13 November 2020

What happens if Donald Trump refuses to concede 2020 presidency after losing the US election?

By Ben Riley-Smith, David Millward Nick Allen

Democratic challenger Joe Biden has been elected to become the 46th president of the United States, but Donald Trump shows no sign of conceding defeat, repeating threats that he would go to court with "valid and legitimate legal challenges" over the election.

Despite TV networks declaring Mr Biden the winner, Mr Trump vowed he "will not rest" until there was an "honest vote count".

The president's said moments after the declaration: “We all know why Joe Biden is rushing to falsely pose as the winner, and why his media allies are trying so hard to help him. They don’t want the truth to be exposed. The simple fact is this election is far from over. Legal votes decide who is president, not the news media."

Later, Mr Biden's campaign spokesman, Andrew Bates, told reporters: "The American people will decide this election and the United States government is perfect capable of escorting trespassers out of the White House."

Mr Trump said his Democrat opponent had yet to be officially certified as the winner of any states, and complained that observers had not been allowed "meaningful access" to the counting process in Pennsylvania.

He said: "Beginning Monday, our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated.

"The American People are entitled to an honest election. That means counting all legal ballots and not counting any illegal ballots. This is the only way to ensure the public has full confidence in our election. It remains shocking that the Biden campaign refuses to agree with this basic principle."

In a recent interview, the new president-elect was asked what kind of message Mr Trump was sending in not conceding his loss, to which Mr Biden responded, “I think it’s just an embarrassment quite frankly,” before expanding, “How can I say this tactfully? I think it will not help the president’s legacy.”

Mr Biden then continued, “I know from my discussions with foreign leaders thus far that they are hopeful the United States’ democratic institutions are viewed once again as being strong,” he continues… think at the end of the day it’s all gonna come to fruition on 20 January”. 

Mr Trump is facing mounting pressure to cooperate with Mr Biden's team to ensure a smooth transfer of power when the new administration takes office in January.
What has happened so far

The unsubstantiated fraud claims are already having a big effect. Justice department official Richard Pilger has quit after the US Attorney General gave government prosecutors blanket authorisation to open investigations into voting irregularities during the election.

The General Services Administration is tasked with formally recognising Biden as president-elect, which begins the transition. But the agency's Trump-appointed administrator, Emily Murphy, has not started the process and has given no guidance on when she will do so.

That lack of clarity is fueling questions about whether Mr Trump, who has not publicly recognised Mr Biden's victory and has falsely claimed the election was stolen, will impede Democrats as they try to establish a government.

It also comes after Mr Trump's campaign issued an extraordinary email soliciting donations to a legal fund to challenge election counts.

The message headed "FINAL NOTICE" was sent out to supporters who had yet to contribute. It said: "So far, you've ignored all our emails asking you to join us in DEFENDING THE ELECTION.

"TENS OF THOUSANDS of Patriots have stepped up for the VERY FIRST TIME in the last 48 hours - why haven't you?"

The goal was to raise at least $60 million (£45.6m) to fund legal challenges brought by Mr Trump. Astute readers of the emails were quick to notice the fine print, which said only half of donations would be used on legal fees, with the balance being used to pay down campaign debt.

He has been waging a months-long campaign against mail-in voting in November by tweeting and speaking critically about the practice, which has been encouraged by more states to keep voters safe amid the coronavirus pandemic.

Revealed: Secret 'war game' planning and fears of a legal challenge

In June, a group of politicos logged on to the video conference platform Zoom to "war game" what could happen after the US election. Among them were senior figures who had previously served in the White House, Pentagon, Homeland Security and Congress.

They were split into teams. Some acted as employees of Mr Trump or Mr Biden, making their arguments accordingly. Others played Republicans or Democrats in Congress, or represent the media or the courts. 

The scenario given for the exercise – a technique commonly used in government and business to plan for crises – was a simple one: What if, on the morning after the US election, it was not clear who had won?

