American democracy is in an undoubtedly perilous state, and the structure of our institutions seems ill-equipped to meet the challenge of protecting it.
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One year ago today, on January 6, 2021, former President Donald Trump, in a last-ditch effort to undemocratically retain power, stood on a stage in Washington, D.C. and told his supporters, “We will never give up, we will never concede… We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” After Trump’s speech, many of these same supporters marched to the Capitol and, armed with sticks, mace, and zip ties, unleashed a violent attack on Congress. They called for the hanging of Vice President Mike Pence and searched the halls of the Capitol for Nancy Pelosi, the Speaker of the House. And in the two months preceding the attack, we’ve since learned, Trump and his allies waged quieter plots, including various legal battles and a scheme to replace state electors with people willing to challenge the election results. These attempts, as well as the insurrection, were unsuccessful in Trump’s effort to retain presidential power.
In the year since, however, Republicans have been laying the legislative groundwork, at the state level, for their next attempted coup. In 19 states, 34 new laws have restricted the right to vote. Republicans have also empowered Trump loyalists in electoral positions and increased legislatures’ power over future election results. The Republicans’ attack on democracy therefore did not end on January 6, nor was democracy restored on January 20, 2021 when President Joe Biden was inaugurated. Rather, the Republicans have spent the past year constructing the political framework they so desperately needed last January to ensure they will be successful in their next attempted coup d’état.
And now, some liberals, seeing scant evidence of accountability among the key players, are growing alarmed about the adequacy of Democrats’ response. There is serious doubt among many whether the institutions meant to protect democracy are up to the task. Biden, for example, has been accused by scholars, writers, and even some Democratic colleagues of being passive in the face of the existential threat posed by the evermore authoritarian GOP. Merrick Garland, the attorney general, has also been accused of mounting a “lethargic” response. To these critics, Democrats in power seem naïve or negligent, as if they are witnessing members of the GOP metaphorically set fire to the house but can’t be bothered to call 911.
These critiques of the Democrats’ approach are, for obvious reasons, very persuasive. But before drawing that conclusion, it is also worth exploring possible justifications for the Democrats’ seemingly muted response. The party is, by and large, attempting to fight authoritarianism by digging deep into democratic institutionalism. Our institutions may often seem detached, cold, and even feckless, but the slow pace at which they operate is an essential feature of democracy itself.
To appreciate this, consider the damage the Trump administration inflicted on our institutions. A core principle of our democratic system is independence between the president and those who enforce the rule of law, such as the Department of Justice. Presidents should not have the power to direct or interfere with criminal investigations. They should not exploit the DOJ for personal or partisan gain or to advance anti-democratic aims. Trump did all of the above.
Prior to his first election, Trump threatened to prosecute his political opponent, Hillary Clinton, if elected. This was unprecedented in American politics. Later, he began to mount a pressure campaign on then FBI director, James Comey, with the aim of convincing him to drop his investigation into election interference, including into cases implicating Trump’s allies. Throughout his presidency, Trump also used his executive power to issue both pardons and promises of pardons for a range of dubious reasons. Then, four years after he fired Comey, in 2020, Trump mounted a different pressure campaign, this time against the Attorney General Bill Barr, to use the DOJ to announce an investigation into nonexistent election fraud. This, if it worked, would have dramatically changed how things unfolded last January. This is not what a system of justice in a democracy should look like, nor is what a presidency should look like.
Biden, in contrast, has attempted to restore the norms in place before the Trump administration, taking a more democratic approach. Both Biden and Garland appear to be enforcing maximal distance between the presidency and the various investigations into those who were involved in the coup attempt and the insurrection. For example, the DOJ’s investigation of the insurrection is largely under the purview of the U.S. attorney’s office in D.C., a step removed from Garland. Biden has also generally refrained from openly opining about either Trump or the impending GOP threat. Further, Biden’s administration has issued policies that restrict contact between the White House and the DOJ in order to prevent political interference—or the appearance of such interference—in the justice system. Yesterday, on January 5th, 2022, Garland plainly explained this approach, telling the American public, “We adhere to the norms even when, especially when, the circumstances are not normal.”
Although there remains space for fair criticism, we should be pleased that the Biden administration is not resorting to tactics that might be easily abused later. The system’s apparent bloodless detachment is, in some contexts, a benefit.
The congressional response to the impending threat has been criticized as similarly inadequate. The House Committee, comprised mostly of Democrats, is also attempting to fight the GOP’s fire with continued reliance on democratic institutional strength. The language the committee uses is measured. There is no fiery rhetoric. There are no threats. Instead, there is a commitment to evidence and the slow but sure procedures that deliver truth.
