Trump could lose and not leave. But Cabinet members who try to help face prison.
With November fast approaching, heres a recurring question that cant easily be dismissed as alarmist fretting or grim humor: What if President Trump loses his bid for reelection but refuses to concede and instead clings to power? House Speaker Nancy Pelosi expressed this concern last year, saying we have to inoculate against that. So did Trumps prison-bound former lawyer Michael Cohen. Testifying before Congress, Cohen said, I fear that if he loses the election in 2020, that there will never be a peaceful transition of power. Even Joe Biden, Trumps Democratic rival, doesnt discount the possibility that Trump would make himself difficult to dislodge, but he suggested that others in government would get the job done: I promise you, Im absolutely convinced that they will escort him from the White House with great dispatch.
If Trump does try to hang on to a presidency hes lost, however, he cant actually do very much all by himself. Running the executive branch requires help. Thankfully, there are laws that stop others from using the authorities of the executive branch on behalf of anyone other than the legitimate president. If William P. Barr, for example, tried to exercise the powers of the attorney general after a Trump loss, he could be subject to criminal prosecution.
The circumstances matter. If Trump legitimately wins on Election Day, he wins so be it. And if he loses, well, American tradition calls for a peaceful transfer of power to ones successor. But given Trumps rampant tradition-busting, theres more than a little reason to worry that hell continue to reassert baseless claims that there was election fraud via mail-in ballots or foreign election interference favoring the Democrats, even after he has failed to persuade lawfully constituted authorities of such fantasies. Whatever Trumps excuse, it would require little imagination to suppose that he would claim some need to retain power at least long enough to investigate whatever election irregularity hes claiming, such that, come Jan. 20, 2021, he and Biden would be advancing competing claims to be Americas legitimate president.
But while theres a reasonable fear that Trump could take such an appalling and dangerous step, any such effort would have a serious vulnerability. A president cannot run the executive branch alone. Wed like to think that, even if Trump himself refuses to face the music, officials throughout his administration would not follow his lead. And if they were to waver in their commitment to our constitutionally prescribed methods for transferring power, wed hope theyd be encouraged to do the right thing by virtue of the fact that there are federal statutes that make it unlawful for others to exercise executive branch authorities on behalf of someone whos not actually the president.
"If Trump were inclined to overstay his term, the levers of power work in favor of removal. Because the president immediately and automatically loses his constitutional authority upon expiration of his term or after removal through impeachment, he would lack the power to direct the U.S. Secret Service or other federal agents to protect him. He would likewise lose his power, as the commander in chief of the armed forces, to order a military response to defend him. In fact, the newly minted president would possess those presidential powers. If necessary, the successor could direct federal agents to forcibly remove Trump from the White House. Now a private citizen, Trump would no longer be immune from criminal prosecution, and could be arrested and charged with trespassing in the White House. While even former presidents enjoy Secret Service protection, agents presumably would not follow an illegal order to protect one from removal from office."
Former U.S. attorney for the Eastern District of Michigan
She does go on to give alternatives, but this is the legal process that has thus far, been unused in our nation's history.
But it will have the opposite effect.
The cabinet serves at the pleasure of the president. Biden would just fire all of them upon taking office.