Convention and tradition
The peaceful transfer of power is one of the fundamental tenets of American democracy. When George Washington, the first American president, had completed his second term, he voluntarily stepped down and John Adams, who had won the election, took over office.
“That was not a constitutional requirement at the time,” says Jon Michaels, a professor in the UCLA School of Law, author of Constitutional Coup: Privatization’s Threat to the American Republic, and noted authority on constitutional law, presidential powers, government ethics, and conflicts of interest. In fact, it’s still not. The 20th Amendment stipulates that a president’s term – outlined in the nation’s Constitution as a four-year period – ends at noon on January 20 at the end of those four years. But, the Constitution does not spell out how it is to be handled. Rather, it’s a matter of tradition.
When Thomas Jefferson ran a politically heated campaign against John Adams in 1800, the Electoral College was tied and the outcome had to be decided by the House of Representatives. Even so, once the matter was settled, Adams peacefully vacated the office, setting the precedent for the next 220 years.
Challenging the norms
On September 23, 2020, President Donald Trump, when asked during a news conference, wouldn’t commit to following the two-centuries’ old custom. It wasn’t the first time he suggested as much: In March 2018, he praised China’s move to abolish presidential term limits, joking that the US might “have to give that a shot someday.”
Now that we are less than a month away from the election, such rhetoric is being taken more seriously. Dr Russell Riley, professor and co-chair of the Presidential Oral History Program at the Miller Center, a nonpartisan affiliate of the University of Virginia that specialises in presidential scholarship, notes that questions of what happens if a president should refuse to leave office involves “an extraordinarily arcane area of presidential politics.”
There is a proscribed sequence of events that happens when the incumbent president’s term expires at the dot of noon on January 20. These include:
- The nuclear codes, which allow the president to order a nuclear attack, expire. The military aide who carries the “nuclear football” containing the codes leaves the departing president’s side and joins the president being inaugurated.
- The US military switches its allegiance from the outgoing president to the incoming president. Any military orders issued by the outgoing president would be refused. Any officers who obeyed such orders could be arrested and tried on charges of mutiny and sedition.
- Likewise, the Secret Service moves to protect the new president and abandons the electoral loser, except for a small unit that will protect him and his family for the remainder of their lives, one of the perks presidents get to keep after leaving office.
These actions make it highly unlikely that a president could go rogue and refuse to leave office. Even if he tried, the new president’s acting attorney general could draw up arrest warrants for charges ranging from criminal trespassing to insurrection.