“Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help it.”—Judge Learned Hand
The evidence is overwhelming that Donald Trump has been a menace to truth, law, and democracy. Far less attention, however, has been paid to how the structures of “the world’s oldest democracy” can still derail an authoritarian assault that in the blink of history has gone from inconceivable to implausible to “in plain sight.”
A century ago in Germany and Italy, comfortable elites were lulled into thinking that public institutions would maintain democratic stability and that “it couldn’t happen here.” And then it happened. The reason that dictators in the 1930s succeeded, concludes political analyst Steve Schmidt, “was not because fascism was strong but because democracy was weak.”
In post-insurrection America today, one party has quit governing and sounds like a 24/7 talk radio station. A new book by the leading scholar on civil wars—How Civil Wars Start, by Barbara F. Walter—warns that the growing normalization of violent language, threats, and acts can become self-fulfilling. Timothy Snyder, author of the best-selling On Tyranny, thinks it “pathetically naive” to assume that the GOP won’t try to overturn the results if it loses the 2024 presidential election.
Can we erect stronger levees to hold back the red tide of creeping fascism… before Trump, Manchin, and GOP governors entrench minority rule? Here’s a scorecard of 10 key variables that might answer that question, labeled either with a + (plausible) or a—(uphill):
1. January 6 Committee (+). Holding Trump criminally accountable for a life of lawlessness has proven difficult. Special counsel Robert Mueller inexplicably refused to recommend obstruction charges that he himself documented, and two open-and-shut impeachments didn’t lead to removal by the Senate because of Republican solidarity.
Will the third time be the charm?
The bipartisan January 6 House Select Committee—with subpoena power, relentless members, and no third party able to block it—appears poised to move the needle in three ways: publish a timeline of White House involvement before, during, and after January 6 (“Trump sent us!”); conduct public hearings that educate millions of voters as to why violent extremism isn’t very patriotic; and make criminal referrals to the Department of Justice, perhaps including Trump, that will increase pressure on a so-far diffident Attorney General Merrick Garland.
This panel has the potential to both shape the narrative for the fall election and conclusively establish the facts of Trump’s treachery—as the Senate Watergate Committee did Nixon’s. The Select Committee could also end up using the House’s long-ignored “inherent power” to significantly fine those who refuse their subpoenas.
2. Criminal prosecutions (+). Donald Trump is now reliably reported to be worried about his criminal exposure. He should be.
New York and Georgia have impaneled grand juries looking into, respectively, allegations of financial fraud and the corrupt interference of official proceedings. It’s hard to find a non-corrupt interpretation of Trump’s (a) telling Georgia Secretary of State Raffensperger that “all I want is to find 11,780, which is one more than we have” and (b) pressuring the Department of Justice to discover nonexistent voter fraud to further his Big Lie about a “stolen election.
Merrick Garland has reportedly felt stymied by the appearance of being a Banana Republic that routinely prosecutes former presidents. Yet other Western democracies have convicted ex-heads of state without destabilizing themselves (France, Israel)—and inaction risks signaling that future presidents may simply refuse to peacefully transfer power.
Garland finally did announce, on January 5, 2022, that he “remains committed to holding all 1/6 perpetrators, at any level, accountable.” Was this the time-buying observation of a Mueller redux—or a thoughtful prosecutor building his case?
3. Media (+). Since 2016, most among the mainstream media have reverted to their traditional stance of being “neutral referees.” However “when authoritarians take over one party but not the other,” concludes author Brian Klass, “pursuing ‘balance’ is a gift to anti-democratic forces.” If only by default, such journalists became mere conveyor belts of Republican disinformation.
A shift from “balance” to “facts” needn’t entail partisan bias. But it should mean more anti-authoritarian journalism, since a working democracy is the sine qua non of a free press. A bias in favor of democracy might require newspapers, wire services, TV and radio networks, and social media to establish new guidelines. “It would say that we are pro-democracy, pro-science, pro-voting,” explains media critic Jay Rosen. And if this “draws a backlash from some, that’s a fight we may need to have.”
