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Trump's election lawsuits don't ‘undermine democracy in any way shape or form’: Mick Mulvaney

Former White House Chief of Staff Mick Mulvaney joins Yahoo Finance to discuss the 2020 election.

Video Transcript

JULIE HYMAN: Various media outlets declaring former vice president Joe Biden, now the president-elect, but President Donald Trump continues to put up various legal challenges. The latest on that front is that the Department of Justice has been authorized by Attorney General William Barr to pursue, quote, "what he called substantial allegations of voting and vote tabulation irregularities that led to the resignation of the Justice Department official who oversees investigations of voter fraud because it's an unusual move to make those kinds of investigations before an election."

Let's talk more about all of this with the former White House director and chief of staff Mick Mulvaney, fresh off the heels of the Greenwich Economic Forum. Mr. Mulvaney, thank you for being here. You recently wrote an op-ed in "The Wall Street Journal," where you said President Trump will participate in a peaceful transition of power, but you said, once the election is, in your words, quote, unquote, "fully litigated."

MICK MULVANEY: Mm-hmm.

JULIE HYMAN: What happens if we get to January 20 and the president does not feel that the election has been fully litigated?

MICK MULVANEY: Well, by January 20-- by the way, thanks for having me. On January 20, we will have a president, a new president. We'll have someone. The Constitution requires it. And while I admit that right now it's most likely Joe Biden, that's certainly in my mind not a foregone conclusion. It could also be-- I've heard speculation that if it's not resolved, it could end up being Nancy Pelosi or somebody else.

The point of the matter is, there is a way to deal with this. There's a system in place. The reason I talked about litigating, though, is that I think the president for sure wants to know who the real winner is.

I've talked to my friends on the other side of the aisle. I'm like, don't you guys want to know what the final outcome is? No, no, no, the media decided. It's over already. I'm like, that's not really how it works. If there are allegations that have a basis, that have fund-- that have some evidence behind them, they should be explored.

JULIE HYMAN: But are there any allegations that have basis at this point?

MICK MULVANEY: Yeah, no, it's a really good question. And I'm the first one to say that you're not at the point right now where you have to put up or shut up, but you're getting to that point. Allegations are not enough, and everybody knows this. If all you have is allegations, if you have rumors, if you have anecdotes, you get thrown out of court immediately.

Now that being said, it's not entirely surprising that the litigation team is doing something different right now. What they're doing right now is trying to preserve evidence to make sure that, in the end, if they get a remedy that says, well, these votes count and these votes don't, then you could actually apply that remedy. The specifics are segregating votes, for example, in Pennsylvania that came out-- that came-- were received in after Election Day.

If those votes are mixed with the votes that are on Election Day, regardless of what the outcome of a lawsuit is, you can't have the remedy that you seek. So it's understandable they've been focusing on procedural matters right now, preserving evidence. But real soon, you got to start coming up with hard evidence of actual wrongdoing to be taken seriously.

- Mr. Mulvaney, do you believe that Senate Republicans led by Mitch McConnell are eroding confidence in government by not standing up to the president here and saying, you know what, it's time to leave, you lost this election?

MICK MULVANEY: No, eroding con-- that's something only the media asks and only people who really hate Donald Trump ask, if they're eroding confidence in the election.

- I think it's a valid question.

MICK MULVANEY: No-- what?

- I think it's a valid question. When you have McConnell standing up there and saying that he has 100% right to pursue this, it looks like he lost the election.

MICK MULVANEY: And Joe Biden claimed victory before the votes are counted anyway. You guys-- I don't know if you guys declared a victor or not, but the votes aren't counted anyway. Does that undermine an election? I don't think that it does. I think as long as people understand how the system works, which is, I don't pick the winner, you don't pick the winner, the media doesn't pick the winner, the states pick the winner.

The states will count the votes. The states will certify the election. The state will name their electors and the electors will vote. That's how it's done. I don't think that anything that says, well, I won and you lost in the meantime undermines credibility of the democracy.

So no, I think that's hyperbole that the media has been pitching out for a long time. I think it's probably counterproductive in the long run, but I get it. A lot of folks in media don't like Donald Trump. I understand that. But no, I don't think it undermines the democracy in any way, shape, or form.

