Matthew Rozsa, Salon
Composite image. Donald Trump’s official portrait and Abe Lincoln,
photo by Alexander Gardner.
Only one president, before the current one, won a national election only to see a large proportion of the country outright refuse to participate in our democracy rather than accept the result. That president was, of course, Abraham Lincoln. He concluded that those who conspired in an illegal plan to undo the American experiment in democracy had to be permanently banished from politics. It is a lesson Lincoln's successors forgot, and arguably one that should be studied carefully today.
There are key differences, to be sure, between the situation faced by Lincoln and what confronts Joe Biden today. Lincoln's victory in the 1860 election was controversial because of his opposition to slavery. No one claimed the election result itself was fraudulent — a region of the country simply despised him for being a Republican, with Lincoln's name being left off the ballot on the ballot in most Southern states. What's more, the aftermath of Lincoln's victory led to a literal civil war, and despite some dire predictions we are not close to that in the 21st century. In addition, while the 1860 election tore America apart because of one grave and highly divisive issue (that being slavery), the 2020 election posed a major threat to democracy largely because of the damaged ego of a highly narcissistic candidate.
In both cases, however, we see a large, reactionary faction rejecting an election loss, and that act serving as the catalyst for a crisis of democratic legitimacy. Lincoln faced a violent rebellion that literally caused armed conflict, resulting in hundreds of thousands of deaths. What Biden faces today is more difficult to define, but looks to be an effort to subvert the rules of democracy in practice while maintaining rhetorical support for them, and while nominally abiding by existing laws and working through existing institutions.
The political question made visible in both cases is one of self-preservation rather than principle. To what degree can a democracy tolerate the actions of those who wish to destroy it? How much defiance and resistance is permissible before democratic institutions lose all meaningful authority?
READ: 'I don't know what treason is’: Trump rioter arrested after incriminating herself on Instagram
We can never know how Lincoln would have governed during Reconstruction, since he was assassinated shortly after the Confederacy surrendered. But in waging war against the seceding states in 1861, Lincoln acted decisively to save democracy, something his immediate predecessor James Buchanan was clearly unwilling to do. Lincoln considered his legitimacy as the democratic leader of the entire nation to be beyond question, and did not hesitate to send men to kill and die for that principle.
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Based on the reconciliation policies Lincoln discussed during his lifetime, he clearly had an intended strategy for bringing former Confederates back into the Union. We could call it a carrot-and-stick approach: Go relatively easy on most defeated rebels, below the highest ranking political and military leaders, and make it relatively easy for Southern states to begin governing themselves again (once they accepted the abolition of slavery). The so-called Radical Republicans disagreed with Lincoln on many details and wanted a much harder line taken against former Confederates in the South, and even Lincoln understood that tolerance and generosity would only go so far.
With Lincoln's approval, Congress addressed this question directly. "The laws enacted by Congress to prevent former Confederate leaders from acquiring power after the Civil War provide an object lesson for our time," Harvard law professor Laurence Tribe wrote Salon by email. They have been enshrined in law as precedent for stopping those who would commit violence against a democratic government. Of the resulting statutes, Tribe identified this one as the "most pertinent":
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
This principle — that involvement in direct insurrection or rebellion must lead to being exiled from politics — was added to the Constitution itself through Section 3 of the 14th Amendment, one of three amendments passed in the immediate aftermath of the Civil War. Every former Confederate state had to ratify these amendments before rejoining the Union.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Tribe explained the rationale behind the "disqualification provision" this way: "The will to violate one's oath to uphold the Constitution of the Union couldn't be relied on to evaporate just because the rebellion had been put down when the Union Army defeated the Army of the Confederacy. The authors of the 14th Amendment knew better than to trust the treasonous insurrectionists with the power of any public office, state or federal, ever again" — allowing for exceptions by way of a supermajority vote in both houses of Congress.
After Lincoln's death, however, nothing went according to plan. The new president, Andrew Johnson, was a Southerner and an overt white supremacist. He had opposed secession, but in every other way was sympathetic to the Confederacy.
Under Johnson, the government's approach "was pretty lenient in terms of whether to exclude or allow ex-Confederates to return to power" says Harold Holzer, one of the leading authorities on Lincoln. Although former Confederate president Jefferson Davis was barred from running for office, his vice president, Alexander H. Stephens — who had given the infamous Cornerstone Speech in 1861, clearly identifying slavery and white supremacy with the Southern cause — was allowed to serve as a congressman from Georgia in his later years.
