My brother David texted me about an hour after a unanimous jury convicted President Trump of 34 felony counts for falsifying business records concerning a hush money payoff related to the 2016 election. He asked me my view on what impact this would have on the Presidential election. I thought about it and then replied, “I don’t know.” That short exchange has put me in a bit of tailspin in the days since as it has compelled me to confront and express deep-seated concerns. These concerns are the subject of today’s blog.
It is astounding to me that a candidate for President could be convicted of a felony that is election-related less than six months before the election, and it is hard to assess whether the conviction will help, hurt, or has a negligible effect on the candidate, Prior to 2016 you would have assumed the candidacy was essentially over. But the political career of Donald Trump has changed the democratic norms of the country and not for the good. And things could get substantially worse.
The situation today is in marked contrast to other major political events of my lifetime. The 2000 Presidential election came down to who won Florida. At the time, Al Gore and his Democratic supporters had good reason to think that he would have won Florida and became President but for the United States Supreme Court reversing the Florida Supreme Court and stopping a recount process. Gore elected to concede, and Congress certified the election of President George W. Bush. The late Tim Russert, then host of NBC’s Meet the Press, “treasured” these events. He saw them as a triumph of American democracy because Al Gore and the American people abided by the decision of the Court and there was a peaceful transition of power. I thought to myself at the time, “Why is he making such a big deal out of this?” After the 2020 Presidential cycle, which culminated in the January 6 attack on Congress by Trump supporters trying to stop Congress from certifying the election of Joe Biden, I began to fully appreciate Tim Russert’s sentiments.
When Republican President Richard Nixon ordered political operatives to bug the offices at the Watergate Office Building of the Democratic National Committee and subsequently tried to cover it up, Democrats and Republicans investigated together. After President Nixon met with the Republican leaders of the Senate and House who told him there was bipartisan support for impeachment and conviction, he resigned.
From a progressive perspective, as bad as the Trump Presidency was, it could have been a lot worse. Trump and his supporters were not prepared to govern. They did not have fully developed sets of policies they wanted to implement and were not prepared to fill the thousands of political appointee positions. A lot of the high-level political appointees knew little about the agencies they were running. They made bumbling mistakes in implementing policies like the first Muslim Ban or trying to add a citizenship question to the 2020 Census that cost them later. Other political officials were part of the preexisting Republican establishment who had limits to what they would do on behalf of the President. For example, William Barr would not mobilize the Department of Justice to keep President Trump in office. Perhaps the greatest long-term impact of the first Trump Presidency was its success in appointing three conservative justices to the Supreme Court and hundreds of conservative judges to the lower federal courts. This happened only because Leonard Leo and the Federalist Society were prepared to get conservative justices and judges appointed.
But the 2020 election cycle and the years since have been damaging to democratic norms, including in ways that will be lasting. Our governmental structure, both as originally drafted and as improved through amendments, is largely designed to promote stability and prevent autocracy. This is especially true in the separation of powers in the executive, legislative, and judicial branches. For example, though the level of autonomy that Supreme Court justices have can be frustrating because it can enable a lack of accountability, we have seen in other countries that a common feature of autocracy is when the judiciary is effectively taken over by the executive branch.
One thing I more fully realized in the 2020 election cycle is that no matter how good the structure, a fair election depends on the good faith of many people – not just election officials but certifying boards, secretaries of state, governors, electors, members of Congress, the Vice President, federal and state attorneys general, law enforcement officials, state and federal judges, and the Supreme Court. In trying to overturn the results of a fair election, President Trump and his supporters tested the good faith of each of these bodies by pressuring each to accede to his wishes. And most of them would not do his bidding. It was not the finest moment for Congress, however. Eight Senators and 139 House members baselessly voted to sustain one or more objections to the electoral count even though President Trump had just instigated a physical attack on them. The events of January 6 are among the most unbelievable and troubling in American history.
The stress on our democracy has only continued since January 6. Most Presidents, even the popular ones, have limited influence after they leave office. President Trump has remained the dominant force of the Republican Party because a majority of Republican voters are loyal to him. This loyalty has many effects, several of which are undermine democracy. Somewhere near 1/3 of the electorate continues to believe in the misinformation that the 2020 election was “stolen.” This, in itself, is has damaged our democratic norms, because it casts unjustifiable doubt on an election that was fair. It also sets up a dynamic where a significant part of the electorate will think that future elections are not fair. This in turn serves as a rationale for outrageous behavior, such as the attacks on Congress, elected and election officials, and even poll workers.
The loyalty has also made some in the Republican Party complicit. They have seen the marginalization of establishment Republicans, like Mike Pence, Elizabeth Chaney, William Barr, John Bolton, who have stood up to President Trump in some way. Most challengers to President Trump in the 2024 Republican primary did not try to criticize his anti-democratic actions, probably because the polling of Republican voters had indicated this was not a successful strategy. Anybody who wants to be the Republican Vice Presidential nominee has to say that they will not agree to accept the results of the 2024 election regardless of who wins because that is a litmus test for President Trump. President Trump likes to test boundaries. And we have not seen any boundary where an appreciable number of Republican leaders have said he has gone too far. The Republican politicians most “successful” in not capitulating to President Trump, like Mitch McConnell and Brian Kemp, are those who have tried to avoid direct confrontation or criticism.
In my view, the strength of our democracy has been weakened even if President Trump loses in 2024. He has exposed that our democracy is vulnerable to one person backed by a strong movement. That person can cast doubt on the legitimacy of an election and instigate attacks on other governmental officials while maintaining a tight grip on party leadership. Contrast this with Watergate. The bipartisan condemnation for President Nixon’s actions led not only to his resignation but it sent a message regarding when a President could go too far. The lack of bipartisan rejection of President Trump’s actions, in my view, has shifted the line on what is universally considered as undemocratic conduct. Our societal norms have changed.
The line will shift even further if President Trump is elected. Enough of the American electorate will have said that this is the type of President who we want, or we at least accept. This time President Trump and his supporters are prepared to govern. They will seek to destroy some aspects of the federal government and weaponize others – you need look no further than the materials collected on the Project 2025 website. President Trump will push the boundaries even further because that is what he does. In a second Trump Administration political appointees will be less likely to push back because his supporters have prevetted their loyalty. For the ones that do, he will likely fire them and replace them with others who will do his bidding. Additionally, one of the central components of Project 2025 is to destroy the federal civil service system and provide political appointees with wide discretion to fire non-political employees.
Though there would be substantial resistance to these efforts outside of the government, the bigger question is what the other branches would do. Congress could impose limits on the President through legislation and appropriations and judges can issue decisions against the Administration. Alternatively, the other branches could support or even validate the President’s efforts. Even if the other branches set limits, there is no guarantee that a Trump Administration will agree to them. There are rare instances in American history when a Presidential Administration has willfully disobeyed a court decision. But what happens, for example, if President Trump says he will not follow a court decision? What will the people in his Administration do? What will the Republican members of Congress do? What will the American people do?
I realize what I have said is grim. It is hard for me to write the words. Though our system of government is far from perfect, it has many virtues, chief among them is that power has never been overly concentrated in one person. Our Constitution was designed to prevent that. But the Constitution is only words if it is not followed. We cannot sustain our democracy unless the people both inside and outside of government value democracy above all.