Jurisprudence

What Happens if Trump Won’t Concede

Trump in a suit and tie looks down with American flags behind him
Trump during election night in the East Room of the White House, early on Wednesday morning. Mandel Ngan/Getty Images

President Donald J. Trump hasn’t conceded the presidential race to his Democratic challenger Joe Biden yet—something that would be a normal step in the peaceful transition of power. Instead, Trump has continued to make unsubstantiated claims of voter fraud and to threaten new lawsuits that he says will expose the fraud and lead to his victory. (They won’t.)

Given Trump’s norm breaking throughout his presidency, his failure to concede early is hardly a surprise. The question is whether we should worry about it, and whether his failure threatens that peaceful transition. So far, the signs are hopeful that we will make it through this period, but all is not rosy. Responsible Republican congressional leaders are not yet on board but likely will be soon. On Sunday, all Republican House leader Rep. Kevin McCarthy would say was that the nation had to wait for the process to play itself out, while former President George W. Bush called Biden “president-elect” and acknowledged Trump could pursue his legal remedies: “The American people can have confidence that this election was fundamentally fair, its integrity will be upheld, and its outcome is clear.” Irresponsible voices, though, are trying to delegitimize the Biden presidency from the beginning.

There has been no official calling of the results yet. It will take days and weeks more before results are certified in the states, as officials double-check results and as candidates have the opportunity to demand recounts. Eventually, after certification, presidential electors will meet, governors will transmit the Electoral College results to Congress, Congress will count those votes on Jan. 6, and Biden will be sworn in as president.

What we have right now are nearly final election results across almost all the states, giving vote-counting experts working for reputable media organizations the ability to predict with very high certainty that Biden has captured more than enough votes in more than enough states to win the Electoral College vote.

Once the networks and others started calling the race Saturday, others acknowledged the victory, from foreign leaders, to the U.S. Chamber of Commerce, to Murdoch-owned properties including the New York Post and Fox News. Fox’s website on Saturday was a virtual Biden-fest, with nothing indicating that the president had a chance to reverse the results through the courts. And the New York Post ran an editorial titled: “President Trump, your legacy is secure—stop the ‘stolen election’ rhetoric.”

By Sunday things were a bit less bright on Fox, with the network allowing Jonathan Turley and Newt Gingrich to spew voter fraud garbage. And come Monday night, the opinion shows will be back and we will see what Tucker Carlson and Sean Hannity have to say.

The one group that has not spoken up yet, and that is crucially important for acceptance of election results, is the rest of the Republican congressional leadership, beyond McCarthy. For example, on Saturday, Senate Majority Leader Mitch McConnell declined to weigh in on Biden’s election, pointing to an earlier statement about letting the vote counting and legal process play out. Other senators have taken different tacks: Mitt Romney and Lisa Murkowski congratulated Biden, and some 2024 aspirants, such as Ted Cruz and Josh Hawley, ridiculously mimicked Trump’s unsupported voter fraud claims.

Perhaps most important was the message coming from Republican Sen. Roy Blunt, considered a leading adult voice among Republicans in the Senate. Speaking on ABC’s This Week on Sunday, Blunt refused to acknowledge Biden’s victory at this moment but signaled that it is put-up-or-shut-up time for the president’s legal claims: “It’s time for the president’s lawyers to present the facts, and it’s time for those facts to speak for themselves.” Blunt said that the process of choosing the president was nearing the conclusion and suggested that as head of the inauguration committee he looked forward to working on a Biden transition.

This is exactly the playbook that Republicans used when Kentucky Gov. Matt Bevin sought to get the Kentucky Legislature to take away his Democratic opponent Andy Beshear’s victory in the 2019 governor’s race.* Bevin alleged fraud without providing proof. Republican leaders in the Kentucky Legislature gave Bevin a few days to come up with the proof. When he produced nothing, they got impatient, and Bevin eventually conceded, blaming the “urban vote” on his way out the door.

The same thing is likely to happen with Trump. Biden has a wide enough Electoral College lead, and a wide lead in enough states, that it is impossible to see Trump litigating his way to reversing a Biden victory unless facts come to light about a major failure in vote counting across multiple states. Trump has plenty of claims he can bring and every right to bring them. But the claims will not amount to anything substantial. He can ask for a recount in Wisconsin, for example, but the chances of overcoming a 20,000 vote deficit are practically impossible when the average statewide recount moves numbers by about 300 votes.

Some have suggested the legal process gives Trump a way to save face, claiming fraud cost him the election on his way out the door. Others have said that the legal process just gives Trump time for psychological acceptance of the loss.

Whether Trump publicly concedes does not matter. His aides have signaled to Fox News and the New York Times that he won’t have to be physically dragged out of the White House.

Blunt has confirmed that Trump can make his quixotic legal play, but once that fails over the next days or weeks, responsible Republicans will be ready to treat Biden as the president-elect he is.

That’s good news for the transition, but all is not rosy. There will likely be millions of Trump supporters who will forever believe this election was stolen, egged on by irresponsible senators like Cruz, Lindsey Graham, and Hawley and other dark voices.

Biden will take office on Jan. 20. But the attempts to treat his presidency as illegitimate have already begun.

Correction, Nov. 8, 2020: This article originally misstated that 2018 was the year Andy Beshear beat Matt Bevin in the Kentucky governor’s race. It was 2019.