The House Committee has issued dozens of subpoenas. When these subpoenas have been ignored, they have voted to refer the subject to the DOJ for contempt of Congress. The DOJ, in turn, has referred these same subjects to a grand jury composed of anonymous, independent American citizens over whom Biden, Garland, and others have no sway.
This is how justice and truth should proceed in a democracy: through institutional procedures intended to bolster independence. Many would have preferred swifter action and the meting of serious legal consequences. Such action may have been more satisfying but also perhaps less prudent.
Democrats have, therefore, to this point, remained committed to responding to the authoritarian threat with maximally democratic processes. In some sense, one might argue that there is no better way to bolster our institutions than institutionalism itself. Further, how better to render democracy nonpartisan than through distant, emotionless proceduralism?
Broadly speaking, this is what a democracy should look like. There should be checks and balances. Power should be distributed, rather than concentrated within a single individual. A president should not speak about the criminal prosecution of his political opponents. A president should also ensure distance between himself and the Justice Department. As Garland said yesterday, the DOJ should follow “facts, not an agenda.” Congress, the co-equal branch of government that was attacked on January 6, should bear investigatory burdens, thus ensuring even more independence within the democratic system of governance. And, as they investigate, Congress should be deliberative, dedicated to evidence over fiery expressions of partisanship.
All of these features are quintessential to why democracy is a desirable form of governance. These same features are exactly what Trump sought to destroy during his presidency. They are the safeguards that the GOP is trying to undermine while planning their next coup. And, in some sense, they are arguably the purest antidote to authoritarianism, which, by its very nature, relies on concentrated power and the absence of constraints or consideration.
However, as much as we might admire the Democrats’ approach, it may still be inadequate. Fighting authoritarianism with democratic institutionalism is seemingly both principled and necessary, but, unfortunately, we’re also under a time limit.
The 2022 election may be our last best buttress against the authoritarian threat. If Democrats lose the House in 2022, they will lose the ability to pass legislation, including on voting rights. They will also be faced with sham investigations and, importantly, lose their ability to investigate Trump’s coup. Losing the Senate will be even more dire. If Sen. Mitch McConnell, currently the minority leader, regains the majority, he will predictably slow judicial appointments, as he did in 2015 and 2016. This will result in a judiciary stacked with Trump appointees, with effects lasting decades. The Supreme Court, already including three Trump appointed justices, may eventually rule on the future of our country. Also concerning, Democratic governorships in the crucial swing states of Pennsylvania, Michigan, Wisconsin, and Nevada are up for grabs in November 2022. If the GOP flips these states, Trump loyalists will have even more power over the electoral results in 2024.
There is another democratic institution that could step in to sound the alarm: the free press. To date, with a few exceptions, the media has largely failed to maximally inform the American public of what was at stake through Trump’s presidency and what we still stand to lose in the upcoming elections. The editorial choice to refrain from calling the January 6 plot an “attempted coup” has made it more difficult to absorb that the GOP is currently creating the framework to make their next attempted coup successful. For example, the GOP’s state-level actions have largely been described with benign language: “Republicans want to change state election laws. Here’s how they’re doing it.” or “Trump allies are angling for election jobs up and down the ballot. That could have consequences in 2024.” This failure to properly convey the urgency of the moment has only increased the burden on Democrats’ own messaging.
Herein lies the conundrum for Democrats: the slow, grinding proceduralism of democracy may be, in the abstract, exactly the right antidote to authoritarianism, but it may also make us miss the deadline. Simultaneously, Biden’s withdrawn approach may also be the appropriate response to that which should never be politicized—democracy itself—but could also undermine the American public’s sense of the looming danger.
American democracy is thus in a historically precarious position. The GOP is preparing to ensure the next election turns out their way, regardless of the will of the people. Democrats, as the only party concerned with truth, justice, and the preservation of democracy, find themselves in a tough spot and have chosen to fight fire with extreme institutionalism. In the coming months, these last 10 months before the November 2022 election, we’ll see if Democrats choose to change their approach and become more publicly aggressive or if they stay on their steady, distant, procedural path. Either way, our country is being put to a test: Will Democrats’ insistence on employing all the features that we treasure in democracy—such as its commitment to procedure and deliberation—prove sufficient to defeat democracy’s authoritarian foe? Or, conversely, will these very same features render democracy incapable of saving itself?
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