Fears are growing, stoked by the president’s own comments, that he will refuse to peacefully leave office should he lose the election in November. How concerned should we be, and what can we do to make sure we’re prepared? Joshua Geltzer, visiting law professor at Georgetown University and a former member of Barack Obama’s National Security Council, joins Mehdi Hasan to discuss.
White House Reporter: Will you commit here to a peaceful transfer of power?
President Donald J. Trump: Well we’ll have to see… There won’t be a transfer, frankly. There’ll be a continuation.
Mehdi Hasan: Welcome to Deconstructed. I’m Mehdi Hasan.
The polls suggest Joe Biden is on course for victory in November. But if he loses, is Donald Trump really going to leave without a fight?
JG: I think we need to have these conversations ahead of time, which can help inoculate against all that stuff that Donald Trump will say, potentially starting November 3, November 4, and for weeks to come.
MH: That’s my guest today, Joshua Geltzer, Georgetown law professor and a former member of President Obama’s National Security Council.
So, how worried should we be that Trump won’t accept the result? That he won’t leave without violence or chaos? Is democracy itself really on the ballot this November?
Picture the scene: It’s the morning of November 4, 2020, the morning after the election, and it’s become clear that Donald Trump has lost both in the Electoral College and in the popular vote to the Democratic candidate, Joe Biden.
The president, however, rather than calling his Democratic opponent to concede, holds a rally with his supporters at which he declares himself the winner of the election and tells the crowd not to believe what they’re seeing or hearing in the news, because it’s fake news. And he tells them that the election was rigged, it was a deep state coup, and millions and millions of people voted illegally for the Democrats, using fake mail-in ballots. He tells them to take to the streets because their Second Amendment rights are at stake.
Picture that scene. It’s a scene I first wrote about back in March 2019, in a column for The Intercept, headlined: “Yes, Let’s Defeat or Impeach Donald Trump. But What If He Refuses to Leave the White House?”
I concluded that piece, saying: “This is not a drill, and there is no reason to believe Trump will go quietly if he is defeated. There is every reason, however, to believe he and his allies will incite hysteria and even violence. Those who assume otherwise haven’t been paying attention.”
Now, a lot of people at the time thought that was hyperbole, that I was exaggerating the risk, the threat; they poo-pooed the scenario that I outlined there. This doesn’t happen in America. We have checks and balances. Yeah — American exceptionalism! Hubris, more like it.
So what prompted me to write that piece then? Well, at the time, two things: number one, one of Trump’s closest confidantes, his former personal lawyer and fixer Michael Cohen had just told Congress:
Michael Cohen: Given my experience working for Mr. Trump, I fear that if he loses the election in 2020, that there will never be a peaceful transition of power.
MH: And, number two: Trump himself made it clear in 2016 he wouldn’t accept the election result. So why would it be any different in 2020? In fact, even after winning in 2016, he’d publicly and falsely claimed that Hillary Clinton had only got more votes than him because “illegals” voted for her. This man is a bad winner; of course he’s going to be a bad loser!
Over the past 18 months, thankfully, more and more people have come ’round to my way of thinking. Now, it’s almost conventional wisdom that Trump won’t accept the result; that there’s a risk of violence, even.
In fact, the former head of the National Counterterrorism Center said just this month that he would not be surprised if far-right domestic terrorist groups launch attacks across the U.S., “particularly if the administration loses.”
People can no longer deny that this is where we’re headed, because Trump keeps telling us this is where we’re headed. Asked by Fox News’s Chris Wallace whether he’d accept the election result, he refused to say yes:
Chris Wallace: Can you give a direct answer? You will accept the election?
DJT: I have to see. Look, I have to see. No, I’m not going to just say yes. I’m not going to say — and I didn’t last time, either.
MH: At a recent rally, the narcissist-in-chief said he wouldn’t accept as legitimate any election result that didn’t show him as the winner:
DJT: The only way we’re going to lose this election is if the election is rigged. Remember that. That’s the only way we’re going to lose this election.
MH: And let’s not forget his dangerous, dangerous tweets earlier this year:
@realDonaldTrump: “LIBERATE MINNESOTA”
@realDonaldTrump: “LIBERATE MICHIGAN!”
@realDonaldTrump: “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege.”
