A reader asked me to analyze the statutory and constitutional tools that could and should be used to fight Trumpism now that Trumpism has been irrefutably revealed for what it is: Fascism. Having studied for decades the interactions between constitutional law and constitutional politics, I actually have some expertise on this topic. That experience does not mean any recommendations are “right answers,” particularly because there are so many competing ends and thus competing means. Hopefully, my training provides reasonably acute analysis. The following is predicated on publicly available facts; we may soon learn of more seditious acts that justify far more severe sanctions.
Before evaluating particular options, we need to determine the scope of the problem, rank desired outcomes, and sort them by time (short term, intermediate term, and long term).
First, how serious is this threat to the Republic? Over the past few years, I would occasionally come across polls indicating that a vast, growing number of Americans no longer believed in democracy. They want a “strong leader,” unencumbered by Congress, the media, or Courts. Alas, my response consisted of more denial than fear: Most of those people didn’t really mean it. Large anti-democratic factions are on both sides, so neither side is very dangerous. They won’t act, either out of fear or lack of conviction. Most Americans don’t like domestic violence. The polls are probably wrong. This is just macho Locker Room or Chapel talk. Those thoughts somewhat calmed an underlying dread that our Nation was in a downward spiral.
The World Values Survey published in 2017 a poll stating that 38 percent of Americans support an unchecked leader. This movement had grown from 24 percent in the mid-1990s to 29 percent in the early 2000s. The number may be greater now, but we can hope this tragedy has enabled some people to change their minds. I could not find a good poll indicating the different political ideologies of these anti-democrats, but my current guess is almost all are Fascists. Remember how bewildered many of us were at Trump’s ability to keep his approval ratings above 35 percent no matter what he did? Trump, who often said he wanted to be “President for Life,” either knew those numbers or instinctively sensed his opportunity. He really meant that he would not support a peaceful transfer of power. Trumpism is not just a temporary, freakish cult of personality; it is a potentially fatal political movement that long predates Trump’s rise to power.
The attempted coup on January 6 proved that neither Trump nor his most devout followers were play-acting. We can add Fascism to our exploding list of existential threats. Incidentally, while those poll numbers should not be admitted in a court of law, they confirm the odious intentions of Trump, his enablers, and many of his followers when they assaulted the Capitol. The only Legal Vote is a Republican Vote. The only Legal Party is the Republican Party. If you assume those principles, the election was stolen.
Fortunately, many Republicans disagree. Some Republican House and Senate members have indicated that they will vote for impeachment. Mitch McConnell strongly intimated that he wants the President impeached. State Republican officials did not succumb to Trump’s relentless public and private pressuring. I never thought I would write that Governor Kemp of Georgia acted heroically. Right now, we must build upon this burgeoning bipartisan response. Maybe this crisis provides us with the chance to make a few sorely needed legislative changes to improve our political economy, address some of our systemic social injustices, and better protect our environment.
The stakes could not be much higher, so we must think very clearly. We can’t let “hot emotions” like revenge and fierce partisanship cloud judgment. It is time to act like a lawyer or a Machiavellian politician, using cooler passions to cripple this political movement, which long predates Trump and is not going away soon. We must drive these cretins back into their holes, where they can grumble about their inability to impose their totalitarian, often religiously inspired visions on the rest of us.
SHORT TERM ENDS AND MEANS
Until Biden becomes President, Trump can start a nuclear war, plot against the Inauguration, start a conventional war with a country like Iran, attempt assassinations of foreign opponents, declare martial law, and/or foment another rebellion. Obviously, he should resign. But that will never happen. Once he leaves office, he plans to run for Dictator in 2024.
Given these horrifying stakes, it is easy to conclude that Pence and the Cabinet should use the Twenty-Fifth Amendment to remove this unstable idiot savant. But there is one crucial fact that we do not presently know: Have they already cut off Trump’s hands? Is Pence currently the real President of the United States? General Milley, the head of the Joint Chiefs of Staff, might still politely answer Trump’s calls, treating him like a rich mental patient, but should only be taking orders from Pence. Trump can fondle his nuclear “football,” but the launching code has been turned off.
If Trump has been stripped of all meaningful power, then Pence’s unwillingness to invoke the Twenty-Fifth Amendment is not an outrageous dereliction of duty. Forcing Trump out of office will enrage the dangerous part of his dwindling base, increasing the likelihood of imminent violence. But if Trump retains any power over the use of force, Pence and other leading Republicans failed, risking all our lives.
