Free Speech | Dolan Law Firm

What Happens When a President Loses Re-Election and Won’t Concede?

Written By: Christopher B. Dolan and Matthew D. Gramly

Q: This week’s question comes from Joe in Tiburon who asks: What happens when a President loses his or her re-election but refuses to concede or step aside?

A: Dear Joe,
This is a great question. Our entire government runs on the honor system. Yes, we have laws, rules, elections, etc., but we simply trust that our leaders and elected officials will honor and abide by those requirements and traditions.

Our first President was George Washington. After he served as President another election was held, another President was elected and there was a peaceful transition of power. George Washington voluntarily gave the power of the Presidency to his successor, John Adams. At the time, King George III of Great Britain said that if Washington did in fact voluntarily give up the Presidency that he would be viewed as the greatest man alive. Why?

Up until that point in Western history such a democratic, peaceful transfer of power had simply never happened before, it had almost never even been contemplated. Power had been gained and lost by kings and conquerors through wars. Voluntarily giving up near dictatorial power simply was not a part of human nature in the late 1700s or during any time before. Back then, citizens were meant to be ruled. They certainly were not meant to participate in their own governance and were certainly not meant to participate in choosing their own leaders.

In forming the structure of its government through the Constitution, the United States of America chose a different path. Government of the people, by the people, for the people. Although at that time, “the people” participating in our government and its selection were, by definition, white men who owned property as well as, for many of them, slaves. The crucial component to our governmental structure being that every four years the citizenry would vote to elect a new President or vote to re-elect a current President and if there were a new President elected, the current President would accept the results of the election and would vacate the office voluntarily, they would give up power voluntarily, reflecting the will of the people.

But Joe’s question is, “What if that doesn’t happen?” What if a current President does not accept the will of the voters and does not give up power voluntarily? This circumstance certainly seems to be the case with President Donald J. Trump, who just lost his re-election bid to now President-Elect Joe Biden. President Trump is refusing to concede his loss, he is refusing to cooperate with or accept a peaceful transfer of power to his successor and is ordering his administration not to cooperate with the transition. By all indications he is unwilling to voluntarily give up the power of the Presidency.

These actions break with the honor system that has been in place through 44 Presidents over almost 250 years – an honor system to which every United States President before Trump has adhered. This is a fracturing of one of the most sacred principles of American democracy.

Our honor system requires faith in our laws and traditions, both by our citizenry and on the part of our leaders. One such tradition is a concession speech or acknowledgement. Mitt Romney conceded in 2012. John McCain conceded in 2008. John Kerry conceded in 2004, and on and on all the way back to the time of George Washington.

There also has to be faith in voting as well as in our elections and their outcomes after the ballots are cast and counted. None of these traditions are being honored at present. President Trump is actively calling these traditions into question, ignoring them and/or actively refuting them. None of this has ever happened before. These are all lines that have never been crossed before now. The effect is to cast doubt on our entire system of democracy, to further erode the trust of the citizenry in our government, and to open the door for those who already wish to question the legitimacy of a Joe Biden Presidency.

However, there is at least one safeguard in place to combat what is happening right now and to ensure a peaceful and orderly transition of power. It is found within the 20th Amendment to the Constitution of the United States, which governs the length of Presidential terms. Each four year term of President ends at noon on July 20th of the year following a Presidential election. As of noon on January 20, 2021 Donald J. Trump will no longer be President of the United States of America, regardless of whether he concedes or not. That date, as defined by the 20th Amendment marks the end of his first term as President.

In accordance with Article II, Section I of The U.S. Constitution, establishing the Electoral College and its governance of our selection of Presidents, having received a majority of votes in the Electoral College Joe Biden is now President-Elect and that same date and time, noon on January 20, 2021, marks the beginning of his first term as President of the United States of America.

Written By: Christopher B. Dolan and Aimee Kirby

Ella writes:
Q: “I am a stay-at-home Mom and have two children. My son is in second grade. My daughter, Lilia, is in middle school and has just completed seventh grade. Both children went to remote learning in early March and used iPads to connect with their teachers and classmates. During this time, they used Google to do chats and Zoom for remote video instruction. Lilia has had trouble fitting in at middle school, and she has told me about a particular young boy in her class that has made fun of her throughout this school year. She wouldn’t tell me exactly what he was doing, but said that he was, “very mean.” My husband and I decided not to talk to the school administration as it seemed like typical kid behavior, and my daughter, for the most part, seemed happy, and her grades were excellent.

Just before the school year ended, my daughter came to me in tears, holding her iPad. The boy that she had told me about (let’s call him Chad), had posted horrible things in a Google Chat. My daughter is biracial, and Chad compared her to a fat ape’s picture and commented on her hair, saying it looked, “ghetto.” Because her entire class was on this Chat session, they saw the picture Chad posted and his racist language that embarrassed and upset my daughter. I don’t know if the teacher witnessed this or if the Chat was saved. Chad is white, and both his parents are white. My daughter is one of the few biracial children in this school. I thought the environment was more evolved in Northern California. These actions go beyond childhood stuff, and I would like to press charges against the parents and the child. I want justice for my daughter. What are my options?”