Holzer also told Salon by email that Stephens "even got a speaking role at the ceremony at which Congress accepted the gift of a painting of Lincoln's first reading of the Emancipation Proclamation. That's how far sectional reconciliation went, in the absence of real racial reconciliation." This was a mistake, Holzer believes: "In my view, lax rules and laws allowed far too many ex-Confederates to return to state and federal government." The clear result of this was the end of Reconstruction and the beginning of the Jim Crow regime, in which formerly enslaved people — supposedly granted the right to vote under the 15th Amendment — were effectively disenfranchised and subjected to a reign of terror that lasted almost another hundred years.
Holzer draws a clear conclusion from this history. "If there is a lesson to be learned," he wrote, "then anyone who participated in, or fomented, the January 6 insurrection should be barred from ever serving in government again — from the top down."
Tribe expressed a similar view, citing "mounting evidence" that Trump and various Republican allies — including members of Congress — conspired to overturn the 2020 election. If Civil War precedents are followed, he said, "All of those who were involved in that plot, and those involved in the rally fueling and 'inciting' that 'insurrection,' ought to be investigated and, if the evidence is as it appears to be, prosecuted." Under the language quoted above from federal law and the 14th Amendment, that would also mean permanent disqualification from public office.
There is no indication, however, that Biden or Attorney General Merrick Garland are likely to heed Tribe's advice in general terms, still less seek to prosecute Donald Trump himself. For many critics, this looks to be a matter of putting PR or optics ahead of principle. It might also be described as ignoring or avoiding an important lesson from American history: Don't allow traitors to get away with it.
Only one president, before the current one, won a national election only to see a large proportion of the country outright refuse to participate in our democracy rather than accept the result. That president was, of course, Abraham Lincoln. He concluded that those who conspired in an illegal plan to undo the American experiment in democracy had to be permanently banished from politics. It is a lesson Lincoln's successors forgot, and arguably one that should be studied carefully today.
There are key differences, to be sure, between the situation faced by Lincoln and what confronts Joe Biden today. Lincoln's victory in the 1860 election was controversial because of his opposition to slavery. No one claimed the election result itself was fraudulent — a region of the country simply despised him for being a Republican, with Lincoln's name being left off the ballot on the ballot in most Southern states. What's more, the aftermath of Lincoln's victory led to a literal civil war, and despite some dire predictions we are not close to that in the 21st century. In addition, while the 1860 election tore America apart because of one grave and highly divisive issue (that being slavery), the 2020 election posed a major threat to democracy largely because of the damaged ego of a highly narcissistic candidate.
In both cases, however, we see a large, reactionary faction rejecting an election loss, and that act serving as the catalyst for a crisis of democratic legitimacy. Lincoln faced a violent rebellion that literally caused armed conflict, resulting in hundreds of thousands of deaths. What Biden faces today is more difficult to define, but looks to be an effort to subvert the rules of democracy in practice while maintaining rhetorical support for them, and while nominally abiding by existing laws and working through existing institutions.
The political question made visible in both cases is one of self-preservation rather than principle. To what degree can a democracy tolerate the actions of those who wish to destroy it? How much defiance and resistance is permissible before democratic institutions lose all meaningful authority?
READ: 'I don't know what treason is’: Trump rioter arrested after incriminating herself on Instagram
We can never know how Lincoln would have governed during Reconstruction, since he was assassinated shortly after the Confederacy surrendered. But in waging war against the seceding states in 1861, Lincoln acted decisively to save democracy, something his immediate predecessor James Buchanan was clearly unwilling to do. Lincoln considered his legitimacy as the democratic leader of the entire nation to be beyond question, and did not hesitate to send men to kill and die for that principle.
ADVERTISEMENT
Based on the reconciliation policies Lincoln discussed during his lifetime, he clearly had an intended strategy for bringing former Confederates back into the Union. We could call it a carrot-and-stick approach: Go relatively easy on most defeated rebels, below the highest ranking political and military leaders, and make it relatively easy for Southern states to begin governing themselves again (once they accepted the abolition of slavery). The so-called Radical Republicans disagreed with Lincoln on many details and wanted a much harder line taken against former Confederates in the South, and even Lincoln understood that tolerance and generosity would only go so far.
With Lincoln's approval, Congress addressed this question directly. "The laws enacted by Congress to prevent former Confederate leaders from acquiring power after the Civil War provide an object lesson for our time," Harvard law professor Laurence Tribe wrote Salon by email. They have been enshrined in law as precedent for stopping those who would commit violence against a democratic government. Of the resulting statutes, Tribe identified this one as the "most pertinent":
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
This principle — that involvement in direct insurrection or rebellion must lead to being exiled from politics — was added to the Constitution itself through Section 3 of the 14th Amendment, one of three amendments passed in the immediate aftermath of the Civil War. Every former Confederate state had to ratify these amendments before rejoining the Union.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Tribe explained the rationale behind the "disqualification provision" this way: "The will to violate one's oath to uphold the Constitution of the Union couldn't be relied on to evaporate just because the rebellion had been put down when the Union Army defeated the Army of the Confederacy. The authors of the 14th Amendment knew better than to trust the treasonous insurrectionists with the power of any public office, state or federal, ever again" — allowing for exceptions by way of a supermajority vote in both houses of Congress.
