President Trump continued Friday to deny the results of the election, pressuring state officials in Michigan and Georgia to overturn the will of voters and increasing fears that he might refuse to cede power to President-elect Joe Biden.
But those looking to the nation’s Founders, or the Constitution they framed, for answers to such a crisis will come up empty-handed. There is nothing in the Constitution about what to do if a president refuses to step down when his term expires, according to three historians and a constitutional law professor.
“No, the framers did not envisage a president refusing to step down or discuss what should be done in such a situation,” Princeton historian Sean Wilentz said. “There’s obviously nothing in the Constitution about it.”
“This is a contingency that no one would have actively contemplated until this fall,” said historian Jack Rakove, a professor emeritus at Stanford University.
“We [historians] pride ourselves in saying, ‘Don’t worry, this has happened before,’ or, ‘Worry, this has happened before,’ ” said Jeffrey A. Engel, founding director of the Center for Presidential History at Southern Methodist University. “Right now, if all your historians can say is, ‘We are in entirely uncharted waters,’ I don’t even know how the rest of that sentence ends.”
Recently, Engel asked the post-doctoral fellows and undergraduates affiliated with the center — whose areas of study range from George Washington to Trump — to drop everything they were doing and search for any historical clues or parallels.
“They all say they got nothing,” Engel said.
The Constitution says a president’s term expires after four years. That’s it. Congress set Washington’s first term as officially beginning on March 4, 1789. March 4 became the de facto inauguration date until the 12th Amendment made it official in 1804. Then, in 1933, the 20th Amendment moved that date up to Jan. 20 and further specified that a president’s term expires at noon.
This has been followed to the letter throughout U.S. history, when it was both easy and hard, Engel said. He pointed to Inauguration Day in 1989, when Ronald Reagan’s second term was ending and his vice president, George H.W. Bush, was about to assume the presidency. At the close of his last daily briefing in the Oval Office that morning, “Reagan said, ‘Good. Well, I guess I’m done,’ and got out the nuclear codes from his pocket to hand them to Colin Powell, who was national security adviser. And Powell said, ‘Mr. President, you have to hold onto those until you’re not the president anymore’ ” — meaning, until noon.
Some losing presidential candidates have had better claims than Trump to seek legal remedies, Engel said, such as Andrew Jackson in 1824, Richard Nixon in 1960 and Al Gore in 2000, “but none of those people ever gave any hint that they were not going to respect the legitimate authority of whoever ended up winning the process.”
The Biden campaign has said that should Trump refuse to leave on Jan. 20, “the United States government is perfectly capable of escorting trespassers out of the White House.” But that’s simply “common sense,” Wilentz said, not a documented process described in the Constitution or any other law.
But weren’t the Founders obsessed with the encroaching nature of tyranny? Didn’t they worry constantly about a president having too much power?
Most of them did, yes, though not all. During the Constitutional Convention in 1787, Alexander Hamilton floated the idea of presidents serving for life, but when put to a vote, the proposal failed 4 to 6.
The power that scared many Founders the most was that of commander in chief.
Though not necessarily tied to an election loss, “there was a lot of discussion of the possibility that a president with control of the Army might refuse to relinquish power,” said Michael McConnell, a constitutional law professor at Stanford and author of the new book “The President Who Would Not Be King: Executive Power Under the Constitution.”
At the Virginia ratifying convention, Patrick Henry said: “If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands, and if he be a man of address, it will be attached to him; and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design.”
Gouverneur Morris, who wrote the preamble to the Constitution, warned that if a president was limited to one term, he might “be unwilling to quit his exaltation … he will be in possession of the sword, a civil war will ensue, and the commander of the victorious army on which ever side, will be the despot of America.”
Perhaps most ominously, one prominent Pennsylvanian identifying himself only as “An Old Whig,” wrote about this in Antifederalist No. 70 and is worth quoting at length:
“Let us suppose this man to be a favorite with his army, and that they are unwilling to part with their beloved commander in chief … and we have only to suppose one thing more, that this man is without the virtue, the moderation and love of liberty which possessed the mind of our late general [Washington] — and this country will be involved at once in war and tyranny.
… We may also suppose, without trespassing upon the bounds of probability, that this man may not have the means of supporting, in private life, the dignity of his former station; that like Caesar, he may be at once ambitious and poor, and deeply involved in debt. Such a man would die a thousand deaths rather than sink from the heights of splendor and power, into obscurity and wretchedness.”
Some Founders who supported the Constitution still predicted that it wouldn’t stop a president from seizing power.
“The first man put at the helm will be a good one,” Benjamin Franklin said, referring to Washington. “Nobody knows what sort may come afterwards. The executive will be always increasing here, as elsewhere, till it ends in a monarchy.”
So why didn’t the Founders plan for this particular scenario, of a president simply denying that he had lost an election? Because they couldn’t even fathom it, Engel said.
“They couldn’t fathom two things: a person who had become president who was so utterly lacking in classical virtue that they would deign or dare to put their own interests above the unity of the country. And the second thing is, I think they couldn’t fathom how any president who would so vividly display disdain for the unity of the country, and mock and undermine the legitimacy of American democracy, why that person [wouldn’t have] already been impeached and removed from office.”