For the past few years, here on Verdict and on the Dorf on Law blog, I have argued again and again that Donald Trump is never going to leave office. (Here is a recent example on Verdict.) Colleagues and other readers of my columns have, to a large degree, dismissed these warnings as alarmist and overwrought. Interesting thought experiments, perhaps, but just a bit too much.
Today’s column was originally scheduled to be written for publication last Thursday, May 28, but I was unable to write it at that time. Had I written it as planned, I would have again found myself struggling to find ways to shake people loose from their complacency and wishful thinking, exploring once again why people insist on believing that our system of government is too strong to fall to Trump’s dictatorial ambitions.
Less than a week later, the facts on the ground have changed so dramatically that it is now easy to find opinion leaders who are decrying Trump’s latest authoritarian measures, including his use of security personnel and police to disburse peaceful protesters outside of the White House on June 1 and his threats to deploy the U.S. military on the streets of this country.
The facts are now clearer than ever that we are on the precipice of losing America’s long-cherished protections of the rule of law and constitutional democracy. The questions are why it took so long for people to accept that this is a real threat, and what—if anything—can be done about it now.
The Growing Realization That the Trump Threat to Constitutional Democracy Is Real
Even before the most recent shocking and terrifying developments regarding the anti-racism protests, things were starting to move in the direction of people admitting what has long been before their eyes regarding Trump’s lawless intentions. On the morning of the day that saw Trump stage his photo shoot at a church near the White House, for example, New York Times columnist Paul Krugman’s June 1 column ended with these words:
But the months ahead are still likely to be very, very ugly. After all, if Trump is encouraging violence and talking about military solutions to overwhelmingly peaceful protests, what will he and his supporters do if he looks likely to lose November’s election?
Three days earlier, Krugman’s Times colleague Roger Cohen wrote in similar terms:
Perhaps if Biden wins, the president will skulk out of the White House like the little boy he is who never grew into a man. And the nightmare will be over. I don’t think so. The chances are growing that Trump will not concede in the event of a Biden victory, that he may encourage violence and use the fear and division spread by the virus to extend autocratic power. . . . To . . . save the Republic, requires the certain knowledge that Trump will stop at nothing between now and Nov. 3.
Putting the point even more clearly, Professor Brian Klaas asked this question in a Washington Post op-ed three weeks ago:
We don’t know whether Trump will be reelected. But, as we head toward November, you have to ask yourself: If he loses, would it be more surprising if Trump graciously accepts defeat and congratulates his opponent or if he claimed to be the victim of a rigged election and a “deep state” plot? The answer seems clear.
In being so blunt about what is on the horizon, Klaas was (on May 14) well ahead of the curve. Even on the 25th of May, The Post’s liberal columnist Paul Waldman’s column focused on Trump’s fomenting of rage about imaginary election rigging and offered this:
Even if . . . Biden becomes president next January, many Republicans will almost certainly be completely convinced that the election was stolen. Will they say, “Boy, that stinks. We’ll get ’em next time”? Or will they become even more radicalized and reject the legitimacy of not just Biden’s administration but the entire democratic system? What happens then? That’s all something of a worst-case scenario.
But of course, that is not the worst-case scenario. Trump’s refusal to leave—supported by the vast of majority of Republicans (including the senators and others who will have just lost their own elections)—would be far worse. Yet a host on one of MSNBC’s morning programs that same week directly asked his panelists what the most extreme thing was that they could imagine Trump doing, and the worst they could come up with was starting a war to distract public opinion.
To be clear, starting a war—getting people killed—for political advantage is obviously terrible. It is also, quite sadly, not especially uncommon. But when, say, former British Prime Minister Margaret Thatcher gleefully rushed into the Falklands War, no one had any reason to think that she would refuse to leave office lawfully when that time came. She was not a dictator in waiting, no matter what else one might say about her.
The peaceful transition of power back and forth between rival factions is the essence of democracy properly understood. If elections do not have consequences, then they are not truly elections.
Why the Delay in Talking About This?
Readers will note that the examples that I could find of widely read commentators speaking plainly about Trump and the Republicans’ threat to our system of government are very, very recent. Yet I started writing about this even before Trump rode Russian interference and James Comey’s irresponsible grandstanding into an improbable Electoral College victory in 2016.
I say this not to pat myself on the back, because if ever the disclaimer “I hope that I’m wrong about this, but . . .” was essential, this is that situation. I honestly wanted to be convinced that Trump was not going to succeed in installing himself as president-for-life, but beyond platitudes about “our strong institutions,” no one could actually offer reasons to believe that things would not take the ugly turn that they have taken.
Almost exactly four years ago, I ended a Verdict column titled “Is This the Beginning of the End of Constitutional Democracy in the U.S.?” with these grim words:
Fortunately, all of the trends so far (notwithstanding isolated polls) indicate that Trump will never take the oath of office for the presidency. In that way, we will (knock wood!) never be able to see just how far Trump and his Republican enablers would go to undermine our constitutional democracy.
Two weeks later, in a Dorf on Law column, I offered this:
After all, one of the most serious concerns about a Trump presidency is that no one really knows what would happen if Trump simply decided to stop playing by the rules. What happens if [Senate Majority Leader Mitch] McConnell leads a group of congressional leaders to the White House to tell Trump that he cannot do something, but Trump simply refuses to meet with them. (Or maybe he would have them arrested?)