After Lincoln's death, however, nothing went according to plan. The new president, Andrew Johnson, was a Southerner and an overt white supremacist. He had opposed secession, but in every other way was sympathetic to the Confederacy.
Under Johnson, the government's approach "was pretty lenient in terms of whether to exclude or allow ex-Confederates to return to power" says Harold Holzer, one of the leading authorities on Lincoln. Although former Confederate president Jefferson Davis was barred from running for office, his vice president, Alexander H. Stephens — who had given the infamous Cornerstone Speech in 1861, clearly identifying slavery and white supremacy with the Southern cause — was allowed to serve as a congressman from Georgia in his later years.
Holzer also told Salon by email that Stephens "even got a speaking role at the ceremony at which Congress accepted the gift of a painting of Lincoln's first reading of the Emancipation Proclamation. That's how far sectional reconciliation went, in the absence of real racial reconciliation." This was a mistake, Holzer believes: "In my view, lax rules and laws allowed far too many ex-Confederates to return to state and federal government." The clear result of this was the end of Reconstruction and the beginning of the Jim Crow regime, in which formerly enslaved people — supposedly granted the right to vote under the 15th Amendment — were effectively disenfranchised and subjected to a reign of terror that lasted almost another hundred years.
Holzer draws a clear conclusion from this history. "If there is a lesson to be learned," he wrote, "then anyone who participated in, or fomented, the January 6 insurrection should be barred from ever serving in government again — from the top down."
Tribe expressed a similar view, citing "mounting evidence" that Trump and various Republican allies — including members of Congress — conspired to overturn the 2020 election. If Civil War precedents are followed, he said, "All of those who were involved in that plot, and those involved in the rally fueling and 'inciting' that 'insurrection,' ought to be investigated and, if the evidence is as it appears to be, prosecuted." Under the language quoted above from federal law and the 14th Amendment, that would also mean permanent disqualification from public office.
There is no indication, however, that Biden or Attorney General Merrick Garland are likely to heed Tribe's advice in general terms, still less seek to prosecute Donald Trump himself. For many critics, this looks to be a matter of putting PR or optics ahead of principle. It might also be described as ignoring or avoiding an important lesson from American history: Don't allow traitors to get away with it.
The risk of a coup in the next US election is greater now than it ever was under Trump
Republicans are busy undermining the next election. But giving up on democracy isn’t an option. We must fight back, and here’s how
Far from being condemned, violence has been increasingly glorified by the mainstream conservative movement
Nor was the violence limited to that day. Leading up to the 2020 election, Trump supporters had run a Biden campaign bus off the road in Texas, plotted to kidnap the Democratic governor in Michigan and stirred up brutal attacks across the country. In the period after that election, they physically surrounded and intimidated senators on an airplane and in an airport, calling them “traitors” and promising consequences for their perceived defection from Trump. They showed up at state capitols armed to the teeth and threatening retribution if state legislators did not allocate their electoral votes to Trump, or at least pursue fraudulent “audits” of the election results.
Far from being condemned, in the intervening year that sort of violence has been increasingly glorified by the mainstream conservative movement. In recent weeks, a congressman posted a Photoshopped video of himself murdering a Democratic colleague. A Fox News host discussed – to a crowd of radicalized anti-vaxxers – how they might most appropriately assassinate our nation’s chief epidemiologist with a “kill shot” in “an ambush”. Large crowds venerated a juvenile vigilante who shot three people on an American street.
The base is being primed for more violence in the run-up and aftermath of the next election. And the Trump-packed supreme court is poised to do its part by gutting what is left of America’s laws against carrying guns anywhere and everywhere – including maybe in courthouses, polling places and the like. It is no accident that the 6 January hotel command center of the group led by Steve Bannon and Roger Stone was christened the “war room”.
So what is to be done?
We must resist state-level attempts to make voting more difficult. Instead, we must make vote-counting easier and use all legal means at our disposal to challenge publicly and in state and federal courts legislative district maps designed to dilute minority voters’ influence or to amplify the power of incumbency, as well as laws empowering state officeholders to designate presidential electors at odds with their state’s popular election results.
We must use boycotts and grassroots political organizing to oppose the replacement of honest with corrupt election officials and the enactment of anti-democratic state laws.
