ASSAULT ON DEMOCRACY - "Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help it…The freedom to do as one likes leads straight to its overthrow." —Judge Learned Hand, 1944
The evidence is overwhelming that Donald Trump has been a menace to truth, law, and democracy. Attracting far less scrutiny, however, has been how the structures of "the world's oldest democracy" can still derail an authoritarian assault that in the blink of history has gone from inconceivable to implausible to "in plain sight."
A century ago in Germany and Italy, comfortable elites were lulled into thinking that public institutions would maintain democratic stability and that "it" couldn't happen since it hadn't happened. And then it happened. The reason that dictators in the 1930s succeeded, concludes political analyst Steve Schmidt, "was not because fascism was strong but because democracy was weak."
In post-Insurrection America today, one party has quit governing and sounds like a 24/7 talk radio station. Barton Gellman's influential article in The Atlantic about Trump's ongoing "coup" is alarming Democratic leaders. A new book by the leading scholar on civil wars—How Civil Wars Start by Barbara F. Walter—warns that the growing normalization of violent language, threats, and acts can become self-fulfilling. Timothy Snyder, author of the best-selling On Tyranny, thinks it "pathetically naive" to assume that the GOP won't try to overturn the results if it loses the 2024 presidential election.
Will a country that began by defeating a monarchy end up as one 250 years later? Hence this seminal challenge: can we erect stronger levees to hold back the red tide of creeping fascism before Trump, Manchin, and state-level GOP lawmakers entrench minority rule? Here's a scorecard of ten key variables that might answer that question, labeled either with a "+" sign for plausible or a "-" sign representing more of an uphill climb.
1) January 6 Committee (+). Holding Trump criminally accountable for a life of lawlessness has proven elusive. Special Counsel Robert Mueller inexplicably refused to recommend obstruction charges that he himself documented. Meanwhile, two open-and-shut impeachments didn't lead to removal by the Senate due to Republican solidarity.
Will the third time be the charm?
The bipartisan January 6 House Select Committee—with subpoena power, relentless members, and no third party able to block it—appears poised to move-the-needle in three ways: 1) publish a timeline of the White House involvement before, during, and after January 6 in a rolling insurrection ("Trump sent us!"); 2) conduct public hearings that educate millions of voters why violent extremism isn't very patriotic; and 3) make criminal referrals to the Department of Justice, perhaps including Trump, that will increase pressure on a so-far diffident Attorney General Merrick Garland.
This panel then has the potential to shape the narrative for the 2022 mid-term elections as well as conclusively establish the fact of Trump's treachery—as the Senate Watergate Committee did to Nixon. Also, due to long delays in federal contempt cases, the Select Committee could end up using the House's long-ignored "inherent power" to significantly fine those who refuse their subpoenas. Indeed, in televised hearings, perhaps a 21st Century John Dean will emerge to bend history toward truth.
2) Criminal Prosecutions (+). Donald Trump is now reliably reported to be worried about his criminal exposure. He should be.
Locally, New York and Georgia have impaneled grand juries looking into, respectively, allegations of financial fraud and the corrupt interference of official proceedings. It's hard to find a non-corrupt interpretation of Trump a) telling Georgia Secretary of State Raffensperger that "all I want is to find 11,780, which is one more than we have" and b) pressuring his Department of Justice to discover non-existent voter fraud to further his "stolen election" fabrication.
Federally, Garland has reportedly felt stymied by the appearance of being some kind of Banana Republic that routinely prosecutes former presidents. Yet other western democracies, including France and Israel, have convicted ex-heads of state without destabilizing themselves—and inaction risks the far worse precedent that future presidents may simply refuse to peacefully transfer power.
Can Garland keep resisting the weekly disclosure of incriminating evidence and growing legal opinion that Trump and his cadre engaged in serious federal crimes?
