Oh, Now Democrats Care About Legitimacy

President Donald Trump and then-Democratic presidential nominee Joe Biden speak during the first 2020 presidential campaign debate in Cleveland, Ohio, September 29, 2020. (Brian Snyder/Reuters)

How the worm has turned: Trump’s rhetoric comes straight out of the Democratic playbook for undermining the legitimacy of an election.

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How the worm has turned: Trump’s rhetoric comes straight out of the Democratic playbook for undermining the legitimacy of an election.

NRPLUS MEMBER ARTICLE S uddenly, Democratic partisans are in high dudgeon at Donald Trump and his legal team spreading irresponsible and self-defeating stolen-election conspiracy theories. For example, the Washington Post’s Greg Sargent complains that Trump’s approach is “designed to place a cloud of illegitimacy over Biden’s presidency.” Julie Pace and Steven Sloan of the Associated Press fret that “Republicans risk leaving millions of Americans with the false impression that the results of the 2020 race are illegitimate. . . . Biden will almost certainly be viewed as an illegitimate president by some voters, potentially denying him that period of goodwill that typically greets a new president.” They quote Obama adviser Valerie Jarrett: “Their intent is to delegitimize this election and thereby delegitimize President-elect Biden’s presidency. It is damaging to the democracy. Once again they’re putting their short-term political interests ahead of the interests of the country.”

Well, well, well, how the worm has turned. Are Democrats and their media partisans actually against undermining the legitimacy of American elections and weaponizing that to weaken the presidency? Some of us were not born yesterday. As has often been the case, the real problem with Trump’s rhetoric is that it comes straight out of the Democratic playbook for undermining the legitimacy of an American election.

The George W. Bush Years

As I detailed at length back in 2016, Democrats had no qualms about years and years of corrosive assaults on the legitimacy of George W. Bush’s presidency. A sample:

In July 2004, John Kerry darkly lectured the NAACP about “a million disenfranchised African Americans and the most tainted election in history” . . . Leading Democrats still won’t admit that George W. Bush was the legitimate winner of the 2000 election. Al Gore, in his concession speech at the end of the recount fight, accepted only “the finality of this outcome” . . . Yale Law Professor Bruce Ackerman decried a “Constitutional coup”. Hillary Clinton, in 2002, told a crowd at a Democratic fundraiser that Bush “merely had been ‘selected’ president, not elected”. Jimmy Carter, in a 2014 interview, insisted that Bush had not actually won the election. Paul Begala tweeted at Ralph Nader in August 2016 that “I’d say what was disgraceful was Ralph running interference for Dubya so Sup Crt could steal the election.”. . . Congresswoman Debbie Wasserman-Schultz, who was the Chair of the Democratic Party this year, told an interviewer in September 2016 that Al Gore had really won Florida.

The 2004 election, even after a more decisive ending, was likewise dogged by Democratic conspiracy theories that ran amok . . . Kerry, who didn’t concede until the following day, reportedly still believes to this day that Ohio was stolen. You can read this 2005 Mother Jones article for a flavor of the breadth and depth of the conviction on the left that the 2004 election was stolen – the author finally grudgingly concedes, after reviewing the many sources asserting this, that “it remains far from clear that Bush stole the election, and I say that as someone who has written that Bush did steal Florida and the White House in 2000.” Josh Marshall, in 2006, accused Ohio Secretary of State Ken Blackwell of “Helping steal the 2004 election . . .”

For anyone old enough to have lived through the Bush years, this barely scratches the surface. Carl Cannon and Caitlin Huey-Burns noted more examples from 2001:

On January 20, 2001, John Lewis did not attend George W. Bush’s inauguration . . . Lewis was hardly the only prominent Democrat who had trouble accepting the new president after the 2000 election was finally decided. Appearing on NBC’s “Meet the Press,” Jesse Jackson trashed the U.S. Supreme Court and questioned Bush’s “legitimacy.” Recognizing the starkness of such hyper-partisanship, moderator Tim Russert asked Dick Gephardt if he considered George W. Bush “a legitimate president.” Gephardt, a longtime Democratic congressional leader, refused to grant Bush that status – though Russert tried three times. Meanwhile, a Democratic Senate leader was being similarly coy on ABC. Asked by Sam Donaldson if he thought news organizations should undertake their own vote recounts in Florida even if it might “delegitimize” Bush’s presidency, Tom Daschle implied that the latter was already the case. “We already know that Al Gore got more votes in the popular election,” he said.