We must encourage the 6 January committee to complete its work thoroughly but quickly, including holding public hearings that spotlight the damning details of the plot that nearly succeeded, and making criminal referrals to the Department of Justice of all public officials – from members of Congress to the former president – suspected of such federal crimes as obstructing an official proceeding, aiding and abetting an insurrection or conspiring to commit sedition.
We must fight back against suggestions that the justice department’s criminal investigations of the highest-ranking public officials should await any such criminal referrals from the committee.
We must redouble our determination to hold criminally accountable, and potentially disqualify from ever again holding public office in the United States, everyone involved in the obscene trashing of constitutional democracy.
We must publicly repudiate whatever misguided notions have led the Biden administration’s attorney general, Merrick Garland, to exercise extraordinary restraint in the pursuit of such full accountability, effectively placing the highest officeholders above the law.
Above all, we must not let the difficulty of the task ahead turn realism into resignation and sap the energy we will need to bring to this mission. As the distinguished Yale historian Joannne Freeman recently wrote, “Accountability – the belief that political power holders are responsible for their actions and that blatant violations will be addressed – is the lifeblood of democracy. Without it, there can be no trust in government, and without trust, democratic governments have little power.” And when democracy loses its grip as a guiding ideal, despotism fills the void and liberty is lost.
This is a battle we must not, cannot, will not lose.
Laurence H Tribe is the Carl M Loeb University professor emeritus and professor of constitutional law emeritus at Harvard University and an accomplished supreme court advocate
Republicans are busy undermining the next election. But giving up on democracy isn’t an option. We must fight back, and here’s how
‘The temptation to seize power will surely tantalize a political party that seems openly hostile to the very premises of democracy.’
Photograph: Tom Brenner/Reuters
Laurence H Tribe
Mon 3 Jan 2022
Only free and fair elections in which the loser abides by the result stand between each of us and life at the mercy of a despotic regime – one we had no voice in choosing and one that can freely violate all our rights. So everything is at stake in the peaceful transfer of power from a government that has lost its people’s confidence to its victorious successor. It was that peaceful transfer that Trump and his minions sought to obstruct and almost succeeded in overthrowing when Joe Biden was elected president.
A year has passed since Donald Trump’s attempted coup and his supporters’ violent storming of the United States Capitol on 6 January 2021, in a nearly successful effort to prevent Congress from certifying Trump’s decisive loss of the election to Biden. Watching the images that day of the seat of US democracy overtaken and defiled, it was impossible not to viscerally feel the grave danger that confronted the republic. In the tumultuous year since, the immediacy of that sensation has waned – and the magnitude of the stakes has receded from memory.
In the rubble of the insurrection, the sheer shock of the moment jarred loose hints of long-lost bipartisanship and national unity and rekindled an appreciation of why a successful coup would have meant the end of all we care about. The House of Representatives expeditiously moved to impeach Trump for his role in fomenting the attack and 57 senators, including seven Republicans, voted to convict him on 13 February after a masterful presentation led by Representative Jamie Raskin, a Democrat of Maryland. After Trump had become the first American president to be impeached twice, the Senate Republican leader, Mitch McConnell, delivered a blistering rebuke of Trump from the Senate floor, justifying his and many other Republicans’ votes to acquit only on the thin reed that, by the time of his Senate trial, Trump was no longer president.
Alas, the moment was short-lived. With Trump himself out of office and in exile at Mar-a-Lago, public attention quickly faded, Republicans abandoned their increasingly half-hearted search for accountability, and the leaders of their party began planning their next bite at the poisoned apple of power, an apple they told themselves had been stolen from them despite all evidence to the contrary.
Rewriting history and turning reality on its head, Republicans in Congress and their allies in rightwing media began absurdly to describe the deadly insurrection as a “mostly peaceful” protest, described rioters who brutally beat Capitol police as “political prisoners”, and suggested that any violence was attributable to some unidentified group of leftwing “antifa”.
To be sure, we have seen the rise of a veritable cottage industry of commentary warning sharply that America remains subject to what some have called a “slow-motion insurrection” or that “Trump’s Next Coup Has Already Begun”. Yet the vast majority of Americans have turned their attention back to other concerns – from new and more infectious variants of the Covid-19 virus, to burgeoning inflation and increasingly palpable signs of global warming, to the myriad other problems that bedevil our nation and the world.
But for those of us who have continued to investigate the sources and facets of the assault on constitutional democracy, a sobering realization has become unavoidable: our country, and the legal and political institutions that prevent it from descending into despotism, are in even greater peril today than they were at the time of last November’s election.
