Suspense might be good for Celebrity Apprentice, but is it good for American democracy?
That was the question raised at last night's final presidential debate, when Donald Trump—after being asked by moderator Chris Wallace if he would accept the results of the election —responded: "I will tell you at the time. I will keep you in suspense."
That refusal could present a real threat to democracy come November 9th, says Alan Dershowitz , an attorney, writer, professor emeritus at Harvard Law, and author of the book “Electile Dysfunction: A Guide for Unaroused Voters."
Dershowitz joined Margery Eagan on Boston Public Radio to discuss the implications of what may become the defining moment of this campaign.
DERSHOWITZ: Last night, I got aroused! That was such an outrageous statement, and then to the spinners afterward to say it's like Bush versus Gore because Gore didn't accept the outcome of the 2000 election...I was involved in that lawsuit. Let's remember what the name of the case was: it was 'Bush versus Gore', not 'Gore versus Bush.' It was Bush who brought the case to the United States Supreme Court, and got the stay lifted that resulted in the end of the election. This was a complicated issue that any American running for president had the right to see litigated to the end. It was a litigation that both sides were involved in. The idea of making any kind of comparison between Bush versus Gore and what Donald Trump said last night is ahistorical and afactual.
EAGAN: What do you mean? This has obviously become the headline of the day. The New York Times called it 'contempt for democracy.' People have pointed out that they have criticized Donald Trump quite steadily during this race, but are they right? Is there some kind of existential threat here to the peaceful transition of power by what Donald Trump said last night?
DERSHOWITZ: Well, I don't want to quote Donald Trump but I guess we're going to have to wait and see if there is an election and it's relatively close,
and Hillary Clinton wins and Donald Trump says to his people, 'I don't accept this you shouldn't accept that.' How is that going to be interpreted? It won't mean go to the courts or mean go to the streets. So it could be a threat to democracy. I doubt the leaders of the Republican Party would give him any support, but it is definitely a threat. How much of a threat will depend. Now, if he loses by, you know, seven or eight million votes, it's going to sound awfully hollow. But if we get a situation where, for example, he wins the popular vote and loses the electoral vote like in 2000, it could be challenge to democracy.
Just imagine what would have happened if Al Gore hadn't accepted the outcome, and said after Inauguration Day, 'We don't think this is a legitimate president.' Remember, already this is a candidate who doubted the legitimacy of our current president, saying that he was born outside of the United States—which, by the way, would never disqualify him to be president since he was born to an American mother and therefore was a natural born citizen. But it's very difficult to assess the impact on American democracy that a refusal to accept the election would have.
Of course, there are two kinds of rigging. He was talking about the media. Well, you know, I'm on talk radio a lot—and you're a striking exceptions to this—but all over the United States talk radio is completely in favor of Donald Trump and against Hillary Clinton. Yes, the national television and print media have warned about the threat of Donald Trump, but that's not a rigging of the election. The idea that somehow the polls will be affected by Democrats who will vote in large numbers of dead people, etcetera, It's just a hollow, hollow fear.
EAGAN: There's no constitutional thing here, is there? There's just this invocation—and we've heard this over and over last night—of the history of the United States of America, with this peaceful transition of power and that that's such a hallmark of our democracy. But we're not talking about the Constitution here, right?
DERSHOWITZ: Well, you know the Constitution means two things. It means what we have in writing—and, of course, we're blessed with a written constitution. But you know, Great Britain and Israel and other countries have unwritten constitutions, and so do we, in part. Part of our unwritten constitution, that means our unwritten rules of governance, are that the president accept the outcome. Look, in one of our earlier elections with Andrew Jackson against John Quincy Adams, Andrew Jackson won the election overwhelmingly. I think it was almost like two to one in the popular vote. The electors didn't trust this populist outsider and the electors handed it over to the House of Representatives, which declared John Quincy Adams to be president. Now, that really could have resulted in a major upheaval—but it didn't. We've had a tradition of accepting the outcome of elections. Al Gore was not happy with the outcome of that election. I think he was treated fairly. And Richard Nixon did the same thing. Richard Nixon absolutely felt that the election had been stolen from him by Kennedy operatives in Illinois, and yet in the end he put his concerns of the country above his concern for his own future and accepted the election. That's what Donald Trump has to do.
EAGAN: One last question: if he does take the stand and it is a close race, and he continues to talk about not just media bias but actual rigging and voter fraud, what does happen on the day after the election?
DERSHOWITZ: He can bring the case to court. The courts are open to challenges. By the way, almost all of the state houses these days, or the vast majority of them, are controlled by Republicans, and so election results will be certified largely by Republican governors, Republican legislators. That makes it a lot harder to say the election is rigged. I think the hero of this whole thing may end up being Mike Pence, his running mate, who I think will not do that. I think he will get up on the day after the election and say, 'I accept the results' and at that point he's not on the ticket with Donald Trump. And I think that will make Trump's stand seem even more hollow.
To hear more from Alan Dershowitz, tune in to Boston Public Radio above. This transcript has been edited and condensed for clarity.
