing to move forward with a policy agenda that may undermine decades of social and economic progress. Unless the Electoral College or Congress steps in and, at the very least, demands that Trump divest himself of his business interests, America’s crisis of political legitimacy is only going to get worse.
Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.