That assault began in the runup to the 2020 election, when Trump and his cultlike followers spread the corrosive view that American elections had become inherently untrustworthy as demographic changes broadened the eligible electorate and thus that any outcome other than victory for Trump would necessarily be the result of fraud and must therefore be rejected by all means necessary.
With each passing day, more details about the means Trump’s team devised to undo the results of the November 2020 election have cascaded into public view, even though Republicans in Congress have made concerted efforts to obstruct the work of the special House committee created to uncover the sources of the attempted coup and the ensuing insurrection. The committee was charged to propose legislation to reduce the danger of a repeat performance, but because curing a disease requires diagnosing its cause, Republicans have seized on the committee’s search for causes to claim that its purposes were solely vindictive and not legislative.
In the course of designing possible remedies, the committee has uncovered evidence of a conspiracy broader, more far-reaching and better organized than was initially thought. That conspiracy featured deceptive PowerPoint presentations and duplicitous talking points designed to propagate the big lie that Democrats had indeed stolen the election and to lay out a blueprint for “stopping the steal”.
Understanding that blueprint requires appreciating the byzantine constitutional structure dating to our founding, a structure in which the presidency is awarded not to the winner of the national popular vote but to the candidate receiving the most “electoral votes”. Those votes are allocated among the states according to a formula slanted toward less densely populated states – states that have tended over time to favor the Republican candidate – with each state’s legislature determining the method for deciding how its electoral votes will be awarded.
As Representative Raskin, a leading member of the special House committee, described it to me, the basic plan for Trump to seize power despite his loss of both the popular vote on 3 November and the electoral vote on 14 December had been to pressure various officials to “find” enough nonexistent votes to flip the results of several key states in which the election’s outcome had been the closest.
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Failing that, the plan was to pressure Vice-President Mike Pence, presiding over the 6 January joint session of Congress required under the constitution to count the certified electoral votes, to reject and return the slates of electoral votes certified by Arizona, Georgia and Pennsylvania, depriving both candidates of the requisite majority of the electoral votes cast.
At that point, the choice of president would fall “immediately” to the US House of Representatives, with each state’s delegation casting a single vote in the resulting “contingent election”. That in turn would have made Trump the president-elect despite having lost the election, because more state delegations in the House were in Republican hands at that point than in the hands of the Democrats.
Part of the plot, we are now learning, featured Trump’s invocation of the Insurrection Act to declare something like martial law to put down the chaos and bedlam he and his inner circle would by then have unleashed on the Capitol, all the time blaming the speaker of the House, Nancy Pelosi, for not keeping order, a form of sinister gaslighting the Republicans have deployed ever since 6 January. Talk of that military option led the CIA Director to predict that “we are on the way to a right-wing coup”.
But most terrifyingly, we have learned over the past year that the Republican party plans to do it again. Some retired generals are warning that, without decisive action to hold all the wrongdoers to account, we will witness a march to another coup attempt, and one more likely to succeed, if Trump or another demagogue runs and loses. Trump’s Republican party has all but erased or openly embraced the violence of 6 January. And the party faithful have already set out to use state-level elections and legislative processes to better set the table to steal the 2024 election should that be necessary to their return to power.
And why wouldn’t they?
Myths of wrongful defeat at the hands of enemies within or without are invariably part of the demagogue’s narrative
Those involved in the last attempt have – at least as of today – faced few if any social, political or legal penalties. Only the foot-soldiers, those who physically invaded the Capitol, have faced criminal punishment. And even they have been charged with no offense more serious than corruptly obstructing an official proceeding. As I have elsewhere argued, it would seem more fitting to charge those who organized, funded, and otherwise led the nearly successful overthrow of our government with insurrection or sedition.
Indeed, in the topsy-turvy world of Trumpian logic, the political base of the Republican party now appears by a large majority to believe that the real coup and insurrection took place not on 6 January 2021 but on 3 November and 14 December 2020, when Joe Biden and the Democrats supporting him were guilty of a “big steal” of the national election.
Students of how democracies fail and tyrannical regimes arise from the dust they leave behind uniformly teach that such groundless myths of wrongful defeat at the hands either of enemies within or of enemies without are invariably part of the demagogue’s narrative and of its hold on popular consciousness.
The specter of another coup attempt in 2024-25 may, at first blush, seem counterintuitive. After all, whether Donald Trump or another aspiring despot runs next time as the Republican party’s nominee, that candidate will have no access to the powers of the presidency when the national election occurs. But the corrupt actions that threaten soon to bring our constitutional republic to an ignoble end sadly do not require either an exercise of presidential power or the abdication of presidential duty.
