June of 2020 will almost certainly be remembered as a key turning point in American history. The Trump administration’s ongoing callous and bungling response to the coronavirus pandemic (including its deliberate worsening of the resulting economic catastrophe) is combining with a tidal change in public attitudes about matters of race and policing to shake the social and political foundations of the country and the world.
That is not to say that everything will be better from now on. And even if the current path leads to a better world, there will be setbacks and conflict almost every step of the way. Still, recent events make it nearly (but not completely) impossible to think that this will be merely a passing moment and that we will soon revert to the old, bad attitudes and dysfunctions that have torn us apart for so long.
Yesterday, in Part 1 of this two-part series of columns, I offered reasons to believe that these recent changes have significantly improved the likelihood that constitutional democracy will survive the Trump era. As I warned in that column, however, there is some very bad news to go along with the good.
Do Not Discount the Good News
Before adding to my long list of pessimistic Verdict columns, I do want to emphasize just how much better things look today, compared even to a month ago. These changes have been disorienting, but definitely in a good way.
I have spent the last four years (even before Donald Trump eked out victories in a few key states to ride the Electoral College into office) warning that Trump’s rise represents an existential threat to our republic. One of the constant themes in those columns, both here on Verdict and on Dorf on Law, has been that I have felt like a Cassandra, a lonely voice warning the world about a danger that nearly everyone else is unwilling to acknowledge.
My core point in Part 1, therefore, was to highlight the fact that the world has finally noticed just how dangerous Donald Trump is. This is especially important in that more people are finally beginning to acknowledge that Trump is going to try to stay in office even if he loses the November election. People also now understand that he is going to try to win the election through whatever means necessary, from voter suppression to openly soliciting the help of hostile foreign governments.
It is, of course, terrible news that the President of the United States is a dangerous would-be dictator. Given that Trump is such a menace, however, it is gratifying finally to see that even Joe Biden is now saying bluntly that we need to be prepared to stop Trump’s future illegal attempts to stay in office.
The other reason for optimism that I offered in Part 1 was that the U.S. election system’s decentralized nature, along with the oddities in the Constitution that could allow congressional Republicans to help Trump defy the election results, create a more significant barrier to Trump’s upcoming attempted coup than I had previously appreciated.
I am especially impressed by the analysis from Professor Lawrence Douglas of Amherst College, whose book Will He Go? Trump and the Looming Election Meltdown in 2020 helps us to understand that Trump’s ability to defy the will of the voters depends on just how decisive the election results will be.
That point—that a big win by Biden is better than a narrow win—might seem trivially obvious, but in fact it is based on a subtle understanding of the Constitution. As I have argued, Trump is going to scream “RIGGED!!” no matter what, and he might even try to argue that a blowout loss is proof of his having been cheated.
It does seem unfair that Democrats have to not merely win in order to win. To be honest, however, Democrats are used to being in that position, because gerrymandering made it necessary for them to win much more than fifty percent of the national vote in order to take back the House of Representatives in 2018.
In any event, Professor Douglas’s work shows why Trump cannot simply say, “I refuse to lose.” Trump and the Republicans have to be able to contest a number of highly unusual and unfavorable matters—regarding contested ballots, Republican-run states trying to certify Trump’s electors even after their citizens vote for Biden, and so on –and they must win every one of those skirmishes for Trump to be able to steal his way back into the Oval Office. The bigger Biden’s win, the less likely it is that the Republicans can run that table.
And I could have added to my recitation of good news in Part 1 that the major newspapers and networks are now beginning to anticipate Trump’s likely strategies, including a reprise of his efforts after the 2018 midterm elections to claim that late-counted absentee ballots were proof of evildoing by Democrats.
Thus, news organizations are already warning people to be prepared not only for the outcome not to be known on election night but for the possibility that some states will switch from Trump to Biden when all of the ballots are counted. Thus, The Washington Post offered this headline on June 22: “Barring a landslide, what’s probably not coming on Nov. 3? A result in the race for the White House.”
That is no small thing. For news organizations to provide citizens with the facts necessary to understand how to respond when Trump cries foul is an enormous public service. News sources do not need to editorialize (although they appropriately do that on their op-ed pages, of course), because what is most needed is for people to become aware that November 3 is unlikely to be anything like a normal election night.