Imagine postal votes in Wisconsin, North Carolina and Michigan are still being counted, participants were told. Without results from those three critical battleground states, the outcome hangs in the balance. What happens next? 

Over the next four hours, each team argued their case, with adjudicators rolling a 10-sided die to decide conflicts and carrying the scenario on. Mr Trump's team decided he would fight his corner with all tools at his disposal. 

Within 48 hours, the president ordered the head of the postal service, one of his appointees, to stop delivering postal ballots. Within a week, he used the two-centuries old Insurrection Act to deploy troops to protect counting stations. 

As November turned to December, legal challenges mounted and protests erupted, but no clarity emerged. By January 20, inauguration day, neither side had backed down.

"We were all sort of sitting there, looking at each other, staring at the screen saying: 'Holy s**t'", recalled one participant. America was in a constitutional crisis. 
'The doomsday scenario'

Such sessions, known as "table tops" or "war games", involve, by their very nature, imagination, thinking through scenarios that may not come to pass. Yet the issues grappled with that June afternoon are the same ones now being discussed with increasing volume in Washington DC. 

The Telegraph talked to almost 20 well-placed individuals, including members of Mr Trump's Republican party. 

Among them were current and former US congressmen, former senior figures in the Pentagon, intelligence agencies and past US administrations as well as academics working on mapping out worst-case scenarios. 

What emerged was a deeply felt worry – some said without modern comparison – that the president (his approval rating is tracked in the graphic below) could pull legal, governmental and political levers to remain in power if Mr Biden fell short of a blowout victory.

Some predicted lawsuits over the increased use of mail-in ballots amid the coronavirus crisis. Others thought Mr Trump could misuse executive powers for his own benefit. Multiple people feared a tweet calling on his supporters to take to the streets. 

"If the result is close, he is going to fight like a steer," said Christie Whitman, the former Republican governor of New Jersey. Academics warned of a "doomsday scenario" or a "perfect storm of bad things happening". 

Tom Coleman, a former Republican congressman from Missouri, said: "From what we have experienced during Trump's three-and-a-half years in the presidency, one must assume he is capable of doing anything to stay in office."
Planning for the worst

The "war game" session was run by the Transition Integrity Project. It was created by two academics, Nils Gilman, a historian who has run scenario planning exercises for the US government for years, and Rosa Brooks, a law professor at Georgetown University. 

The identities of those who took part is closely guarded – they have not been named publicly and participants are barred from speaking about the sessions. Its existence has only recently emerged. 

It is understood members include two former governors, a former US cabinet minister, ex-chiefs of staff to a US president and vice president as well as retired members of the Pentagon and Congress – a sign of how seriously its work is taken.

The group actually held four individual role-playing exercises last month, each mapping the fallout from different election outcomes. Only in one, a massive victory for Mr Biden, did Mr Trump not seek to remain in power.

"There were four big takeaways from me from the games," said Mr Gilman, who discussed the broad findings but declined to talk publicly about the details of the exercises. 

"First, unless Biden wins by a landslide, there's going to be a constitutional crisis and likely political violence. Second, if it is at all close Trump has perfectly legal ways to challenge the election if he and the Republican Party choose to. 

"Third, the Biden campaign needs to understand that election day is not the finish line, the inauguration is. And fourth, neither the Supreme Court nor the military wants to touch any of this with a 10-foot pole."

The bipartisan group's focus has been the 78 days between the election on November 3 and the inauguration on January 20, when the US Constitution demands that a president leaves office at noon. 

Unlike in Britain, when elections result in an immediate switch of government, the American presidential handover is staggered – a quirk of the US electoral system. That means Mr Trump is in the Oval Office during the period, with his hands on the levers of power. 

Mr Trump has waved away suggestions that he would not accept a defeat. "Certainly, if I don't win, I don't win," the president told Fox News, saying he would "go on" and "do other things". His allies have done likewise, with one supportive senator calling the idea he could cling on "nutty stuff". 