4. Biden (+). In recent polls, though 64 percent of respondents thought that “Democracy was at risk of failing,” worries over it aren’t among the top 20 issues voters express concern about, probably because they rarely react to perceived “procedural” issues. But since Biden believes that defending democracy must be our top priority, it’s initially up to the administration and all Democratic party leaders to close this delta by showing voters how an emergent autocracy will concretely hurt their families and freedoms.
What the leadership of Lincoln, FDR, and JFK had in common was rhetoric that rallied an anxious public. It’s been an open question whether Biden could find the right register and words, as Edward R. Murrow said of Churchill, to “send the English language into battle.”
Biden finally did just that in two fiery speeches this past week when he bluntly called out his predecessor for “a web…of un-American lies” and denounced GOP senators for siding with George Wallace over John Lewis. Fair or not, he now owns this fight. Will the president follow up this no-more-nice-guy approach in his upcoming State of the Union address with some version of “The state of our economy is strong. The state of our democracy is not”—and then establishing a template of popular solutions?
Can a usually uncharismatic POTUS deliver a line like “Nobody overthrows America” and make it as viral as “Government is the problem”? Yes, he can.
5. Senate (?). Some 19 red states, so far, have enacted laws that (a) suppress or ignore “urban” votes due to nonexistent “voter fraud” and (b) permit legislatures to replace elected electors with partisan slates.
Those measures could deny any nominee 270 electoral votes by the required time for certification—throwing the presidential decision to a House with a majority of GOP state delegations. The only ways to stop such maneuvers are either enacting pending Senate election reforms—the Freedom to Vote Act, the John Lewis Voting Rights Act, as well as a new Electoral Vote Count Act—or the Supreme Court’s refusing to uphold such obviously “arbitrary and capricious” ploys.
The Senate likely does have the votes to enact such bills—but only if it carves out a voting rights exception to the 60-vote filibuster, as it does for confirmation of federal judges and just did for the debt ceiling. Can Democrats Biden, Schumer, Manchin and Sinema get to “yes,” since the latter two claim to support the substantive legislation… and since they presumably prefer that history aligns them with Martin Luther King Jr., not Bull Connor? As of now, the answer is: absolutely maybe.
6. Lower federal courts (+). Here, so far, the rule of law has largely prevailed, as judges in 60 of 60 cases (including some Trump appointees) rejected the argument that the election was stolen. And appeals courts have ordered the former president to hand over to Congress both his tax returns and archived records related to January 6.
Plaintiffs are also making progress in civil cases seeking enormous damages—e.g., from Fox for slandering voting machine companies, the Proud Boys for the 2019 Charlottesville march, and Trump for defamation over an alleged rape. But what happens if any of these cases or the election result itself gets to the United States Supreme Court?
7. Supreme Court (-). It’s getting more difficult for Federalist Society–approved nominees to pretend they’re just calling “balls and strikes” when they keep reaching for technical grounds to justify ideological preferences—i.e., what court-watcher Linda Greenhouse calls judicial “gaslighting.”
For example, in his 2013 Shelby County decision, Chief Justice Roberts ended the preclearance provision of the Voting Rights Act—enacted by a 98-0 vote in the Senate—by blithely editorializing that the South had changed. That decision triggered a wave of voter suppression laws in—shocker!—former Confederate states.
Also: the day after the greatest number of new US Covid cases ever (1 million), several justices in a vaccine mandates case began spouting personal epidemiological opinions as if they were MDs, not “juris doctors.” Or when Justice Amy Coney Barrett suggested that abortion wasn’t a fundamental right, since women can always put their babies up for adoption in her imagined Republic of Gilead.
The justices are understandably touchy about the “stench” such twisted arguments emit, to quote Sonia Sotomayor in the Texas abortion case. In late 2021 Justices Thomas, Kavanaugh, and Barrett all protested that, in the words of the latter, they were certainly not “partisan hacks.”
