Category: United States Law and Policy

How Donald Trump is being perfectly rational in refusing to concede – if you adopt his assumptions

17th November 2020

The ongoing refusal by Donald Trump to concede that he has lost the presidency election is dangerous and profoundly undemocratic.

It threatens the prospect of a peaceful transition of power, and it is delaying the incoming administration from being able to prepare for dealing with the coronavirus pandemic and other problems.

There is nothing to be said for this refusal from any sensible and decent person.

Yet.

From Trump’s perspective, and adopting his assumptions, the refusal is a perfectly rational course of action.

Currently, Trump has within his power a thing that is valuable, a power that many would many want him to exercise.

He has a thing that many people want.

But if he exercises that power, he is left with little or nothing.

He would at a stroke become a lame duck president, easily disregarded.

And so he is going to hold on to that thing as long as he can.

If Trump concedes, he personally gains nothing – even if the United States polity gains an immense relief.

And so this is a grand exercise of political game theory: as long as Trump holds on he has the possibility of something in exchange for the valuable concession.

From a personal, selfish perspective what possible incentive is there for him to concede this valuable thing for nothing in return? 

There is none.

Of course, sensible and decent people would want Trump to act with public spirit, for the good of democracy and political stability, and for the benefit of public health and social peace.

But for Trump, these considerations are alien, as his considerations are alien to us.

His assumptions are entirely selfish and self-serving, and on those assumptions, what he is doing is what a rational actor would do in his predicament.

And this is the key to understanding Trump: the constant pursuit of leverage.

Trump is, in effect, like a video game character forever leaping from seesaw to seesaw.

Of course, he has only until 20 January 2021 to play this game.

For unless something extraordinary happens, his term ends by automatic operation of law.

But the potential disruption of two months without concession is immense and he knows it, and so he is playing it for all its worth.

This is perhaps a perfect example of a thing being illustrated by the manner of its departure.

For while Trump does not concede, he retains power, attention and money; he can generate income; he can promote possibility of running again; he keeps a hold over Republicans in Congress; and he can even seek a deal in return for the concession.

From his perspective it would be irrational for him to concede.

Trump may be better understood as a supposed business person, going from – and then reneging on – deal after deal, than as a politician.

Again, the constant pursuit of leverage.

Will he concede before 20 January 2021?

Maybe, though only if it suits him.

But it may also suit him to maintain and promote an ‘undefeated’ brand.

In any case, we should always be careful about dismissing unpleasant politics as ‘weird’, ‘bizarre’ or ‘mad’ – you may instead be dealing with perfectly rational behaviour but on very different assumptions.

The surprise is not that Trump is refusing to concede when defeated, but that any of us ever thought he would.

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Trump and Biden are now in a story telling contest

11th November 2020

President Donald Trump is many things, but there are many things which he is not.

He is not, for example, a billionaire businessman, but instead a person who tells the story that he is a billionaire businessman.

And he has not been a successful or accomplished president, but instead someone who tells the story of having been a great president, perhaps the greatest ever.

Trump is, in short, a story teller.

Even the things for which he was famous before becoming president were exercises in story telling.

The Apprentice TV show is, for instance, not about how to be successful in business but about giving the impression of being successful in business.

(Indeed, many of the figures people most associate with being ‘successful business people’ are usually deft brand promoters, their brand being they are successful at business.)

But Trump tells other stories, and knows well the power of stories.

The ‘birther’ phenomenon was about casting doubt on the legitimacy of the election as president of Barack Obama.

It did not matter to Trump that the story was untrue: the subversive impact of the story was the point of it.

Political stories that undermine legitimacy are, of course, not new.

Historical examples include the ‘warming pan’ story promoted to delegitimise James Stuart as pretender to the throne, and the ‘stab in the back’ story promoted by Hitler and the National Socialists.

And now Trump is telling a new story, the story of the stolen election.

Trump and his lawyers and advisers know that the election is lost.