Yet Mr Biden disagreed, predicting the military may intervene should Mr Trump refuse to leave office. He told Daily Show host Trevor Noah: "I am absolutely convinced they will escort him from the White House with great dispatch."

'What would the military do?'

Stories shared with The Telegraph reveal that at least some Republicans in Congress, and figures in the US military circle, had deep disquiet about how Mr Trump could act if the election did not go his way. 

Lawrence Wilkerson, a retired army colonel who was chief of staff to secretary of state Colin Powell, recalled a meeting with a Republican senator last autumn. The topic for discussion was the Yemen civil war – but at one point it unexpectedly changed. 

"He asked me to dismiss all of my colleagues and he dismissed his legislative affairs guy and his chief of staff," Mr Wilkerson said of the senator.

"We were alone in his office and he prefaced it with: 'I just want to talk to you for a moment as a military professional.'"

"He said: 'I want to ask you a question. If things were really to go sour and the president loses and refuses to leave, or leaves and in either case calls a lot of his base to the streets and they come armed, what will the US military do?'"

Mr Wilkerson had time to unpack the polling on how soldiers voted and warn that such a situation would show the US political system had "utterly, abysmally failed" before a congressional vote ended the conversation. 

Once, Mr Wilkerson said, he had thought it impossible that Mr Trump could call his supporters onto the streets with guns – but now he is not so sure. "I don't think it's probable, but just the fact that it's possible scares me," he said.

Guy Snodgrass was serving in the Trump administration until two years ago, when he stepped down as communications director to Jim Mattis, then US defence secretary, but remains in touch with old colleagues. 

He said that, in recent months, three different senior figures – one colonel, one captain and one rear admiral – had all expressed fears that Mr Trump could ask the military to do things after the election that would be unpalatable. 

"President Trump has been willing, as we've seen consistently for the last three and a half years, to put people in very precarious positions, making them choose between personal loyalty to him and professional loyalty to the country," he said.

"That is what everyone is terrified of. People are worried about getting into a situation where they are seen to be throwing out a president and getting dragged into a political food fight."

Numerous ex-government figures pointed to the handling of recent anti-racism protests, which saw crowds being forcibly cleared near the White House for a presidential photo-op by a church, as a cause for concern. 

Apparent tensions between the president and military leaders burst into public view, with the chairman of the Joint Chiefs of Staff apologising for appearing in the photo-op, the defence secretary publicly opposing the use of active soldiers and ex-military chiefs condemning Mr Trump.

"Oh yes, oh no doubt," Mr Flake told The Telegraph. "To a person, yes. That was reflected in the briefings that we got officially, and certainly it was reflected in private meetings that many of us had."

Mr Flake does not have concerns Mr Trump will try to cling on after a defeat, however, believing that the backing he would need – including from Republicans in Congress – would not be there. 

"It's not that I don't think the president would be inclined to do that. I just don't think that there are any significant institutions that would support him," Mr Flake said. 

He said of his old Republican congressional colleagues: "If the president's hoping that the same supporters, particularly those in leadership positions, would be inclined to help him overcome a genuine election, it's not going to happen."

Beyond Capitol Hill and the Pentagon, there are fears in intelligence circles too.

General Mike Hayden was director of the National Security Agency (NSA) under presidents Bill Clinton and George W Bush – one Democrat, one Republican – before serving as the latter's CIA director. 

"I am worried this president will say the result is impossible and the election was rigged," Gen Hayden said, going on to mention the razor-tight 2000 election between Mr Bush and Al Gore, which ended up in the Supreme Court. 

For weeks, the winner was not clear, with all focus on Florida amid debate about whether the infamous "hanging chad" ballots should be counted. Mr Gore ended his challenge when the Supreme Court stopped the Florida recount. 

"We had something similar 20 years ago when Bush was elected, but he and Al Gore were honourable men. This president is not honourable," Gen Hayden said. "I think the Democrats will win and this president will say it is not right. And then I don't know what is going to happen." 

