In February, Georgetown Law professor Josh Geltzer began to ponder aloud what would happen if President Donald Trump refused to leave office were he to be defeated in 2020. It sounded far-fetched, but Geltzer isn’t a conspiracy theorist. Actually, he served as senior director for counterterrorism at the National Security Council and, prior to that, as deputy legal adviser to the NSC and counsel to the assistant attorney general for national security. When he wrote his essay suggesting that perhaps it was time to start preparing for if Trump, who has repeatedly shown a willingness to overstep his constitutional authority, simply refused to leave the Oval Office, he was met with silence. When Michael Cohen warned in his March testimony before Congress, “given my experience working for Mr. Trump, I fear that if he loses the election in 2020 there will never be a peaceful transition of power,” he too was met with awkward silence. But the anxieties gradually began to grow. House Speaker Nancy Pelosi fretted about this possibility in a May interview in the New York Times. When Politico probed the question this summer, it noted: “Constitutional experts and top Republican lawmakers dismiss the fears as nonsense, noting there are too many forces working against a sitting president simply clinging to power—including history, law and political pressure.” But commentators now seem less confident in those forces.
On Thursday, Edward Luce at the Financial Times noted how often Trump jokes about having a third term, observing that, because of Trump’s belief that he could face prosecution after he leaves office, “no other US president has faced the prospect of being re-elected or going to jail.” He added that for Trump, losing the 2020 election is an existential threat, and he has openly invited foreign interference, while Mitch McConnell refuses to even consider legislation to secure the vote. And even if Trump is truly joking when he tweets that he deserves to be credited two extra years in his existing term, years he believes were lost to the Mueller probe, or riffs on staying on the job long after he’d been term-limited out, the tweets send a dangerous message to his loyalists.
I circled back to Geltzer (who is also a frequent Slate contributor) to find out whether his thinking on this once fanciful hypothetical has changed since the winter. Our conversation, which has been edited and condensed for clarity, is below.
Dahlia Lithwick: So do you want to start with an “I told you so”?
Joshua Geltzer: Never! Plus you’ve already said it for me.
In all seriousness, I’d love it if the concerns I expressed in February could be simply forgotten. After all, concerns about a peaceful transfer of power shouldn’t have to occupy Americans’ minds. Whatever the shortcomings of various presidents and indeed various presidential candidates, over the years there’s been a shared commitment to honoring the will of the people, whatever that might prove to be.
But I’ll confess that I’m not surprised more people have begun talking about this concern. That’s because I wasn’t conjuring it myself back in February—I was just reflecting what Donald Trump had already said. I remember sitting on my couch, watching the presidential debate in October 2016, and hearing Trump say, when asked about whether he’d honor an electoral victory by Hillary Clinton, “I will look at it at the time,” and then, “I will keep you in suspense.” Those words sent chills down my spine—truly. No one should have to be in suspense about that. Yet now, as 2020 approaches, Americans are.
When did you actually start thinking about the possibility that Trump might simply reject the 2020 election results?
July 24, 2018. Let me tell you why it’s that exact date. By then, I’d pretty much forgotten Trump’s comment from the October 2016 debate amidst everything else. But his answer snapped back in my mind on July 24, 2018. The midterm elections were approaching, and President Trump tweeted that he was “very concerned that Russia will be fighting very hard to have an impact on the upcoming Election,” adding that the Russians “will be pushing very hard for the Democrats.”
That tweet just didn’t make sense. It was, of course, the assessment of the U.S. intelligence community that Russia had intervened in the 2016 election specifically to help Trump against the Democratic candidate, among other goals. And there had been nothing—no intelligence community public statements, no scholarly analysis, no media reporting—suggesting that the Russians were poised to push for the Democrats in the 2018 elections. So what was Trump talking about?
That’s when I began to wonder if he was using the tweet as he seems to use many tweets: to test out new lines and see if he can get away with them. And this notion that there might be foreign election interference in favor of the Democrats seemed to test Trump’s ability to call into question election results he didn’t like. So, if the Dems won big in a way that embarrassed Trump, he might say the results were inflated—and, at least conceivably, even contest them.
And that’s when I remembered his earlier refusal to commit to honoring the 2016 election results. It made me worry a bit about 2018, but after all, Trump himself wasn’t on the ballot then. The real thing to worry about seemed to be 2020, which would once again be, for Trump, personal. And let me be very clear what the worry is: It’s about Trump not honoring valid election results if he in fact loses. If he wins, he wins! But if he loses, he needs, well, to lose.
When you floated this possibility in February, you were reacting to Trump’s decision to declare a national emergency to build his wall at the Southern border, in order to circumvent congressional refusal to fund it, and some reporting (since confirmed in the Mueller report) that Trump was in fact obstructing the Mueller probe and other investigations. Those seem like rather quaint and even trivial executive overreaches compared with some of what we’ve seen in recent weeks, no?