For the moment, let’s give Pence the benefit of the doubt. Pence’s admirable performance on January 6 reveals that many Evangelicals believe in democracy. Not all Evangelicals are members of Vanilla ISIS (Super kudos to the person who coined that phrase). We must create a new, broad movement of Constitutional Americans, consisting of all Americans who still believe in democracy.
A military coup is the final short-term protection against Trump monstrosities. Fortunately, our military leadership firmly stated that Biden will be President in a few days. If Trump tries to do something outrageous, the military will probably stop him, install Pence, and withdraw after Biden becomes President. The Proud Boys and a few rogue cops won’t stand a chance against the United States Marines.
Everything else takes too long. Congress should have immediately conducted a Zoom Impeachment and conviction, but that moment has passed. Legislatures are generally incapable of reacting quickly, a trait is a strength and a weakness.
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INTERMEDIATE TERM
We cannot let this conflict distract us from starting to address the underlying forces that caused it to arise. We must provide more hope and opportunities to average citizens, giving them reasons to be loyal. Aside from the incorrigible Fascists, there are millions of voters and nonvoters who think our system has become corrupt and unresponsive. Machiavelli wrote that a republic can be the strongest form of government, because it takes the best care of its citizens. He also warned that corruption was the greatest internal threat. Democrats need to act boldly, hoping some Republicans join them. Politics as Usual will guarantee more Unusual Politics in the future. Some Democrats would like to use this event as an excuse to do very little, thereby pleasing their wealthy patrons.
On the other hand, it is vital to act firmly against Trump, his enablers, and his most violent followers. This is not the time to simply “move on.” Strength is the only thing these Fascists admire and fear. In terms of legal sanctions, we must separate insurrection leaders and the most violent from their sympathizers. Economic and social sanctions are also appropriate. Private companies should never support leaders like Cruz and Hawley. Coup participants ought to be fired. Boycott companies that give money to men like Cruz or advertise on Fox Television unless it stops spewing its toxic nonsense. It may be years before one has Thanksgiving Dinner with crazed Uncle Ralphie.
Impeachment seems like the best tactic to immediately punish the President. Above all, it will be bipartisan. Several leading Congressional officials, including Liz Cheney, have already committed. McConnell probably will join Romney, Sasse, and others in the Senate. The incoming Senate may well convict him. Stripping Trump of his federal benefits and any opportunity to run for federal office will be provocative, but his fans already think he is a martyr. He remains a unique threat, because of his long history of celebrity, his Presidency, and his strange, telegenic charisma. There will be more Fascist aspirants to the Presidency, but few have his twisted skillset.
Of course, if it turns out that Trump and his minions actively planned the attempted coup and supported it by stripping Congress of police protection, then there are additional grounds for criminal charges and impeachment (Right now, Congress should also impeach him for failure to act once the coup began).
One advantage of this horrible tale is that we now know the names of many of our enemies (sadly, that is what they are). Anyone who continued to support Trump’s Big Lie after the coup is presumptively anti-democratic. Thus, the Gang of Six in the Senate and the Congressional rabble in the House have effectively become a dangerous, separate political party. McConnell and Cheney, two tough Republicans who are not afraid of a fight, have already begun the Republicans’ civil war.
While Democrats need Republican allies to combat Trumpism and to deal with pressing political problems, they also should use this opportunity to drive a wedge through the Party’s existing heart. Just as the chaos surrounding the 1968 Democratic Convention signified the beginning of the end of the New Deal Democratic coalition, it is time to fracture the Republican Party. Fortunately, McConnell, Pence, and Cheney are patriotic enough to finally put country above party. You can certainly argue they took too long, but better late than never.
The Republican Party must clean its stables. Supporting impeachment is just a start. At a minimum, Cruz and Hawley should be permanently kicked out of the Party. The other four Senators and the hundred-plus House members ought to be given a chance to apologize, admit they promoted a big lie, and vote for impeachment. Otherwise, they are also out.
