Trump's Refusal to Concede Is Not a Legal Problem. It's a Political Problem.

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Marc E. Elias
@marceelias
Trump’s Refusal to Concede Is Not a Legal Problem. It’s a Political Problem.

Trump’s Refusal to Concede Is Not a Legal Problem. It’s a Political Problem, or Maybe an Adulting...
The courts have thrown out every single one of the 12 cases the president’s team has filed.
slate.com
7:06 PM · Nov 12, 2020

https://slate.com/news-and-politics/2020/11/trump-legal-arguments-are-nonsense.html

It is easy to think that what is happening in America this week is a purely constitutional crisis or some kind of a crisis of law itself. After all, Republicans in state legislatures and the Trump campaign are declining to concede that the election is over and that they lost; they are filing lawsuits around the country that are being bounced like superballs out of their various courtrooms; and they are turning on their own Secretaries of State as they make demonstrably false, empty claims about rampant election fraud. But it’s not in fact a crisis of law. The law is managing the lawsuits precisely as it ought to: Taking them seriously enough to reject them outright. As elections lawyer Marc Elias continues to tweet, 0-12 is a pretty sound legal outcome 9 days post-election.

The better way to describe what is taking place is that we are in a political crisis. The following is what is currently happening in the GOP-lead government: There are firings at the Pentagon, a persistent refusal to allow Joe Biden and his transition team to have access to security briefings, and mealy mouthed contentions by the Republican leadership that the president has some kind of “right” to file endless meritless lawsuits rather than participate in an orderly and peaceful transition of power. It’s not simply that there is a last-minute looting effort to enrich Trump’s 2024 presidential campaign or to froth up the base in time for the Georgia runoff. The GOP is actually presiding over a dismantling of an effective national security system and a functional federal bureaucracy. For fun. Even with the tiny feints at concern for the damage being wrought, the past week has evinced a GOP that will take more joy in peeing on the carpets on the way out than in handing over the reins of leadership in a way that would put country first. Construing what has taken place in the days since the election was called for Joe Biden as a legal problem obscures that the authentic breakdown here is in politics, not in law.

That’s why looking to the courts to stop this is an error. The courts are stopping it. They have stopped it already. The chance of a huge denouement on the marble steps of the Supreme Court the likes of which we witnessed in the winter of 2000 is close to nothing; that would require a close election in a single state and a margin of victory that would make a difference. That situation did not occur, so a court showdown is not going to happen. The lower courts are ably backstopping the stupid, but it’s not the courts that can serve as the adults in the room, as much as we sorely need adults right now. And pause to note that the big law firms once helming the stupid are peeling off not because of dignity or even law but because capitalism is proving effective in these last few innings.

The reason the present moment is destabilizing isn’t because the rule of law isn’t holding. It’s because American faith in the rule of law is being cynically deployed to run out the constitutional clock. Legal scholars can debate the question of whether The Electoral Count Act of 1887 does or does not allow any number of fantastical efforts to set aside the election results until the cows come home, but that too is not a legal problem. The defining inquiry of the Trump era long ago stopped being whether this or that is legal, or constitutional, but rather whether anyone would stop it. That’s a leadership problem. Which means Trump’s refusal to accept electoral defeat should not be construed as a failure of law, or maybe even as a failure of politics, but in fact as a failure of adulting. Playing footsie with authoritarian gambits is not a game, or a money-making enterprise or a piece of theater. It’s stupid and childish in ways we can’t yet quantify.

*snip*