Tweets that were welcomed by both far-right extremists online and armed right-wing militias on the streets of Michigan, Virginia, and beyond.
So what happens if November sees Trump refusing to concede, contesting the results, urging violence, urging an uprising by his cultish and armed followers? Are the Democrats ready for that? Is Joe Biden? Is the media? Are we ready?
MH: Who better to ask about all of this than my guest today, Joshua Geltzer, who is a visiting law professor at Georgetown University and was a senior director for Counterterrorism at the National Security Council during president Obama’s second term?
Now, I may have been one of the first people in the U.S. media to write about this subject back in March 2019, but he beat even me. In February 2019, he penned an op-ed for the CNN website, headlined: “What If Trump Refuses to Accept Defeat in 2020?”
And he joins me now from his home in Washington D.C..
Joshua Geltzer, thanks for coming on Deconstructed.
JG: Thanks for the invitation.
MH: You wrote your piece in February 2019. I wrote a very similar piece a month later, in March 2019, making the same warning: What happens if Trump won’t go?
It’s been 18 months since then. More and more people — politicians, pundits, voters — are now warning about a scenario where Trump refuses to go. Why do you think it took so long for so many people to recognize the clear and present danger here? Why was it dismissed out of hand a year and a half ago? I remember people poo-pooed me when I wrote my column for The Intercept. But now it’s the subject of much ongoing debate, much hand-wringing.
JG: I think this is the Trump dynamic that we’ve seen where he says something so outrageous, first as a candidate, then as president, that initially the reaction of people, almost understandably, is to say: “He can’t actually do that. He can’t actually deliver on that promise. He can’t actually mean what he says.”
But then when he does, it takes people aback. They’re caught unsure how to respond, because he’s actually gone and done it. And that was my goal — I suspect it was your goal — in providing this warning, which is we need to accept this as a possibility so that we can be ahead of him for once.
And one of the reasons I wrote my piece was Michael Cohen, his, at the time, former lawyer — but had just been his lawyer until very recently, at that time — had gone in front of Congress and said: I don’t think there’ll be a peaceful transfer of power. He’s not the kind of guy who’s gonna do it.
And I remember the 2016 result and, you know, the guy won, and still complained about illegal voters and being stolen. He was a bad winner; of course, he’s gonna be a bad loser. There’s no debate about it — let’s just look at the personality of this man that we’re learning more and more about, thanks to even family members now, in recent days.
And what’s interesting, Josh, is in recent days people are even going further than you and I did a year and a half ago in terms of dire warnings. You now have very serious people warning of major violence. The former head of the National Counterterrorism Center, Ross Travers, said the other week that he wouldn’t be surprised if far-right domestic terrorist groups launch attacks around the country if Trump loses. I mean, you and I didn’t go that far.
JG: No, we didn’t. But someone like Ross, with whom I worked closely when I was in government, he is not prone to hyperventilating. But he is putting together, I think, some strands of the Trump presidency and Trump’s rhetoric. In particular, he’s taking not only what you and I focused on, the idea of refusing to accept the legitimacy of any election in which he loses, but also this — at times tacit, at times rather explicit —encouragement, acceptance, exhortation even, of private militia groups.
Now, Trump hasn’t said to do exactly what Ross, and apparently others who are still in government, are worrying about, but he’s accepted that they might provide security for him at campaign events. He hasn’t denounced them going all the way back to Charlottesville, of course, in August 2017. So it’s those strands that come together in at least potentially worrisome ways that require us to get ahead of it, rather than to find ourselves in undesirable, rather frightening circumstances.
MH: Yeah. And we’ve even seen him embrace QAnon, which the FBI considers to be a potential domestic radicalization, a domestic extremist group which has also been behind acts of violence. And even if you go beyond terror attacks, we do know that Trump supporters, armed Trump supporters will take to the streets if he tells them to. That’s not a guess. They’ve done it already. In Michigan we saw right-wing militias turn up at the statehouse earlier this year as part of the anti-lockdown protests, burning effigies of Democratic governors. Was that all a warm-up, do you think, for November?