Even in 2004, multiple books were published claiming that Republicans had stolen Ohio, which was decided by 118,601 votes and a percentage margin (2.11 percent of the vote) nearly double the margin in Pennsylvania in 2020.

The Trump Inauguration

Having lectured Donald Trump at length during the 2016 campaign about the need to accept the verdict of the election as legitimate, Democrats and their advocates had no difficulty reprising their Bush-era assaults on the legitimacy of the president and his election — and then some. Indeed, Nobel Prize winner Paul Krugman in the New York Times was already warming up the “rigged election” talk on the eve of the 2016 election:

The election was rigged by state governments that did all they could to prevent nonwhite Americans from voting. . . . The election was rigged by Russian intelligence, which was almost surely behind the hacking of Democratic emails. . . . The election was rigged by James Comey, the director of the F.B.I. . . . The election was also rigged by people within the F.B.I. . . . The election was rigged by partisan media, especially Fox News. . . . The election was rigged by mainstream news organizations, many of which simply refused to report on policy issues. . . . The election was rigged by the media obsession with Hillary Clinton’s emails . . .

Conspiracy theories bloomed, predictably, after Trump’s surprise win. New York magazine’s Gabriel Sherman wrote on November 22, 2016:

Hillary Clinton is being urged by a group of prominent computer scientists and election lawyers to call for a recount in three swing states won by Donald Trump. . . . The group, which includes voting-rights attorney John Bonifaz and J. Alex Halderman, the director of the University of Michigan Center for Computer Security and Society, believes they’ve found persuasive evidence that results in Wisconsin, Michigan, and Pennsylvania may have been manipulated or hacked . . . . Last Thursday, the activists held a conference call with Clinton campaign chairman John Podesta and campaign general counsel Marc Elias. . . . The academics presented findings showing that in Wisconsin, Clinton received 7 percent fewer votes in counties that relied on electronic-voting machines compared with counties that used optical scanners and paper ballots. Based on this statistical analysis, Clinton may have been denied as many as 30,000 votes; she lost Wisconsin by 27,000.

At the time, there was an #AuditTheVote hashtag. Hillary Clinton offered a formal concession and prudently stayed out of the Wisconsin recount, which was pursued by Jill Stein and turned up nothing. But did Hillary drop the subject and avoid public attacks on Trump’s legitimacy? Far from it. In November 2017, she told Mother Jones, when asked about the legitimacy of the 2016 election, “There are lots of questions about its legitimacy.” Here’s Mrs. Clinton in May 2019:

Hillary Clinton said on Saturday she is advising candidates about what it is like to have an election “stolen” during an “Evening with the Clintons” event in Los Angeles, Calif. “You can run the best campaign, you can even become the nominee, and you can have the election stolen from you,” Clinton said she has been telling candidates who have come to see her. The comment was met with cheers.

In September 2019, she was asked by CBS News if the “Lock Her Up” chants still bothered her. Her response:

No, it doesn’t kill me because he knows he’s an illegitimate president. I believe he understands that the many varying tactics they used, from voter suppression and voter purging to hacking to the false stories — he knows that — there were just a bunch of different reasons why the election turned out like it did.

Mrs. Clinton in February 2020: “Putin’s Puppet is at it again, taking Russian help for himself. He knows he can’t win without it. And we can’t let it happen.” In October 2020, she told an Atlantic podcast:

There was a widespread understanding that this election [in 2016] was not on the level. We still don’t know what really happened. There’s just a lot that I think will be revealed. History will discover. . . . But you don’t win by 3 million votes and have all this other shenanigans and stuff going on and not come away with an idea like, “Whoa, something’s not right here.”

