America is Already in a Constitutional Crisis, Conservative Scholar Warns

Robert Kagan, a co-founder of the Project for the New American Century and a senior fellow at the Brookings Institute, who serves on the Council on Foreign Relations, penned a column for the Washington Post last week which sounded the alarm about the next election:

The United States is heading into its greatest political and constitutional crisis since the Civil War, with a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves. The warning signs may be obscured by the distractions of politics, the pandemic, the economy and global crises, and by wishful thinking and denial. But about these things there should be no doubt: 

Robert Kagan

First, Donald Trump will be the Republican candidate for president in 2024. The hope and expectation that he would fade in visibility and influence have been delusional. He enjoys mammoth leads in the polls; he is building a massive campaign war chest; and at this moment the Democratic ticket looks vulnerable. Barring health problems, he is running. 

Second, Trump and his Republican allies are actively preparing to ensure his victory by whatever means necessary. Trump’s charges of fraud in the 2020 election are now primarily aimed at establishing the predicate to challenge future election results that do not go his way. Some Republican candidates have already begun preparing to declare fraud in 2022, just as Larry Elder tried meekly to do in the California recall contest. 

Meanwhile, the amateurish “stop the steal” efforts of 2020 have given way to an organized nationwide campaign to ensure that Trump and his supporters will have the control over state and local election officials that they lacked in 2020. Those recalcitrant Republican state officials who effectively saved the country from calamity by refusing to falsely declare fraud or to “find” more votes for Trump are being systematically removed or hounded from office. Republican legislatures are giving themselves greater control over the election certification process. As of this spring, Republicans have proposed or passed measures in at least 16 states that would shift certain election authorities from the purview of the governor, secretary of state or other executive-branch officers to the legislature. An Arizona bill flatly states that the legislature may “revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election” by a simple majority vote. Some state legislatures seek to impose criminal penalties on local election officials alleged to have committed “technical infractions,” including obstructing the view of poll watchers. 

The stage is thus being set for chaos. Imagine weeks of competing mass protests across multiple states as lawmakers from both parties claim victory and charge the other with unconstitutional efforts to take power. Partisans on both sides are likely to be better armed and more willing to inflict harm than they were in 2020. Would governors call out the National Guard? Would President Biden nationalize the Guard and place it under his control, invoke the Insurrection Act, and send troops into Pennsylvania or Texas or Wisconsin to quell violent protests? Deploying federal power in the states would be decried as tyranny. Biden would find himself where other presidents have been — where Andrew Jackson was during the nullification crisis, or where Abraham Lincoln was after the South seceded — navigating without rules or precedents, making his own judgments about what constitutional powers he does and doesn’t have. 

Today’s arguments over the filibuster will seem quaint in three years if the American political system enters a crisis for which the Constitution offers no remedy.

Most Americans — and all but a handful of politicians — have refused to take this possibility seriously enough to try to prevent it. As has so often been the case in other countries where fascist leaders arise, their would-be opponents are paralyzed in confusion and amazement at this charismatic authoritarian. They have followed the standard model of appeasement, which always begins with underestimation. The political and intellectual establishments in both parties have been underestimating Trump since he emerged on the scene in 2015. They underestimated the extent of his popularity and the strength of his hold on his followers; they underestimated his ability to take control of the Republican Party; and then they underestimated how far he was willing to go to retain power. The fact that he failed to overturn the 2020 election has reassured many that the American system remains secure, though it easily could have gone the other way — if Biden had not been safely ahead in all four states where the vote was close; if Trump had been more competent and more in control of the decision-makers in his administration, Congress and the states. As it was, Trump came close to bringing off a coup earlier this year. All that prevented it was a handful of state officials with notable courage and integrity, and the reluctance of two attorneys general and a vice president to obey orders they deemed inappropriate. 

These were not the checks and balances the Framers had in mind when they designed the Constitution, of course, but Trump has exposed the inadequacy of those protections. The Founders did not foresee the Trump phenomenon, in part because they did not foresee national parties. They anticipated the threat of a demagogue, but not of a national cult of personality. They assumed that the new republic’s vast expanse and the historic divisions among the 13 fiercely independent states would pose insuperable barriers to national movements based on party or personality. “Petty” demagogues might sway their own states, where they were known and had influence, but not the whole nation with its diverse populations and divergent interests.