They require only that the cult of Trump repopulate with party hacks the bureaucracy of honest vote-counters and nonpartisan election personnel at the state and local levels, and that Trump-backed lawmakers elected to state legislatures rig the voting rules to dilute the influence of all who might oppose a Republican victory. Because these steps are well under way, we face a challenge more daunting than we did even when the powers of the presidency were in Trump’s hands.
Nor can we count on the congressional voting integrity measures brilliantly designed with the help of Adam Schiff and Jamie Raskin, the Democratic representatives who led Trump’s two Senate impeachment trials, to save us from what the growing number of Republican state legislatures seem only too eager to do. For one thing, even before the 2022 midterm elections, Democrats control too few seats in the Senate to overcome the antiquated filibuster rules that make enactment of such voting rights measures with fewer than 60 votes an impossibility. For another, the US supreme court, as packed by means of dubious legitimacy by Trump during his presidency, is poised to hold unconstitutional virtually any meaningful voting protection or electoral reform Congress might enact even if that 60-vote obstacle could be carved away in a limited class of cases.
Even if something should derail another Trump run at the presidency, the means for another coup exist, and the temptation to seize power, this time cementing it more permanently, will surely tantalize a political party that seems openly hostile to the very premises of democracy.
Of particular concern to students of fascism – a governing form that almost always comes wrapped in violence – was the violence woven through the rise of Trumpism to the siege of the Capitol which was, of course, brutally violent. Participants came armed with body armor, firearms, knives, bear mace, Tasers and everything in between. They brought a gallows and chanted that they were going to hang the sitting vice-president. They brutally beat Capitol and DC police officers.
Mon 3 Jan 2022
Only free and fair elections in which the loser abides by the result stand between each of us and life at the mercy of a despotic regime – one we had no voice in choosing and one that can freely violate all our rights. So everything is at stake in the peaceful transfer of power from a government that has lost its people’s confidence to its victorious successor. It was that peaceful transfer that Trump and his minions sought to obstruct and almost succeeded in overthrowing when Joe Biden was elected president.
A year has passed since Donald Trump’s attempted coup and his supporters’ violent storming of the United States Capitol on 6 January 2021, in a nearly successful effort to prevent Congress from certifying Trump’s decisive loss of the election to Biden. Watching the images that day of the seat of US democracy overtaken and defiled, it was impossible not to viscerally feel the grave danger that confronted the republic. In the tumultuous year since, the immediacy of that sensation has waned – and the magnitude of the stakes has receded from memory.
In the rubble of the insurrection, the sheer shock of the moment jarred loose hints of long-lost bipartisanship and national unity and rekindled an appreciation of why a successful coup would have meant the end of all we care about. The House of Representatives expeditiously moved to impeach Trump for his role in fomenting the attack and 57 senators, including seven Republicans, voted to convict him on 13 February after a masterful presentation led by Representative Jamie Raskin, a Democrat of Maryland. After Trump had become the first American president to be impeached twice, the Senate Republican leader, Mitch McConnell, delivered a blistering rebuke of Trump from the Senate floor, justifying his and many other Republicans’ votes to acquit only on the thin reed that, by the time of his Senate trial, Trump was no longer president.
Alas, the moment was short-lived. With Trump himself out of office and in exile at Mar-a-Lago, public attention quickly faded, Republicans abandoned their increasingly half-hearted search for accountability, and the leaders of their party began planning their next bite at the poisoned apple of power, an apple they told themselves had been stolen from them despite all evidence to the contrary.
Rewriting history and turning reality on its head, Republicans in Congress and their allies in rightwing media began absurdly to describe the deadly insurrection as a “mostly peaceful” protest, described rioters who brutally beat Capitol police as “political prisoners”, and suggested that any violence was attributable to some unidentified group of leftwing “antifa”.
To be sure, we have seen the rise of a veritable cottage industry of commentary warning sharply that America remains subject to what some have called a “slow-motion insurrection” or that “Trump’s Next Coup Has Already Begun”. Yet the vast majority of Americans have turned their attention back to other concerns – from new and more infectious variants of the Covid-19 virus, to burgeoning inflation and increasingly palpable signs of global warming, to the myriad other problems that bedevil our nation and the world.
But for those of us who have continued to investigate the sources and facets of the assault on constitutional democracy, a sobering realization has become unavoidable: our country, and the legal and political institutions that prevent it from descending into despotism, are in even greater peril today than they were at the time of last November’s election.
That assault began in the runup to the 2020 election, when Trump and his cultlike followers spread the corrosive view that American elections had become inherently untrustworthy as demographic changes broadened the eligible electorate and thus that any outcome other than victory for Trump would necessarily be the result of fraud and must therefore be rejected by all means necessary.