Other Democrats came out of the gate swinging right away. John Lewis, the late Georgia congressman regarded as the moral leader and conscience of the Democratic Party, told Meet the Press in January 2017, “I don’t see this president-elect as a legitimate president. . . . I think the Russians participated in helping this man get elected. And they helped destroy the candidacy of Hillary Clinton.” Lewis led 62 congressional Democrats in boycotting Trump’s inauguration. They said why they were doing this. Don Beyer: “I will not be part of normalizing or legitimizing a man whose election may well have depended on the malicious foreign interference of Russia’s leaders.” Jamie Raskin: “The moral and political legitimacy of this presidency are in the gravest doubt.” Jerrold Nadler said that “the Russian weighing in the election, the Russian attempt to hack the election — and frankly, the FBI’s weighing in on the election — I think makes his election illegitimate. It puts an asterisk next to his name.”

The inauguration was — unlike the typical American handover of power — marred by violent protests that led to over 200 arrests. Nobody at the time was concerned about giving Trump a “honeymoon” period. Why was opposition to Trump branded as “the Resistance?” Precisely to communicate a rejection of the democratic legitimacy of the government, as if the protestors were donning berets and dodging the occupying Wehrmacht. Dave Weigel of the Washington Post called it at the time “one of the broadest — and earliest — opposition campaigns ever to greet a new president . . . a steady run of public protests, many of them endorsed by Democrats.” And its animating premise was not merely opposition, but a rejection of the president’s right to the office. Former Clinton cabinet secretary Robert Reich began talking about impeaching Trump before he was even sworn in.

Leading Democrats have never let up. Jimmy Carter, June 2019: “If fully investigated, it would show that Trump didn’t actually win the election in 2016. He lost the election and he was put in office because the Russians interfered . . . on his behalf.” When asked if that meant Trump “is an illegitimate president,” Carter agreed: “Based on what I just said, which I can’t retract, I would say yes.”

House speaker Nancy Pelosi, January 2020: “American elections should be decided by the American people, not by the Russian Government. Retweet if you agree!”

Former Senate majority leader Harry Reid, in a June 2020 book, claimed outright that “I think one reason the elections weren’t what they should have been was because the Russians manipulated the votes. It’s that simple. . . . It doesn’t take a math expert to understand that by changing a few votes, the outcome will be different. So, I have no doubt.” There is, of course, not the slightest bit of evidence to support this.

Surely, you say, Joe Biden would never act this way. Yet, in May 2019, when a voter ranted to Biden at a campaign stop:

“I don’t want to live in a country run by Vladimir Putin. I don’t think anybody in the country should want that. . . . He is an illegitimate president in my mind,” she said of the Trump to applause and cheers from the crowd. “And my biggest fear is that he’s going to do it again with the help of Vlad, his best pal, and we’re going to be stuck with four more years of him. And that is terrifying. It’s terrifying.”

Biden’s response?

“Would you be my Vice Presidential candidate?,” Biden responded to laughter and cheers. Then he agreed with her charges. “Folks look I absolutely agree.”

The commentariat was filled with this sort of thing. Tom Toles in the Washington Post in December 2016:

“The 2016 election was stolen. Got a nicer way to say that? . . . Democrats were supposed to be nice and play patriot after the 2000 election was handed to George W. Bush in a highly questionable way. And they sucked it up for the good of the country. But this time? . . . Excuse me if I don’t feel that the election that led us here delivered the outcome the American people deserved, or in fact voted for. If you don’t want to call it stolen, I’d like to hear your suggestion for a more appropriate word for what just happened.”

Nancy Altman and Ira Lupu, in the Huffington Post, December 2016: “Never Normalize: Why Trump’s Presidency Is Illegitimate And How To Respond.”

Lindy West in the New York Times, January 2017: “Not My President, Not Now, Not Ever . . . Mr. Trump was shoved into office by the desperate, violent and unconstitutional machinations of a minuscule sliver of super-rich, traditionalist white Americans.”