Only three things can stop this court from reversing decades of progressive precedents and “legalizing fascism,” in the withering phrase of The Guardian. Unexpected vacancies might change the current 6-3 ultraconservative lineup. Congress could expand the court. Or at some point the majority could get rattled by the declining public trust in SCOTUS, already down from 58 percent to 40 percent over the past two years—and no doubt due to continue as more jurists and commentators tell the truth out loud, as Sotomayor did.
8. GOP (-). Could anything make the GOP flinch in its race to the bottom? Perhaps the prosecution of Trump’s cabal at Watergate levels, a few national election losses in a row—or some awful, galvanizing event, e.g., “Black Shirts” street violence by local militias, or continuing violent rhetoric encouraging the assassination of a public person. The real possibility of such calamities make the collapse of Trumpism at least as plausible as its triumph.
Currently Representatives Cheney and Kinzinger are isolated within their party. But what if, say, 10 of their colleagues—privately miserable their political careers are tethered to an erratic sociopath—trigger a critical mass of Trump refuseniks? While there doesn’t appear to be many John McCains left in the party of Trump, the theoretical possibility exists that a Murkowski, Romney, Portman, Cassidy, or Rounds might go rogue. But don’t put all your chips here .
9. The Fringe (-). It’s a cliché among clergy that the pews write the sermons. Similarly, there’s currently a base of Republican voters—the far right and the further right—urging party leaders to assault Democrats and democracy.
This base includes millions of apparently capable adults raising families and holding jobs. Yet, because of racial and/or economic anxieties, a loss of perceived status, or an acute predisposition for group loyalty (think Philadelphia Eagles fans), they have become credulous targets for the lies from Team Trump, Fox, and right-wing radio. Changing their minds then becomes akin to changing their identities. This embrace of collective denialism has, for the immediate future, made them indignantly immune to history, logic, and science. Indeed, twice as many Republicans believe in ghosts and demons (54 percent) as believe that Biden legitimately won the presidency (27 percent).
Since this evidence-free fringe chooses news outlets that only reinforce their “celebration of ignorance”—in Carl Sagan’s phrase—it may require a generational effort to fully explain how they fell for liars posing as patriots.
Trump, however, understood well his cohort of cultists, famously saying in 2016, “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.” Will that hold if he’s convicted of serious federal crimes? Only one way to find out…
10. Voting (?). That is—us.
Upcoming elections will likely turn on such unpredictable variables as Biden’s performance, the economy, Covid, and public reaction to any future attempted coup. Much also depends on whether Democratic leaders can mobilize the party’s larger national base (plus a chunk of 120 million nonvoters)—as Stacey Abrams did in Georgia in 2020—by the dual strategy of running against anti-American zealots and for family-friendly policies.
Betting currently favors the GOP—largely because of the usual swing to the opposition party in the midterm elections. In today’s very polarized electorate, however, “usual” may not suffice to turn the country over to the most reactionary party in American history. Will millions of swing voters really say in the autumn of 2022 and ’24, “Yeah, what we need is another term of Trump and his acolytes”?
Our 24-year experiment in self-governance is obviously at risk when so many in one party wink at violence, manipulate voting, and so earnestly reject reality. It’s hard to stay afloat if one person insists on punching a hole in a two-person lifeboat.
Fifty-plus years ago, an engaged public marched and won progress on civil rights, environmental rights, women’s freedom, and consumer regulation. Will their children now peacefully hit the streets to save all that? As Representative Jamie Raskin told The New Yorker, “part of the solution to despondency is to engage in politics and to fight back.”
Only progressive patriots in the streets, in the courts, and on Election Day can sway the handful of leaders who will decide whether a country born in a rebellion against monarchy becomes one.
Hence an 11th variable, perhaps the most significant: Which side possesses the most “passionate intensity” to vote—Republicans who hate Democrats more than despotism, or Democrats who refuse to allow a battalion of lies to conquer an army of truth?
In 2022 and 2024, it seems we’re on the ballot too.