Will January 6th Be Enough to Save America?
It could be our 23-F, or our Beer Hall Putsch.
(Apologies for the recent hiatus as we prepare for 2024. Look for more frequent Weekend Readings going forward. Also: Please check out my appearance on the third season premiere of “Words To Win By,” an incredible podcast about what the midterms teach us about defeating MAGA by my dear friend and brilliant colleague, Anat Shenker-Osorio.)
Coming off Donald Trump’s Iowa Caucus win yesterday, we again risk losing the clarity that his political career has been an ongoing criminal conspiracy against America. Trump has, of course, exploited the criminal charges against him to help consolidate his base in the primaries. Yet we cannot allow the support he continues to command from MAGA voters to be a literal get out of jail free card.
We all saw January 6th with our own eyes; we all heard the tape of Trump bullying Brad Raffensperger to “find” him the 11,780 votes he needed to steal Georgia’s electoral votes. Yet three years later, Trump is still not only walking free, but is being covered more or less like a normal front-runner in a normal campaign season. To his supporters, this fact sends a powerful signal that he is so strong the federal government is powerless against him (or that it has to make up phony criminal charges to try to take him down). To everyone else, it subconsciously suggests that none of this must have been as bad as it seemed – if it had been, wouldn’t Trump be in jail by now?
As we prepare for what lies ahead in 2024, we cannot forget that in 2025, America cannot be both a democracy in which our freedoms are guaranteed and have Donald Trump for its president.
Countless articles were written to mark the third anniversary of January 6th. Most of them attempted to answer questions like these:
Will Trump’s incitement of the lethal attack on the Capitol be enough to keep him from returning to the White House despite Biden’s historically low approval ratings?
How will (and should) the Supreme Court decide the central questions flowing from that day – should Trump be immune from prosecution, and should he be disqualified from the ballot?
We ask those questions now because for the last three years, we’ve ducked the central question of our time: How is it possible that, without the lethal attack on the Capitol, Trump would almost certainly be facing no indictments at all and be running comfortably ahead of the very unpopular incumbent?
As the indictments and the testimony presented at the January 6th hearings make clear, the horrific and deadly assault on the Capitol was the most sensational – but also perhaps the least likely to succeed – element in Trump’s far-reaching criminal conspiracy to subvert the law and overthrow the election. Yet if the January 6th insurrection hadn’t happened – and more importantly, if the January 6th Committee had not been convened, surfacing damning testimony from witnesses such as Bill Barr and Cassidy Hutchinson – it’s impossible to imagine that Trump and his co-conspirators would ever be held accountable for this wide-ranging lawlessness. After all, it wasn’t long after the second impeachment that “serious people” counseled us to put the whole thing behind us.
Even now, accountability may not come soon enough. As Norman Eisen, Celinda Lake, and Anat Shenker-Osorio explained in The New York Times, whether Trump is convicted before the election could very well make the difference in whether he wins.
Trump can and should have long ago been convicted (either in a court of law, an impeachment trial, or the court of public opinion) of abusing his power as president and being unfit to hold higher office again. Consider that by January 1975, less than three years after the Watergate break-in, Nixon had resigned, and Attorney General Mitchell, chief of staff Haldeman, and domestic policy advisor Ehrlichman had already been tried and convicted. In all, 41 people received criminal convictions related to Watergate.
Even before 2020, a long list of Trump’s disqualifying and/or likely criminal acts included his obstruction of justice documented by the Mueller probe, his repeated disclosure of classified information (notably in the Oval Office with Russia in 2017), his well-documented violations of the Emoluments Clause, and more. Subsequently, Trump’s many actions to defeat the 2020 election even before it was held – including, but hardly limited to, defunding the election,1 undermining the postal service,2 and pressuring Ukraine to investigate Joe Biden – should have been enough to disqualify him; instead, they have been flushed down the memory hole.3 When those actions weren’t enough to win re-election in 2020, Trump made aggressive moves to overturn the results – some of which were known at the time (e.g. the Raffensberger call) and some not yet known (e.g. bullying the Justice Department). These actions should have been enough to disqualify him much sooner than this year.
So: Why didn’t we settle the question of whether Trump committed crimes, and/or whether he is eligible for future office, in 2021, 2022, or 2023? And equally importantly: Why do we continue to take seriously anyone who stood in the way of confronting those questions immediately?
