What happens when a president loses re-election and won’t concede?

Trump is breaking long tradition of peacefully turning power over to his successor


This week’s question comes from Joe in Tiburon who asks: What happens when a U.S. president loses a re-election but refuses to concede or step aside?

Dear Joe: This is a great question. Our entire government runs on the honor system. Yes, we have laws, rules, elections, etc., but we simply trust that our leaders and elected officials will honor and abide by those requirements and traditions.

Our first president was George Washington. After he served, another election was held, another president was elected and there was a peaceful transition of power. George Washington voluntarily gave the power of the presidency to his successor, John Adams. At the time, King George III of Great Britain said that if Washington did in fact voluntarily give up the presidency, he would be viewed as the greatest man alive. Why?

Until that point in Western history, such a democratic, peaceful transfer of power had simply never happened before; it almost had never even been contemplated. Power had been gained and lost by kings and conquerors through wars. Voluntarily giving up near dictatorial power simply was not a part of human nature in the late 1700s or any time before. Back then, citizens were meant to be ruled. They certainly were not meant to participate in their own governance and not meant to participate in choosing their own leaders.

In forming the structure of its government through the Constitution, the United States of America chose a different path: government of the people, by the people, for the people. Although at that time, “the people” participating in government and its selection were, by definition, white men who owned property, and often slaves as well.

A crucial component of that structure is the notion that every four years the citizenry would vote to elect a new president or reelect a current president, and if a new president is elected, the current president would accept the results of the election, vacate the office voluntarily, and give up power voluntarily, reflecting the will of the people.

But what if a current president does not accept the will of the voters and does not give up power voluntarily? This circumstance seems to be the case with President Donald J. Trump, who just lost his re-election bid to President-elect Joe Biden. Trump is refusing to concede his loss, refusing to cooperate or accept a peaceful transfer of power to his successor, and is ordering his administration not to cooperate with the transition. By all indications, he is unwilling to voluntarily give up the power of the presidency.

These actions break with the honor system that has been in place through 44 presidents over almost 250 years, a system to which every U.S. president before Trump has adhered. It’s a fracturing of one of the most sacred principles of American democracy.

Our honor system requires faith in our laws and traditions, both by our citizenry and on the part of our leaders. One such tradition is a concession speech or acknowledgement. John McCain conceded in 2008. Mitt Romney conceded in 2012. John Kerry conceded in 2004, and on and on, all the way back to the time of George Washington.

There also has to be faith in voting, in election outcomes after ballots are cast and counted. None of these traditions are being honored at present. President Trump is calling these traditions into question, ignoring them and/or actively refuting them in actions that are a first in our country’s history, and lines that haven’t been crossed before. The effect is to cast doubt on our system of democracy, to further erode the trust of the citizenry in our government, and to open the door for those who already wish to question the legitimacy of a Joe Biden presidency.

But there is at least one safeguard in place to combat what’s happening now and to ensure a peaceful and orderly transition of power. It is found within the 20th Amendment to the Constitution, which governs the length of presidential terms. Each four-year term of president ends at noon on Jan. 20 of the year following a presidential election. As of noon on Jan. 20, 2021 Donald J. Trump will no longer be president of the United States of America, regardless of whether he concedes or not. That date, as defined by the 20th Amendment, marks the end of his first term as president.

In accordance with Article II, Section I of Constitution, which discusses the Electoral College and its governance of selection of presidents, Joe Biden, having received a majority of votes in the Electoral College, is now president-elect. And noon on Jan. 20, 2021, marks the beginning of his first term as president of the United States of America.

Christopher B. Dolan is the owner of the Dolan Law Firm. Matthew D. Gramly is a senior associate attorney based in our San Francisco office. Email questions and topics for future articles to: help@dolanlawfirm.com. We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.