No American president has ever used the powers of his office to deny the results of an election he lost — until now. For nearly four years, President Donald Trump has wallowed in a sea of alternative facts. He began his presidency with (false) boasts that he had the largest audience ever to witness an inauguration, and he is spending his last weeks wreaking damage throughout the government. Yet again, we learn Trump is not just a bully but the Constitution’s worst nightmare.
The evidence of Trump’s destructiveness is staring us in the face: He trashed the integrity of our electoral system before and after the election, and he calls this election “rigged” because he lost. He says he’s won an “easy” victory if the only votes that count are the votes counted as of the time when he was ahead of President-elect Joe Biden, though no law says any such thing. Trump has “terminated” the Defense Department secretary and heads of three other agencies and replaced them with loyalists determined to keep him in power.
Reportedly, Trump is considering pardons for himself and others, and is planning to remove the head of the FBI if not also the CIA. Besides impeding the peaceful transition of power, he is deliberately weakening national security to thwart Biden’s transition. If Trump can’t have his presidency, he does not want anyone else to have it either.
So do Trump’s actions amount to treason?
This is certainly lawlessness, a cavalier rejection of the rule of law. Some call what Trump is doing in refusing to recognize his defeat nothing less than treason. Under our Constitution, treason “shall consist” of “levying War against the” United States, “or in adhering to their Enemies.”
There is no war, at least not yet. Trump’s proven himself to be the enemy of democracy, but it is highly unlikely that a federal indictment for treason will be forthcoming. Trump’s attorney general oversees all federal prosecutions, and an impeachment in the House, on that or any other basis, would go nowhere.
Preserving rule of law
If the courts and Congress won’t process treason charges and Trump ignores Biden’s widening lead in contested states as the tabulations are reaching their end, what other alternatives are there to ensure the preservation of our constitutional system of government?
If nothing else, the rule of law should stop Trump. He became president because he had done what federal law required him to do — tally 270 votes in the Electoral College. Biden seems to be on the same path to the presidency, some speculating he might reach the exact same number of electoral votes — 306 — that Trump won in 2016. With an Electoral College outcome declared in his favor, Biden may turn to the courts himself to secure the funding his transition requires, access to intelligence, and background checks for his cabinet and other appointments requiring Senate confirmation.
But lawsuits can take time, and Biden has little to spare. Nonetheless, Biden might try to secure a judicial ruling requiring Trump to recognize Biden as president-elect. Then what if Trump does not agree to abide by that decision, and what if Trump has help in bringing about the alternate reality — his winning — that he churlishly insists is fact?
Even worse for the country, Trump’s enablers within the administration, Congress, and the Republican Party march in lockstep to help him, even though their refusal to recognize the election’s outcome violates the law, defies reality, or both. Attorney General William Barr directed his Justice Department to investigate “substantial” allegations of voter fraud (almost all coming from Trump). Senate Majority Leader Mitch McConnell scolded Democrats for lecturing him on the importance of the president’s conceding to facilitate a peaceful transfer of power, and for trying to “steal” the election. Yet Trump and McConnell accept the results favoring Republicans' retention of control of the Senate in the same election, and Secretary of State Mike Pompeo promises a “smooth transition” — for Trump to his second term.
Pompeo and Trump’s press secretary are just two of many officials using official resources to help Trump’s never-ending campaign. Trump’s appointee heading the General Services Administration has refused to sign the paperwork authorizing the release of funding for the Biden transition and access to government intelligence. Against all precedent and the 9/11 Commission’s recommendations, Trump wants to sabotage Biden’s national security team so it cannot be prepared on day one to take over. Meanwhile, Trump has moved loyalists into career civil service jobs, so they can become the deep state undermining Biden.
Trump has also authorized a series of lawsuits designed to delay certification of election results in several states Trump lost, and the voting in the Electoral College scheduled in December. But election officials across the country have found no voter fraud, including Pennsylvania Attorney General Josh Shapiro.
He has done the same as president, flouting restrictions on self-dealing in government, ignoring laws barring the White House from being used for campaign activities, authorizing or permitting destruction of government documents even though federal law prohibits it, and raising money for legal defenses that he can plunder for personal purposes, too.
Why Biden will ultimately prevail
But there is good news for the preservation of law: The fact that Trump’s lawsuits are being tossed out across the country because his lawyers have no evidence to back claims of “illegal” votes bodes well for Biden to get a favorable ruling. What if Trump ignores it? With hopes of delaying the Electoral College vote in mind, Trump’s press secretary (not a campaign official) boasted that Trump’s filing contesting the outcome in Michigan had more than 200 pages of affidavits from witnesses swearing there was some kind of mischief requiring that Trump be declared the winner there. But election results usually only shift a few hundred votes at most. In Michigan he needs more than 100,000 votes to change the result, and in Pennsylvania over 40,000.
Trump’s court losses thus far portend that his challenges will fail, in all likelihood in time for the Electoral College vote in mid-December. If Biden wins there, he will have all the legitimacy the Constitution requires for him to become the 46th president of the United States.
Those of us who live in the real world know that Trump’s days are numbered: He cannot get around the constitutional directive that a president’s term ends at noon on Jan. 20.
That is the law, even if Trump burns everything else down. Trump, who once used lawsuits to avoid paying bills, is now stuck with having to accept the outcomes of his own lawsuits, which will all likely come to naught.
Legal and political accountability await Trump, when the next duly elected president and his team take over Jan. 20, rebuild what Trump destroyed, investigate campaign infractions and Trump enablers' legal breaches, and restore confidence that the president and those who serve him are not above the law.
Michael Gerhardt is Burton Craige distinguished professor of jurisprudence at the University of North Carolina, served as special counsel to the Senate Judiciary Committee for the nominations of five of the nine Supreme Court justices, and is the author of several books, including the forthcoming “Lincoln’s Mentors: The Education of a Leader.”