Should Congress use the Fourteenth Amendment or the Expulsion Clause to purge their dangerous colleagues? Assuming there was no direct Congressional collaboration with the invaders, those moves would create a dangerous precedent, making it far easier for future Fascists to create a one party system of government. Better to leave the leaders’ fates to Republican colleagues, donors, and voters. Hawley and Cruz achieved their desire to be remembered in history, joining such luminaries as Benedict Arnold and Jefferson Davis.
Neither the Fourteenth Amendment nor Expulsion should be pursued unless we find that some Congressional members clearly and actively conspired with the invaders. Expulsion is slightly better than the Fourteenth Amendment, because it requires a two-thirds vote. Congress usually cannot expel members unless there is some bipartisan support. A bare majority cannot purge its opposition. But it is very likely that any expulsion vote based upon what was said in Congress would pretty much proceed on party lines, reaggravating partisanship at the very moment that we desperately need bipartisanship.
The Fourteenth Amendment seems applicable, because we witnessed something resembling an “insurrection,” the event that triggers the federal power to remove seditious federal office holders. Of course, The Civil War was a classic example. However, it is not clear that Congress can act unilaterally. The Supreme Court has already appropriately held that Congress violates separation of powers whenever it adjudicates individual cases (aside from impeachment). Arguably, Congress must pass appropriate legislation under Section Five of the Fourteenth Amendment to empower Article III Courts and juries to determine whether or not Congressional leaders like Cruz and Hawley committed “insurrection.” Even if the Supreme Court holds that Congress has the power to remove these scoundrels by a mere majority, a Congressional purge creates a dangerous precedent. Indeed, the Fourteenth Amendment is a worse path than Expulsion since it might only require a majority to reconstitute Congress.
Until the failed coup, I was inclined to conclude that Trump should not be sent to prison for the crimes we know he committed. Whatever else you want to say about Bill Barr, he did the country a great service last year when he did not indict Biden or Obama. “Lock her up” or “Lock him up” are disturbing, divisive chants. My wariness extended to state criminal charges. Imprisonment would be too divisive and set a terrible precedent. It would be hard to get a conviction, because at least one silent Trumpster would probably sit on any jury.
I am no longer so sure about such restraint. In addition, there may be other, even worse crimes that will be revealed after Trump leaves office. Perhaps this fraught decision should be made after our political life settles down a bit and his popularity hopefully drops quite a bit. For quite a long time, I am going to be as interested in anti-democracy polls as Republican-Democrat polls.
On the other hand, state and federal officials should aggressively pursue all possible civil and criminal fraud cases against Trump, his sleazy family, and grifter associates. If they are guilty, they should be fined to the maximum extent permitted by law. We also can wish success to all the private plaintiffs, ranging from Michael Cohen to violated women, who seek damages from this predator. Punitive damages seem particularly appropriate in all possible situations.
At a bare minimum, there needs to be a thorough, public review of his Presidency. Truth and Reconciliation for his followers, Truth and Non Reconciliation for Trump and his most dangerous enablers.
None of the Congressional authoritarians should be indicted unless they directly collaborated with the attackers. Representative Mikkie Sherrill claims to have seen Republican lawmakers giving “tours” to rioters one day before the attack. If they did conspire in advance to terrorize Congress and thus the People, those acts are not vague, political crimes. They should be locked up. The same applies if there was a conspiracy to not protect the Capitol.
While almost all the rabble who invaded the Capitol were guilty of numerous felonies and misdemeanors, we should focus on their leaders and the most egregious and flamboyant actors. The murderers of Officer Sicknick should face manslaughter charges, at a minimum.
LONGTERM GOALS
Two questions framed the first third of the Twenty-First Century: Would the human race learn to control its desires enough to preserve the planet for itself and other species? Would the United States gracefully accept the inevitable decline in its relative power?
The rise of Fascism in America, based in significant part upon denial of climate change, shows that we are off to a terrible start. Perhaps we can build a new political ideology out of the wreckage, a viewpoint that attracts an enduring supermajority. The Fascists and Left-Wing purists won’t be happy, but that would be a clear sign we are on the right path.
A few years ago, I was talking to a thoughtful checkout person at a Whole Foods. After the usual commiseration about the state of our society, he asked me what he should do next. I replied, “Read good books.” One of the main goals of this newsletter is to demonstrate the utility and pleasure of reading of good books.
[Editor’s note: This article was reprinted, with permission, from James Wilson’s newsletter: hopebutnoexpectations@