Garland finally did announce on January 5, 2022 that he "remains committed to holding all 1/6 perpetrators, at any level, accountable." Was this the time-buying observation of a Mueller-Redux or a thoughtful prosecutor building his case? Based on logic, law, and politics, it's likely the latter, perhaps waiting to show his cards until the Jan. 6 Committee shows its hand.
3) News Coverage and the Media (+). Since 2016, most of the mainstream media have resorted to their traditional stance of being "neutral referees" between parties—what is often called "Both Sides-ism." However, "when authoritarians take over one party but not the other," concludes author Brian Klass, "pursuing 'balance' is a gift to anti-democratic forces." Hence, many journalists by default became mere conveyor belts of Republican disinformation.
That's changing. First came the absurd "Birther" movement that compelled industry-leader New York Times to ditch its taboo against calling lies "lies." Then there was the jaw-dropping volume of Trump's 34,000+ documented deceptions compiled by Glenn Kessler, the fact checker at the Washington Post. Last, Facebook and Twitter, respectively, suspended and banned Trump from their platforms because of social media's unique power to instantly spread the virus of conspiracy theories.
A shift from "balance" to "facts" needn't entail more partisan Left/Right or Democrat/Republican bias. But it should mean more anti-authoritarian journalism since "bias" for a constitutional working democracy should be the sine qua non of any free press. That would require the leaders of our major private platforms—newspapers, wire services, tv and radio networks, social media, and journalism school deans—to establish new guidelines in this new "post-truth" world. "It would say that we are pro-democracy, pro-science, pro-voting," explains media critic Jay Rosen." And if this "draws a backlash from some, that's a fight we may need to have."
Agreeing to that is the Associated Press, whose executive editor recently said that it will now "focus on threats to democracy [and] who is behind them." Presumably disagreeing will be Fox News, whose business model depends on delivering a resentful white audience to advertisers.
4) Biden (+). In recent polls, 64% of respondents thought that "Democracy was under attack" yet only 2% considered that the most important issue facing the country. Voters rarely react to what they consider abstract "procedural" issues. But since Biden believes that defending Democracy must be our top priority, it's initially up to the Biden administration and all Democratic party leaders to close this Delta by showing voters how an emergent autocracy will concretely hurt their families and freedoms.
What the leadership of Lincoln, FDR, and JFK had in common was rhetoric that rallied an anxious public. While his critics constantly go for his jugular, it's been an open question whether Biden could find the right register and words, as Edward R. Murrow said of Churchill, to "send the English language into battle."
Biden did just that on the anniversary of January 6 with a late but fierce speech calling out his predecessor for his "unAmerican lies" and then again five days later demanding that GOP decide whether history will record them on the side of John Lewis or Bull Connor. Fair or not, he now owns this fight since he'll get the blame if Trump's revanchism continues to corrupt American politics. For an obvious example, will Biden follow in his upcoming State of the Union address to 60 million by saying a version of: "The state of our economy is strong, but the state of our democracy is not"—and then proselytize for popular solutions?
Can a usually uncharismatic POTUS deliver a line like "Nobody Overthrows America" and make it as viral as Reagan's "Government Is the Problem"? Yes, he can.
5) Senate (+). A couple of dozen Red states have been hell-bent on enacting laws that a) suppress or ignore "urban" voters due to non-existent "voter fraud" and b) permit legislatures to replace elected electors with partisan slates.
That could deny any nominee 270 electoral votes by the required time of certification and throw the presidential decision to a House with a majority of GOP state delegations. The only ways to stop such maneuvers are either enacting pending Senate election reforms—the Freedom to Vote Act, John Lewis Voting Rights Act, as well as a new Electoral Vote Count Act—or the Supreme Court refusing to uphold such obviously "arbitrary and capricious" ploys.
The Senate likely does have the votes to enact such bills but only if it carves out a voting rights exception to the 60-vote filibuster, as it does for confirmation of federal judges and just did for the debt ceiling. Still at least two votes short, can Biden and Schumer get Manchin, Sinema, and other possible holdouts to "yes" on filibuster change? Since Manchin and Sinema claim to support the substantive legislation—the answer remains: absolutely maybe.
