One Weird Constitutional Trick Won’t Save Democracy From Trump

Intelligencer; Photo: Getty Images

The greatest crisis in American politics is the right-wing challenge to democracy. I’ve been writing about this problem since Bush v. Gore, an illegitimate and undemocratic judicial intervention that cemented in place a mistaken election result. I was one of the first writers to identify Donald Trump’s authoritarian instincts as a central component of his worldview, and have written extensively about the threat posed not only by Trump’s contempt for democratic norms, but also the rising tide of illiberalism in his party.

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One sobering conclusion I’ve drawn from experts in the field is that preventing democratic erosion poses a complex challenge without clear answers. Steven Levitsky and Daniel Ziblatt found in How Democracies Die that the most significant factor in whether a democracy staves off authoritarian challenge is whether a would-be authoritarian’s natural political allies support him or defect to the opposition to save democracy. Sadly, most Republicans have chosen Trump over democracy.

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This has left committed Democrats with a series of dilemmas. One of those dilemmas is a court challenge to remove Trump from the ballot based on the 14th Amendment’s disqualification of insurrectionists. I’ve criticized this gambit on political grounds. (Independently — but given the influence they’ve had on my thought, perhaps not coincidentally — so have Levitsky and Ziblatt.)

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My argument is that the timing and political stakes of this case require incontestable certainty. If the Court were contemplating a Trump disqualification a year or two ago, when the Republicans had more time to organize their alternatives, it might have allowed a more forgiving threshold of truth. Throwing the runaway leader for the nomination off the ballot in 2024 is a momentous step that I would hesitate to endorse if there is a wisp of reasonable doubt to its basis.

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And I believe there is. While I think it’s reasonable and fair to describe Trump’s behavior as “insurrection” — as I‘ve noted, I’ve employed the term myself — I don’t believe his behavior matches the definition of the term so clearly that it cannot be rationally disputed. His entire effort to seize an unelected second term was authoritarian and likely criminal. January 6 was one last-gasp element of the scheme, designed to pressure Congress into overturning the election results. The scheme was closer to Bush v. Gore — a plot that also included using a riot to disrupt vote-counting — than secession.

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And while the violent mob storming the Capitol was certainly engaging in insurrection, Trump kept just enough distance from it — goading the crowd beforehand, refusing to call it off, but not directing its actions — to create a sliver of ambiguity as to whether he personally engaged in insurrection. In a column arguing that January 6 was undoubtedly an insurrection, Ilya Somin concedes, “There is an admittedly more difficult issue over the question of whether Trump ‘engaged in the insurrection that occurred.”

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David French, contesting my analysis, argues, “It’s true that Trump wasn’t declaring a breakaway republic, but he was attempting to seize and hold far more than the Capitol. He was trying to illegally retain control of the executive branch of the government.” I agree Trump was trying to undemocratically retain control of the executive branch of the government. But he was attempting to use legal means, or at least pseudo-legal ones, to subvert the election result.

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Adam Serwer complains that my argument “defines insurrection in such a way that it precludes someone trying to seize power from a position of authority absent an explicit declaration of secession.” But I am not precluding anything. I concede that insurrection is a perfectly reasonable description of Trump’s behavior on January 6.

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My difference with French and Serwer is that I am arguing (1) that the extraordinary nature and timing of this intervention creates a higher standard of certainty, and (2) this claim doesn’t meet that standard. Neither French nor Serwer chose to engage my logic about the need for a higher threshold of certainty. Instead, they expound their belief that Trump’s behavior on January 6 meets the definition of insurrection, a point on which I agree.

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A more common theme in the responses has been to insist that the law is the law and the Constitution is the Constitution, and if it says that insurrectionists can’t hold office, then Republicans have to accept it. “Republics are not maintained by cowardice,” insists French.

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The American Prospect’s Ryan Cooper makes an even more hyperbolic and much less nuanced version of this argument. “What I object to is this pathetic lack of resolve. We are facing an utterly corrupt would-be dictator, who already tried to overthrow the government once, who is plotting his regime consolidation and punishment of his enemies in broad daylight, and these clowns [me and Samuel Moyn, who has also criticized the Court ruling] are making his legal arguments for him,” he writes. “The amount of loser, kick-me energy on display here is nigh indescribable.”

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Cooper’s argument embodies a social-media-fueled sensibility that every fight is a contest of pure willpower. Victory is achieved by forming a tight partisan phalanx and refusing to yield on any point. Making the other side’s arguments for him is by definition the dumbest and weakest possible move.

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This is an emotionally satisfying model of how to stave off authoritarianism. I don’t believe, however, that it aligns with a correct understanding of the history of democratic backsliding. That history shows errors in all directions. One error is complacency or surrender. But another kind of error is to set off an escalatory cycle.

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When you evaluate a method of fighting authoritarianism, one question should be its effect on potential allies in the opposing camp. The question isn’t what Trump and his mouth breathers will say. It is what persuadable Republicans and centrists will say. And while Republican willpower to resist Trump has dwindled, it has not disappeared entirely. At key moments, figures like Mike Pence, Mitt Romney, Jeff Flake, Liz Cheney, and others have taken real risks to defy Trump. They have done so out of the belief that they are preserving the rules of the road of the American system.

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Upending those rules by throwing the Republican candidate off the ballot in the middle of the primaries would strike many of those Republicans as escalatory and anti-democratic. That is a risk that must be weighed when weighing a radical move, even one that is legally justifiable.

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Here is another point that I think deserves emphasis. As I’ve argued repeatedly, Trump may be the most overt symptom of the Republican Party’s authoritarian lurch, but he is not the entirety of it. Even if it were possible to end his career with one weird legal trick, the danger posed by the illiberal right will not go away. In the long run, throwing Trump off the ballot at this late stage will simply undercut the anti-authoritarian standing of the opposition to Trump.

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It is going to be difficult to convince the American public that throwing a popular candidate off the ballot after it’s too late for his party to course-correct is the definition of democracy. Even if it were to succeed, it would bring the kind of short-term victory we might eventually come to regret.

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