JULIE HYMAN: I do have to wonder, Mr Mulvaney, when there's a 4 million vote plus vote gap, at least in the popular vote, what-- you know, what the hope is on the part of Republicans and on the part of the president in terms of these legal challenges? I mean, that would be extraordinary, indeed.

MICK MULVANEY: Why is the-- why is the 4 million vote margin relevant?

JULIE HYMAN: Because what kind of legal challenges would you put up that would overturn that many votes to put the president in the first position?

MICK MULVANEY: I'm sorry, Julie, that's a fundamental misunderstanding of how we count. You know we do this state by state, right, so the national vote tally means nothing. You recognize that, right?

JULIE HYMAN: Well, but even in the individual states, we're talking, in many cases, about tens of thousands of votes.

MICK MULVANEY: No, that's fine. And that's a good point. But a national vote being a 4 million is completely irrelevant to the circumstance.

JULIE HYMAN: OK, so let's focus on the states then. So it would be-- it would be unprecedented if any of the individual states with the margins that we are seeing, with the count that has been done, to be overturned by legal challenges.

MICK MULVANEY: No, that's fair. That's a good point. We'll put Arizona aside for a second and talk about Pennsylvania. So let's talk about what the facts are on the ground in Pennsylvania. There's a lawsuit going on right now that says the claims that any votes that were received after Election Day should not be counted.

By the way, that's the law in Pennsylvania as we sit here today. The law on the books says, if the votes came in after Election Day, they shall not be counted. Now, a state court, a court of proper jurisdiction, made a ruling before the election that they were going to count votes that were received up to three days afterwards.

Thus is the nature of the litigation. Is the court allowed to make those determinations or does the state legislature? That's the legal aspect of it that's being litigated. Your point is a good one, though, which is, does it really make a difference?

And I don't know the answer to that question because I don't know the number of ballots that were received after Election Day in Pennsylvania. If the margin right now in Pennsylvania is-- I don't know, if it's 40,000, and only 30,000 votes were received after Election Day, you're absolutely right. It would be a moot point. It doesn't make any difference.

By the way, this is often the case in many of our elections. Everybody knows there are small instances of voter fraud in elections. It's in the single digits sometimes. Maybe it's in the hundreds of votes sometimes.

But you're right. It doesn't move elections typically 30,000 or 40,000 people. The difficulty, of course, this year is that so many people voted by mail. It's hard to sort of grasp how many votes are still out there remaining to be counted.

That brings me back to Arizona, for example. I've been trying very hard to find out over the course of the last couple days exactly how many votes are uncounted. I think the paper there reported there's about 65,000 votes left to be uncounted. I've heard as many as 250 from members of Congress who live in Arizona and understand how this place works.

If there is 65,000 votes left to be counted in Arizona, then Joe Biden is going to win Arizona. If there's 250,000 votes left to be counted in Arizona, Donald Trump is going to win Arizona. That's simply the math, the statistical analysis of the situation on the ground in Arizona. So that's my answer there, is that I don't know-- we don't have enough information right now to say, OK, this race is absolutely over, this one isn't. Because I don't know how many votes are still out there.

JULIE HYMAN: So I'm curious. I mean, first of all, have you talked to folks at the White House? And second of all, when you say that the decision-- the White House is going to have to make the decision soon whether to concede or not, what's going to determine that? Is it going to be the resolution [INAUDIBLE]

MICK MULVANEY: I don't think I said the words-- I don't think the words came out of my mouth about making the decision soon to concede. I said, they have to find a way to put up or shut up on the evidence for the lawsuits. You cannot simply rely on allegations.

You can't go out on TV and say they're stealing the election when you can't back that up with facts. You can get away with that for maybe a week, which I think is today. I lose track of the days. But you can't continue that forever. Sooner or later, you have to admit either that you won or you lost.

Now, conceding is something that we deal with a lot in politics. I think everybody on the call recognizes that concessions mean nothing. Declarations of victory mean nothing. Either you win or you lose. I'm still waiting for a concession for my race, for the South Carolina Senate race, South Carolina Senate in 2008. Yet here I am.

So it is something we do as a custom and something we do as a practice. Certainly, it will draw attention if the president does not concede. But it has no legal impli-- excuse me, legal implications at all.