In a real sense, there's already a well-known white, rural, Republican tilt built into our constitutional structure and traditions—the Electoral College, extreme gerrymandering, a grossly malapportioned Senate, the filibuster, and unregulated corporate dark money. Further empowering the House to hand-pick an unpopular president would make America not great but Hungary.
6) Lower Federal Courts (+). Here, so far, the Rule of Law has largely prevailed, as judges in 60 of 60 cases (including some Trump appointees) rejected the baseless argument that the election was stolen. And Courts of Appeals have ordered the former president to hand over to Congress both his tax returns and January 6th archived records.
Plaintiffs are also making progress in civil tort cases that seek enormous damages—e.g., Fox News for slandering voting machine companies, Proud Boys for their role at the 2019 Charlottesville neo-Nazi march, and Trump for defamation over an alleged rape. These courts are vindicating their roles as bulwarks for checks-and-balances, a trend likely to continue as more Biden judicial nominations are confirmed.
But what happens if any of these cases or the election result itself gets to the United States Supreme Court?
7) Supreme Court (-). It's getting more awkward for Federalist Society-approved nominees to call "balls and strikes" when they so often seem to be trolling for any technical reason (loophole) to justify ideological preferences—i.e., what Court-watcher Linda Greenhouse calls judicial "gaslighting."
For example, Chief Justice Roberts figured out how to end the preclearance provision of the Voting Rights Act—enacted by a 98-0 vote in the Senate—by blithely editorializing in his 2013 Shelby County decision that the South had changed. Talk about judicial activism! His decision triggered a wave of voter suppression laws in former confederate states.
Also: the day after the greatest number of new U.S. pandemic cases ever (one million), several justices in a vaccine mandates case began spouting personal epidemiological views as if they were medical doctors, not "juris doctors." Separately, Justice Amy Coney Barrett creatively suggested that abortion wasn't a fundamental right since women can always give away newborn babies to an adoption agency if compulsory pregnancy were the law in her Handmaid's America.
How can they get away with venerating stare decisis …until they want to overturn liberal decisions? As former prosecutor Preet Bhahara succinctly puts it, "they have the majority—that's it." Not the Rule of Law, but the Law of Rule.
Still, they're understandably touchy about the "stench" such twisted arguments emit, to quote Justice Sotomayor in the Texas abortion case. It was revealing when Justices Clarence Thomas, Brett Kavanaugh, and Barrett all defensively protested in late 2021 that, in the words of the latter, they were certainly not "political hacks."
Only three things could stop this Supreme Court in the near term from reversing decades of progressive precedents decisions and "legalizing fascism," in the withering phrase of The Guardian. There could be vacancies that change the current 6-3 ultra-conservative lineup. The Congress could attempt to expand the Court by four seats to balance McConnell's recent court-packing, which is for now a long-shot. Or at some point, the majority could get rattled by the declining public trust in SCOTUS.
That's already plunged from 58% to 40% in the past two years—and could worsen as more jurists and commentators tell the truth out loud, as Sotomayor did.
It would be shocking, though not surprising, were this Court to effectively anoint a person to the presidency who lost the popular vote by 7 million votes. Would such a country be invited to future "Summits for Democracy"? And how might an incensed majority of Americans react to the nullification of their votes and displacement of their democracy? The forbearance of an Al Gore graciously conceding an election he likely won is not guaranteed.
8) GOP (-). Could anything make the GOP flinch in its race to the bottom? That might take a few national election losses in a row or some awful, galvanizing event—e.g., 'Black Shirts' street violence by local militias, prosecution of Trump's cabal at Watergate levels, or spreading more violent rhetoric that ignites the fuse of an assassination of a public official. The chance of such calamities make the collapse of Trumpism at least as plausible as its triumph.