A: Dear Ella,
I am so sorry that your daughter is going through this during an already difficult time. Thankfully, California has realized how detrimental bullying is to the development of our children and enacted several laws to help protect victims. Education Code Section 48900, subsection (R)(1) defines bullying as any severe or pervasive physical or verbal act or conduct, including communications made in writing or utilizing an electronic bill, and including one or more acts committed by a pupil which either:

places the pupil in fear of harm to that pupil’s person or property,
causes a reasonable pupil to experience substantial detrimental effect on the pupil’s physical or mental health,
creates a reasonable pupil to experience significant interference with the pupil’s academic performance, and
causes a reasonable pupil to experience substantial interference with the pupils’ ability to participate in or benefit from services or privileges provided by a school.

Your child is being bullied, and action against Chad is warranted.

The first thing that must be done is to report this act of bullying and any other act of Chad’s bullying to the School District. I would suggest that you do this in writing. You may want to sit down with your daughter so you can go over all the acts, as there may be some that she was unwilling or ashamed to tell you. Rarely does a bully strike only once; bullying is usually a systematic attack on a victim that continues for months. The school must investigate the complaint and take action. This action can result in a layered approach to discipline depending on the severity of the acts. The School District can issue a written warning, give out detention, suspend or expel the offending child. Often parents of the victim child consider a jurisdictional transfer for their child to effectively take them out of the past environment and allow them to start new at another school.

Besides making sure that your daughter’s educational needs are met, you may also consider having her talk to a school counselor or a therapist to process these feelings. In some instances, the shame and torment of bullying can lead to psychological trauma, even including self-harming. A therapist can help your daughter voice her feelings, process them and move forward from them. Often, children can find solace in a trusted therapist, and this helps them deal with the trauma that their hearts and brains can’t process yet.

You may also consider a civil action against the School District. This requires that you take action quickly as the statute of limitations is different for government entities. Various state and federal laws would apply to racial discrimination and bullying. As you may uncover more acts of bullying after speaking to your daughter, I would urge you to consider talking to an attorney to consider civil legal remedies. Always, there is a balancing act between determining what is best for your daughter emotionally and (the level of) legal participation.

1st Amendment: Government Can Not Pick Sides Based On Content Of Speech

Craig from San Francisco asks – “I’ve read several articles saying that some of the same “alt-right” groups that protested last weekend in Charlottesville, Virginia are staging rallies in San Francisco and Berkeley this weekend. Can’t these rallies be stopped?”

Can The President Be Held Liable For Inciting Violence During A Speech?

Greg from Castro Valley writes: “Chris, I read that some protestors are suing President Trump because they were beat up at one of his campaign rallies last year. All he did was give a speech. He didn’t hit anyone. How can President Trump be sued?”

Greg, the President is subject to the laws of the United States, including the civil law, just like any other person in our society.

Our First Amendment Right To Criticize The President Explained

Women March Oakland CA January 22, 2017

David from Albany writes: “Chris, I am strongly opposed to President Donald Trump. I’ve been highly critical of him on social media. Friends of mine have told me I need to be careful what I say, cautioning to tone down my anti-Trump comments. Can’t I express my views on the President as I see fit?”

David, yes you can. What makes America great is that, as expressed by President Abraham Lincoln, we have a government of the People, by the People, and for the People. Under the First Amendment to the Bill of Rights to the U.S. Constitution it is our right to speak out and peacefully assemble in protest to the government.

Are Donald Trump’s Comments On Muslims Hate Speech?

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This week’s question comes from Zaid in Fremont: “Donald Trump denigrates and incites violence against Muslim Americans including threatening to make them all register. He speaks of nuking the Middle East. Trump even offered to pay the legal bills for anyone that attacks protestors at his rallies. Isn’t this hate speech? Is Trump responsible in any way when someone acts on his threats or statements and attacks a protester?”

Thank you Zaid for your timely and important questions.

I remember that not long after 9/11, then President George W. Bush sought to combat a spike in hate crimes against Muslim Americans by visiting a mosque and declaring, “America counts millions of Muslims amongst our citizens and Muslims make an incredibly valuable contribution to our country.” The President added, “And they need to be treated with respect. In our anger and emotion, our fellow Americans must treat each other with respect.”

Does the First Amendment Protect Your Right To Protest At A Political Rally?

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Matt G. from San Francisco asks: “I’ve been following the 2016 Presidential election process, both parties, all candidates. I have heard candidates say that protestors at their rallies are trampling on the First Amendment free speech rights of their supporters who also attend those rallies. Doesn’t the First Amendment also protect an individual’s right to protest?”

The short answer is yes, it does. Recently people have misinterpreted the right to express themselves however they want to politically as the right to do so without being subjected to anyone who disagrees with them or holds differing opinions. The right to free speech is sacred in this country. But so is the right to protest, one of the significant motivations behind having First Amendment protections in the first place.