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Will Trump accept the legitimacy of the election if he loses next November?


There’s already a lot of evidence that he won’t.

First, we have the conclusion of Michael Cohen’s testimony from last week. Cohen’s testimony went on for many hours, and he ended it with a chilling statement.  President Trump’s personal “fixer” – the man who had been as close to Donald Trump as anyone for more than a decade – had this to say about the possible consequences of next year’s presidential election:  “Given my experience working for Mr. Trump, I fear that if he loses the election in 2020, that there will never be a peaceful transition of power.”

Now we have this:


Even as the 2020 race begins in earnest, President Donald Trump is already suggesting that Democrats cannot beat him fairly — raising the specter that if he loses next November, he will suggest that the election was not legitimate.

“The Democrats in Congress yesterday were vicious and totally showed their cards for everyone to see,” Trump tweeted Tuesday, referring to House Democrats’ launching of a broad-scale investigation into him. “When the Republicans had the Majority they never acted with such hatred and scorn! The Dems are trying to win an election in 2020 that they know they cannot legitimately win!”
Some of this turns on how close the presidential election is.  If it looks anything like 2000, 2004, or 2016, I’d say the odds of Trump refusing to recognize the legitimacy of his defeat will be close to 100%.  On the other hand, if he gets blown out then he might be even more unwilling to acknowledge reality, given the humiliation of the public’s rebuke. So heads we lose/tails we lose, maybe/probably.
So what then?  I’ve got a draft article that asks this question in the context of a broader argument about how the 25th amendment should be employed going forward. (Part of the argument is that Section 4 of the amendment needs to be altered by legislation, which would replace the cabinet with some group whose members can’t be fired by the president, should they decide to invoke it).
Here’s the conclusion:
Imagine the following scenario: On November 3rd, 2020, Donald Trump suffers a crushing defeat at the polls.  A blue wave made up of Democrats, independents, and Republicans who can no longer tolerate someone like Trump at the head of their party votes to remove him from office.

If this were to happen, 77 days would pass before the inauguration of the new president.  Those 77 days would present countless opportunities for various abuses of presidential power.   Given Donald Trump’s history of reckless behavior and contempt for both customary and legal restraints on presidential behavior, the possibility that he would employ the transition period to loot the treasury, pardon himself and all his cronies, use the powers of his office to punish his political opponents, or, as his former personal attorney just suggested in testimony before Congress, even attempt to overturn the results of the election itself, is far from a merely theoretical concern.

This kind of situation is precisely the sort of constitutional crisis that Section 4 of the 25th Amendment was designed to address, even its present suboptimal form.   We can only hope that Republican elites can, under such circumstances, overcome their present obsequious attitude toward the demagogue who has taken over their party, and vigorously support the use of Section 4 to forestall such abuse of the powers of the presidency.

Should anything like this scenario come to pass, it will only make it even more evident why legislative modification of Section 4 is imperative.  Certainly no such reform can take place until the government is in the hands of a president and a party that has less to fear from a process that it will make it easier, as a practical matter, to remove an obviously unfit demagogue from the presidency.

When the United States of America is once again in that circumstance, such a reform should be undertaken as soon as possible.  Even after Donald Trump is, one way or another, removed from office, we will continue to navigate a political world in which the threat to democracy and the rule of law from aspiring presidential demagogues will still be very much with us.

Note that an enormous practical advantage of Section 4, relative to impeachment, is that Section 4 transfers all the powers of the president to the vice president, at the moment the vice president transmits a message to that effect to Congress.  Obviously there’s no chance of employing the 25th amendment prior to November 4th, 2020.  But employing it at that point may turn out to be a matter of survival for the republic itself.




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