Is Trump's Diminished Position Perversely Bad for Democracy?

by Neil H. Buchanan

Shortly after the midterm elections, I wrote two complementary columns (one on Verdict, the other here on Dorf on Law) in which I argued that the prospects for the survival of American constitutional democracy had improved in several undeniable ways, even as the remaining avenues for a successful Republican effort to create a one-party autocratic state are distressingly undiminished.

I then argued that Donald Trump continued to be the potential Republican presidential nominee in 2024 who most clearly could destroy democracy, precisely because he is the most likely to lose the election but then induce Republicans to exploit those remaining avenues -- one of which is a strategy called violence -- to overturn the results and install Trump as president.

Even though I argued that avoiding that result would not save democracy for long, it was still important to say that Trump was the biggest danger, especially in the immediate term.  In turn, that would mean that an increased likelihood of any other Republican being nominated -- no matter how bad their views on policy matters -- would be good news.  Right?  Maybe, but maybe not.

What might make Trump the potential nominee who could, in a perverse twist, present the lesser threat to the rule of law?  First, it is important to ask whether there is even a realistic uncertainty about Trump's continued viability.  It is possible, after all, that Trump is a 100 percent lock to win the Republican nomination, short of his poor physical condition and unhealthy lifestyle ending his life before November 2024.  (What about prison?  Would he run a campaign from his cell?)  After all, Republicans have play-acted at backing away from him plenty of times in the past, yet every time they have returned with full fervor to Trump's side.

Is this time different?  Possibly.  Republicans have now experienced three consecutive mostly-losing elections with Trump leading the party, and there is a lot of buzz about people feeling that they need to move on from a clear loser.  Moreover, Trump's increasingly panicked attempts to maintain relevance -- especially his explicit statement that the Constitution itself should not be permitted to keep him from what he views as his rightful place as dictato ... er, President -- absolutely reek of desperation.

Contrary to my comment in a column two days ago ("Honestly, how on Earth is that not the biggest, scariest, story being covered nonstop by every media and political outlet in the world?"), maybe the ho-hum reaction is evidence that Trump is shrinking before our eyes.  We should worry, however, that this will turn out to be one more moment in which Trump makes the unthinkable acceptable, simply by saying it and not suffering any immediate consequences.  He was indulged in the days immediately after Election Day in 2020, with people dismissing his histrionics as being unimportant and temporary.  Where did that take us?

It is, then, possible that coming up with hypotheticals in which someone other than Trump is the Republicans' nominee in 2024 is like imagining how President Tulsi Gabbard's inauguration speech on January 20, 2021, would have been received.  Because this is arguably the weakest that Trump has ever been since mid-2016, however, it is at least somewhat interesting to reconsider my statement that his political demise would be good news (of the limited sort that I described above).

At this point, it is no longer possible to argue honestly that Trump is not a fascist.  Even though fascism is notoriously difficult to define, Trump checks nearly every box on every plausible multi-prong fascism test that one could imagine.  And again, his followers include enough people who have shown themselves willing to commit violence on his behalf -- and enough others who are willing to tolerate it and continue to kiss his ring -- that he is clearly the most volatile element in our political environment.

But that could in fact be, I now worry, the problem.  That Trump has dumbed down the political discourse and paved the way for once-unimaginable political acts not only makes him scary, it makes anyone else look less scary.  As I noted in the first Dorf on Law column that I mentioned above, the editorial board of The New York Times recently offered a list of Republicans who, the board blithely assured us, "have demonstrated a commitment to the rule of law and an ability to govern."  Other than Liz Cheney and maybe New Hampshire governor Chris Sununu, however, that list notably included people who have demonstrated no such thing.

In part, that is merely yet another example of The Times's longstanding (and largely futile) effort to prove that they are bipartisan or nonpartisan.  Throw up a bunch of Republican names and say, "Those folks are small-d democrats, even if we disagree with their policy priorities."  But combined with the general horse-race approach to campaign coverage at The Times and in the media writ large, anything other than Trump's "tear up the Constitution and make me emperor for life" tantrum is going to be treated as mainstream.

In other words, the specifics matter.  Imagine that there was, say, a governor who went out of his way to identify and target a discrete and insular minority, vilifying them and convincing parents that their children are threatened by these Others.  Who does this not merely with words but by signing into law restrictions on speech, while his staff smears people who oppose the legislation.  Who bullies children.  Who goes out of his way to yell at reporters.  Who fires elected officials merely for saying what they would do in a future hypothetical situation.  Who uses the power of the state to punish a large corporation after it announces that it disagrees with him.  Who exercises his political power to forbid private companies from taking safety measures for the benefit of their employees and communities.  Who joins with his party to defy the wishes of a clear majority of his state's voters, who tried to re-enfranchise their fellow citizens.  Who established a special police force that intimidated mostly minority voters, perp-walking them and literally jailing people who had done nothing wrong -- people who had in fact followed the instructions of that state's election offices.

I am not saying that such a governor necessarily exists, or that there are any other politicians who have agreed with all of those outrages and more.  If he did exist, however, it would certainly be inaccurate to describe him as having "demonstrated a commitment to the rule of law and an ability to govern," unless "commitment to the rule of law" means manipulating the law for destructive advantage and "ability to govern" means pushing through laws and executive actions, no matter the content.  (In that sense, every governor has an ability to govern, obviously.)

With Trump as the face of the Republican Party, no one outside of his true believers is going to say that he is committed to the rule of law or has the ability to govern.  Indeed, his inability to govern was one of the only saving graces of his time in the White House.  But with anyone other than Trump atop the 2024 ticket, non-Republican sources like The Times are going to fawn all over the Republican nominee and deliberately downplay or explain away even the most fascistic views and track record.

In short, the diminution of Trump makes it more likely that we will lose track of the plot.  Prominent Republicans to a man and woman (including Liz Cheney) have shown no discomfort with stolen Supreme Court seats, voter suppression, extreme gerrymandering, the gutting of the Voting Rights Act, the post-2020 hyper-partisan anti-voting measures that originally caused grief for Georgia but then were copied by Texas and other states, and on and on.  This is the road to a one-party state, not a commitment to the rule of law.

Trump is more dangerous in terms of what he will probably do when he loses, but anyone else is more dangerous because they will be treated as "normal and reasonable," even if they have a track record that easily proves the opposite.