The New York Times’s David Sanger, a fine journalist, filed a piece just days ago that clearly stated what every serious commentator and scholar knows to be true: “Trump’s Attempts To Overturned The Election Are Unparalleled in U.S. History.”
The headline, which says everything, contains two propositions, each beyond doubt: first, that Trump is (present tense) attempting to overturn the election, and second, that this attempt has no precedent in U.S. history. Sanger, to his credit, takes the full measure of Trump’s assault on democracy in the article. But he also ends like so many other commentators these days choose to end: with an account of Rudy Giuliani’s buffoonish performances, the legal and factual inconsistencies and vulnerabilities of Trumpist claims, and sneering quotations from Trump-fired Christopher Krebs and John Bolton, which together leave the reader with the sense that the main way that the current situation is unprecedented is its absurdity.
But, all appearances to the contrary, this is not an Ionesco play. And the “rhinoceros” who currently occupies the White House is a very real man with very real political power.
Sanger is not alone. Dan Balz, another fine journalist, filed a piece in today’s Washington Post entitled “A vindictive Trump seeks to undermine Biden’s presidency.” Pointing out, like Sanger, how frail are Trump’s legal obstructions, Balz concludes that “Judging by his actions, Trump appears to have a motive other than overturning the election. He is determined to cripple Biden’s presidency even before it becomes official.”
Readers of this piece will draw conclusions similar to those implied by the Sanger piece: that Trump’s efforts are utterly illegal and therefore absurd, and that it is only a matter of time until Joe Biden is the President, because that’s the law.
That is the law.
But what is the law?
In asking this question, I mean to highlight the fact that all law is subject to interpretation and contestation, but also the fact that what makes the law “the law” is that it ultimately is sanctioned by the coercive force of the state. Ever since Max Weber, and Thomas Hobbes before him, this has been known. (I am not saying that the normativity of law rests on force alone. But I am saying that the facticity of the law’s normativity, its binding force, rests on some “authoritative allocation,” otherwise known as the state.)
And at this moment, the U.S. state is in the hands of the Trumpist Senate majority, and the Trump-dominated Supreme Court, and Trump himself, the chief executive and commander-in-chief of the United States and the tribune of scores of millions of angry and credulous Trumpist voters.
It would be unprecedented in U.S. history for a sitting president to deny his loss in an election and to refuse to cede power in a peaceful transition.
But is it necessary to point out that everything about Donald Trump’s political ascendancy, his victory in 2016, and his obstructions and assaults on the constitution while in office, is unprecedented?
I concede that, as an experienced political scientist, I cannot point to any analogous situation except perhaps—perhaps—the example of . . . Vladimir Putin in Russia, a country very different than our own. But even if there is no obvious analogy to our current situation in the U.S., this does not mean that Trump’s failure is a foregone conclusion.
So far, Trump has followed exactly the scenario outlined by the Atlantic’s Barton Gellman in his “The Election That Could Break America.” And in some ways, the pundit response these past two weeks brings to mind Martin Niemoller’s famous statement about “first they came for the socialists . . . Then they came for me . . . ," in this way: as each domino has fallen, pundits have taken for granted that even if this can happen, the next domino can never fall.
Okay, Trump will never make a formal concession. But he will realize . . .
Okay, he will insist on all of the votes being counted before acknowledging defeat, but then . . . .
Well, maybe he will litigate, endlessly, but he will see that the courts are against him, and he will never go beyond the courts, and try to get Republican state officials to interfere even against their own state laws . . .
Well, maybe he’ll try to get those officials to interfere, but if they refuse to do his bidding . . .
This is where we are at this moment. A few days ago Trump invited the chief Republicans in the Michigan statehouse to the White House, and they talked, and then the Michigan Republicans departed and made a joint statement. The conventional interpretation of this statement is pretty well summed up by NBC News: “After meeting with Trump Michigan lawmakers say they see nothing to overturn Biden’s win.”
But the joint statement does not say this at all, and does not even include the word “Biden.” Its central claim, buried after five other paragraphs, is this, as Tweeted by Michigan Senate Republican Majority Leader Mike Shirkey:
“We have not yet been made aware of any information that would change the outcome of the election in Michigan and as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election. Michigan’s certification process should be a deliberate process free from threats and intimidation. Allegations of fraudulent behavior should be taken seriously, thoroughly investigated, and if proven, prosecuted to the full extent of the law. And the candidates who win the most votes win elections and Michigan’s electoral votes. These are simple truths that should provide confidence in our elections.”
It is quite obvious to any serious reader that these words can be parsed in a number of different ways.
One way seems particularly consistent with a public letter that followed, only hours later, from the Republican National Committee and the Michigan Republican Party to Michigan’s Board of State Canvassers, asking for a two week delay in the state certification of the vote so that there can be an audit of the Wayne County vote. In other words, the votes in Detroit must be audited so that “the distrust and sense of procedural disenfranchisement felt” by “over 2.6 million Trump and Republican voters in the state” can be satisfied.
Like the state legislators, these Republican officials are not calling for a military coup. They are merely calling for further legal delays . . .
And so the obstruction continues to continue.
Where will it end?
The simple but very disturbing truth is that nobody knows where it will end.
There are still a few legal “bows” left in Trump’s authoritarian quiver. But at the end of the day, it may well be proven that the law stands against Trump.
At that point, the question we will all be asking is this: does Trump stand against the law? And if so, who wins?
After all that we have experienced over the past two years, anyone who simply responds “the law” is either Adam Schiff or a fool.
It is worth pointing out that while Barton Gellman’s most widely-discussed piece outlines possibilities for Trump legal-political obstruction, Gellman—who has not been proven wrong yet—followed up with a second piece that focuses on extra-legal forms of power grabbing entitled “How Trump Could Attempt a Coup.” As in the earlier piece, Gellman does not make predictions. He outlines possible and perhaps even plausible scenarios whereby Trump simply refuses to leave office because he can.
Whether any of these scenarios will come to pass is an open question.
My point here is a simple one, and it is maddening that it needs to be made: we are still in the midst of a very real political drama in which democracy hangs in the balance. Trump may be surrounded by buffoons and sycophants. He may have no legal leg to stand on. He may be a self-destructive and narcissistic sociopath. He may even be suffering from insomnia or impotence or sexual deprivation at the hands of a clever and perhaps cruel Melania. And all of those things may be secondary and even irrelevant.
How far will Donald Trump go to stay in power, and how far will enough of his supporters–in Congress, in the military and police, and in the street—go to keep him in power?
Pieties about “the soul of America” and “this can’t happen in a democracy” are worse than useless. They distract from the realities of power in play.
Democracy was on the ballot this election, and even after all of the votes have been fairly counted, the election is still being contested. And Trump is still in charge of the national government. And he is using his power to stay in power.
It is not a Law of Nature that ballots determine who rules. It remains to be seen whether the ballots will prevail. Democracy is still on the line. And we can take nothing for granted.