Donald Trump’s subversion of constitutional legitimacy, and its consequences

12th December 2020

The latest attempt by Donald Trump to litigate the 2020 presidential election has ended in failure.

The Supreme Court of the United States has dismissed the attempt by Texas to somehow nullify the votes of other states.

This is – or should be – Trump’s Wile E. Coyote moment.

The post-election litigation has had the quality of him running in mid-air, and now he must – or should – submit to constitutional gravity.



This defiance – which is shared by many Republicans in congress and nationally – may have dangerous lingering effects.

The defiance is subversive: it is an attempt to contaminate the legitimacy of the election of Joseph Biden.

To poison the wells, so to speak.

And in a way, this is apt and not surprising.

For just as Trump’s campaign to become president started with him denying the constitutional legitimacy of one Democratic president – with the ‘birther’ conspiracy – his presidency has ended with an assault on the legitimacy of another.

This is what Trump is ‘good’ at – identifying and exploiting weaknesses.

Sometimes this is on a personal and immediate level,  so as to obtain leverage in any given situation, or to intimidate someone with a nickname.

But in terms of an entire political system, it is to maintain and increase influence by identifying an issue which undermines constitutional legitimacy itself.

This is bullying on the grandest political scale.


This bullying will probably be not without consequence.

Along with populating the federal judiciary with conservatives, this rejection of political legitimacy will no doubt be a legacy of the Trump presidency.

And a lack of a shared sense of what is legitimate in any political system rarely ends well, and sometimes even ends with violence.

If a substantial proportion of people do not believe that the mechanisms of political change are valid and fair then they will tend to look to other ways for effecting changes.

Just think of Ireland, along with many other examples.

But it also has less lethal effects.

Normal issues of political debate cannot be approached on their own terms.

A policy promoted by an ‘illegitimate’ executive will be unacceptable, regardless of any merits.

This hyper-partisanship – that goes far beyond the usual knockabout politics of a party system – is devastating to any functioning democracy.

But in an age where a political base can be mobilised directly – bypassing traditional party and media structures – many politicians will be tempted not to show self-restraint.

The sensible convention that one does not go too far politically, not least because one does not want opponents to go too far, is disregarded.

Trump may well have lost his legal battle to retain the presidency, but this Trumpism may well be with us for much longer.

And that, more than desperate legal suits, will be the test Trump leaves for the law and politics of the United States


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13 thoughts on “Donald Trump’s subversion of constitutional legitimacy, and its consequences”

  1. In spite of the loading of the federal courts with conservative judges, they have been robust in rejecting the Trump claims. The State institutions of republican Georgia have also resisted attempts to delegitimise democracy there. There is hope that the USA is strong enough to resist this attempt to destroy it.

  2. Very correct analysys, I fear. Very much like Berlusconism in Italy – which has irremediably contaminated an already corrupt political system and indeed, to use your expression, poisoned the well – Trumpism is there to last.
    The huge difference is that the Italian tragedy is somehow under control – since we are under the EU umbrella and must conform to certain standards – and is of course irrelevant in terms of planetary threat.

    1. I think part of the tragedy of Brexit is that our government is no longer constrained by EU membership. Worse than that, they don’t have the benefit of regular routine dialogues with other politicians who would see things from a different viewpoint. We are left in an echo chamber where threats to our own democracy could easily grow out of control, step by step.

  3. Trump is not the only one delegitimising the political process. Democrats have spent the last four years attempting to remove Trump by claiming his election victory was illegitimate. A sorry state of affairs all round.

    1. Have they? I don’t remeber that at all. Do you have some references?

      It could be claimed, with more obvious legitimacy, that Democrats have spent the last four years attempting to remove Trump by impeaching him for crimes committed while president. But they reason for that (while no doubt influenced by partisanship) is fundamentally that he committed crimes while president.

    2. A nice try at deflection, Justin – but a false equivalency.

      In the case of Trump’s “success”, massive foreign interference in his favour was undeniable and – pointedly – not denied.

      There was significant voter suppression (to the tune of tens of thousands of votes) – a go-to tactic for Trump, it would appear.

      Russian hacking into voter databases? Check.

      These are all FACTS – not the spurious, disingenuous nonsense that Trump and his cronies have inflicted on the US’ democratic system.

      So no. Trump 2016 and Biden 2020 are not the same AT ALL.

  4. I’m interested in your Irish analogy. Are you talking about the independence struggle or Northern Ireland ” troubles” or something else?

  5. What alarms me most about the US situation, is how senior law officers (the attorney general and some states attorneys general) have been willing to pursue these bogus claims. It suggests that their respect for the law (and constitution) that they are sworn to uphold, means nothing. Fortunately, with only minor exceptions, the courts have thrown out these bogus suits rapidly and with due contempt.

    If the politically motivated are prepared to subvert laws to their own ends, democracy becomes a sham and we move to an era of dictatorships. I have first-hand experience of how the legal system is prepared to overlook proof when a David goes up against a Goliath, so I know the legal system is far from perfect, but it is the only bulwark we have against tyrants masquerading as “democrats” and it is in bad need of shoreing up on both sides of the Atlantic.

    1. I think that the AGs that put their name to the case did so knowing it would fail, either because there was no standing to bring it or if accepted at the first stage it would ultimately be consigned to the bin as without merit etc.

      The alternative was to stick their heads above the parapet and draw Trump’s venom. They need to keep his supporters on-side.

      In 2024 there will be a Trumpist candidate, not necessarily the present incumbent, and if the GOP parts company with DT the Republican vote will split leaving the Democrats with 80 million votes to themselves. The GOP sold it’s soul to the devil. It’s dead unless it fully embraces the Trump agenda and modus operandi.

