Opinion A crisis in U.S. presidential legitimacy is looming

By Charles Lane
Editorial writer and columnist

If anyone — Democrat or Republican — hoped the four indictments against former president Donald Trump would weaken him politically, they have so far hoped in vain. Rather than making him more beatable in the Republican primaries, or inducing him to quit, Trump’s “legal issues,” as they are known in media shorthand, have had a negligible — or slightly positive — impact on his political fortunes.

Fourteen months from November 2024, political reality is: Trump is headed to the GOP nomination and has a fair chance of defeating President Biden or any other Democrat.

Obviously, a lot can happen in the next 14 months; Trump could still lose to one of his current GOP rivals or a late entrant. A health crisis — God forbid — could force Biden from the race. A criminal conviction could finally break Trump’s hold on the GOP electorate: Forty-five percent of Republicans won’t vote for him if he’s found guilty; 52 percent if he goes to prison, according to a recent Reuters-Ipsos poll.

If present trends continue, however, the country will see a repeat of the 2020 contest. And that means the United States, upon whose political stability such matters as the security of Europe and Asia and the world’s reserve currency ultimately depend, could be facing a crisis of presidential legitimacy — regardless of who wins or how cleanly.

A basis is being laid for people on either side to question or reject an outcome they don’t like. For Trump and, apparently, tens of millions of his followers, there is no such thing as a free and fair election that he loses. Indicting him, however necessary and appropriate, provides a narrative about “election interference” and “jailing political opponents” that Trump is already exploiting. The indictments have not deterred him from lying about the result in 2020 and will not deter him from creating new lies about 2024.

To be sure, Trump could win fair and square. Charged with covering up hush money to an adult-film actress, mishandling classified documents and conspiring to thwart the will of the people in the 2020 presidential election, impeached twice for actions during his presidency and found civilly liable for a pre-2017 sexual assault, Trump today is regarded favorably by 39.8 percent of the public, according to the FiveThirtyEight polling average. That’s up 0.8 percentage points from Feb. 1, 2021. Biden’s personal favorability is at 41.2 percent.

Forty-six percent of registered voters would choose Trump for president, putting him in a tie with Biden, per the most recent Wall Street Journal poll. Trump won an electoral college victory in 2016 with 46.2 percent of the popular vote and narrowly lost one with 46.9 percent in 2020. The pro-Republican areas of the U.S. political map contain 235 of the 270 electoral votes needed to win.

For all those who do not vote for Trump next year, the narrative of illegitimacy regarding a victory for him could be more reality-based but — in objective political terms — also potentially disruptive.

Trump’s probable path to actual victory is via a slender electoral vote majority, with less than a majority of the popular vote, quite possibly aided by a third-party drain on Biden’s votes. Trump might indeed arrive at his swearing-in on Jan. 20, 2025, having been convicted, still facing trial in other cases — or both. And he would owe his political survival to religious fundamentalists and right-wing nationalists, who would staff key positions in his government.

The world has recently gotten a taste of what can happen when a right-wing leader stages a comeback, based on a narrow mandate and beholden to extreme elements of his coalition, while still on trial for alleged corruption: Benjamin Netanyahu’s return as Israel’s prime minister last year. The secular and liberal half of Israeli society staged mass protests of what it saw as threateningly radical policy changes by a government that did not deserve to rule. Something similar could await Trump.

De-escalation is nowhere in sight. The Republican-led House is exploring impeachment of Biden, on hyperbolic corruption charges. The final phase could be a futile but — for the president — distracting and embarrassing election-year trial in the Democratic-led Senate.

Democrats are starting to embrace a novel legal theory that Trump, because of his role in the Jan. 6, 2021, attack, should be kicked off the ballot under the 14th Amendment’s bar on office-holding by insurrectionists. Trump’s disqualification would enrage his supporters, with unpredictable consequences; if it does not happen, and Trump wins, then the 14th Amendment would add yet another argument for opponents to resist his presidency.

To repeat: This is an assessment of political reality, not moral equivalency. The entire U.S. body politic would be much healthier and resilient if Trump had simply accepted defeat in 2020 rather than shred long-standing democratic norms, possibly beyond repair.

There is still time for U.S. democracy to avoid a worst-case scenario, even if it’s not exactly clear how. Surely the first step, though, is to recognize what might lie ahead.