As this blog set out yesterday, the presidency of Trump will end on 20 January 2021 by automatic operation of law, unless something extraordinary and unexpected happens.

Yet for various reasons, it is expedient for Trump and his supporters to affect that this is not the case.

In an extreme example, the American Secretary of State even said in a formal setting that there will be a smooth transition to a second Trump term.

Pushing this narrative may be to create political leverage, or to raise funds, or to mobilise supporters, or whatever.

The motive is less important that the fact that the story is being told.

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Yet, Trump is not the only important story teller at this political moment.

Joseph Biden and his campaign team are also promoting a narrative.

They have posited an ‘Office of the the President Elect’.

They are publishing summaries of conversations between Biden and world leaders.

 

The Biden campaign are, in essence, telling the story of political stability and a return to normality.

This is a more sensible and refreshing story, compared with the subversive story being promoted by Trump and his supporters.

And any sensible person will support Biden over Trump in this.

But it is still a battle of storytelling, like a contest of meistersingers, or an eisteddfod, or a rap battle.

And what is at stake is the sense of legitimacy of the election.

It was not enough, sadly, for Biden to win the popular vote and to win more electoral college votes.

There is now a second battle as to the legitimacy of the election, notwithstanding that Biden had an emphatic electoral victory.

Unless Biden prevails in this second contest, the Trumpite narrative will linger: Biden in a warming-pan, the American nation stabbed in the back and so on.

It will not be enough for Trump to be defeated, he must be seen as being defeated.

And, in this, one should not underestimate Trump.

For he is a great mendacious political storyteller, perhaps one of the greatest ever.

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‘The longest Tuesday’ – the US election one week later

10 November 2020

A week ago today, also a Tuesday, was election day in the United States.

The day seemed go on forever, for days, before it became apparent that Joseph Biden had won and the media networks ‘called’ the election.

It is, however, only apparent that he will be the next president: votes need to be certified by the States, the electoral college needs to meet, there needs to be a meeting of Congress to announce the winner, and so on.

There is therefore a possibility that something somehow could happen which would prevent Biden becoming president.

That said, on the information currently available, any legal challenge brought by Trump does not seem to have a realistic chance of success.

It is easier to threaten a case than to win one.

And for any legal challenge to prevail there needs to be substantial evidence and credible legal argument.

Law is not magic, and a party will not be granted a remedy just because of displeasure or disappointment.

Any (serious) lawyer for Donald Trump should be assessing the extent to which the evidence and arguments available really add up to dislodging the entirety of the majorities being reported in the key States.

There may, of course, be ‘non legal’ reasons for not conceding defeat: vanity, an attempt to create a false narrative, a desire to continue with fund-raising, an exercise in contriving some leverage for a ‘deal’ exchanging cooperation on transition for immunity from prosecution, and so on.

But such ‘non-legal’ reasons ultimately depend on the credibility and substance of the potential legal challenges.

Unless Trump and his legal team can fashion a good legal argument, then the votes will be certified, the electoral college will meet, Congress will approve, and so on.

And so, unless something exceptional and currently unforeseeable happens, Trump will cease to be the President of the United States on 20 January 2021, by automatic operation of law.

At which point, if he remains in the White House without permission, he would become a mere trespasser on federal property.

**

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“Law & Order!” and law and order

1st September 2020

Here is a tweet from Donald Trump.

And now look at the date of this tweet: it is from the run-up to the 2016 presidential election.

In recent days, Trump has tweeted a number of times about ‘Law & Order!”.

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One obvious reaction would be to say that his recent demands for “Law & Order!” show that he failed to keep the commitment in his 2016 tweet.

Another obvious point is that Trump’s misuse of pardons and commutations, his non-compliance with legal requirements and so on are a negation of law, just as his stoking of violence for political ends is the negation of order.

But such ‘reply guy’ points do not really matter.

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The potency of “Law & Order!” does not depend on Trump’s record or his consistency.

What is significant about the 2016 tweet is this was how he approached the last election, with the same message as now, and it was effective.