Let’s not trivialize those, Dahlia—that’s pretty big stuff you’ve just mentioned. Declaring a nonexistent emergency at the Southern border to grab money for a border wall Congress refused to fund and obstructing Mueller’s investigation into a hostile foreign government’s assault on our democracy are extraordinary abuses of power. But I take your point: It hasn’t ended there. Look at Trump’s flirtation with whether to concoct an end-run around the Supreme Court’s refusal to allow the addition of a citizenship question to the 2020 census. Look at Trump’s stripping a second reporter of his White House press pass, just to be ordered—again—by a federal court to restore the pass. Look at Trump’s directing of his former White House counsel to disobey a congressional subpoena, a matter that my colleagues at the Institute for Constitutional Advocacy and Protection and I are involved in litigating alongside lawyers for the House of Representatives. These are not the signs of a president committed to the rule of law. Quite the opposite.
Then there’s been another development: change in intelligence community leadership. Think about the departure of Director of National Intelligence Dan Coats. Coats more or less stood up for the intelligence community—publicly—at some key moments, such as when Trump rejected its views in favor of Putin’s at Helsinki. I think it’s important to inspect whoever Trump nominates as DNI (there’s currently an acting) to make sure he or she will tell Congress and the American people whether there’s really been foreign election interference that casts doubt on the accuracy of election results in 2020, or whether Trump’s just claiming as much.
Why do you think folks were so reluctant to take your warnings, and those of Michael Cohen and even Nancy Pelosi terribly seriously? Or is it that they took them seriously, but not literally? Or however that formulation is meant to go?
My kids definitely take me literally but not seriously. So that part of the formulation I understand all too well.
Speaking now both seriously and literally: I sympathize with the reluctance to embrace fully this concern. It’s unfamiliar. It’s disturbing. And there are a lot of other challenges to the rule of law that might seem more immediate—the stuff that you educate the rest of us about so very well.
But here’s the problem: Reluctance means not doing what we can now to address this concern. And I do think there are important checks on Trump’s ability to contest valid election results—but some need activating right away, if they’re going to have maximum impact.
When you wrote about this last winter you suggested that there were four powerful checks on this possibility: the Electoral College, Congress, state governors, and the Defense Department. I wonder if you are more or less sanguine about each of them, seven months later?
I’m an optimistic guy, but I have to be less sanguine—because, seven months later, I haven’t seen any of these checks taking seriously this concern. In fairness, some need prompting to do so. For example, it’s the political parties that should require their electors for the Electoral College to pledge that they won’t withhold, delay, or alter their votes based on the claims or protestations of any candidate, including Trump himself. But I don’t see the parties requiring that, or even discussing whether to require it. And others—such as Congress or state governors—don’t need prompting at all to make the sort of commitments I urged back in February. Yet they don’t seem to be making those commitments. And remember: This is about ensuring that valid election results are respected, whichever way that cuts. That shouldn’t be controversial.
Why didn’t you list the courts as a check?
Do you think my editor would’ve let me have a list of five? Would yours?
No, there’s a real answer. The four checks I listed are all actors that, either without prompting or with it, could make commitments right now that, to my mind, would at least mitigate the risk we’re discussing. That’s not true of the courts: They wait until cases or controversies are brought to them and only then get involved, though of course their role at that point can sometimes be the most important of all. So I think there are probably other checks, like the courts, that would, I hope, play their own important roles if this nightmare scenario really played out. But my goal in writing the piece in February wasn’t just to flag a possible problem, but specifically to encourage those who might be able to get ahead of that problem to do so. And that’s why I focused on actors suited to that.
So much of the present conversation around the 2020 election seems to assume that Trump will do a thing he seems by temperament incapable of doing, should he lose, and admit defeat. Why do you think this kind of magical thinking endures?
I said earlier I’m an optimistic guy, so let me show some optimism here: I hope everything we just discussed becomes moot because of exactly the sequence you just described. After all, that’s what other candidates who’ve lost—some of whom have been sitting presidents, of course—have done. There is a historical momentum of American democracy at work here that, I hope, is stronger than any one man’s possible inclination to resist it. And I hope and indeed believe there are people close to Trump—including folks with whom I might disagree passionately on a wide range of policy issues—who’d nonetheless agree with every single thing I’ve said to you today. If the scenario we’re talking about seems to be arising, their voices must be firm and loud.
What’s your best advice on what we should be doing to at least prepare for the possibility that at minimum, Trump will dispute the election results and that should he do so, many of his followers will similarly reject them?
We need political leaders—especially Republicans—to make clear, both publicly and privately, that for Trump to contest the valid results of an election would be a redline, and that he’d have zero support from them—indeed, impassioned opposition from them—should he cross it. We need it sooner rather than later, too.
Would you like to say “I told you so” again?
“Again”?? I didn’t say it before. You did!