Is It Too Late to Save Our Constitutional Democracy? A Very Minimal Case for Optimism

by Neil H. Buchanan

Donald Trump has become increasingly brazen about his willingness to say or do anything to stay in power.  Most recently, he has casually admitted that he would gladly accept interference from a foreign government to win the 2020 election, and he blithely (but forebodingly) commented that, unlike Richard Nixon, "I don't leave."  All of this and more has led people to wonder what will happen if Trump refuses to leave office peacefully next year.

Nancy Pelosi is surely right that it is important for the Democratic nominee (whoever she or he is) to win as resoundingly as possible, even though my best guess continues to be that nothing will stop Trump from crying foul after a loss.  In fact, the bigger the loss, the more likely it is that he will claim "massive voter fraud."

This suggests that we might already be beyond the point of no return, which would mean that we are currently living through the time period after the lethal dose of poison has entered the bloodstream but before the final convulsions of death.  (Dark enough imagery for you?)

Last week, Professor Dorf offered a very useful take on the situation, looking at it from a slightly different angle.  Responding initially to (and agreeing in part with) a piece by Ben Wittes on Lawfare that advised Pelosi and others to stop talking about prosecuting Trump, Dorf offered a way to think about how to get Trump to leave -- and, importantly, to leave peacefully (which means getting him to tell his "Second Amendment People" to stand down).

Trump will, Dorf observed, have even more incentive to try to stay lawlessly in the White House if he worries about being prosecuted as a private citizen.  Thus, even though Dorf acknowledges that this creates very bad incentives, the least-bad choice will be for Democrats to cut a deal with the then-defeated Trump: amnesty for Trump in exchange for a peaceful transition of power.

I have no idea whether that would work, but Dorf's analysis is certainly strong enough to persuade me that an amnesty deal is the lesser of evils.  In any case, here I want to make a Herculean attempt actually to be optimistic -- or at least much less pessimistic than has become my norm -- and make the best case I can conjure that we will never have to face these terrifying possibilities.  It is not an easy case, but I am willing to try.

Let us take seriously the Republicans' idea (which I have otherwise rejected as unserious) that Trump is not at all lawless or out of control.  Yes, he pushes boundaries and breaks norms, and he certainly is trying to get the duly-constituted judicial branch to rule in his favor on various fronts, but he is not a would-be tyrant in this view.  He is the president, and he is willing to use his powers to the fullest.

That view then runs up against the question of whether Republicans would be willing to stop true lawlessness but have simply not yet had occasion to do so.  They claim to have been disturbed by various things, but ultimately their argument is that Trump did not do anything impeachable.  No collusion, total exoneration, no do-overs.

That is obviously nonsense all the way down, but we need not revisit those arguments here.  The question is whether the Republicans have given us any reason to believe that they will stop Trump from doing something that is unquestionably unconstitutional.  They all claim that Trump was joking when he talked about adding two years to his term, but presumably they would admit that if Trump were to lose in 2020 but then say, "Yes, I lost a second term, but I'm not leaving until January 2023, because my first two years were stolen from me," that would be utterly lawless.

Note that the "they" in the previous sentence cannot possibly include the entire Republican Party, or even all 53 Republican U.S. Senators.  Some of them would surely parrot any excuse Trump offers, no matter how fatuous.  The "they" that matters are the hard-to-identify subset of Republicans who have convinced themselves that they are not first-and-foremost partisans and thus will stand up for the Constitution and the rule of law when the moment(s) of truth arrive.

My pessimism about the existence of even one of those Republicans has been amply fed by the lack of spine that they have shown ever since Trump emerged as the presumptive nominee in 2016.  They have, at most, briefly walked away ("Access Hollywood" tape, Charlottesville), but they have always come back.  They have confirmed hack after hack to cabinet positions (Ben Carson, Rick Perry, Wilbur Ross, and Betsy DeVos are still in office!), they stay silent about Kellyanne Conway's serial violations of the Hatch Act, and they push through almost all of the ridiculously unqualified people that the Federalist Society puts forward for the judiciary.

Even so, a few nominees have been pulled.  True, one of those nominations failed because the Trump nominee for a district court position in Michigan had been a lawyer for a city in a case against a couple that opposed same-sex marriage.  Even that, however, says something potentially positive, because Republican senators did something that they have almost never done: say no to Trump.