And it may be effective again.

The fact that, in substance and in practice, Trump is not interested in either law or order is irrelevant.

“Law and Order!” has nothing to do with law and order.

It is about coercive power and about those who that power should be inflicted upon.

It is about control and it is about supremacy.

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Of course, it is easy to mock Trump, and it is easy to point out the inconsistencies and the lies.

But he has worked out a way to get power, and his opponents so far have not.

Do not underestimate him.

(Johnson and Cummings have also worked out how to get power, and their opponents also so far have not.)

Waiting for the mass of lies, absurdities and inconstancies to somehow self-implode, and thereby eject Trump (or Johnson), is not going to work.

The thing (for want of a better word) is self-sustaining: it feeds off the simple opposition that it creates.

And there is not point ‘matching’ it, as those promoting this thing are better at lies, inconsistencies and absurdities than their opponents.

The thing would have to be defeated some other way.

And that defeat must be political and electoral.

For example, looking to the courts or to special counsel investigations is wishful thinking.

Lawyers and judges are many things but they are not fairy godmothers.

(And “activist lawyers” also feed the thing.)

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Pointing out lies does not work when a sufficient number of voters do not mind being lied to.

And so the daunting task for the opponents of Trump (and Johnson) is to get enough voters to care that they are being lied to.

To care about law and order, and not “Law and Order!”.

And that ain’t going to be easy.

**

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“Meddling” and the mindset of Trump and Johnson-Cummings

11th August 2020

President Trump says a lot of tosh but sometimes a word or phrase is telling.

“Meddling”

Here Trump goes on to make a partisan point about the Democrats “wanting and insisting on sending mail-in ballots, where there’s corruption all over the place”.

An opposition party in a democracy seeking to encourage the turnout for a vote is not, of course, sinister.

That is what political parties do in a democracy.

And if there is corruption or other irregularities then that is what electoral law is there to regulate. 

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But this is to take his substantive point too seriously: the issue is the ease with which he adopted the word “meddling” from the question and employed it in his answer against the party challenging him in November’s election.

“Meddling”

The impression he gave is that he considered the legitimate political activity of a political party as a hindrance – a wrongful intervention in the natural order of things.

And this impression is similar to the impression given by the Johnson-Cummings government in the United Kingdom in respect of constitutional checks and balances on the power of the executive.

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Before the general election, when Johnson-Cummings did not have a majority in parliament there was the attempt to bypass the legislature with the (unlawful) use of the prorogation.

After the election, now they have a majority, the main attacks are on the independent judiciary and the impartial civil service.

The impulse is always the same: the desire to remove formal impediments.

There often seems to be no greater purpose – no particular policy to be driven through – than unrestricted executive power as an end in and of itself.

The objective is the elimination of anyone in a structural position to say ‘no’ or even ‘please think about this carefully’.

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By framing any such restraints as “meddling” the executive-minded, such as Trump or Johnson-Cummings, are doing three things.

First, they are seeking easy claps and cheers and nod-alongs from those in politics and the media who should know better, as well as from voters generally.

Second, they are signalling that they consider any form of opposition to them getting their way as inherently illegitimate – and so that there are no constitutional or democratic principles of more import than the government just getting its way.

And third, they are converting basic constitutional or democratic principles into partisan devices – and so those who support and defend certain political fundamental norms (regardless of party) become part of a perceived opposition.

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The worry is that they can and will get away with this for as long as possible.

There are, of course, often short-term political advantages to be had for the knave or the fool by undermining any political and constitutional system.

And one hopes that the system would be self-correcting, and that basic constitutional and democratic norms will somehow reassert themselves.

But what happens when, as now seems to be the case in the United Kingdom, such opportunism and cynicism become the ongoing policy of the government?

Will basic constitutional and democratic norms reassert themselves this time?

Or will this ‘executive power project’ carry on and on?

And, if so, wouldn’t that be genuinely ‘meddlesome’ behaviour?

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