WASHINGTON — Imagine what would have seemed unimaginable in the world before Donald Trump: After a narrow Joe Biden victory in November, the president refuses to concede until the bitter end, and even in the weeks after, eventually being escorted out of the White House by the Secret Service in January — under the orders of the new commander in chief — while he still cries fraud to anyone who will listen.
It’s a bizarre speculation to air about any American president, but one that Trump’s own rhetoric has made seem more plausible than ever before — so much so that a bipartisan group of elections experts included this example as the ending to one of their four imagined outcomes of the election.
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“The sitting president of the United States indicates his lack of interest and desire to transfer power should he lose the election,” said Michael Steele, the former Republican National Committee chairman who participated in the group’s exercises. “So as citizens we need to be concerned about that and what it means.”
How important is it that a president on the losing end concede? On the surface, not very. A concession alone holds no legal weight, and should the president lose, he is not obligated to acknowledge that fact in order for his term to end at noon on Jan. 20, as dictated by the Constitution. But Trump’s refusal to clearly commit to this basic norm of electoral civility could enable many unappealing possibilities, experts say, from further inflaming partisan divisions at a volatile time to contributing to an unstable and acrid environment in the weeks after the election while the votes are still being counted and certified.
It also previews a potentially ugly legal and political battle in closely contested states, if the president’s lawyers attempt to throw out the mail-in ballots he has preemptively attempted to delegitimize.
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“It doesn’t guarantee that he has some lock on power, but I think it’s a pretty dangerous path for a president to say this,” said Julian Zelizer, a political historian at Princeton University.
Trump has given varying answers on whether he would accept a loss, and it’s unclear how far he would take a no-concession stance if he goes down that path — from simply complaining on Twitter to encouraging mass protests to actually refusing to vacate the White House.
“We’re going to have to see what happens,” Trump responded last month when asked whether he’d participate in a peaceful transfer of power. At a town hall on Thursday, he sounded more amenable to adhering to a basic tenet of American democracy. “Peaceful transfer, I absolutely want that,” Trump said, after again alleging there will be fraud. “But ideally I don’t want a transfer because I want to win.”
Trump and his campaign have clearly laid the groundwork to declare the election, which national and state polls suggest he is likely to lose, illegitimate. The president has repeatedly warned his supporters without evidence that the only way Democrats can win is if they cheat. Trump campaign adviser Corey Lewandowski told reporters on a recent conference call that it would be “mathematically impossible” for Trump to lose given the campaign’s internal polling. “The polls are wrong!” Trump’s son Eric tweeted on Thursday, alongside a video of several boats flying Trump flags.
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Winning is core to Trump’s personal brand and self-conception, to the point that he often repackages his losses and financial debacles as fabulous successes. Tony Schwartz, who ghostwrote “The Art of the Deal” for Trump in the 1980s, said much of the book involved spinning Trump’s past business failures as spectacular wins.
“The way he handles loss is to deny it ever happened,” said Schwartz, who is also the author of a new book called "Dealing With the Devil: My Mother, Trump and Me.” “When he faced the bankruptcy of his casino properties and the failure of the Trump Shuttle [airline] and the failure of The Plaza and the failure of the USFL, his football league — in every single case he simply declared it a victory.”
Even after he won the 2016 election, Trump falsely insisted there were millions of fraudulent votes that explained his losing the popular vote to Hillary Clinton, essentially casting doubt on the legitimacy of an election that declared him the winner. Given that history, a concession in a race he loses looks even less likely.
“He’s identified losers as the lowest of the low,” said Michael D’Antonio, author of a biography of Trump, who predicted the president would never admit he’d been defeated. “And this was communicated to him in childhood that it didn’t matter how he might win, all that mattered was that he did win.”
But even if Trump does declare himself the winner of an election he is already calling “rigged,” it won’t have any legal impact on the results if he did indeed lose. A refusal to concede does not matter in the face of vote tallies and the legal process for certifying the election, a fact that’s led Biden to predict Trump will eventually accept the results.