This means that Trump and the Republicans will find it much more difficult to try to bully the Democrats into conceding gracefully, as Al Gore did in 2000. Biden’s ability to withstand a post-election maelstrom will depend in large part on the public’s preparedness to understand that Trump’s cries are merely a tale told by an idiot, full of sound and fury, signifying nothing.
Getting There Will Be Ugly, and Quite Possibly Violent
Even so, we need to understand that Trump is not only sowing the seeds of doubt about the election in order to get people to believe that he did not lose. He is also all but begging his most hardcore supporters to resort to violence when he is declared the loser (and every step of the way until then).
It is no coincidence that one of Trump’s angry tweets after losing two culture-war-based Supreme Court decisions used the phrase “shotgun blasts in the face” and darkly hinted that the Court might not protect unchecked gun ownership. He has been goading what he calls “Second Amendment people” since the 2016 campaign.
In all of my earlier writing about Trump’s threats to the constitutional system and his upcoming defiance of the election results, I have only occasionally and briefly mentioned the possibility of violence by Trump’s supporters. I did this in part because it is simply too depressing to think about, but also because there seemed to be nothing to say beyond observing that Trump encourages violence and that a significant subset of his supporters seem eager to use their stockpiles of weapons.
Now, however, we have much more direct evidence that Trump is willing to use violence and to incite it in others. Even if the military does not assist him again in the way that it did in violently clearing peaceful protesters out of Lafayette Square on June 1, and even if shadowy armed units do not suddenly arrive on the scene (as they did in Washington, D.C., with no insignia or identifiers), Trump’s supporters include some people who are all but begging to wreak violence on their political opponents.
A member of an armed militia group in New Mexico shot an unarmed protester on June 15, and other armed right-wing extremists have recently been intimidating and attempting to shut down protests in the aftermath of the murders of George Floyd, Breonna Taylor, and Rayshard Brooks (as well as countless others).
In other words, while the good news has been that the June 2020 upheavals have awoken the people and the press to the dangers that Trump poses to the nation, the resulting protests have also been transformative in one bad way.
Both sides of the nation’s divide have now been given an opportunity for a dress rehearsal for something potentially much bigger in the fall. It is a delightful surprise to see the overwhelming upswell of support for peaceful protests against Trump, systemic racism, inequality, and on and on—and especially to see that these were not one-off events but that they motivated people to protest day in and day out for weeks on end. This is a necessary condition for Trump’s upcoming attempted coup to be foiled.
Unfortunately, peaceful protest creates opportunities for bad actors to create havoc. There are those who opportunistically use protests as a cover to commit crimes, and there are those whose political purposes are served by making it appear that anti-Trump marches are actually led by violent extremists. Federal charges have been brought against right-wing militants who have used the past month’s protests to commit acts of violence, while the demonstrators themselves have chosen to demonstrate peacefully.
And Trump, of course, has led Republicans in claiming that “antifa” is somehow behind all of this.
The near-certainty, therefore, is that there will be people demonstrating in the streets after the election (and probably before as well). That might well help to prevent Trump from defying the voting results, but the path from here to there will unfortunately involve tense and potentially violent confrontations.
Because of Trump’s scorched-earth political tactics, there seem to be only two possibilities going forward. Either he bullies his way back into office and everyone else allows him to get away with it, or he tries to win by any means necessary but is stopped by Democrats, the courts, and other elements of civil society—all of whom draw strength from the support of the majority of the American people taking to the streets in peaceful support of the rule of law.
Until this month, it seemed sadly likely that the energy necessary to foil Trump would arrive too late, if at all. Now, I am much more optimistic about the likelihood that people will not roll over and allow it to happen. That is the good news.
The very bad news is that Trump and his most extreme supporters seem to be positively eager to turn this into an ugly, violent series of confrontations. We can hope that cooler heads will prevail, but there has been no evidence that enough (any?) cool heads remain inside the White House or the Republican Party to avert this tragedy. Redeeming our constitutional democracy will not be a walk in the park, to say the least.