In some ways, of course, that paragraph is touchingly naïve. I was, after all, daring to imagine that the Republicans in Congress might actually try to stop Trump from doing something bad, a hope that their sham impeachment trial in McConnell’s Senate definitively killed. But even when one could still hope that there might be some bipartisan congressional opposition to Trump, it was nonetheless possible to imagine that he is so power-hungry that he would simply abuse his powers—especially law enforcement and military powers—to crown himself king.
Why were so few others willing to admit that this could happen? After all, notwithstanding any expertise that I can claim or academic training that I have received, nothing that I wrote was especially complicated or based on rarefied knowledge or information. Was it merely wishful thinking on nearly everyone else’s part?
One answer is that people, especially writers for major newspapers and other media outlets, are all too likely to fall into groupthink. Everyone knows what the limits of “thinkable thought” are, and saying something that is seen to be outrageous is to risk being disinvited from polite society. Being edgy or thought-provoking is good, but being over the line or provocative is bad.
And it is not just the pundit class that is expected to color inside the lines. In the fall of 2016, candidate Hillary Clinton delivered a major speech in which she brought attention to “the alt-right,” a term that at that time needed to be put in quotation marks because it was essentially unknown to mainstream audiences, even as it was doing serious work to get Trump elected. Clinton, in clear and sober tones, warned us of this growing threat.
The reaction within the political and media echo chambers was immediate, and it essentially amounted to near-universal condemnation of Clinton for fearmongering and for imagining things.
In addition to that, however, a second criticism (beyond “This is too extreme to take seriously”) arose. Clinton was accused of needlessly inflating a weak force by bringing attention to it. If the alt-right is not already known by everyone as a threat (or at all), the next President of the United States is doing no one any favors by giving these white nationalists political oxygen. Or so the reasoning went.
To the extent that people have responded to warnings about Trump’s authoritarianism (other than facile invocations of “checks and balances,” as if those things are self-enforcing), the most I have heard is that it is a bad idea to bring fringe notions into the mainstream. “Don’t give them any ideas!”
But of course, there is no chance at all that they did not already have these ideas. After all, even before Election Day in 2016, Trump refused to say that he would accept the results of the election, and he spent a great deal of time contesting the results even after he was declared the winner. As limited as his mental capacity is, he needs no assistance in thinking of ways to grab things that he wants, whether it is vaginas or political power, legal limitations be damned.
But What Can We Do?
Perhaps the best reason not to talk about any of this, however, is not that it would give Trump and his enablers new ideas but that there is nothing that can be done to stop it.
After all, imagine that someone—a journalist, for example—were to take seriously the idea that Trump would refuse to accept losing the election. Imagine also that the journalist thought to herself, “Well, if the system is going to survive, this would require Republicans as well as Democrats to stand together against a naked power play by Trump.”
That journalist could then try to ask key Republicans a simple question: “Will you promise in advance that if Donald Trump refuses to accept the election results, you will do all that you can to stop him?” What would happen?
Some Republicans would surely dither, talking about how of course any candidate has the right to contest possibly fraudulent elections. That is a dodge, of course, because the fundamental problem is that we could come out the other end of a contested election with clear legal decisions saying that Trump had lost, yet he still could—and apparently will, based on everything that we have seen—refuse to leave office.
If pushed on that point, it is all too easy to imagine a Republican senator (or other officeholder or leader) saying: “I refuse to engage with your wild hypotheticals slandering our president. This is America, and it is not worth my time to respond to fantasy scenarios spun by you liberal reporters out to smear Trump. Fake news!” Indeed, I would suspect that most Republicans would go straight to that response, without even bothering to dither in the first place.
One might hope, of course, that were we ever to reach the point where Trump lost the election and that no reasonable doubt remained about the results, then Republicans would step up and do their duty under the law when Trump refused to leave. Nothing that they have done in the past four years, however, offers even the thinnest hope that they would do so. Indeed, they would be much more likely to embrace conspiracy theories that would allow them to say that Trump simply did not lose.
That, indeed, is the point of Trump’s recent Twitter rampage about the supposed fraud that would attend widespread mail-in voting. It is not at all rare for Trump to make such claims without facts, so these claims are dangerous and inflammatory in ways that are all too consistent with his approach to everything that he does.
What is rare, however, is for Trump to do something that is truly not in his political self-interest, as least as he perceives it. Yes, refusing to provide aid to state and local governments is irresponsible and will hurt millions of voters, but Trump appears to think that he can claim to have done enough for the economy and then deflect blame elsewhere. But given that mail-in voting has been shown not to favor either Democrats or Republicans, and given that so many Trump supporters are elderly and would welcome mail-in voting (especially during a pandemic), for Trump to expend effort attacking mail-in voting would seem to be a waste of his time.
The broader strategy, however, is for Trump to undermine confidence in the political system, even when doing so does not have any other immediate advantage. The political play here is that Trump will be able to rally Republicans to say, “Yes, the election was rigged. We all know it!”
I should conclude by saying that recent events make it possible to imagine that my hypothesis will never be tested. Rather than running, losing, and then declaring victory, Trump might use the current protests as a reason to accelerate his turn to autocracy, at which point he will try to either delay (permanently) the 2020 election or run a Soviet-style sham election just for show.
At this point, literally nothing is off the table, even beyond what a pessimist like me once thought possible. With a president who is calling for police-state like measures to quell public protests over systemic violence against people of color in this country, anything is now frighteningly possible.