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March 14, 2019

USA Today

By: Jerry H. Goldfeder

Reprinted with permission from USA Today.

Cohen fear about a 'peaceful transition' is worth considering given Trump's attacks on judges, Congress and media, and the criminal trials he may face.

One more thing about Michael Cohen’s House testimony before we move on. Beyond the many unsettling charges against President Donald Trump, he made one startling prediction: if Trump loses his reelection bid, “there will never be a peaceful transition of power.”

On the face of it, it might seem a bit wild-eyed to assert that orderly presidential succession may be threatened. Not one of 10 defeated incumbents in 58 presidential elections refused to hand over the keys to the White House — from President John Adams, who lost to Vice President Thomas Jefferson in 1800, to George H. W. Bush, who was ousted by then-Governor Bill Clinton in 1992.

Yet, given how Trump has already blown through the norms of governance in previously unimaginable ways by attacking the judiciary, Congress and the free press — as well as the increasing possibility that Trump’s post-presidential life could very well consist of criminal trials — Cohen’s warning is worth serious consideration. After all, during the last campaign Trump refused to commit in advance that he would accept the results.

Considering Trump’s recent fabricated national emergency to get money for his Mexican border wall, it is not far-fetched to think that he will continue the drumbeat about supposed election fraud and declare another emergency to hold onto power. Assuming a close Electoral College win by the Democratic nominee, it would not be surprising if Trump  aggressively disputes the results in a few states — and claims, as he did the last time, that non-citizens voted in high numbers, this time stealing the 2020 election from him.

Whipped-up crowds, Republican party loyalists and the right wing media would undoubtedly support his claim.  With this as background, the election would be seen as “disputed,” “controversial” or “too close to call.”  Trump would then insist upon remaining in office while these non-issues were resolved.

Don't rule out the worst case 2020 Trump scenario

If this occurred, our political and legal system would be in real jeopardy. Trump and his acolytes’ refusal to respect our most sacred norm of peaceful succession could fundamentally transform the United States into yet another failed republic. Two hundred and thirty years of our constitutional democracy would be teetering on the edge of a cliff.

As inconceivable as it might have seemed in the not-so-distant past, Americans cannot be ostrich-like and hope this worst-case scenario does not come to pass. This is not a movie or a fabulist novel in which a Hollywood ending is assured. Too much is at stake.

If Cohen is to be believed — and on this point, he should be — political leaders and activists on both sides of the aisle must acknowledge the possibility that the norms of our electoral system may be in danger, and prepare to defend the rule of law.

Jerry H. Goldfeder, special counsel at Stroock and a New York election attorney who teaches Election Law and the Presidency at Fordham Law School and the University of Pennsylvania Law School, was a consultant on CNN’s Race for the White House in 2016.  Lincoln Mitchell teaches in the political science department at Columbia University and is the author of several books, including "The Democracy Promotion Paradox." Follow them on Twitter: @jerrygoldfeder and @LincolnMitchell

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