The answer comes down to one basic truth: For the last 15 years or so, most of us have been living in one of two alternate realities. In one, MAGA fabulists insist that Democrats pose an existential threat to “real Americans”; in the other, “serious people” routinely discredit those who warn that MAGA is an existential threat to democracy, dismissing them as partisan alarmists. The MAGA fabulists (i.e. Republican officials and GOP-friendly media) insist that “democracy” cannot be restored until Trump and Republicans return to power to make America great again. The serious people (i.e. various pundits, journalists, Democratic strategists, and nonprofit leaders) insist that democracy and the rule of law remain strong – even as MAGA Republicans and their Supreme Court allies continually change those laws to make democracy less and less likely.
The “Black Knight” scene from Monty Python and the Holy Grail provides a terrific visual metaphor for our predicament: In the 23 years after Bush v. Gore, the Republican Party and the Federalist Society Supreme Court majority have been hacking off the limbs of our democracy one by one by using undemocratic means to rewrite the law – whether through gerrymandered majorities, abuse of the filibuster, or nakedly agenda-driven maneuvers by SCOTUS that have no realistic chance of being overturned because of Senate Republican filibusters. And we dismiss it as “but a scratch” every time we treat these actions as a legitimate (if unfortunate) consequence of the rule of law or the democratic process.
The American people know that something is deeply wrong; they just don’t necessarily know where to place the blame. As recent Gallup polls tell us, since 2008, satisfaction with democracy has reached an all-time low, and disassociation with both political parties has reached an all time high. Another 30 percent reliably voted against one or the other party.
Many argue that it will hurt democracy if, so close to the election, we remove Trump from the ballot or convict him of a crime. As you try to follow along with all the court cases ahead of us, remember that those who make this argument are mostly the same people who in some way contributed to the delays in accountability – thereby ensuring that we had no choice but to wait until right before the election. They are like the defendant who, having been convicted of murdering his parents, begs for the mercy of the court because he is an orphan.
The rest of this post will further detail how both the MAGA fabulists and the serious people have contributed to the delays that have us in such a tight spot today. Even as the MAGA fabulists and politicians have been saying (and doing) more and more of the quiet part out loud, the serious people have continued to rationalize inaction and cast doubt on those who have been raising alarms.
We must fully understand – and ensure voters understand – that there is no Trump without the pre-existing MAGA movement, and that this movement remains an existential threat to us all.
Without MAGA, There Is No Trump. Without Trump, There Is MAGA.
Here is the essential context about America today that must never go unsaid: We are in the middle of a constitutional coup by a revanchist, authoritarian faction that has captured the Republican Party and the Supreme Court. This faction is a coalition of 1) plutocrats bent on overturning the New Deal order to regain their Gilded Age glory, and 2) white Christian nationalists bent on restoring the racial and gender order from before the 1960s. This revanchist coalition has had little trouble breaking our democratic guardrails, and has paid almost no price for having done so.
Since 2010, the MAGA movement (née Tea Party) has effectively amended our Constitution without our consent, and without any debate. Yet we keep pretending we are the same country with the same rules as before. The longer we persist with this denial, the more time we waste, and the grimmer our chances get of turning this around.
Instead of checks and balances, we have an unchecked, special interest-driven Federalist Society Supreme Court majority that can sunset existing legislation with impunity – unless 60 senators decide to break a filibuster to reverse them. This won’t happen as long as MAGA has enough seats to prevent it – and MAGA will have enough seats even when it only represents about 20 percent of the U.S. population. Remember that nearly all of the crucial decisions by the Federalist Society majority on the Supreme Court were handed down before Trump ran for president. Those decisions, including Shelby and Citizens United, were the preconditions for empowering the MAGA blitzkrieg. (For much more on this, see “To the Supreme Court, the 20th Century was Wrongly Decided.”)
Even before Trump descended the escalator, half of America lived in states in which MAGA state legislatures, operating from their gerrymandered bunkers, had already enacted their decidedly authoritarian agenda. (See my most recent post, “The Two Nations of America,” for much more on this.)
