Bush v. Gore lawyer: Trump’s dangerous nonsense

Editor’s Note: Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School. Follow him on Twitter @Tribelaw. The opinions expressed in this commentary are solely those of the author.

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Laurence Tribe: Trump deliberately misrepresent reason for Bush v. Gore when he likens it to his threat to dispute 2016 outcome

He says that recount was based on evidence and law -- not vague distrust that could plunge nation into chaos

CNN  — 

As the countdown to the November 8 election proceeds, one major party candidate continues his jihad against American democracy, twisting the knife ever deeper not just into himself and his unhinged quest for the most powerful position on the planet but into the very heart of our body politic.

And he defends doing so by deliberately misapplying what happened 16 years ago in Bush v. Gore, a case in which I represented Vice President Gore both as lead counsel in all the briefs filed on his behalf in the Supreme Court and as the oral advocate in the first of the two Supreme Court arguments in that fateful case

Laurence H. Tribe

As I’ll explain in a moment, he and his dutiful surrogates are spewing utter nonsense.

But first let’s look at how we arrived at this dangerous moment — one in which Donald Trump, remarkably enough the nominee of the once-great Republican Party founded by Abraham Lincoln, is seeking not to hold the Union together but to deny that its history and its constitutional foundations rest on the principle of peaceful transition between presidential administrations.

In retrospect, nobody should have been too surprised by what Trump said in the last of his three debates against Hillary Clinton when he pointedly refused to endorse that principle. Remember that, at least twice during the current campaign, Trump has played with fire by none-too-subtly urging people to invoke their “Second Amendment rights” to prevent the first woman president from naming liberal justices to the Supreme Court.

And, with increasing stridency, Trump has threatened to prosecute Hillary Clinton criminally and ensure her jailing (assuming she survives the assassination attempts Trump has dared to encourage), should he become President of the United States. Trump has indeed said, more often in recent weeks than previously, that the former senator and former Secretary of State belongs in jail, not on the campaign trail, and that this “nasty woman” has no right even to run for President.

Nor is this the first time Trump has loudly questioned the very legitimacy of the nation’s electoral processes, describing them – without evidence, of course – as marred supposedly by the votes of countless dead people and by rampant fraud. Recall that when Mitt Romney lost to Barack Obama in 2012, it was Trump who turned to social media to encourage opponents of the newly elected President Obama, whom Trump derided as not even an American citizen, to take up the pitchforks rather than acquiescing in the election’s outcome.

And it was Trump whose reaction to his own free fall in every legitimate poll following the first presidential debate this season was to hint, and then to insist, that the contest he seemed fated to lose was necessarily “rigged” against him, both by the mainstream media and by the imaginary specter of massive voter fraud, particularly in urban (read: largely non-white) communities.

Indeed, on the day of the classic Al Smith dinner this week, Trump repeated that he would concede the election to the winner – wait for it – if that winner was one Donald J. Trump. Only the Trump supporters who have hitched their fate to this peculiar star laughed.

Trump, whose sense of what counts as funny was tested and found wanting at the Al Smith dinner itself, may think it a laughing matter to keep the nation in what he described as “suspense” about whether the transition from President Obama to Obama’s successor would be marred by a sore loser’s unsubstantiated claim: that unless that successor is himself, some nefarious conspiracy between minority voters, the media, and the Clinton campaign must be to blame and would cast a dark cloud over the succession.

The man who treats everything short of personal victory as proof of foul play by his opponents evidently thinks it funny to compare his impending defeat at the polls with his failure to win an Emmy for The Apprentice or his failure to win every single primary this season.

This is far from a laughing matter: it is deadly serious. It’s true that, under our Constitution, whoever receives 270 votes in the Electoral College this December automatically gets to take the presidential oath on January 20, 2017. The Constitution and laws in place supposedly ensure this smooth and impersonal procedure, regardless of whether the official loser graciously concedes or instead pouts and urges others to take to the streets.

But the Constitution encompasses the national memory as well as the founding text, and the chords of memory leave no doubt that whoever loses is to make way peacefully for the next Commander-in-Chief rather than threaten a coup, whether explicitly or otherwise. Both domestic tranquility and global stability depend on every major political faction cooperating in that orderly transition and refraining from all such threats.

Particularly absurd and insulting to the intelligence of the nation’s electorate has been the claim by Trump and his spinning surrogates that Trump was merely invoking the precedent of Bush v. Gore. They offered this as a classic instance of a situation that they themselves might confront in 2016. In 2000 a razor-thin margin in the key state of Florida (just 537 votes out of some six million cast there) led–under that state’s own laws, operating within the overarching framework of judicially supervised federal law–to recounts and post-election litigation.

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But there is an obvious difference between the current situation and the disputed election of 2000, where the margin of error in each recount evidently exceeded the margin of victory: in that case, both then-Vice President Al Gore and then-Texas Governor George W. Bush left no doubt that, once the voters and the courts had spoken, each would accept the results, and neither would plunge the nation into chaos – a chaos that, in 2016, would be even more acute with an eight-justice Supreme Court that might be unable to resolve matters decisively.

To be sure, Gore retracted his initial concession in Florida in November 2000 once the evidence – evidence, not amorphous distrust of the system – pointed strongly toward the need for a recount under Florida law. But nobody has asked Trump to waive, in advance, whatever legal rights he might have to seek a statewide recount in such extraordinary circumstances. And nobody listening to his cascade of statements on the subject of a “rigged election” could possibly believe that reserving his legal rights was all Trump was doing when he shocked the nation, across the political spectrum, by his irresponsible pronouncement at the third debate.

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    Quite simply, there is no precedent in American history for the cowardly and insolent insistence of candidate Trump that he will leave the nation in “suspense” over how he personally would react, and would urge his millions of followers to react, even after the election and any ancillary legal skirmishing had ended – unless of course it were to end by naming Trump our 45th president.

    What that threatens to “suspend” is nothing less than a vital pillar of our constitutional democracy, supported not by the rule of self-important men but by the rule of law.