He said similar concerns about the president's behaviour were voiced at a gathering he had recently attended with 10 other former CIA, NSA and Defence Department figures. 

'A witches' brew of uncertainty'

But what could actually happen? Among those who gave their views, two consistent messages emerged. One, the larger Mr Biden's victory, the less likely a Trump challenge. And two, any lawsuit will probably focus on postal votes. 

This election cycle has seen a dramatic increase in mail-in votes because of the coronavirus crisis, with many state legislatures and governors, who tend to oversee election rules, sending out more given the risks of in-person voting. 

Yet the president is fiercely critical. Mr Trump recently tweeted that mail-in ballots "will lead to the most corrupt election in USA history", a message he has echoed repeatedly.
A protester holds up a sign in support of the US Postal Service outside the Trump Hotel in Washington DC Credit: Erin Scott/Reuters

In near-daily tweets, interviews and speeches, he has, for months, been making allegations about mail-in voting leading to massive election fraud. 

Democrats – and even some Republicans – say he is making these allegations, despite producing no evidence, to undermine confidence in the election results in case he loses. His campaign team sued to stop an expansion in Pennsylvania this month. 

"You have to wonder to what extent any of the players … are trying to use delay as a tactical advantage or chaos," said Ned Foley, the director of election law at the Moritz College of Law at Ohio State University.

"Some sides might benefit, or think they benefit, from rocking the boat because they think they're going to lose or they think they want to create a narrative that the system is untrustworthy."

Postal vote chaos lays groundwork for Trump

Mr Trump created the narrative and argued that mail-in ballots are vulnerable to fraud. Critics claim he sees them as more likely to result in Democratic votes, though the evidence is mixed on that point. Some see the laying of the groundwork for questioning the result. 

Norman Ornstein, a scholar with the American Enterprise Institute think tank and a member of the National Task Force on Election Crises, another bipartisan body doing worst-case election planning, is concerned about the timings of result declarations. 

Normally, states have maybe four or five per cent of their electorate voting by mail, Mr Ornstein said, but this year that figure was much, much higher. 

"We may have election results that don't come in for a week, 10 days or more after the election because it takes so long to count them," he predicted. "We know that the president wouldn't hesitate if he lost under those circumstances to cry foul and say the election was rigged."

The delayed counts have added to the confusion. One fear was that the media could call a state one way on election night, only to backtrack and hand it to the other candidate after postal ballots are counted, fuelling conspiracies. 

Mr Trump called on states to stop counting postal ballots because they were illegitimate – something he came near to doing in one close race during the 2018 midterm elections. 

"The Florida election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere," Mr Trump said then, name-checking the Republican candidates for the Senate and governorship as counting continued. He claimed "an honest vote count is no longer possible". 

Preparing 'for the unthinkable'

Some have already turned to lawyers for advice. Mr Coleman, the ex-Republican congressman, was so concerned that he contacted a leading constitutional scholar about the mechanism for forcibly removing Mr Trump from office. 

"For over 200 years, the above have probably never been thought about," the scholar wrote back, according to Mr Coleman.

"But we do not live in normal times, and Trump is certainly not a normal president. We must be prepared for the unthinkable."

One sitting Republican warned that, with postal vote changes, coronavirus and the recent civil unrest, there was "a witches' brew of uncertainty" around the election. "I fully anticipate there will be legal challenges all over the place, just like there was in 2000," he said.

Mr Trump has filed a number of lawsuits in key battleground states: Pennsylvania, Georgia, Michigan and Nevada, where the votes could not be closer.

The team behind the war games see value in their work. They hope to share their learnings from the exercises with decision-makers in the election process such as state governors, voting administrators and broadcast bosses. 

"The purpose of these exercises isn't just to give people nightmares about the dissolution of America but to make sure this doesn't happen," said Ms Brooks, who co-founded the Transition Integrity Project.

"The hope was that these exercises could prevent these catastrophic outcomes."

We will find out very soon if that has proven to be correct. 

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