So, Trump appears to have been brought to the realization that he went too far in saying he might not concede defeat in the election and is partially walking that back to say that all he really meant was that he may imitate Al Gore -- that if the outcome looks extremely close and possibly fraudulent in a key state, he reserves the right to challenge it in court. Does anyone actually believe that for a minute? While I continue to believe that Trump's campaign staff will probably force him to concede, and that if they are not able to, they will at least shut him up and let Mike Pence concede, I do not expect him to appear to mean it, and I expect him to go on a general rant in the following days. Starting November 28 will be the Trump University fraud trial, which cannot possibly reflect well on him.
But I was nonetheless inspired by this column by Pat Buchanan defending Trump's right to refuse to concede and saying how harmful can it be, since Trump obviously doesn't have an army to march on Washington in revolt.* So let me game out some scenarios of what Trump might do if he doesn't want to concede defeat and what harm they might do. Hint -- plenty.
Mildest scenario, Trump merely fulminates about a stolen election. This is the most likely, that Trump will merely rant about the biased media, lying women who said he groped them, and vote rigging in major cities, but won't actually try to do anything. What will be the result? Well, given that the polls pretty strongly point to a Clinton victory and the evidence that he groped women looks overwhelming, my guess is that the main effect will be to further estrange his followers from any unwelcome reality. They will retreat more and more into their media cocoon, probably finding even Fox News to be collaborating with the enemy and that only the real conspiratorial world where Trump won and was only defeated by vote rigging and all bad stories about him are lies. Needless to say, it is bad for any country to have a large segment of its population lose touch with reality -- perhaps a majority of voters for one of its major parties; certainly a sizable and highly motivated minority of voters for a major party.
Trump blames traitorous Republicans, sets himself up as unofficial leader of the Republican Party. This one also seems quite probable. Certainly he will not do any of the actual work involved in leading a major party like fund raising, building a party organization, formulating policy and the like. He would merely issue pronouncements on high about who is and is not a proper Republican, with the usual penalty of primary challenge against any who fail him. And, this being Trump, his main measure of loyalty will be ideological or any set of policies, but loyalty to him personally and unswerving opposition to Hillary Clinton. This being basically what Republican primary voters seem to care about anyhow, one would expect to see an ever more hostile and confrontational Congress -- legislation becoming impossible, blanket refusals to confirm any executive or judicial nominees, government shutdowns, endless investigations of absolutely everything, probably at least one impeachment attempt, and possibly even a debt ceiling showdown. In short, Californication -- government that becomes so dysfunctional as to be non-functional.
Protests and demonstrations. Trump could call on his supporters to take to the streets and protest, or they could spontaneously do so themselves. These protests would not change the outcome. It is not appropriate for a democracy to allow an angry majority to overbear the vote of the majority, as expressed through elections. Our tradition of democratic transitions is very strong -- strong enough to withstand large-scale demonstrations by Trump supporters. On the other hand, demonstrations by Trump supporters will no doubt be countered with counter-demonstrations by his opponents. The police may not be able in all cases to keep the sides apart. Violent clashes may occur, allowing each side to see itself as martyrs. Such a storm will blow itself out in time, but it could be ugly in the short run. The longer-term result will be to make Trump supporters feeling even angrier and more disenfranchised, more convinced that they cannot get a corrupt system to listen, and therefore more eager to demand absolute intransigence by their representatives in Congress and punish the faintest show of cooperation with an administration they see as illegitimate. Or worse. (See Second Amendment Solutions below).
Attempted coup by impeachment. Some Republicans have already said that if Hillary Clinton is elected, they will seek impeachment over the e-mails. Of course, the upshot will simply be to hand the Presidency to Timothy Kaine, so there will still be a Democrat in the White House, an intolerable situation for your average Trump supporter. So I suppose the Republican House could impeach Clinton and Kaine both for vote rigging, or impeach Hillary for the emails and Kaine for being so criminal as to serve in her administration. If the Senate convicts, that will mean removing both the President and Vice President from office so Paul Ryan, as Speaker of the House, will be the next President. He can then name Donald Trump as his Vice President and resign in favor of the People's Choice.
Of course, this won't actually happen. The chances of Republicans having the two-thirds majority in the Senate necessary to remove both Hillary and her Vice-President are essentially zero, and if they did, Ryan would presumably prefer being President himself to turning the country over to anyone as unfit for office as Trump. But if it did happen, it would in effect establish that being a President of the party opposite to the majority in Congress is an impeachable offense. Can anyone doubt that the Democrats would see no alternative but to retaliate in kind next time the positions were reversed?
Over the long run, this could be taken as a sort of transition to a more parliamentary form of government -- Congress establishes its supremacy by impeaching any President of the opposing party and putting the Speaker in his/her place. Parliamentary government has much to be said in its favor and is arguably superior to presidential government because it avoids this sort of gridlock. But our system is not well suited to be parliamentary. Successful parliamentary governments either have unicameral legislatures, or reduce the upper house to a mostly ceremonial role. We have two houses with real power, so that the possibility of multiple veto points and gridlock would continue. Besides, a successful parliamentary system requires members of parliament to serve terms long enough to give them some buffer being constantly up for election and allow them to get on with the business of actually governing. The two-year term in the House of Representatives is too short.