At a national level, more than three-quarters of the Republican House Caucus had been elected by the Tea Party backlash when Trump took office.4 Since Trump arrived, MAGA Republicans have become even further entrenched, and have purged nearly every “RINO” who stood up to Trump. (For more on the takeover, see my earlier posts here and here.5) That’s because Trump didn’t conjure the fury; he is its logical manifestation. The religious right has not only caught the car – it’s in the driver’s seat and hasn’t a clue how to drive.
The Ongoing Complicity of Republicans in Congress
In How Democracies Die and Tyranny of the Minority, we are reminded that rising demagogues have been quelled in the past by otherwise unlikely coalitions between opposing establishment party leaders who share a desire to preserve democracy. As early as the summer of 2016, Republican leaders could have chosen to follow the example of other conservative parties that joined broad based electoral coalitions to defeat imminent threats from the far-right. They chose not to.
Let’s break down congressional Republican complicity into two phases.
Phase I: The Insurrection before January 6th
Without Ted Cruz, Josh Hawley, and other Republican leaders, January 6th would likely have been no worse than an angry protest rally.6
On December 19, 2020, Trump tweeted, “Big protest in DC on January 6th. Be there, will be wild.” But on January 2, 2021, by dramatically announcing that they would be challenging the Electoral College outcome, leading Republicans altered the meaning of January 6th. Ted Cruz was especially influential; in addition to agreeing to argue Trump’s frivolous case if it went to the Supreme Court, Cruz devised an Eastman-esque plan for the Senate. “Once Ted Cruz promised to object, January 6 was all but foreordained, because Cruz was the most influential figure in the Congress willing to force a vote on Trump’s claim that the election was stolen,” J. Michael Luttig said in a statement to The Washington Post.
Especially in what they said outside of the mainstream media (on Fox et al, as well as in social media and fundraising appeals), congressional Republican leaders created the illusion that coming to Washington on January 6th could actually overturn the results of the 2020 elections. In the fantasy world those Republicans breathed life into, those coming to Washington could easily imagine that they would soon be seen as patriotic heroes. Without that permission structure, it’s easy to imagine January 6th looking more like the sparsely-attended protests outside courthouses last year following each new Trump indictment. Read the accounts of the trials of those arrested for their activities on January 6th, however, and you realize they believed they were there to make history. They did not come simply to vent, “protest," or show their solidarity with Trump; they intended to literally take back their country.
Phase II: Delaying Accountability and Obstructing Justice
The brief timeline below explains why more than three years later, Trump has not yet been held accountable for his deadly criminal conspiracy to overturn the results of the 2020 election:
January 6th, 2021 - In the immediate wake of the deadly attack on the Capitol, Republicans could have dropped their objections and come together to accept the Electoral College vote. They did not.
January 13th, 2021 - All but 10 House Republicans vote against impeachment – even though we now know from Liz Cheney’s account that a “senior Republican staffer on the Rules Committee“ concluded that “Trump’s actions on January 6 constitute a high crime and misdemeanor … and therefore constitute an impeachable offense.”7
January 13th, 2021 - Mitch McConnell announces that the impeachment trial won’t happen until after the inauguration, creating the context for the fig leaf argument that a president cannot be found guilty after his term. It also bought time for Trump to regroup, and gave fodder for “serious people” to doubt whether a post term impeachment was advisable.
January 21st, 2021 - Despite having acknowledged earlier that “The president bears responsibility for Wednesday’s attack on Congress by mob rioters,” Kevin McCarthy goes to Mar a Lago to offer his support.
February 9, 2021 - Second impeachment verdict. Had 10 more Republican senators voted to convict, Trump could not be on the ballot in November. McConnell excused his vote against conviction by saying that Trump was responsible, but that impeachment wasn’t the way to handle it.
May 28, 2021 - Despite arguing that the deadly assault on the Capitol was unacceptable if not impeachable, Republicans filibuster an independent January 6th commission (with McConnell leading the charge). Having killed the independent commission, they are able to delay the formation of a House Committee to investigate January 6th.
July 2021 - January 2023 - Once the Committee is formed, Republican leaders do their best to obstruct its investigation and undermine its credibility, including ignoring the subpoenas issued to Reps. McCarthy, Jordan, Perry, Biggs and Brooks.