With each passing day, more details about the means Trump’s team devised to undo the results of the November 2020 election have cascaded into public view, even though Republicans in Congress have made concerted efforts to obstruct the work of the special House committee created to uncover the sources of the attempted coup and the ensuing insurrection. The committee was charged to propose legislation to reduce the danger of a repeat performance, but because curing a disease requires diagnosing its cause, Republicans have seized on the committee’s search for causes to claim that its purposes were solely vindictive and not legislative.
In the course of designing possible remedies, the committee has uncovered evidence of a conspiracy broader, more far-reaching and better organized than was initially thought. That conspiracy featured deceptive PowerPoint presentations and duplicitous talking points designed to propagate the big lie that Democrats had indeed stolen the election and to lay out a blueprint for “stopping the steal”.
Understanding that blueprint requires appreciating the byzantine constitutional structure dating to our founding, a structure in which the presidency is awarded not to the winner of the national popular vote but to the candidate receiving the most “electoral votes”. Those votes are allocated among the states according to a formula slanted toward less densely populated states – states that have tended over time to favor the Republican candidate – with each state’s legislature determining the method for deciding how its electoral votes will be awarded.
As Representative Raskin, a leading member of the special House committee, described it to me, the basic plan for Trump to seize power despite his loss of both the popular vote on 3 November and the electoral vote on 14 December had been to pressure various officials to “find” enough nonexistent votes to flip the results of several key states in which the election’s outcome had been the closest.
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Failing that, the plan was to pressure Vice-President Mike Pence, presiding over the 6 January joint session of Congress required under the constitution to count the certified electoral votes, to reject and return the slates of electoral votes certified by Arizona, Georgia and Pennsylvania, depriving both candidates of the requisite majority of the electoral votes cast.
At that point, the choice of president would fall “immediately” to the US House of Representatives, with each state’s delegation casting a single vote in the resulting “contingent election”. That in turn would have made Trump the president-elect despite having lost the election, because more state delegations in the House were in Republican hands at that point than in the hands of the Democrats.
Part of the plot, we are now learning, featured Trump’s invocation of the Insurrection Act to declare something like martial law to put down the chaos and bedlam he and his inner circle would by then have unleashed on the Capitol, all the time blaming the speaker of the House, Nancy Pelosi, for not keeping order, a form of sinister gaslighting the Republicans have deployed ever since 6 January. Talk of that military option led the CIA Director to predict that “we are on the way to a right-wing coup”.
But most terrifyingly, we have learned over the past year that the Republican party plans to do it again. Some retired generals are warning that, without decisive action to hold all the wrongdoers to account, we will witness a march to another coup attempt, and one more likely to succeed, if Trump or another demagogue runs and loses. Trump’s Republican party has all but erased or openly embraced the violence of 6 January. And the party faithful have already set out to use state-level elections and legislative processes to better set the table to steal the 2024 election should that be necessary to their return to power.
And why wouldn’t they?
Myths of wrongful defeat at the hands of enemies within or without are invariably part of the demagogue’s narrative
Those involved in the last attempt have – at least as of today – faced few if any social, political or legal penalties. Only the foot-soldiers, those who physically invaded the Capitol, have faced criminal punishment. And even they have been charged with no offense more serious than corruptly obstructing an official proceeding. As I have elsewhere argued, it would seem more fitting to charge those who organized, funded, and otherwise led the nearly successful overthrow of our government with insurrection or sedition.
Indeed, in the topsy-turvy world of Trumpian logic, the political base of the Republican party now appears by a large majority to believe that the real coup and insurrection took place not on 6 January 2021 but on 3 November and 14 December 2020, when Joe Biden and the Democrats supporting him were guilty of a “big steal” of the national election.
Students of how democracies fail and tyrannical regimes arise from the dust they leave behind uniformly teach that such groundless myths of wrongful defeat at the hands either of enemies within or of enemies without are invariably part of the demagogue’s narrative and of its hold on popular consciousness.
The specter of another coup attempt in 2024-25 may, at first blush, seem counterintuitive. After all, whether Donald Trump or another aspiring despot runs next time as the Republican party’s nominee, that candidate will have no access to the powers of the presidency when the national election occurs. But the corrupt actions that threaten soon to bring our constitutional republic to an ignoble end sadly do not require either an exercise of presidential power or the abdication of presidential duty.
They require only that the cult of Trump repopulate with party hacks the bureaucracy of honest vote-counters and nonpartisan election personnel at the state and local levels, and that Trump-backed lawmakers elected to state legislatures rig the voting rules to dilute the influence of all who might oppose a Republican victory. Because these steps are well under way, we face a challenge more daunting than we did even when the powers of the presidency were in Trump’s hands.