The short run effect would be immense anger and recrimination as yet another norm gets shredded.
Al Gore, made unrecognizable by steroids. The usual rationalization being offered is that Al Gore challenged the outcome of an election, so why shouldn't Trump. Well, not quite. In the case of Al Gore, the election was extremely close, with everything coming down to one state (Florida) where the vote was so close that the margin of victory was less than the margin of error in vote-counting technology. Florida laws were a bit unclear how such a situation was to be handled. The spectacle that followed did credit to nobody, with everyone putting partisan advantage over any sort of principle. If the recount took too long, there was a real possibility that Florida's vote would not be decided by the deadline for the Electoral College to meet and the election would be thrown into the House. This means that the House of Representatives, voting by states, would choose a winner among the top three contenders. This is a spectacularly bad system. It has been used only twice, in 1801 and 1825. Both times, it lead to a long period of paralysis and all manner of most unedifying intrigue. The more charitable interpretation of Bush v. Gore is that the Supreme Court halted the recount in order to spare the country such a spectacle.
Right now, if Nate Silver is to be believed, Hillary Clinton is well ahead, but her lead is starting to soften. Right now she is shown as favored for 339 electoral votes, well above the 270 required to win. Her weakest support is in Iowa (six electoral votes) and Arizona (eleven votes). These two states could very well go for Trump, bringing her total to 322. Ohio (18 votes) may also go to Trump, reducing her total to 304. Less plausible, but still possible, would be for her to even lose Nevada (six votes) and North Carolina (15) votes. That would leave her with 301 votes. Even if Florida (29 votes) went for Trump, that would leave her with a razor-thin electoral majority of 272 votes. The loss of even one more state would be fatal to Clinton, but all remaining states appear to be quite solid for her. Indeed, not even a Clinton victory of 339 votes would have to bother him. He could simply challenge the vote whichever states were weakest supporters of Clinton, just enough states to deny her a majority. He could seek to tie the whole thing up in recounts and litigation just long enough for the deadline to run out and throw the election into the House. Recall that in such a case, voting is by state, rather than individually. That gives an advantage to the small states. If Republicans hold a majority of the House delegations for 26 states, the could decide the election for Trump regardless of the vote.
Here again, the precedent could be devastating. As with impeachment, Democrats would have little choice but to retaliate in kind the first time the positions were reversed. The result would be to make the whole election process a meaningless formality and create as the real winner the candidate whose party controls 26 or more states. That, too, would be a move in the direction of a parliamentary system, but one with a leader chosen by states instead of by individual votes. Everything I said above, about the obstacles to a parliamentary system in this country, and about the short-run anger and recrimination apply here as well.
And, just to add another twist, while the President is chosen by the House, the Vice President in such a case is chosen by the Senate, voting individually. If opposite parties controlled the Senate and House, it could lead to the President and Vice President being of opposing parties, with all the complications that could result.
Coup by objection to electoral votes. Apparently there is another alternative I had not realized. Members of Congress can object to each state's votes, so long as the objection is in writing and signed by one member of each house. An objection can be sustained only if both houses vote to uphold it. But one can imagine that if both the Senate and the House remain in Republican hands, the threat of primary challenge could compel Republicans in both houses to reject enough states that went for Clinton to deny her an electoral majority throw the election into the House. Once again, this would be a way of moving away from a Presidential and toward a parliamentary system, with all the dangers I listed above.
Second Amendment solutions. All these approaches would be technically legal, though they would massively violate political normal and exceed what is appropriate to a loyal opposition. But an appeal to Second Amendment solutions would be the ultimate act of disloyalty. Don't get me wrong. I am well aware that Trump does not have an army at all, and would not be able to raise one any time soon that could challenge the electoral outcome.
But the Overton Window is at work here, with its Unthinkable -- Radical -- Acceptable -- Sensible -- Popular -- Policy distinction. Once upon a time, long, long ago the idea that the purpose of the Second Amendment was to make violent revolution possible against the US government would have been Unthinkable. By now, it has probably moved to somewhere between Acceptable and Sensible. The idea that the Second Amendment gives citizens the right to stockpile large arsenals and form private armies for possible armed rebellion, once even more Unthinkable, is probably somewhere between Radical and Acceptable. That it would allow armed standoffs with the federal government when the private armies decide it is out of line remains Radical, although with the Bundy Ranch standoff there was at least some attempt by Hannity to nudge it in the direction of Acceptable. But if more and more people respond to a Hillary Clinton victory by forming private armies, they will increasingly move toward Sensible. And the idea that the losers of an election may reasonably engaged in armed rebellion against the winners may start moving from Unthinkable to Radical. I have little doubt that the number of armed groups will grow in the wake of a Hillary victory. The question is whether Trump will encourage them or not.
The good news here is that I think Trump is more likely to take the milder options than the more extreme ones. The bad news is that even the milder options are dangerous to our body politic.
*And at the same time hinting without quite saying that violent rebellion just might be justified if Trump loses.