Such checks and balances as the Framers put in place, therefore, depended on the separation of the three branches of government, each of which, they believed, would zealously guard its own power and prerogatives. The Framers did not establish safeguards against the possibility that national-party solidarity would transcend state boundaries because they did not imagine such a thing was possible. Nor did they foresee that members of Congress, and perhaps members of the judicial branch, too, would refuse to check the power of a president from their own party.

In recent decades, however, party loyalty has superseded branch loyalty, and never more so than in the Trump era. As the two Trump impeachments showed, if members of Congress are willing to defend or ignore the president’s actions simply because he is their party leader, then conviction and removal become all but impossible. In such circumstances, the Framers left no other check against usurpation by the executive — except (small-r) republican virtue.

The editorial goes on, at length, to discuss why people became attracted to Trump and discounts the notation that Trumpism is just a natural outgrowth of Reaganism.  Kagan points out that many of Trump's supporters are not traditional conservatives but rather independents and former Democrats.   That too has been my observation.  I cringe when media types treat Trumpism as a triumph of the far right of the GOP.  Trump's biggest critics are often conservative intellectuals while some of Trump's biggest supporters are those more moderate Republicans who often rebelled at the more conservative agenda items of Reagan's GOP.  

I don't agree with Kagan that it is a fait accompli that Donald Trump runs for election in 2024.  Former Trump attorney Michael Cohen recently told Business Insider that Trump is bluffing about running in 2024, that it is just a ruse to gain attention and money.  Cohen said that Trump will go right up to the starting line, then make an excuse as to why he cannot run because he doesn't want to be a two time loser.  

That has always been my belief.  But that belief is premised on the notion that the rules governing the 2024 election would be like 2020.   Trump is highly unlikely to win at the ballot box in 2024.  Certainly he would lose the nationwide popular vote, probably by a bigger margin last time. And he will likely lose the popular votes in enough states to, on paper, hand the electoral vote to his Democratic opponent.  

But my premise that the 2024 election rules, and those enforcing the rules, will be like 2020 might be wrong.   Trump can lose the election at the ballot box and still win the election if he can control the people counting and certifying the vote.  As Kagan notes, the Trump people have been busy laying the groundwork necessary to accomplish that.  The claim of nationwide fraud in the 2020 campaign is not about reinstating Trump but establishing the predicate for Trump forces to overturn the will of the people in 2024.  To do that, Trump and his minions are busy changing the rules and ridding the party of the honest Republicans who refused to go along with the attempt by Trump to steal the 2020 election.    Democrats didn't stop Trump's post-election coup.  Honest Republicans did.  

As Mr. Kagan illustrates, we are already in a constitutional crisis.   We need to start acting like it.

OOP's short takes:

• The Cyber Ninjas "audit" showed Trump lost won Maricopa County and, thus Arizona, by a larger margin than what was officially reported.   So how did Trump handle that disappointment?  By declaring at a Georgia rally that he "won" the audit.
• Trump also said at the rally that failed 2018 Democrat Stacey Abrams would be a better governor than incumbent Republican Governor Brian Kemp.  Abrams lost the gubernatorial election to Kemp in 2018 and there may be a rematch in 2022.  (Although I personally doubt Abrams runs...at least for Governor.  She has national ambitions.)  
• Trump probably feels a kinship with Abrams. They both are sore losers.   Trump lost Georgia and refused to concede, claiming their was, without proof, "election fraud" which prevented his victory.  Abrams lost Georgia by 3 times what Trump did, and refused to concede, claiming, without proof, that "voter suppression" was at such a high level (during a record turnout election, no less) that she was denied a victory. 
• Most members of the media, rightly, point out Trump's Georgia claims are without merit, while, wrongly, praising Abrams for making her unsupported claims.  In reality, Trump and Abrams are birds of a feather.  It only stands to reason that they should flock together.