Ari Berman in Mother Jones in October 2017: “Rigged: How Voter Suppression Threw Wisconsin to Trump.”

There were a great many articles of this nature. I’m not even going to bother here collecting the mass of articles and tweets from progressives rejecting the legitimacy of the entire American system for electing presidents through the Electoral College.

Some were still retailing Sherman’s theories. Rebecca Solnit in The Guardian, November 2017:

One year on, Donald Trump is still an illegitimate president. . . . It is unlikely that the presidential election will be overturned, but that is not an argument against the case that it should be . . . the 2016 US presidential election was so corrupted in so many ways, small and large, that there is no reason to respect its outcome or regard Donald J Trump as the legitimate president of the United States. . . . Clinton may have been denied as many as 30,000 votes, significantly more than Trump’s margin of victory. Further, in many swing states, including Florida, North Carolina, Pennsylvania and Wisconsin, there were extraordinary discrepancies between the exit polls and the vote tallies. Though it’s common to regard the latter as more reliable than the former, in other parts of the world, exit polls are treated as important verifications of the outcome.

Others kept insisting that the Russians stole the election for Trump. Washington Post columnist Max Boot, July 2018: “Without the Russians, Trump wouldn’t have won.”

The New Yorker’s Jane Mayer, September 2018: “How Russia Helped Swing the Election for Trump.”

Even into this year, there were still progressive pundits pounding the “Trump stole his election” drum: Elie Mystal, April 2020: “Who is doing the intellectual legal groundwork on secession? Because, after Republicans use COVID to steal another election, I’m really not going to be interested in your #BlueWave24 takes.”

Brian Beutler, June 2020: “Trump won by breaking the law, so Dems should neutralize all his appointments by expanding the courts as needed.”

Lest you think of all this as mere harmless words without actions, recall that in 2016 there was a significant effort made to reject the verdict of the voters by encouraging “faithless electors” chosen in states where Trump won the popular vote to abandon him and throw the vote into the House. The leading voice for this project was Harvard professor Larry Lessig, who claimed at one point to have twenty electors ready to flip. Thousands of people sent letters and even death threats to Republican electors. Four Democratic electors defected in the hopes of encouraging Republicans to follow them; two Texas Republican electors did.

The Russia Trap

A good deal of the hype around Trump’s “illegitimate” status as president was derived from his supposed “collusion” with Russia to steal the presidency. Now, as I have noted previously, the willingness of Trump, his son Don Jr., and his campaign to accept dirt on Hillary Clinton from Russia both publicly and through private contacts was appalling, and there were multiple people involved in the Trump campaign with shady contacts with Russia. This was, however, also largely out in the open during the 2016 election, at least to the point that the voters were well aware of the issue. There is no serious reason to believe it changed the outcome of the election; Russian meddling was a drop in the bucket in the grand scheme of the billions of dollars and oceans of media coverage spent on the 2016 election. Nor was it by any means the first or last election in American history characterized by dirty tricks, unfair media coverage, or foreign meddling.

The Obama administration launched counterintelligence investigations of a number of Trump campaign figures, notably Carter Page and George Papadopoulos, which were wrapped into the FBI’s “Crossfire Hurricane” investigation beginning in July 2016. While the investigation rightly remains controversial, it was within the powers of the executive branch so long as the executive branch answered to Barack Obama. Counterintelligence investigations do not require the same evidentiary basis as criminal investigations, and while they serve multiple purposes — to catch traitors and foreign spies, protect our own sources from discovery, feed misinformation to hostile powers, etc. — they exist for one ultimate purpose: to inform decisions about national security. Those decisions are the responsibility of the president and the president’s politically appointed advisers.