JG: It at least feels like it could be — it feels like it could be a warm-up from groups that go into this election cycle thinking that the system is somehow rigged — in part, of course, because Donald Trump told them way back in 2016 —
JG: — that they should see it as rigged, until he kind of dropped that language once he won, but —
MH: — although, he said the other day — I should just remind our listeners — he said the other day: The only way I lose is if it’s rigged. So he made it very clear he’s not accepting the result.
JG: Right. That’s the sort of resuscitation of a claim that was hard to resuscitate once, in fact, he won. And yet Trump has found a way to keep alive the notion that the system is stacked against him. That’s how he phrases the Flynn matter; that’s how he phrases Mueller’s investigation. He somehow manages to take these pieces and use them to keep alive the notion that he’s the one being treated unfairly, when in fact, to the chagrin of some of us, he nonetheless emerged the victor in the system as we have it in 2016. And he’s re-injecting that now as 2020 approaches.
MH: So we have these warnings coming out, more and more people worried about this scenario. And yet, overall, despite, you know, Nancy Pelosi is coming out saying we need to win big in order to avoid this happening — we’ve heard Facebook say recently they’re gonna crack down on misinformation about the result, or about Trump falsely claiming victory on the night, there’s been books published on this topic of whether he’ll go quietly. But I still feel, Josh, overall — big picture — politicians and journalists, neither of them are prepared really, fully for what could be coming down the track.
Do you think enough preparations have been made? For example, I can speak as a journalist, I look at my colleagues in the media, and I do not think enough preparations have been made for what happens on election night: What are the anchors going to be saying? How are the newspapers going to be framing it if Trump does not accept the result, or if he claims victory when all the votes aren’t in? Do you think people in your world, in the national security world, in the government bureaucracy, on the Democratic side have taken it seriously enough?
JG: I’ll say a couple of positive things, and then a couple of things I’m still concerned about.
Here’s where I’m positive: I think some of your colleagues in the media have begun to help the public understand some important things. Those include the idea that there is nothing illegitimate about not knowing the results on election night, that ballots still may need to be counted, that potentially there will even be court cases. That’s a peaceful way to resolve things; that’s okay. It happened in 2000. It was unsettling, but, ultimately it was, of course, peaceful — that there are ways in which we might not know the night of and that is just fine. That’s not a rigged election; that’s not illegitimate.
And explaining not only that as a notion, but, in particular, what some of those steps could be after election day, but before January 20, I think there are at least some signs that that is infiltrating the public discussion in a helpful way. But I’m also still concerned, and some of those steps that I urged in the piece early last year, that you were nice enough to reference earlier, I wish there was more action being taken on them — the idea that governors who are not up for reelection could all commit to honoring the results of the presidential election, regardless of what those results are; the idea that members of Congress who are not up for reelection on the Senate side or even those who are up could commit to approaching their duty on January 6 of holding a joint session and certifying results, and not being deterred by a single candidate’s claim of illegitimacy, there’s still time to take those steps. But they haven’t been taken yet, unfortunately,
MH: Josh, you mentioned a moment ago the governors and the role that they can play. And in your original CNN piece, I think there were four groups — four actors — where pressure could be brought to bear, in your view: the electoral college, Congress, the governors, and the military. I wonder if you have confidence in all of those actors, 18 months later?
I mean, Congress remains a partisan, dysfunctional joke. And, as for the military, we just saw a few weeks ago, the Chairman of the Joint Chiefs of Staff, General Mark Milley, disgraced himself by going in full combat fatigues on a walkabout with President Trump around Lafayette Square after Trump had cleared it out with tear gas.
JG: So that scene was horrifying, I think, to many across America. And as people talk about that and other recent disturbing developments as something of a test run for how Trump might behave in November, I guess I, as an optimist, hope that it’s also a lesson learned. Because Chairman Milley came out afterwards and released a video that he knew would be public and, in particular, he knew Donald Trump would see, in which he said he made a mistake.
Now, it’s better to know something is a mistake before you do it rather than after, but at least realizing after is better than not realizing it at all. And for him to have realized that what he did there, as someone in uniform with others in uniform, was inappropriate, was contrary to the norms and ideals of American democracy and civilian military relations, the idea that that was a test run from which he learned before November, that’s what the optimist in me wants to take away from that.