  6. The Republicans’ successful efforts at voter suppression and gerrymandering buzz away happily under the radar while Trump and Giuliani stumble about above it. The specific current Trump cases may die on the vine from lack of evidence but the assumption of distrust in the system assists the efforts to make voting more difficult. IMO.

  7. One senses President elect Biden is reaching across the aisle to try and build a broad based administration.

    There have, as yet, been no Arnold Vinick style appointments. However, there have been rumours that Cindy McCain, the wife of Senator McCain, who as much as anyone delivered Arizona for Biden and Harris, may be offered the post of Ambassador to the Court of St James. Ms McCain is an Anglophile.

    Trump’s abuse of her husband, as much as anything else, set Ms McCain to campaign for the Democratic Presidential ticket. The multiple draft dodger, who once cited fallen arches as grounds for not serving his country, called war hero, Senator McCain a loser for spending five years in prison after being shot down over Vietnam.

    That Trump’s base was not repelled by their idol’s abuse of a war hero did come as a surprise. I think the Vietnam War was a mistake and I did not see eye to eye with Senator McCain on much in politics. I would never, however, have called him a loser.

    After all, my maternal grandad spent five years as a prisoner of war of the Germans during World War Two. It would never have even crossed my mind to call him a loser.

    I do think there are some folk in the USA who rather overdo the whole Semper Fi bit, but as I say it came as a shock when one discovered how quickly they might set that aside in their adoration of the Trump.

    I only recently discovered that McCain was in prison for five years, because he refused an offer of repatriation from the North Vietnamese. They made the offer when they discovered he was the son of a senior member of the US military.

    McCain declined when he was told that only he and none of his comrades, who were being held with him, would be released at the same time.

    My kind of loser.

    One would like to think that one would have done the same in his position.

    Arnold Vinick, you ask?

    The thinking man and woman’s Republican Presidential candidate in the West Wing. The previous candidate earlier in the series had been a bit of a cardboard cut out, but Vinick, played with style by Alan Alda, was a serious contender for the Presidency.

    “Ever see Arnie Vinick campaign? He’ll go into those high school gymnasiums in Iowa and New Hampshire and blow them all away. He’ll shake every hand in the joint, kiss every baby, hug every widow on Social Security and sound smarter and more honest than any Republican they’ve ever seen. Because he is.”

    Leo McGarry, Chief of Staff to President Bartlet.

    There must surely be some Vinicks left in the Republican Party who will put country before party?

  8. Dear God …

    Chairman Allen West of the Republican Party of Texas has responded to the US Supreme Court’s decision to dismiss Texas’s constitutionally and legitimate law suit (Editor: His party’s words not mine) in the following statement:

    “The Supreme Court, in tossing (sic) the Texas lawsuit that was joined by 17 states and 106 US congressman (sic), have decreed that a state can take unconstitutional actions and violate its own election law. Resulting in damaging effects on other states that abide by the law, while the guilty state suffers no consequences. The decision establishes a precedent that says states can violate the US constitution and not be held accountable. The decision will have far reaching ramifications for the future of our constitutional republic. Perhaps law-abiding states should bond together and form a Union of states (Editor: A bit confusing surely? How about a Confederacy of States, instead?) that will abide by the constitution.

    The Texas GOP will always stand for the Constitution and for the rule of law even while others don’t.”


    And remember The Alamo …

  9. You write: “This is – or should be – Trump’s Wile E. Coyote moment.”
    I treasure memories of Wile E. Coyote cartoons. And I use the analogy to question why people who, without any solid evidence to stand on, are still furiously cycling their arguments apparently in mid-air.

    But then let’s remember the millions of Americans who voted Trump. Some still chipping-in to his funds. Ask yourself where *they* are still standing which leads them to keep faith with him.
    Perhaps their *defiance* is not dangerous [and] lingering” but in large measure solid, permanent and calamitous?
    Perhaps too their defiance isn’t a “subversive” … “attempt to contaminate the legitimacy of the election of Joseph Biden”. But a signal that in the eyes of millions, legitimacy of the rulers was already contaminated. By the Bushes and Clintons whose actions and speeches helped to build despair and contempt among their voters.
    At least from what we in the UK were shown on our media, wasn’t the lived experience and public information for many U.S. voters, of violence, of growing inequality, poverty-in-the-midst-of-plenty, unaffordable ill-health, homelessness and many other visible social ills?

    Most of which are current and worsening features of the UK.
    In other words, many “wells” already “poisoned”.

    You observe that “Trump is ‘good’ at identifying and exploiting weaknesses”. But weren’t his enemies also good at that ? And weren’t those weaknesses – lying, racism, sexism, ignorance etc, echoed to some extent by Johnson and his associates?

    You point to Trump’s attacks “on a personal and immediate level … so as to obtain leverage in any given situation, or to intimidate someone with a nickname”. Weren’t similar attacks mounted by his critics and enemies? Relentless wide-ranging attacks – from the Lincoln Project to the cleverest and funniest left-wing commentators, cartoonists and comedians?

    Then, do you see no “identifying [of] issues which “undermine[d] the constitutional legitimacy” of a Leader of the UK opposition who wanted to oppose the constrictions of our own system?

    I’m a Corbyn fan. Clearly he was never going to carry all the hopes and dreams his supporters yearned for. But then who is?

    My comment is based on my fear about the negative consequences of what I see as Corbyn’s his political assassination by forces determined to prevent any whisper of a hint of socialist programme in the UK.

    You observe that: “Lack of a shared sense of what is legitimate in any political system rarely ends well”. How far do we in the UK now have such a shared sense?
    And: “… in an age where a political base can be mobilised directly – bypassing traditional party and media structures – many politicians will be tempted not to show self-restraint.

    “Tempted”? When did Boris Johnson practice or advocate self-restraint for himself or his close cronies?

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