Remember that #TheyAllKnew.8 On January 7th, 2021, the 197 representatives who voted against impeachment, and the 43 senators who voted for acquittal, knew that:
There was no evidence of fraud in the outcome of the election;
Trump summoned and incited a mob that included armed militia members to attack the Capitol building to prevent the pro-forma certification of the election;
For three hours, Trump did nothing to respond to urgent calls for help;
Trump had pressured Georgia Secretary of State Raffensperger to “find 11,700 votes”;
Members of the mob had chanted “hang Mike Pence,” and Trump tweeted inflammatory attacks against Pence during the riot;
Even after the riot, Trump disavowed nothing.
McConnell and McCarthy also knew that members of their caucuses were actively participating in and assisting with Trump’s plans, and that some were almost certainly breaking the law doing it (at a minimum, the ones seeking pardons).
Finally, any of the key witnesses at the January 6th hearings, such as Bill Barr or Cassidy Hutchinson, could have stepped forward at any time with their explosive revelations and fundamentally altered our national conversation about whether Trump should be impeached or criminally tried. They did not.
Wishcasting Away the Obvious: The Ongoing Complicity of “Serious People”
If Trump had never mounted the Stop the Steal rally on January 6th, the Capitol insurrection would never have happened – but other parts of Trump’s criminal conspiracy would still have been perpetrated. But we would not have had the same obvious demonstration of why Trump’s crimes were so dangerous. Our elected leaders, the media, and the business community would have all reverted to the same wishful thinking about who Republicans are, and the slow-motion coup would have proceeded with no widespread public alarm whatsoever.
In that counterfactual, Trump would have continued his Big Lie campaign, the MAGA legislatures would have enacted their anti-voting/power grab legislation and conducted their sham "audits," and Bannon and others would have recruited their army to disrupt the 2022 elections and replace election officials. Trump would have still been the leader of the Republican Party, and the odds are that Democrats would have suffered the otherwise likely crippling losses in the midterms.
Phase I: The Trump Presidency
For much of the first three years of the Trump Administration, the serious people seized on anything they could to reassure us that Trump wouldn’t be as bad as we feared9, or that this or that was the moment Trump “became president,” or that this or that appointment would be the decisive adult in the room. Likewise, they insisted that every Federalist Society-backed judicial nominee’s commitment to stare decisis be taken in good faith, as if these nominees were not selected because they could be counted on to advance a particular agenda. And so on.
In November and December 2020, media coverage downplayed the dangers of congressional Republicans’ refusal to accept Biden’s victory. We were told that because Republicans knew that Biden would in fact be inaugurated, the seriousness of their actions to undermine the credibility of the elections could be ignored – no harm, no foul. Of course they were taking Trump’s side, we were told; after all, (1) they still wanted his help winning the two run-off elections in Georgia, and (2) bucking him would have hurt them with his voters, as shown by surveys finding widespread doubts about the results among Republican voters. Unacknowledged was that Republican officials themselves were fanning the flames of these doubts.
Phase II: 2021-2022
Let’s look at just a few examples of how the media and other “serious people” refused to face reality in the pivotal years of 2021 and 2022:
After January 6th, Red state legislatures immediately enacted laws to make it more difficult to vote and easier to overturn election results. But when Joe Biden came out forcefully against those efforts, he was quickly taken to task for claiming that they amounted to a “Jim Crow 2.0.” By April, the New York Times cast doubts on the dangers of Georgia’s voter suppression bill.
Red state legislatures began “audits” of the results immediately after the election. Instead of covering these as political theater (and often ridiculing them – remember Cyber Ninjas?) the media should have made clear that the “audits” were no laughing matter. They were profoundly illegitimate attempts to discredit elections, not just absurd efforts to pander to Trump’s base. Unlike elections in most other Western countries run by and certified by independent, non-partisan or governmental officials, the legitimacy of American election results rests on predetermined representatives of both parties certifying the results.10 Thus, anyone, from Trump on down, who claims that the 2020 election was stolen, or who refuses to denounce claims that it was, demonstrates that there is no set of circumstances that will satisfy them that the result of any election they lose is legitimate. We no longer have democratic elections when accepting the results as legitimate is optional.