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“The fact is, I will accept it, and he will too,” Biden said during the debate this month when Trump again refused to commit to accepting the election results. “You know why? Because once the winner is declared after all the ballots are counted . . . that’ll be the end of it.”
Concession speeches have historically served as a way to bring closure to a presidential election even before the results are officially voted on by the Electoral College in December and then certified by the newly elected Congress in early January.
Just like the tradition of the outgoing president attending the inauguration of the newly elected one, or cooperating with a successor’s transition team as it prepares to take the helm of the government, a concession speech is a norm that is “not part of the constitutional or legal apparatus for how we actually conduct elections and install the new office holder,” said Edward Foley, a constitutional law expert at Ohio State University.
If Trump never calls Biden to concede, or bars Biden’s transition team from entering the White House until the last second of his term, or boycotts the inauguration, that’s all within his legal rights — even if it does mar a decades-long tradition of symbolically uniting the country behind the transfer of power.
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“It’s a good visual, it’s a signal, it’s culturally expected — but it’s not a legal requirement,” Foley said.
What matters more to the potential result is Trump’s commitment to fight to throw out ballots in closely contested states through legal action.
Previous presidential candidates, including Richard Nixon in 1960 and Al Gore in 2000, conceded instead of pushing forward to contest or further contest close elections. In Nixon’s case, he declined to contest the results in Illinois, despite reports of fraud, conceding to John F. Kennedy instead of engaging in a protracted fight. (Kennedy’s Electoral College margin of victory was large enough that he could have lost Illinois and still won the election.) In Gore’s case, he accepted the 5-4 Supreme Court decision that halted the Florida recount and conceded before the Electoral College met to vote, declining to further fight the decision when he presided as the outgoing vice president over the joint session of Congress that certified the results in the following January.
With Trump signaling no such intent to concede, it remains to be seen whether he would match that rhetoric with the careful legal and political maneuvering needed to sway things his way in the event of closely contested states.
“Just charging that an election is fraudulent is not the way elections get overturned,” said Benjamin Ginsberg, who served as national counsel for the George W. Bush campaign during the Bush v. Gore recount fight. “To successfully do that, a candidate would actually have to prove on a precinct by precinct, ballot by ballot basis that there are enough fraudulent ballots to change the results of the election. Bombastic rhetoric will have no force in the election contest litigation that would have to be filed to throw out the results.”
In the event of a close election, Trump could use the courts and Republican allies in state legislatures to launch a more concerted attempt to contest the results through the Electoral College vote and beyond — a scenario fraught with uncertainty that hasn’t happened since the 19th century.
But Steele and others who gamed out election scenarios believe that if Biden wins a decisive victory, in which he is ahead by several percentage points in enough states to give him more than the 270 Electoral College votes to secure victory, Trump will face enough pressure from fellow Republicans that he will not force a confrontation over vacating the office. After all, Senate Republicans did clearly reject Trump’s suggestion over the summer to indefinitely delay the 2020 elections, due to his unsubstantiated claims of fraud.
“I think we would have that Nixonian moment where a leadership team would travel to the White House to declare, ‘Mr. President, it is over,’ ” said Steele, referencing the grim visit Senator Barry Goldwater and Republican leaders paid to Nixon in 1974, which helped push the scandal-ridden president to resign.
Such a moment is harder for others to imagine, given most Senate Republicans' general reluctance to directly criticize Trump, even over his more recent comments about not committing to a peaceful transfer of power.
“If we look at patterns of behavior we should just assume that’s not coming,” Zelizer said.
Either way, if Congress certifies Biden as the new president on Jan. 6, then he would assume control of the executive branch of government on Inauguration Day, no matter what Trump says. That role would come with control of the Secret Service, among other agencies.
“If you’ve got a president who’s chained himself to the Resolute Desk, the new president would say, ‘Would you go inside and get him out please?’ ” Steele said.
Liz Goodwin can be reached at elizabeth.goodwin@globe.com. Follow her on Twitter @lizcgoodwin.
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What happens if Trump won’t concede? - The Boston Globe
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