But the investigation could not answer to Obama and his team when he was no longer president, and that is where it departed from the path of exercising the executive’s duly elected powers and became, instead, a weapon against those powers. By the time of a January 5, 2017, meeting at the White House with President Obama and Vice President Biden, discussing surveillance that had revealed incoming national-security adviser Michael Flynn talking to the Russian ambassador, Susan Rice and Sally Yates both noted that “Obama was primarily concerned with whether limits should be placed on classified information that was shared with the incoming team, in particular Flynn, in light of the intercepts of the calls.” Yates later testified that “Obama’s only interest in Flynn was to ensure that it was safe to share sensitive national security information with the incoming administration while the FBI investigated him.” Rice recorded in a contemporaneous memo:

From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that could be an issue as it relates to sharing sensitive information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied ‘potentially.’ He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that ‘the level of communication is unusual.’ The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said that he would.”

The proper thing to do, if there were concerns about a particular member of the incoming administration, was make full disclosure of the ongoing investigation to its leaders. This was not a criminal probe; if you believed that Trump and Mike Pence were the legitimate president and vice president, they should be fully informed and in full control of how to proceed in order to stanch security threats within their own administration. But as Andy McCarthy has detailed, there were instead great pains taken both before and after the transition to conceal the scope of the FBI’s investigation and its targeting of Trump from the president and from congressional oversight. This, despite the absence of a basis for a criminal investigation of Trump, and with no other duly elected commander in chief to whom the proceeds of an investigation could be reported.

FBI director Jim Comey treated Trump as a target:

Comey did not actually brief Trump about the Russia investigation; he buzzed Trump with an allegation that the Putin regime might be in possession of blackmail material — the pee tape — that it could hold over Trump’s head in order to get him to do the Kremlin’s bidding. The point was not to give information. It was to get information: to provoke Trump into making incriminating or false statements, or statements evincing consciousness of guilt. Outside Trump Tower was an FBI car equipped with a laptop so Comey could immediately write an investigative report. The director and his team treated this as an investigative event, not a briefing. Comey memorialized Trump’s statements, as well as his physical and emotional reaction to the suggestion that Moscow might have video of the soon-to-be president cavorting with prostitutes. If a case had ever been made on Trump, Comey could then have been a witness, with his investigative report available to refresh his recollection about Trump’s comments and comportment. That is one of the main reasons such reports are done.

In fact, as Eli Lake describes in Commentary, Trump “asked Comey if the FBI could investigate the urination tape in order to clear him. Comey recounts that he counseled Trump against this by saying it was not something the FBI normally did. It wasn’t? At that very moment, his own FBI was trying to verify that exact story.”

This did not stop once Trump took office. Comey then played a double game: continuing the investigation, reassuring Trump and the Senate that he was not investigating Trump, and refusing to repeat that in public. This, as much as anything, was the conduct that led Trump to fire Comey, because he was infuriated that Comey was refusing to dispel a cloud over the legitimacy of his presidency.

Democrats, meanwhile, used this as an opening to undermine Trump’s ability to exercise the legitimate powers of the presidency. In March 2017, Chuck Schumer and Elizabeth Warren used the specter of an FBI investigation of the president as an argument against confirming Neil Gorsuch to the Supreme Court. As I noted at the time, this included commentators such as Harvard Law professor Laurence Tribe leading “a frontal assault on the legitimacy of the 2016 election.” Tribe: “As more emerges re @realDonaldTrump’s theft of the presidency it gets clearer that we mustn’t keep calling him POTUS. He’s a usurper.” (Mollie Hemingway at the Federalist has many more examples from Tribe.)

My own view, then and now, was that the voters were entitled to a transparent, clear-the-air report on “collusion” and Russian interference, just as they are entitled to a similar report on this election. Instead, the Obama administration, its holdovers, and Democrats in Congress did everything in their power to create an ongoing probe that operated away from public view, thus magnifying speculative conspiracy theories about the Russian role in the election while keeping an opaque cloud hanging over Trump’s presidency. Trump’s characteristically ham-handed approach to law enforcement played right into this. The Resistance media played it to the hilt, with endless “the walls are closing in” reports of how Trump was imminently about to be driven from office. Time magazine published an infamous May 2017 cover showing the White House as a front for the Kremlin:

Democratic voters ate this stuff up. A December 2016 YouGov poll found that 52 percent of Democrats believed that it was probably or definitely true that “Russia tampered with vote tallies in order to get Donald Trump elected President.” By late March 2019, that number had risen to 67 percent. The Associated Press in March 2017 touted a GenForward poll of Americans age 18–30 finding that “a majority of young adults — 57 percent — see Trump’s presidency as illegitimate, including about three-quarters of blacks and large majorities of Latinos and Asians.” A 2018 political science review of survey data found that “many Democrats think that the 2016 election result was rigged.”

