The Stakes on January 6

Posted in: Government

On Wednesday, January 6, Congress will meet in joint session to confirm Joe Biden’s election as President, effective upon his inauguration two weeks later. In most presidential election years, the process is a formality. Until last week, it appeared that would be true this year as well. Although Alabama Republican Congressman Mo Brooks had announced his intention to challenge the validity of various slates of Biden electors based on groundless and racist conspiracy theories advanced by President Trump, the statute that has governed such proceedings since the 1880s requires that to trigger deliberation, any objection must be advanced by both a representative and a senator. Last week, Missouri Republican Senator Josh Hawley announced that he would join in objecting to at least one slate of Biden electors, thus ensuring a day of dramatic posturing.

The drama will not alter the outcome. To invalidate a duly chosen electoral slate, both the House and the Senate must concur. Although it appears that as many as 140 House Republicans would award the presidency to Trump despite his decisive loss of both the popular vote and the Electoral College, to state the obvious, that is not a majority of the 435-member chamber. Meanwhile, Senator Ted Cruz and the other craven opportunists and Trump loyalists who plan to join Hawley will be outnumbered by Democrats plus those Republican senators—led by the likes of Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse, and Pat Toomey—who believe in democracy and reality.

It might, therefore, appear that nothing is at stake in Wednesday’s charade. However, as I shall explain, the stakes are high.

The 2024 Republican Presidential Nomination

What will Donald Trump do after he either voluntarily exits or is forcibly removed from the White House on January 20? He might be indicted, tried, and convicted for financial crimes in New York. As an obese COVID-19 survivor in his mid-70s, Trump could see his health badly deteriorate. If Trump survives and remains at liberty, he could return to his pre-presidential career of hucksterism and television acting, perhaps finding new ways to monetize his notoriety on Newsmax, OANN, or some other media platform. Yet there are strong indications that whatever else Trump does, he will also seek the Republican nomination for President in 2024. Although no incumbent President who lost his re-election bid has successfully run for a second term since Grover Cleveland did it in 1892, Trump would be the presumptive frontrunner for his party’s nomination.

Ambitious Republicans like Hawley and Cruz positioning themselves for 2024 are thus likely hoping that Trump is imprisoned, dies, sees his star fade, or opts out of another run, so that they may inherit his base of supporters. Hawley and Cruz are hardly the only Republican senators we can expect to throw a hat in the ring. Other potential contenders include Tom Cotton, Rand Paul, and Marco Rubio. Cruz, Paul, and Rubio all ran in 2016, when they clashed with Trump, who suggested that Cruz’s father played a role in the assassination of President Kennedy and insulted the appearance of Cruz’s wife. Trump likewise denigrated Paul’s appearance. He repeatedly referred to Rubio as “Little Marco.” This history of disdain from the dear leader could make any of these ambitious Senators eager to show his fealty to Trump and thus win over his base. It is thus unsurprising that of the Republican senators I have mentioned as potential 2024 candidates, all but Rubio voted against the otherwise broadly supported override of Trump’s veto of the Defense Authorization Act last week. (Another former 2016 presidential candidate and Trump-critic-turned-sycophant, South Carolina Senator Lindsey Graham, did not vote on the override measure.)

Of course, there could be other contenders for the Republican 2024 nomination, especially if Trump cannot or does not run. Former South Carolina Governor Nikki Haley managed to serve Trump as Ambassador to the United Nations without completely destroying her reputation, and thus must be taken seriously. Likewise, other GOP governors may be well positioned to launch campaigns in which they pose as Washington outsiders. That said, the two most important men to watch on Wednesday will likely be Vice President Mike Pence and Senate Majority Leader Mitch McConnell.

What Will Pence Do?

In the modern era, the Vice Presidency has been the most reliable launching pad for a presidential run. Nine of the last thirteen Vice Presidents went on to receive their party’s nomination for the presidency, and the exceptions were idiosyncratic. (Spiro Agnew had resigned in disgrace; Nelson Rockefeller died before it would have been his “turn”; Dan Quayle was widely perceived as lacking sufficient gravitas; and Dick Cheney was in ill health and very unpopular at the end of his term.) Given this record, if Trump himself does not run, Pence would be the early frontrunner. What kind of candidate would he be?

For the last four and a half years, Pence has been a loyal lieutenant. Playing a role more often played by political spouses, Pence has “stood by” Trump, implicitly and often explicitly vouching for despicable policies and conduct. For those Republicans who did not fully subscribe to Trump’s cult of personality, Pence’s steadfast presence has provided some reassurance. No doubt Pence had hoped that when it was his turn in 2024, he could appeal both to religious conservatives who see him as one of their own and to Trump’s most rabid supporters who would reward him for his loyalty.

