US attorney general William Barr’s instruction to federal prosecutors to investigate possible instances of electoral fraud is a significant escalation in the Trump administration’s attack on the presidential election result.
The federal government generally sanctions such investigations only after an election has been settled. The move also constitutes an infringement by the federal government on the authority of states, which are responsible for the running and certification of elections.
Barr sent the memo to attorneys around the US after meeting Senate majority leader Mitch McConnell on Monday. Following a brief vacuum after Joe Biden was declared the winner of the US election on Saturday, the Republican Party has now fully rowed in behind the president in his refusal to accept the outcome.
While Trump allies such as senators Lindsey Graham and Ted Cruz urged the president to keep fighting the result on Sunday, McConnell's speech on the Senate floor on Monday afternoon was more significant.
The Republican Senate leader said that the president was “100 per cent within his rights” to pursue legal challenges. “Let’s not have any lectures from Democrats, no lectures, about how the president should immediately, cheerfully accept preliminary election results from the same characters who just spent four years refusing to accept the validity of the last election.”
The comparison is, of course, deeply misleading – Democrats accepted the results of the 2016 election on election night, with Hillary Clinton phoning her rival to concede.
Further, McConnell congratulated his Republican colleagues who won Senate and House of Representatives races, while simultaneously suggesting the results of the presidential contest were somehow inconclusive.
In some ways, McConnell and his fellow Republicans may be allowing some time for Trump to pursue the legal route, while knowing that ultimately he has little hope of changing the result.
McConnell did suggest on Monday that the stand-off would be resolved. “In January, the winner of this election will place his hand on a Bible, just like it’s happened every four years since 1793,” he said. But his stance, and that of the Republican establishment, is a measure of the hold Trump still has on the party, despite his defeat. The president, after all, won more than 70 million votes, and conservative news channels like Fox News have been giving significant air time to unfounded theories of election fraud.
McConnell and his party have evidently calculated that it is not worth alienating Trump’s legions of supporters at this point.
Untold damage
In the long term, however, the Republican Party is doing untold damage to its own reputation and that of the country. The US now has a situation where world leaders are congratulating president-elect Joe Biden but senior members of the Republican Party are refusing to do so.
Amid real concerns now about the resilience of America’s democracy, Trump’s continuing attacks on the electoral system are facilitated by the country’s long presidential transition period.
Uniquely among modern democracies, there is a 2½-month period between election day and the inauguration of the winning candidate as president. As Norman Einstein of the American Enterprise Institute points out, a further complication is that "unlike many parliamentary systems where so much of the government is run by career people, we have 4,000 political employees".
The transition in the US is a formal concept that is grounded in legislation. The Presidential Transition Act was passed in 1964 and updated subsequently. It sets out rules and procedures that give the incoming president access and resources as they prepare to assume the role, such as office space, access to federal information and funding of up to about $10 million.
It is noteworthy that the General Services Administration – the part of the federal government responsible for the transition – has not yet designated Biden as the president-elect and is refusing to hand over resources to his transition team.
The ongoing stand-off over the election result is also a product in some ways of the US’s system of calling elections. Like many aspects of American life, states have enormous power over the way elections are run and certified.
As a result there is no single federal returning officer-type official who can formally declare that the election has been won, though each state will report its Electoral College results to congress on December 14th. Instead, the tradition is that television networks call elections when a candidate passes the 270 Electoral College votes threshold.
Because there is no constitutional requirement for a president to concede, a Trump concession may never come. But as former Department of Justice official Vanita Gupta put it, the secret service can escort the sitting president out of the White House of January 20th if he or she has not won the election.
"The losing candidate doesn't get to decide if he or she is removed from office, the voters decide. We have a president-elect Biden, vice-president Harris, who will be installed in the White House on January 20th, 2021 regardless of how the losing candidate feels," she said.
Nonetheless, in the interim, Trump, conservative media and Republican officials can sow significant doubt about the integrity of the elections. A popular taking point among Trump supporters is that the media – not, as is the case, the actual votes that have been counted by officials in each state – is deciding the election. "The media has already picked the next president," declared Northern Ireland envoy Mick Mulvaney.
While the willingness of the Republican Party to entertain unfounded theories about widespread election fraud is dangerous, it is worth noting that Trump will remain president until January 20th come what way. As his firing of defence secretary Mark Esper indicates, there is a lot the president can do before inauguration day.