President Donald Trump made it clear Saturday he has no intention – at least not for the time being – to concede the election to Joe Biden.
And he doesn’t have to. Nothing in the U.S. law requires the losing candidate to accept defeat, even if it might be the gracious thing to do in the time-honored democratic tradition of the United States dating back 124 years.
" Concession isn’t necessary at all. It doesn’t matter what he says,” said Donald Jones, professor of constitutional law at the University of Miami. “The issue is the rule of law. Trump is not is the issue,” he added.
According to media reports, Trump has told allies he has no intention of conceding to Biden even if his path to Electoral College victory is blocked. With Biden declared the winner in Pennsylvania and Nevada on Saturday, Biden secured more than the 270 Electoral College votes needed to win, virtually eliminating Trump’s path to re-election.
The usual custom of conceding defeat is a brief phone call to the victor and a speech to supporters thanking them for their efforts, albeit in a losing cause.
Neither of those happened on Saturday. Instead, Trump played golf at his club in Virginia, though he is due to deliver a speech this evening. He returned for another round on Sunday. He also tweeted that he was the real winner.
In a statement on the election, Trump accused Biden of “rushing to falsely pose as the winner.”
He pointed out – correctly – that Biden has not been officially certified as the winner in any state, a formal procedure that will not take place until later this year. “The simple fact is this election is far from over,” he said.
Trump added that his campaign is planning to launch a series of legal challenges on Monday “to ensure election laws are fully upheld and the rightful winner is seated,” alleging that the Biden campaign “wants ballots counted even if they are fraudulent, manufactured, or cast by ineligible or deceased voters.”
Counting of votes is still going on in some states and Biden’s victory was a close thing in some states, but only two – Georgia and Arizona – are within the margin to require a recount. In fact, Biden looked on track to narrowly exceed Trump’s Electoral College victory in 2016.
Trump wasn’t the only person refusing to concede. In the race for U.S. Senator in Michigan, the Republican challenger, John James, also alleged fraud in his defeat to Democrat Gary Peters by about 83,000 votes, or 1.5 percentage points.
There appears to be no precedent for a defeated candidate refusing to concede. The tradition began in 1896, when William Jennings Bryan sent William McKinley a well-wishing telegram.
The closest comparison to today’s situation came 20 years ago when Al Gore called George H. W. Bush to concede on Election Night in 2000, then called him back to retract his concession when the vote count in Florida showed it was still a tight race. He eventually conceded after 36 days when the Supreme Court ended the recounts handing victory to Bush. In his concession speech he recognized Bush's win, which expressing his disagreement with the court ruling.
Hillary Clinton called Trump to concede in 2016 and she addressed supporters after it was clear she'd lost. “He was so shocked,” Clinton later told Howard Stern’s radio show. “He was more shocked than me I think,” she added.
George W. Bush, the country’s last one-term president, famously left a note in the Oval Office in 1993 welcoming his successor, Bill Clinton. It read: “You will be our President when you read this note. I wish you well. I wish your family well. Your success now is our country's success. I am rooting hard for you.”
The president is entirely within his rights to contest the election results if he can produce evidence of fraud or irregularities. “There will be litigation, there will be controversy. That’s all fine. But this contest looks as though it has been decided by the people,” said Jones.
Benjamin Ginsberg, who legally represented the 2000 Bush campaign during the famous 2000 recount, told CNN that in order to challenge the results “a candidate would actually have to prove on a precinct-by-precinct, ballot-by-ballot basis that there are enough fraudulent ballots to change the results of the election.”
At some point in the coming weeks after Trump exhausts his legal options, he may still decide to concede. Pressure is likely to build if his legal challenges fail and the states begin certifying the results in the next few weeks. In that case, it is the duty of the vice president, Mike Pence, to certify the counting of electoral college votes in Congress in January.
The constitution stipulates that the new president will take the oath of office on January 20 at noon. Normally the outgoing president attends the inauguration, but his presence is also not legally required.
If Trump decided not to abandon the White House on Jan 20, it would likely be the job of the U.S. Secret Service to escorted him off the premises.
“Until then, Trump is still the president, but he’s a lame duck,” said Jones. “He is now a president operating as a caretaker. Americans have nothing to fear from him,” he added.