True, Representatives Cheney and Kinzinger are obviously isolated within their party. But what if, say, 10 of their colleagues—privately miserable that their political careers are tethered to an erratic sociopath and unpopular policies—trigger a critical mass of Trump refuseniks? While there don't appear to be many John McCains remaining in the party of Trump, watch for the theoretical possibility that a Murkowski, Romney, Portman or Cassidy go rogue. But don't put down all your chips here.
9) The Fringe Fourth (-). It's a cliche among clergy that the pews write the sermons. Similarly, there's currently a base of Republican voters—the Far Right and the Further Right—in effect scripting party leaders to assault Democrats and democracy.
This base includes millions of apparently capable adults raising families and holding jobs. Yet due to racial and/or economic anxieties, a loss of perceived status, or an acute predisposition for belonging to some group (think Philadelphia Eagles fans), they have become credulous targets for the lies from Team-Trump, Fox News, and right-wing radio. Changing their minds then becomes akin to changing their identities. This embrace of collective denialism has, for the immediate future, made them indignantly immune to history, logic, and science.
A majority of Republicans, for example, believe that vaccines and masks are personal gulags, mass school shootings an acceptable price for gun rights, reverse racism worse than racism, federal efforts to reduce child poverty "socialism", post-election audits needed to restore a loss of public confidence that they caused, climate change fake news, Hillary a criminal. Indeed, twice as many Republicans believe in ghosts and demons (54%) than believe that Biden legitimately won the presidency (27%).
Since this (national) Fringe Fourth chooses news outlets that only reinforce their "celebration of ignorance," in Carl Sagan's phrase, it may require a generational effort by therapists and sociologists to fully understand how they so many fell for liars posing as patriots. (See Adam McKay's film "Don't Look Up.")
It was weird when many millions of listeners truly believed the Orson Wells radiocast in 1938 of War of the Worlds. But it would have been far stranger for them to claim seeing Martians after Wells admitted to his fiction.
Trump, however, understood well his cohort of cultists, famously saying in 2016, "I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn't lose any voters, ok?" Will that hold if Trump is indicted and/or convicted of serious federal crimes? Quien sabe?
10) Voting (?). That is—us.
The approaching midterm elections of course will turn on such unpredictable variables as Biden's performance, the economy, Covid, and public reaction to any future attempted coup. It will also depend on whether Democratic leaders can mobilize their larger national base (plus a chunk of 120 million non-voters)—as Stacey Abrams did in Georgia in 2020—by the dual strategy of running against anti-American zealots and for family-friendly policies.
Betting currently favors the GOP largely because of the usual swing to the opposition party in the first midterm elections. "Usual," however, may not suffice to turn the country over to the most reactionary party in American history.
* * *
Our 246 year experiment in self-governance is obviously at risk when so many in one party wink at violence, manipulate voting, and reject reality. It's hard to stay afloat if one person insists on punching a hole in a two-person lifeboat.
Fifty-plus years ago, an engaged public marched and won progress on civil rights, environmental rights, women's freedom, and consumer regulation. Will their children now peacefully hit the streets to save all that—and in numbers at least matching the protests over police misconduct after George Floyd's murder? As Rep. Jamie Raskin, the Democrat from Maryland, told The New Yorker, "part of the solution to despondency is to engage in politics and to fight back."
Only progressive patriots in the streets, in court, and at the polls on election day can sway those handful of leaders—from Biden to Garland, Manchin, Sinema, Roberts and Kavanaugh, non-crazy Republican Senators, newspaper and TV executives—who will decide whether we keep our constitutional democracy.
Hence an 11th variable: which side possesses the most "passionate intensity" to vote—Republicans who hate Democrats more than despotism or Democrats who form an army of truth to conquer an infantry of lies.
So in 2022 and 2024, we're on the ballot too.
(Mark Green was the first Public Advocate for New York City and is the author or editor of 24 books. His new book, "Wrecking America: How Trump’s Lies and Lawbreaking Betray All" (2020), co-authored with Ralph Nader. This article was featured in Common Dreams.)