More broadly, that case is an example of how difficult it is to know what Republicans would be willing to do in a pinch.  I tend to focus on the votes that they take (or, in the case of issues that are prevented from coming to a vote, their acquiescence in Mitch McConnell's hardball tactics).  Other than John McCain's joining with Lisa Murkowski and Susan Collins -- not to mention 48 Democrats -- to save the Affordable Care Act, no profiles in courage can be found in the votes taken since January 2017.  (And even Murkowski and Collins probably thought that their pro-ACA votes would not matter, given McCain's surprising and last-minute decision.)

Beyond that, I continued to be unimpressed even when more than a handful of Republican senators actually voted earlier this year to disapprove Trump's bogus emergency declaration regarding funding for a border wall.  All of those votes were cast in the full knowledge that Trump would issue a veto and that there would not be nearly enough votes for an override.  People like Mitt Romney can say that they voted to uphold Congress's power of the purse, but it was an empty gesture (and they knew it).

Where, then, is the optimism?  It is precisely in the votes that are never taken.  That judicial nominee from Michigan was backed by Trump, but enough Republicans told Trump that they would oppose the nomination to cause Trump to kill it.  In 2017, three judicial nominees (including a ghost hunter -- who was nevertheless approved by all Republicans on the Judiciary Committee) withdrew when Senate Republicans signaled their opposition.

And Trump would undoubtedly have been perfectly happy to keep his laughably unqualified acting Attorney General, Matthew Whitaker, especially because Trump could not then have known what a perfect hack William Barr would become.  Republicans, however, made it clear to Trump that Whitaker had to go, and so he went.

Just this week, Trump's acting defense secretary withdrew from consideration for the non-acting version of his position.  And lest we forget, Trump floated two ludicrously unqualified nominees to the Federal Reserve Board, and both nominations died when support evaporated.  I was not surprised when Herman Cain went away, but I was genuinely surprised (and delighted) when Stephen Moore withdrew, because (unlike Cain) he was a hack economist, meaning that Republicans could have insincerely claimed that he was qualified for the post.  His ugly past caught up with him, however, and now he is surely back to writing dishonest claptrap in the right-wing blogosphere.

Each of these situations has its own backstory, suggesting that Republicans will forgive and forgive and forgive on the substance absent something unsavory (spousal mistreatment -- sometimes including physical abuse -- being a depressingly common issue in these instances).  Even so, there are times when Republicans do say, "No, I won't go there."

And these are situations in which Trump is not actually doing something lawless.  Republicans are, in other words, occasionally -- but only very occasionally -- willing to remember that the president is not all-powerful, even when he is within his legal rights to nominate clowns and miscreants to federal office.  That at least suggests that Republicans have some reserve tank of patriotic fuel from which they might draw in a true crisis.

So what might happen if Trump loses next November but then starts talking about refusing to accept that result?  I continue to believe that Republicans will back him, and we will then know that the poison has finally killed our experiment in self-government.  It is, however, possible that the House and Senate will then take actual votes and remove Trump from office (with the help of those currently-incognito Republican patriots).

It is also possible that no votes will be taken, however, because Trump will ultimately be convinced (as Nixon was convinced) to leave rather than face a humiliating repudiation.  Nixon's non-impeachment was, in fact, the prototype for this.  His backers made it known that they had abandoned him, and it was over.

On the other hand, the enormity of the stakes of a post-election showdown possibly makes all of the examples above (other than Nixon) irrelevant.  Sure, Trump will go with Hack 2 instead of Hack 1 for a judicial slot or a seat on the Fed, because even Trump makes totality-of-circumstances calculations about which fights are worth fighting.  But on an existential question like the one that Trump might soon present to the country, we simply do not know if the same Republicans who have occasionally said no to Trump would be willing to do so when the stakes are incalculably high.

In any event, it is worth thinking about how very minimal the case for optimism is here.  Republicans have on a few occasions said no to Trump, and we are left to hope that enough of them will decide to find a way to publicly or privately convince Trump not to be a dictator.  If that is the best we can hope for as an antidote to the poison coursing through our system's veins, we truly are in trouble.