MH: Okay. And in your list of groups, you didn’t mention the courts as playing a potential role. Is that because you believe they’re so stuffed with Trump appointees, and so partisan, including the Supreme Court, that the U.S. judiciary can no longer be relied upon to prevent or adjudicate a potential constitutional crisis of this magnitude? I mean, not just no longer — back in 2000, many would argue it was a biased Supreme Court that helped Bush defeat Gore.
JG: So, I’m not a fan of the Bush v. Gore decision and I’m not a fan of every decision I see from the federal courts, but I still see them as a place where peaceful resolution, appropriate resolution of disputes, including electoral disputes can play out. I didn’t mention them in the piece, in part because I was trying to identify actors who could act now — who, in advance, could make certain commitments, certain pledges, that would help ensure a peaceful transfer of power.
Courts, of course, tend to work when there’s a concrete case or controversy upon them. And I think they will find — at least, some of them, around the country — that they’re asked to do just that. But if they do it consistent with the way our courts operate in channeling what otherwise could be hard to resolve disputes into peaceful adjudication, I think that’s still an important role.
I also think there are things states can do to try to avoid, for example, the Bush v. Gore problem. And we could talk about Bush v. Gore at length but real quickly, part of the problem there was that it wasn’t wholly clear exactly what the different pieces of the Florida system thought should happen in terms of ballot counting, if it wasn’t resolved past a certain date on the calendar. Dates could make that totally clear — unmistakably clear — today, before we get to November, and that would leave less wiggle room for a Supreme Court or, frankly, even a lower federal court, to come along and make the sort of decision that many of us thought was a mistake back in 2000.
MH: So you’re not just a former senior government official, you’re also a law professor at Georgetown; just legally and constitutionally, just to be clear, what we’re worried about here is the period between November 3, 2020 — Election Day — and January 20, 2021 — the inauguration of a new president. Right? There’s no chance, is there, that a defeated Trump could hold on to office past January 20, or could he, if there’s shenanigans or dirty tricks when it comes to certifying Electoral College results, for example, in December? What’s the process?
JG: So the Constitution is clear that on January 20, the term of a current president ends. And it’s also clear that if there isn’t someone whose votes have been certified by Congress as the new president, then the line of succession kicks in. Which means if there has been such a deadlocked Congress, for example, that they don’t certify the right results, or they don’t reach the necessary thresholds, it actually moves past the president and vice president, whose term will end, one way or another, at noon on January 20, and go to the next person, who happens to be the Speaker of the House, Nancy Pelosi. So, if you reach that point, it’s not clear that that’s an outcome Donald Trump loves.
MH: Or that the Republicans in Congress love, and they might put pressure on him to avoid that. Although, I read somewhere that it’s not Nancy Pelosi, because it would be the Senate Pro Tempore, Chuck Grassley. I saw someone claiming that.
JG: That’s a — it is an extreme hypothetical. I think what you may have seen was some people who said: Look, if there really were no federal elections held at all, which is something, to be totally clear, that Donald Trump does not have the power unilaterally to do —
MH: Yes, yes, OK, yes. We’re mixing up the different constitutional crises that Donald Trump has broached here. Fair enough.
JG: They’re coming at us too quickly to keep track of.
MH: Yeah. In the scenario where there’s no elections, and yes, Pelosi wouldn’t be in Congress, either, that’s not on the table. But in the scenario where Trump is contesting the result, suggesting that he’s the president, has some electors in the Electoral College who switched to him on partisan terms, then Pelosi would be president on January 21.
JG: That’s right. But as you pointed out before, there is a process. It’s a surprisingly convoluted process that unfolds before we ever get to that point that would hopefully head it off — and zooming out here, you go from the states to the meeting of the Electoral College. But the really crucial step occurs on January 6, when the new Congress — presided over, as it were, by Mike Pence, at this point — certifies results.
And it has happened, in our nation’s history, that states have had competing slates of electors, different actors that the states have sent. There’s a process — there’s even a statute — that specifies how Congress debates and resolves that sort of contest: They break into the House and Senate; they come back together. And ultimately, even if there are really hard questions, really tense questions, there’s still a process for sorting that out before we get to a January 20 that is a nightmare scenario.
MH: But there has never been a contested election result in U.S. history, has there?
