Trump’s election claims threaten his legacy — and the system’s integrity

As the days pass without a concession from President Trump, anxiety and confusion about the election’s results have been spreading. Is one campaign or party acting in bad faith? Was there massive, systemic fraud on a scale large enough to overturn what seems to have been a clear win for Joe Biden?    

For those who may be confused about which campaign, if either, is trying to “steal” the election, I offer the following. 

First, there is nothing unusual or worrisome about litigation following a close election; in my experience it is, in fact, normal. So the mere fact that the Trump campaign has filed multiple lawsuits in battleground states is not, by itself, disturbing. Nor is the fact that recounts will occur; they rarely disturb the final counts but they reassure the public that the process has not been corrupted. And the campaign is within its technical rights to play the process out through certification of the count and the appointment of electors.  

What is disturbing, however, is the cringe-worthy absence of evidence to support the Trump campaign’s overblown rhetoric about widespread fraud and irregularities. In every battleground state, the campaign’s attempts to delay certification of the election’s results have foundered for the same reason: lack of factual support. 

In Arizona, for example, the Trump campaign sought to stop the vote counting process, alleging that Republican voters were given Sharpies to mark their ballots, which would cause the ballots to be spoiled. The Trump campaign sued, alleging systematic corruption in Maricopa County and asking that the counting be ceased. But while Trump demonstrators were in the streets chanting “Stop the steal,” his lawyers in court were conceding, “We’re not alleging that anyone was stealing the election,” and that the 200 contested ballots would not affect the results. Case dismissed.   

In Michigan, the Trump campaign, in another attempt to prevent certification of the count, relied on a poll watcher who said she had been told by an unidentified person that late mail ballots were being predated by unknown persons so that they could be counted. The judge pointed out that this was hearsay, and thus not competent evidence that the ballots were, in fact, predated.  The judge stated: “‘I heard somebody else say something.’ Tell me why that’s not hearsay. Come on, now.” Another Michigan challenge was rejected when the judge found the proffered evidence was “not credible.” 

In Georgia, the Trump campaign presented “evidence” that 53 ballots may have been predated as justification for delaying the process. Two witnesses acknowledged under oath that they didn’t know whether the ballots were predated; two other witnesses for the board of elections testified that they were received on time. The judge dismissed the case, finding that “there is no evidence” the ballots were received late and “no evidence that the Chatham County Board of Elections or the Chatham County Board of Registrars has failed to comply with the law.” 

In Pennsylvania, allegations that the Trump campaign was prohibited from observing the count in Philadelphia were shattered when Judge Paul Diamond, a Bush appointee, questioned the Trump lawyers, forcing them to concede that there were, as they put it, a “nonzero number of people in the room.” The judge, exasperated, said it all: “Then what’s your problem? I’m asking you as a member of the bar of this court: Are people representing the plaintiffs in the room?” The truthful response was simple: “Yes.”  

Meanwhile, the president has continued his Twitter assault on reality, citing a report claiming that 2.7 million Trump votes had been deleted or switched to Biden. In apparent response, the Department of Homeland Security issued a statement by a consortium of federal and state cybersecurity officials directly contradicting him: “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised. … [W]e have the utmost confidence in the security of our elections, and you should too.”  

Come on, now, indeed.

Not surprisingly, given these results, prominent law firms Jones Day, Snell and Wilmer, and Porter Wright Morris and Arthur have announced that they are not (Jones Day) or no longer are (the others) representing the Trump campaign in post-election challenges. 

Viewed in isolation, the Trump campaign claims might be considered the silliness of partisan politics. But the lawsuits filed in multiple states seeking to prevent certification of the results in time for the slates of electors to be appointed to the Electoral College must be seen in the context of the most egregious administration action: its refusal, contrary to federal law, to cooperate in the transition to a potential Biden presidency. 

That refusal signifies a deep-rooted defiance of the American system of government. It places the narrow personal interests of the president ahead of the nation’s national security. The 9/11 Commission, on which I served, highlighted the vulnerability of our nation’s security during the transition of power; as a result of the commission’s recommendations, the law of presidential transitions was amended to require that national security appointments be expedited and extensive briefings be conducted. None of that is occurring; instead, according to Secretary of State Mike Pompeo, the administration anticipates a second term in office.    

Contrary to federal law, this approach acknowledges no scenario in which President Trump could lose, despite a 5 million-vote deficit in the popular vote and a clear majority of votes for Biden in the Electoral College. It blinds the incoming administration to developments around the world. It ignores the difficulties prior administrations have faced coming into office. It is a bad faith effort to frustrate the constitutional process for selecting the president. Seen in the context of this intransigence, the blizzard of legal challenges seems less silly and more menacing.  

When will the reality playing out in forums where facts matter penetrate the White House? That is difficult to say. Donald Trump was born on third base and has spent his life persuading himself he hit a triple. His wealth and, now, position have enabled him to insulate himself within a bubble of delusions; when it collides with reality, he throws tantrums. But there is such a thing as truth. And unless he corrects the record, his enduring legacy may be left in the millions of his supporters who no longer believe in the integrity of our system. 

John Farmer Jr. is director of the Eagleton Institute of Politics at Rutgers University. He is a former assistant U.S. attorney, counsel to the governor of New Jersey, New Jersey attorney general, senior counsel to the 9/11 Commission, dean of Rutgers Law School, and executive vice president and general counsel of Rutgers University.