After Republicans filibustered the Freedom to Vote Act and the John Lewis Voting Rights Bills, the front page New York Times headline read, “Voting Bill Dies in the Senate.” Of course, the bills did not die of natural causes; they were killed by Senate Republicans. Again, for over a year, this was never contextualized. The Republican Party had, since Election Day, been peddling the idea that the electoral system was broken, yet would not even agree to debate the matter in Congress. This is key: Republicans did not use the filibuster to defeat legislation, but to prevent even public discussion of the legislation. (The first cloture vote is on whether to debate the bill. Even if Republicans had allowed debate, they would still have been able to filibuster the final passage of the bill.)
After the second impeachment trial, the media could have cast the House midterms, as they had in 1974, as a national referendum on the Republican Party’s complicity in the criminal conspiracy. But instead, they took for granted that midterms had to be seen as referendums on the incumbent administration.
Phase III: Post Midterms
Democrats’ surprisingly good midterm showing was called a “victory for democracy.” The results proved Americans did indeed care about their democracy and their rights – despite prior conventional wisdom to the contrary. Yet those earlier media narratives had consequences. The House was much closer than predicted, and could have swung the other way if voters in New York, New Jersey, or California understood that their vote could help tip the House, in the same way that voters in Arizona, Georgia, Nevada, Pennsylvania, and Wisconsin understood this about the Senate.
Consider the consequences. If Democrats had kept the House, investigations and accountability (including for the five Republican members of Congress who defied subpoenas) could have continued. The Freedom to Vote Act and other election reforms could have been revisited with greater urgency. The 118th Congress, rather than being “on track to be one of the most unproductive in modern history,” might have built on the successes in the 117th, which included a bipartisan infrastructure law and the Inflation Reduction Act.
When Rep. Elise Stefanik recently parroted Trump and used the word ”hostages” to refer to January 6th insurrectionists last week, she was rightly condemned in the media. But the remark wasn’t merely offensive or unhinged. It was the fourth highest ranking House Republican declaring that the United States has no legitimate authority unless it favors MAGA. Stefanik called the investigations into Trump “the real threat to our democracy,” affirming that MAGA’s definition of “democracy” is one where MAGA’s votes are the only ones that count.
The stakes couldn’t be higher. Trump’s legal team now argues he can't be prosecuted for any crime committed in office – including having a political rival assassinated – unless he is first impeached and convicted by Congress. Since most Republican senators refused to convict Trump even after he quite literally left them for dead on January 6th, we have little reason to be optimistic that there is anything they wouldn’t let him get away with if he is reelected. If, before the election, Trump doesn’t get a conviction with jail time on any of the 91 criminal charges against him, his reelection becomes more likely. And if he never gets any convictions at all, despite the mountains of evidence against him on those 91 counts, it’s hard to imagine how he could ever be held accountable by our justice system.
Most of us have been taught throughout our lives that democratic downfalls can happen “over there,” but “it can’t happen here,” because that’s “not who we are,” and “we are better than that.” But in the face of our recent history, those making this argument show themselves to be bound to a different Big Lie: American Exceptionalism.
The political class’s seemingly unshakable devotion to American exceptionalism prevents it from seeing in America what they can see easily in other countries. If it were occurring anywhere else in the world, we would recognize a constitutional coup underway here, as Federalist Society courts and MAGA legislatures have made it more difficult for their opponents to vote,11 stacked the courts,12 undermined the credibility of free and fair elections,13 and considers those convicted by a jury of their peers for crimes we saw them commit with our own eyes to be political prisoners.
And, were it occurring anywhere else in the world, we would recognize MAGA as a fascist movement.14 Yet our media and civic institutions have failed to rally strongly enough or early enough against this ongoing coup, or in many cases even to acknowledge it despite the overwhelming body of evidence. We seem to be waiting for the “break glass” emergency moment, when in reality that moment has long since arrived. It is as if what happened in the Saarland (1935), Rhineland (1936), Austria and Czechoslovakia (1938), and Poland (1939) were reported as independent events, arising from particular circumstances, without reference to Nazis, plans for a thousand year Reich, or what the stakes were for the rest of the world – as if each broken promise would be Hitler’s last one.
Repeatedly since at least 2000, we’ve seen what we had presumed to be settled laws and permissible political practices repeatedly violated. And each time, civic institutions and “serious people” find a way to argue “‘tis but a scratch” – to minimize the importance of each breach, or argue that the cure would be worse than the offense. They never acknowledge that these breaches have not been isolated actions of this or that politician or official, but deliberate steps in a campaign to radically restore an economic and social hierarchy we thought we had left behind.