Then came Trump’s post-election assault on democracy, during which Pence has sometimes appeared to straddle the gulf between offering vague support for Trump’s sore-loserism by saying he would fight to count “every legal vote” and to have “every illegal vote” thrown out, while stopping short of endorsing the full madness of Trump and his supporters. To Pence’s credit, last week he apparently did not object when the Department of Justice responded to a federal lawsuit against him by Texas Congressman Louie Gohmert and a slate of make-believe electors from Arizona by filing a sensible brief arguing that the plaintiffs lacked standing to sue him.

That modest step was too much for Trump-loving attorney Lin Wood, who took to Twitter seemingly to call for Pence’s arrest for treason and execution by firing squad. Although Trump’s campaign attorney replied that she does not support Wood’s statements, Trump himself was miffed at the Justice Department for following the law and had reportedly been fuming at Pence for failing to fully join his campaign to overturn the election. Over the weekend, Pence appeared to succumb to the pressure. After Cruz announced his intention to lead ten additional Republican senators in support of Hawley’s seditious scheme, a Pence mouthpiece said the Vice President welcomes the Trump bootlickers’ efforts.

One must hope that the welcome does not include a plan by Pence to assume for himself the power that Gohmert’s deranged lawsuit asserted he possesses. In a decision that the U.S. Court of Appeals swiftly affirmed, Federal District Judge Jeremy Kernodle—a Trump appointee—rightly ruled that Gohmert and the Arizona fake electors lacked standing, but the underlying substantive claim is also outrageous. The Twelfth Amendment says that “The President of the Senate,” i.e., the Vice President, “shall, in the presence of the Senate and House of Representatives, open all the certificates” from the Electoral College “and the votes shall then be counted.” Gohmert and the Arizona plaintiffs argued that notwithstanding a statute that Congress has followed since the nineteenth century, the Constitution thereby assigns to the Vice President not only the ministerial task of opening the certificates but also the substantive power to rule on the validity of each slate—even though, as is true this year, the sitting Vice President will often be a candidate. Indeed, the sitting Vice President has been a candidate either for re-election or for the Presidency in all but four of the last sixteen presidential elections.

Should Pence attempt to assert a constitutional power to be the judge in his own case, presumably a majority of senators will overrule him, but the very fact that the assertion is even a possibility worth discussing shows how far down the road to destruction of the American republic Trump has led a substantial number of craven elected Republicans.

What’s Bad for Mitch McConnell?

Meanwhile, by amplifying Trump’s baseless conspiracy theories, Cruz, Hawley, and their co-conspirators not only demonstrate fealty to their narcissistic master; they also undercut McConnell, who had been pleading with his caucus not to put all Senate Republicans to a choice between supporting Trump—and thereby staving off a potential primary challenge from a Trumpier opponent—and supporting reality—and thereby maintaining the overall viability of the Republican Party with the general electorate.

How should Democrats feel about Wednesday’s coming display? Columnist Ruth Marcus wrote last week: “Any vote that [McConnell] fervently wishes to avoid is one I’m for.” Marcus wants Republicans on record as voting against democracy, so that they can be held accountable by the electorate and history. I sympathize with the sentiment, but the risk is too great.

In the short run, the best outcome for which we can hope would be a mere clownish delay, which may well be all that Senators Hawley, Cruz, and their likeminded demagogues in the House have in mind. For example, Hawley has argued that in other recent elections, Democrats have used the occasion of congressional certification to register complaints about the electoral process, thus seeking to provide assurances that his behavior is normal. The comparison is inapt in important ways. The losing Democratic nominee was not seeking to reverse the election result in those years. More to the immediate danger, neither did those losing Democratic candidates encourage a violent white supremacist mob to come to Washington for the occasion, as Trump has.

If enough of Trump’s brownshirts heed his call and light the capital ablaze, Senator Sasse will be proven literally correct that Hawley and his ilk are “playing with fire.”

Even if there is no cost in blood or property damage, we should feel no schadenfreude in watching Republicans caught in an internecine struggle. Over the last four-plus decades, the Republican Party has been a sometimes uneasy coalition between economic libertarian conservatives and religious social conservatives. We Democrats can and do strongly disagree with both elements of the Republican Party, but the current battle for the soul of the GOP does not pit economic and social conservatives against one another. It pits both against authoritarianism as embodied by Trump.

Should Trump and his collaborators succeed in ending the American experiment in democracy—perhaps by setting a precedent that will be used to override the popular will in the next presidential election—Mitch McConnell will have been complicit, given how gleefully he exploited Trump’s ascent to promote his own priorities of tax cuts for the rich and packing the federal courts with conservatives. For now, however, McConnell appears to stand on the less anti-democratic side of the Republican divide. For that he deserves, if not exactly our support or even pity, at least something other than the kind of loathing earned by Trump and the ambitious but amoral little men who do his bidding.

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