Nor can we count on the congressional voting integrity measures brilliantly designed with the help of Adam Schiff and Jamie Raskin, the Democratic representatives who led Trump’s two Senate impeachment trials, to save us from what the growing number of Republican state legislatures seem only too eager to do. For one thing, even before the 2022 midterm elections, Democrats control too few seats in the Senate to overcome the antiquated filibuster rules that make enactment of such voting rights measures with fewer than 60 votes an impossibility. For another, the US supreme court, as packed by means of dubious legitimacy by Trump during his presidency, is poised to hold unconstitutional virtually any meaningful voting protection or electoral reform Congress might enact even if that 60-vote obstacle could be carved away in a limited class of cases.
Even if something should derail another Trump run at the presidency, the means for another coup exist, and the temptation to seize power, this time cementing it more permanently, will surely tantalize a political party that seems openly hostile to the very premises of democracy.
Of particular concern to students of fascism – a governing form that almost always comes wrapped in violence – was the violence woven through the rise of Trumpism to the siege of the Capitol which was, of course, brutally violent. Participants came armed with body armor, firearms, knives, bear mace, Tasers and everything in between. They brought a gallows and chanted that they were going to hang the sitting vice-president. They brutally beat Capitol and DC police officers.
Far from being condemned, violence has been increasingly glorified by the mainstream conservative movement
Nor was the violence limited to that day. Leading up to the 2020 election, Trump supporters had run a Biden campaign bus off the road in Texas, plotted to kidnap the Democratic governor in Michigan and stirred up brutal attacks across the country. In the period after that election, they physically surrounded and intimidated senators on an airplane and in an airport, calling them “traitors” and promising consequences for their perceived defection from Trump. They showed up at state capitols armed to the teeth and threatening retribution if state legislators did not allocate their electoral votes to Trump, or at least pursue fraudulent “audits” of the election results.
Far from being condemned, in the intervening year that sort of violence has been increasingly glorified by the mainstream conservative movement. In recent weeks, a congressman posted a Photoshopped video of himself murdering a Democratic colleague. A Fox News host discussed – to a crowd of radicalized anti-vaxxers – how they might most appropriately assassinate our nation’s chief epidemiologist with a “kill shot” in “an ambush”. Large crowds venerated a juvenile vigilante who shot three people on an American street.
The base is being primed for more violence in the run-up and aftermath of the next election. And the Trump-packed supreme court is poised to do its part by gutting what is left of America’s laws against carrying guns anywhere and everywhere – including maybe in courthouses, polling places and the like. It is no accident that the 6 January hotel command center of the group led by Steve Bannon and Roger Stone was christened the “war room”.
So what is to be done?
We must resist state-level attempts to make voting more difficult. Instead, we must make vote-counting easier and use all legal means at our disposal to challenge publicly and in state and federal courts legislative district maps designed to dilute minority voters’ influence or to amplify the power of incumbency, as well as laws empowering state officeholders to designate presidential electors at odds with their state’s popular election results.
We must use boycotts and grassroots political organizing to oppose the replacement of honest with corrupt election officials and the enactment of anti-democratic state laws.
We must encourage the 6 January committee to complete its work thoroughly but quickly, including holding public hearings that spotlight the damning details of the plot that nearly succeeded, and making criminal referrals to the Department of Justice of all public officials – from members of Congress to the former president – suspected of such federal crimes as obstructing an official proceeding, aiding and abetting an insurrection or conspiring to commit sedition.
We must fight back against suggestions that the justice department’s criminal investigations of the highest-ranking public officials should await any such criminal referrals from the committee.
We must redouble our determination to hold criminally accountable, and potentially disqualify from ever again holding public office in the United States, everyone involved in the obscene trashing of constitutional democracy.
We must publicly repudiate whatever misguided notions have led the Biden administration’s attorney general, Merrick Garland, to exercise extraordinary restraint in the pursuit of such full accountability, effectively placing the highest officeholders above the law.
Above all, we must not let the difficulty of the task ahead turn realism into resignation and sap the energy we will need to bring to this mission. As the distinguished Yale historian Joannne Freeman recently wrote, “Accountability – the belief that political power holders are responsible for their actions and that blatant violations will be addressed – is the lifeblood of democracy. Without it, there can be no trust in government, and without trust, democratic governments have little power.” And when democracy loses its grip as a guiding ideal, despotism fills the void and liberty is lost.
This is a battle we must not, cannot, will not lose.
Laurence H Tribe is the Carl M Loeb University professor emeritus and professor of constitutional law emeritus at Harvard University and an accomplished supreme court advocate
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