There are no formal constraints on what a defeated US president can or cannot do in the interregnum between losing the election and his successor’s inauguration.
America’s first one-term president, John Adams, exploited the period to fill “midnight appointments” in the judiciary including the elevation of “the Great Chief Justice” John Marshall before Thomas Jefferson and the Democratic-Republicans took office. In the period between Abraham Lincoln winning the 1860 election and assuming office, seven Southern states declared for secession and armed themselves for the civil war to come while lame-duck president James Buchanan watched on haplessly and did nothing.
Benjamin Harrison used the interregnum to stoke public fears of the fiscal policy of the incoming Grover Cleveland administration and its Democratic majority in Congress, triggering the “Panic of 1893” - the country’s worst economic crisis until the Great Depression. However, the three most recent defeated incumbents – Gerald Ford, Jimmy Carter, and George H.W. Bush – set aside partisan differences and hurt feelings after hard fought campaigns to concede defeat gracefully and called for the nation to rally behind their successors in order to secure a smooth transition.
Unfortunately, nothing in President Donald Trump’s temperament nor past actions indicate that he takes kindly to losing.
Refusal to concede
When the major media networks called the race in Pennsylvania for Former Vice President Joe Biden on November 7 – taking him over the critical 270 Electoral Votes threshold – the president did exactly what he had telegraphed during the campaign: he refused to concede, alleged widespread fraud with mail ballots without any evidence, unilaterally declared victory, and threatened to resolve the election in the courts.
The major networks’ “calling” of the election for Biden lacks the force of law and the president is entitled to seek legal redress, but Trump’s lawsuits in the battleground states are at best longshot bids. The consensus among legal experts is that the Trump campaign’s lawsuits are highly unlikely to overturn the election results and state officials have repeatedly stated there were no significant voting irregularities. Judges in Michigan and Georgia have already tossed out election lawsuits brought by the campaign for failing to produce any evidence of voting fraud.
Trump’s refusal to concede, however, means that the official transition process has not started. The Presidential Transition Act of 1963 and its subsequent amendments directs the General Services Administration (GSA) to provide the president-elect's team with federal resources to ensure a smooth transition and the continuity of government. The GSA, however, has yet to formally certify Biden as the president-elect.
In 2000, the GSA withheld formal recognition until Al Gore formally conceded after the Supreme Court’s ruling in Bush v. Gore. However, the 37-days it took to resolve the disputed election delayed the ability of the Bush administration to get its national security team in place and up to speed; and eight months later 9/11 occurred. One of the 9/11 Commission’s key findings was that the slow pace of the Bush administration getting its national security team in place impaired its ability to react to terrorist threats.
The current delay in the official transition process means that the Biden transition team must plan for a crisis response to a pandemic that threatens an additional 7 million Americans infected and 150,000 killed by inauguration day without being able to legally consult the likes of Dr Anthony Fauci and the NIH or CDC regarding the state of the country’s supply chains, testing capacity, or vaccine development. It also means that the Biden team has not been able to receive defense briefings as would be expected in the normal transition process even as the lame-duck president purged the top civilian leadership at the Pentagon and replaced them with perceived loyalists.
The Biden team has not been able to receive global intelligence briefings even as a report by Axios revealed a plan by the administration to collaborate with Israel and its Gulf allies to further ramp up sanctions against Iran in a bid to scuttle the prospects of a Biden administration reviving the JCPOA. The Secretary of State has also “joked” about a “smooth transition to a second Trump administration.” The refusal of the GSA to officially certify the transition is looking less of an avoidance of partisanship or discourtesy to Biden and more like a deliberate ploy to provide cover for the Trump administration to hamstring its successor’s ability to hit the ground running and accomplish its agenda quickly.
With only a few exceptions, Trump has not received any pushback from Republicans on Capitol Hill for refusing to concede, his lawfare strategy, or calling into question the integrity of the democratic process. Sen. Lindsay Graham (R-SC), a staunch Trump ally, told Fox News that “Republicans win elections because of our ideas, and we lose elections because [Democrats] cheat.” A Politico/Morning Consult poll conducted principally after the race was called for Biden revealed that 70% of Republicans now say they do not believe the 2020 election was free and fair, compared to 35% of GOP voters who held similar views before the election.
Among Republicans who believed that the election was not free and fair, 78% believed that mail-in voting led to widespread voter fraud and 72% believed that ballots were tampered with. Having nearly half the country questioning the integrity of the democratic process or the legitimacy of the next president is unhealthy for an American body politic already riven by polarisation, but it will not prevent Republicans from rallying around Trump.
The 2020 election did not repudiate Trumpism, and Trump received more votes than any winning presidential candidate bar Joe Biden. The party remains heavily influenced by white identity politics and populism, and there is no shortage of Republicans waiting in the wings to claim the Trumpist mantle. It may well be over bar the crying and shouting, but all signs point to the final ten weeks of the Trump presidency being disruptive, a fitting if unfortunate end to an administration that began its term with the theme of “American chaos.”
One should not be too surprised if the Trump presidency ends in a flurry of pardons – for associates and possibly for the president himself. The president is one for whom the phrase, “the personal is the political” has an entirely different and authoritarian connotation.
Banner image: Donald Trump speaks to supporters at a rally in Arizona. Source: Gage Skidmore/Flickr