JG: Well, I mean, there have been times where Congress has played the role you and I are talking about with a lot of argument and contestation. So, listeners may be familiar with the epic drama that Alexander Hamilton played some role in — maybe not quite as much as the musical suggests, but some role in — resolving where you had basically a tie, ballot after ballot in Congress, you had a tie until an abstention actually broke that tie.
You even had, in a much later election, a commission set up with some Supreme Court justices as part of it, to try to resolve a contested election. That was later in the 19th century. You had at one point, Richard Nixon, he was vice president, he was outgoing because he had lost to John Kennedy, having to preside over a session in which he allowed a slate of electors to go against him. It wasn’t determinative.
MH: But to be fair to Nixon, he did go out of his way to say: I accept the result — even though there were dirty tricks on the Democratic side, and our country is all about peaceful transfer of power. Even Nixon was able to say something that Trump isn’t.
What’s interesting as a Brit, watching all of this here in the U.S., is, as you know, in the UK, Election Day, the Prime Minister leaves the following morning, the moving van is in Downing Street, ready to go. The problem you have is that you have this weird, you know, nearly three-month period where Trump is still the president and can cause a lot of damage just from the bully pulpit. People say: Oh, the Secret Service will get rid of him on January 20. But it’s the period before January 20, where so much constitutional chaos can happen, and so much violence — God forbid — could happen.
Isn’t the problem here, Josh, there’s a kind of arrogant U.S. exceptionalism at play here This idea which has been around in some liberal — even centrist — circles since before 2016, even, that Trump cannot do long-term or major damage to the U.S., because the U.S. isn’t some developing country, some banana republic! It has strong institutions! It has strong democratic norms! What happens in other countries can’t happen here! That was the mindset for a lot of people, until very recently.
JG: I think there’s something to that. And I think that’s where having conversations like the one you and I are having right now, where we take something that, frankly, appeared unthinkable 10 years ago, 20 years ago, even as polarized as American politics was then, felt then, but still seemed unthinkable — and now, we think about it because Donald Trump has forced us to think about it. And then we take the next step of trying to figure out out the actors who can try to take Trump’s abnormal rhetoric, abnormal approach to such things and sideline it, and get us back to where normal is. I think that’s why we need to have these conversations ahead of time and why the public education function, which can help inoculate against that — all those tweets, all that stuff Donald Trump will say, potentially starting November 3/November 4, and for weeks to come, I think that’s critical ahead of time.
MH: So last question then, on that note, just throwing forward: If we managed to dodge this bullet — if Biden wins so clearly, that it’s not even an issue — and if he takes office with a unified government, with a Democratic-controlled Senate and House, too, are there steps that he and his party can take, in your view, to fix things, to reform the way elections are run, results are counted, slates are approved, to prevent such a scary potential scenario from ever being on the horizon again in the future?
JG: I think the answer to that is yes and no.
I think there are things that can be done, from abolishing the outdated Electoral College —
MH: Oh, yes.
JG: — which, in some ways, is this whole mess in the first place, to clarifying statutes like the Electoral Count Act, the one I mentioned before that Congress used to specify how it should resolve certain election disputes, but is, in fact, very hard to read and interpret. So yes, they could do some cleanup there.
And, at the same time, I don’t want to succumb to the hubris, the American exceptionalism you rightly mentioned a few minutes ago, in which, at some level, this is about human beings, and the choices they make, and their willingness to abide by a system of rules in a system of law. And I think we both need to shore up our laws where we can, but we also need to use this Trump experience as a reminder that there are those who will come along and try, potentially, to break our systems, our institutions, our norms, and we need to stay eyes wide open and aware and resist that when it happens.
MH: Joshua Geltzer, we’ll have to leave it there. Thank you so much for joining us on Deconstructed. Thanks for your insight!
JG: Thank you.
MH: That was Joshua Geltzer, law professor and former member of Barack Obama’s National Security Council, sounding the alarm bell, but also sending a signal of hope — what still can be done to prevent an absolute disaster come Election Day and beyond? However, since we recorded that interview, Donald Trump said this on Wednesday.
Reporter: Will you commit to making sure that there is a peaceful transferal of power after the election?
DJT: Well, we’re going to have to see what happens. You know that. I’ve been complaining very strongly about the ballots. And the ballots are a disaster. And — and —
Reporter: I understand that, but people are rioting. Do you commit to making sure that —
DJT: Oh, I know. I know. Yeah, no, we want —
Reporter: — there’s a peaceful transferal of power?