Twice the House passed CARES bills with substantial funding for election administration. Despite a $4 billion need, Trump and McConnell managed to limit federal assistance to an initial $400 million.
Trump replaced the Postmaster General with a campaign crony who initiated practices intended to hobble delivery, especially in major urban areas and blocked adequate funding. And, just as he told Lester Holt that he fired Comey because of the Russia investigation, he was direct about this, saying, “They want three and a half billion dollars for something that'll turn out to be fraudulent … they need that money in order to make the Post Office work so it can take all of these millions and millions of ballots.”
See this document, compiled by Weekend Reading researcher Andrea Evans, for a timeline of Trump’s election subversion efforts that we knew about at the time those incidents happened.
This is likely the most rapid turnover of a major party caucus excluding obvious disruptions like World War II.
See also, The Tea Party and the Remaking of the Republican Conservatism (Skocpol/Williamson), Laboratories Against Democracy (Grumbach), The Power Worshippers (Stewart), Dark Money (Mayer), Change they Can’t Believe In (Parker/Barreto), How the Tea Party Captured the GOP (Blum), The Destructionists (Milbank), Laboratories of Autocracy (Pepper).
Cruz was joined by seven Senate Republicans who also voted to reject certification in one or more states: Josh Hawley, Cindy Hyde-Smith, John Kennedy, Cynthia Lummis, Roger Marshall, Rick Scott, Tommy Tuberville, and 139 House Republicans.
Cheney, Liz. Oath and Honor (p. 124). Little, Brown and Company. Kindle Edition.
For more on this, see my pre-Substack Weekend Reading posts, which I’ve reprinted here: “America’s Last Wake-Up Call” (June 2022) and “What Should We Do About That Corpse in the Middle of Fifth Avenue?” (July 2022).
(1) Gutting the voting rights laws that had been instrumental in breaking down the system of electoral apartheid doggedly left standing for nearly a century; (2) Enacting laws and using executive action to limit the number of polling places, drop boxes and hours available for voting in largely Black and Brown precincts; (3) Purging voter rolls in ways that disproportionately removed voters of color; and (4) Exploiting partisan gerrymandering through a high court ruling. (SCOTUS).
(1) Refusing to consider the other party’s nominee to the nation’s high court on the grounds that it should wait for the election of the next president, and then: (2) Ramming through their own party’s nomination to the high court, weeks before an election they were expected to lose – and when their presidential candidate argued that haste was necessary, as that court might be called on to decide the outcome of the election; (3) Drawing its judicial nominees from lists of “acceptable” candidates made by interest groups with extreme agendas; and (4) Flooding the judiciary with unqualified ideological fellow travelers to the extent that only about 70% of the judges he appointed had a “well qualified” rating according to the until then relied on non-partisan national bar association.
(1) Continuously repeating the lie that the other party regularly committed fraud, including allowing non-citizen immigrants to vote; (2) Conducting sham “audits” to sustain doubt in the results of the last presidential election; (3) Challenging the official national vote count without any evidence of fraud whatsoever; (4) Advocating for a fantastical theory that insists sitting lawmakers can overrule the votes of their local citizens for president ("independent state legislature" theory); and (5) Making it easier to overturn the results of elections they lose by enacting laws to shift authority for oversight and certification of elections to entities they control.
See, for example, How Fascism Works (Jason Stanley), Fascism and Democracy (George Orwell), The Anatomy of Fascism (Robert Paxton), On Tyranny (Timothy Snyder), The Origins of Totalitarianism (Hannah Arendt) and How Democracies Die (Steven Levitsky and Daniel Ziblatt). MAGA checks all the boxes:
Refusing to accept elections as legitimate unless their preferred candidates win;
Encouraging or tolerating violence against political opponents (January 6th and other vigilante actions);
Embracing authoritarianism and extreme nationalism (“America First,” Trump as strongman supreme leader);
Fearing and loathing difference (white nationalist ideology, xenophobia)
Pushing paranoid grievance narratives about plots to overthrow traditional ways of life (Great Replacement Theory, QAnon, radicalized anti-feminist movements);
Promising a return to a mythical past (literally make America great again).