PerryScope- When is Trump going to concede?

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By Perry Diaz

In my column last week after Joe Biden took the lead in the presidential election, I wondered where President Donald Trump would be heading after his term?  I asked, Quo Vadis, Donald J. Trump?  Where are you going when you step down from the presidency?  As it turned out, he is not going to retire.  On the contrary, quitting is farthest from his mind.  He’s not conceding the election either.  He challenged the election in at least four States; claiming he’d been cheated and filed lawsuits for voter fraud.  But a week later, most of these lawsuits were dismissed by the courts, citing lack of evidence.  In some cases, the attorneys representing Trump withdrew the lawsuits.  They simply didn’t have the legal basis for contesting the election.

But Trump had other things in mind.  He’s looking ahead to 2024.  He is contemplating running for president after four years of Biden’s presidency. He said that he’d launched his candidacy as soon as Biden is certified of winning the election.

But his surrogates have something more sinister in mind.  Secretary of State Mike Pompeo had insinuated during an interview with Fox News that Trump will prevail.  “There will be a smooth transition to a second Trump administration,” he said.

Trump’s press secretary Kayleigh McEnany also claimed that Trump would be attending his own inauguration in January 2021.   She said that she’s confident that Trump’s many legal challenges to contest the election results will eventually turn it around.

Needless to say, she’s referring to the time that Trump’s legal challenges would eventually reach the Supreme Court where Trump believes the High Court will back him up and declare him as the duly elected president.  It’s a big gamble but with six Republican justices, three of who were his appointees, the Republicans on the high court would most likely support him.  But the justices have a mind of their own.  One might ask, “Would they exercise their judicial independence by weighing on the merits of the case?”  I’m pretty sure that Chief Justice John Roberts would look at it fairly.  That leaves five justices including Trump’s three appointees who would most likely side with Trump simply because they owe their appointments to Trump.  Two justices, Clarence Thomas and Samuel Alito had most of the time voted for conservative issues.  One might say that they shouldn’t be biased in supporting Trump.  But I’ll bet that when the justices vote, they’ll support Trump.  It’s no different to the Bush vs. Gore Supreme Court decision, which ended in a 5-4 decision in favor of Bush. The case involves the recounting of all undervotes, over 61,000 ballots that the vote tabulation had missed. The Bush campaign immediately asked the U.S. Supreme Court to stay the decision and halt the recount.  Justice Antonin Scalia, convinced that all the manual recounts being performed in Florida’s counties were illegitimate, urged his colleagues to grant the stay immediately.  The five conservative justices on the Court granted the stay for Bush, with Scalia citing “irreparable harm” that could befall Bush, as the recounts would cast “a needless and unjustified cloud” over Bush’s legitimacy. In dissent, Justice John Paul Stevens wrote that “counting every legally cast vote cannot constitute irreparable harm.”

In the 2020 election, Trump is challenging the legitimacy of the mail-in votes, which would substantially affect the results of the 2020 election.  If the Supreme Court would rule delegitimizing the mail-in votes, it would affect the outcome of the 2020 election.  This is what Trump is hoping would happen if and when the Supreme Court would step in to rule on the legitimacy of the mail-in ballots.  If the Supreme Court will rule against the mail-in ballots, the election will result in a Trump victory.

The question is: would the Supreme Court justices invalidate the mail-in ballots of which about Democrats cast 70%?  But delegitimizing the mail-in ballots is dangerous.  We’re talking 110 million ballots to be invalidated!  That’s not going to happen.

In the event that would happen, the Electoral College might not produce a winner who garners 270 electoral votes.  If neither candidate gets 270 electoral votes due to disputed ballots, the House of Representatives would have to decide the election.  However, the founders gave only one vote to each state. House delegations from each state will meet to decide how to cast their single vote.

It is interesting to note that the Republican Party dominates the House delegations of 26 states since 2018.  It is exactly the number required to reach a majority under the rules of the House presidential selection.   But it’s the newly elected House who will decide a contested 2020 election.   So far, Republicans have retained control of the congressional districts in 26 states they currently hold, while the Democrats have lost control of two states, Minnesota and Iowa.  Evenly divided delegations count as abstentions.  With Republican gains in Minnesota and Iowa, these states are moving from Democratic to abstentions.  With the Republicans controlling congressional districts in 26 states, Trump will be elected president in the event nobody gets the 270 electoral votes.

While this scenario has a slim chance of happening, it is not impossible and Trump would do anything in his power – by hook or by crook – to make it happen.  

Last November 15, Trump tweeted, “He won.”  Although it seems like he was conceding, it didn’t have the elements of concession.  He was merely acknowledging that Biden won the election.  And this brings to mind what his aides said a few days ago – Trump is not challenging the results of the election but he’s not conceding that he lost the election.   Hmm… strange.  But what comes to mind is what he’s going to do?  He didn’t say, “Okay, I’m conceding the election to Biden.  Let’s move on.”  That would be the simplest expression of concession, which means that he’s not challenging the outcome of the election.   But to merely say, “He won,” doesn’t amount to conceding the election.  He has to say, “I concede the election to Biden.”

By acknowledging the outcome of the election but not conceding defeat signals what he’s going to do next, which is to challenge the outcome before the Supreme Court.  All along, we know that from the amount of litigations he brought before the courts.  

Indeed, the Trump campaign said they are pushing on to fight the election results tooth-and-nail. “Our campaign will start prosecuting our case in court to ensure election laws are fully upheld and the rightful winner is seated,” Trump said in a statement on November 14. “The American People are entitled to an honest election: that means counting all legal ballots, and not counting any illegal ballots.”  And by illegal ballots he means mail-in ballots, which he had attacked as tantamount to voter fraud.  But the problem is, Trump’s campaign was unable to back its claim with real evidence, not innuendoes.   And that leaves Trump with nothing to pursue his claims of voter fraud.  

The losses came as Biden was declared the winner in Georgia, a day after Trump’s own Department of Homeland Security had flatly contradicted him by declaring that the election “was the most secure in American history” and that “there is no evidence” any voting systems malfunctioned.  

One by one, his lawyers suffered defeat before the courts.  Close to half of the two dozen or so cases brought since Election Day in key swing states have already been withdrawn or tossed by judges.  But the Trump campaign keeps on submitting similar claims in other courts hoping to find a judge who would hear their case.  

If Trump could only get past the lower courts, he’d have a chance of getting to the Supreme Court, which he believes he’d get friendlier justices to rule in his favor.  But as it stands right now, he may have a difficult time of ever getting there.  Simply put, if Trump wanted to use a lawsuit to challenge the election outcome in a state, he’d need to begin by bringing a case to a lower court.  But for a lower court to hear his case, Trump has to come up with solid evidence of voter fraud, which seems to be harder than winning in lotto.  Simply put, if voter fraud doesn’t exist, then there is no evidence of voter fraud.  And without evidence of voter fraud, there is no case.  Period.

At the end of the day, I believe that it’s time for Trump to accept defeat and concede the election to Biden.  Now, as to Trump’s plan of running in 2024, may I offer a friendly advice: Retire and write your memoir.  

(PerryDiaz@gmail.com)

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