Democrats also launched an unprecedented effort to prove, in court, that Trump had conspired with Russia to steal the election, but this was no more successful than many of Trump’s own lawsuits this month. In April 2018, a year and a half into Trump’s term, the Democratic Party filed a civil racketeering lawsuit against the Trump campaign, Donald Trump Jr., and multiple figures involved in the campaign, alleging that “the Trump Campaign, Trump’s closest advisors and Russian agents formed an agreement to secure Trump’s grip on the Presidency through illegal means” amounting to “illegal coordination between Russia and the Trump Campaign.” As Judge John Koeltl of the Southern District of New York — a famously careful and scholarly judge — wrote in throwing the case out:

The DNC has not alleged that any defendant other than the Russian Federation participated in the hack of the DNC’s computers or theft of the DNC’s documents. The DNC argues that the various meetings and conversations between the defendants in this case and with persons connected to the Russian government during the time that Russian GRU agents were stealing the DNC’s information show that the defendants conspired with the Russian Federation to steal and disseminate the DNC’s materials . . .That argument is entirely divorced from the facts actually alleged in the Second Amended Complaint. While the Court is required to accept the factual allegations in the Second Amended Complaint, it is not required to accept conclusory allegations asserted as facts. 

Sore Losers

All of this is aside from Democratic efforts to undermine the legitimacy of other elections. The most notorious example is Stacey Abrams, who has spent years arguing that her defeat in the 2018 Georgia governor’s race was illegitimate. Never mind that she lost Georgia by more votes than the margin of Joe Biden’s victories over Trump in Arizona, Georgia, and Wisconsin combined. In August 2019, ten months after that election, she was still telling CBS that she would not concede:

Concession means to say that the process was fair, but when I run an organization that in 10 days between election night and the night I refuse to concede we receive more than 50,000 phone calls for people who were denied the right to vote I am complicit if I say that that system is fair.

Naturally, Abrams never let these assertions be subjected to the scrutiny of the courts, where they would fail; she has never provided anything resembling evidence that over 50,000 actual votes were prevented from being cast in her favor. This has not stopped the media from eating up her claims (New York Times columnist Jamelle Bouie, in an August 2019 tweet: “The evidence that brian kemp was elected legitimately is . . . thin”), or from turning her into an icon of glossy photoshoots and a paragon of civic virtue.

I confess that I have little enough sympathy for Trump himself, who has always refused to concede the legitimacy of his opponents. Most Republican leaders during the Obama years kept their distance from the conspiracy theory that Obama’s mother had somehow secretly flown from Hawaii to Kenya to give birth to him. Trump made himself the public face of the birthers. He later played the birther card against Ted Cruz in the 2016 primaries, claiming that Cruz’s eligibility to be president would be tied up in court. When Cruz won Iowa, Trump claimed fraud; when Cruz won states that chose delegates by convention rather than popular vote, Trump claimed that it was a rigged system. Too many Republicans, jaded from watching how Democrats handled defeat under Bush, accepted “they started it” as a justification instead of a cautionary tale, and followed Trump down this path.

But none of Trump’s antics justify the Democrats and their partisans for how they have acted for two decades, nor does it excuse their insistence today on pretending that none of this ever happened. Oh, but they tell us today: We didn’t do exactly the same things as Trump, and we had reasons. So even the people who claim that they never said Bush or Trump were illegitimate presidents who stole their elections will, at the drop of a hat, still claim that they were right that Bush and Trump were illegitimate presidents who stole their elections.

Pardon me if I don’t think any of these people actually take any of their rhetoric about legitimacy seriously. They’ve done it for years, they’re not sorry, and we all know they’ll do it again next time.