DJT: We want to have — get rid of the ballots and you’ll have a very trans- — we’ll have a very peaceful — there won’t be a transfer, frankly; there’ll be a continuation.
The ballots are out of control. You know it. And you know who knows it better than —
Reporter: No, sir. I don’t know that.
DJT: — anybody else? The Democrats know it better than anybody else.
Reporter: No, sir. Mr. President, the second question is, will you also —
MH: The President of the United States refusing, unlike his 44 predecessors, to guarantee a peaceful transition of power and suggesting he’s going to win if you get rid of all the votes that go to the Democrats.
I’m joined now to discuss this latest aspect of the crisis that we’re already in by The Intercept’s D.C. bureau chief, friend of the show, who’s been hosting the show in recent weeks while I’ve been away, Ryan Grim. Ryan, welcome.
RG: Thanks for having me here, Mehdi.
MH: Ryan, when you listen, you’ve been covering presidents and American politics for many, many years now. Not that I’m saying you’re old. But when you listen to a president say that in the White House to a reporter 40, 41 days out from an election, it’s chilling, isn’t it?
RG: It really was. And far beyond his refusal to promise this peaceful transition was the part that you highlighted where he said, “Well, look, you know, I have this problem with the ballots. You know, you get rid of the ballots. You’re not even going to need to have a transition, because I’m just staying in office.”
And, you know, you could have The Washington Post fact checker dig into that statement, and you’d say, yes! No Pinocchios. If you do away with the election, then yes, the dictator stays in office.
But to have him so brazenly put that out there is certainly unlike, you know, anything we’ve seen in, you know, 200-plus years.
MH: Yes, the Republicans have perfected the art of voter suppression for many years now. But this is the first time I’ve heard a sitting president for the Republican Party say, “Just don’t count lots of votes. Those votes don’t count.” And it’s going to be a real problem, because on election night, he might be leading. Of course, when the rest of the votes come in, he won’t be leading. And that is the crisis we’re in right now, which I’ve been trying to sound the alarm bell about for 18 months now.
Joshua Geltzer was very strong on it earlier in the show, Bernie Sanders, this week, also gave a speech saying this is a nightmare scenario, Democrats need to take it seriously. Do you think the Democrats have what it takes to kind of really be ready for this and fight back? If he tries to steal the result? As he says he will?
RG: It depends on what you mean by Democrats.
If you mean some of the Democratic leaders in Washington? Probably not. But if you mean —
MH: The Party’s presidential candidate. The candidate himself, Mr. Biden?
RG: No. No. But if you mean kind of Democrats nationally, then I think you are going to see a furious response. And I think the protests we saw in June, in the wake of George Floyd’s murder, were partly related to a general anger at the system more broadly. And that system includes, you know, people who are stuck at home and angry but also angry at Donald Trump, angry at all of the kind of racial and gender inequities that he has exacerbated. And he’s become a focal point for a lot of that fury. And so I do think that Democrats across the country will take to the street if they believe that he’s trying to steal the election.
Now, the way to prevent that, of course, is a landslide by the win. But absent that, I think the answer to the question is, Democrats themselves might be ready for it; Democratic leaders might not be.
MH: Crazy times ahead. A crazy election coming. It is a very rare, you know, there’s that old Chinese curse, which isn’t really a Chinese curse that says, “May you live in interesting times.” We definitely do live in interesting and, in many ways, depressing times.
Ryan, thanks so much for joining me on Deconstructed.
RG: Well, thank you for having me.
MH: That’s our show.
Deconstructed is a production of First Look Media and The Intercept. Our producer is Zach Young. The show was mixed by Bryan Pugh. Our theme music was composed by Bart Warshaw. Betsy Reed is The Intercept’s editor in chief.
And I’m Mehdi Hasan. You can follow me on Twitter @mehdirhasan. If you haven’t already, please do subscribe to the show so you can hear it every week. Go to theintercept.com/deconstructed to subscribe from your podcast platform of choice: iPhone, Android, whatever. And if you’re subscribed already, please do leave us a rating or review — it helps people find the show. And if you want to give us feedback, email us at [email protected] Thanks so much!
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