Buried in the federal indictment of Donald Trump on four counts tied to his attempt to overturn the results of the 2020 presidential election is one of the most chilling paragraphs ever written about the plans and intentions of an American president.
It concerns a conversation between Patrick Philbin, the deputy White House counsel, and Co-Conspirator 4. On the morning of Jan. 3, 2021, Co-Conspirator 4 accepted the president’s offer to become acting attorney general, a job he ended up never holding. That means Co-Conspirator 4 is almost certainly Jeffrey Clark, whom Trump hoped to install as attorney general because Clark “purportedly agreed to support his claims of election fraud,” as a report in The Times put it.
Later that day, Co-Conspirator 4 spoke with Philbin, who told him that “there had not been outcome-determinative fraud in the election and that if the defendant” — President Trump — “remained in office nonetheless, there would be ‘riots in every major city in the United States.’” To which Co-Conspirator 4 is said to have responded, “Well, that’s why there’s an Insurrection Act.”
You may recall that Trump considered invoking the Insurrection Act — which enables the use of the military to suppress civil disorder, insurrection or rebellion — to quell the protests that followed the police killing of George Floyd. Trump wanted thousands of troops on the streets of Washington and other cities, and he had repeatedly urged top military and law enforcement officials to confront protesters with force. “That’s how you’re supposed to handle these people,” Trump reportedly said. “Crack their skulls!”
We don’t know Trump’s exact plans for what he would have done if his schemes to overturn the election had been successful. We don’t even know if he had a plan. But the fact that he surrounded himself with people like Clark suggests that if Trump had actually stolen power, he might well have tried to use the Insurrection Act to suppress the inevitable protests and resistance, which could have killed hundreds (perhaps even thousands) of Americans in an attempt to secure his otherwise illegitimate hold on power.
That this was even contemplated is a testament to Trump’s striking contempt for representative self-government itself, much less the Constitution. With his self-obsession, egoism and fundamental rejection of the democratic idea — that power resides with the people and isn’t imbued in a singular person — Trump’s attempt to subvert the American constitutional order was probably overdetermined. And it’s not hard to imagine a world in which his defeat was a little less decisive and key Republicans were a little more willing to bend to his will. There, in that parallel universe, Jan. 6 might have gone in Trump’s favor, if it was even necessary in the first place.
The thin line between Trump’s success and failure is why, despite the protests of conservative media personalities and Republican politicians, this indictment had to happen. There was no other choice. Even if his opponents must ultimately defeat him at the ballot box, it would have been untenable for the legal system to stay quiet in the face of an effort to put an end to the American experiment in republican self-government. Trump is the only president in the history of the United States to try to nullify an election and prevent the peaceful transfer of power. Extraordinary actions demand an extraordinary response.
The criminal-legal system is now moving, however slowly, to hold Trump accountable. This is a good thing. But as we mark this development, we should also remember that the former president’s attempt to overthrow our institutions would not have been possible without those institutions themselves.
Most people who cast a ballot in the 2016 election voted against Trump for president. But in the American system, not all votes are equal. Instead, the rules of the Electoral College gave a small fraction of voters in a few states decisive say over who would win the White House. The will of a majority of the people as a whole — or at least a majority of those who went to the polls — meant nothing compared with the will of a select few who, for reasons not too distant from chance, could decide the election.
Trump won fewer votes, but the system, in its wisdom, said he won his first election anyway. Is it any wonder, then, that in 2020, when a majority of the voting public rejected his bid for power a second time, the former president immediately turned his attention to manipulating that system in order to remain in power? And make no mistake, Trump’s plot hinged on the complexities of the Electoral College.
“Following the election, President Trump worked ruthlessly to convert loss into victory, exploiting pressure points and ambiguities in the protracted and complex process, partly constitutional and partly statutory, that we refer to collectively as the Electoral College,” observed the legal scholar Kate Shaw, who is also a contributing Opinion writer to this newspaper, in a 2022 article for The Michigan Law Review. This “baroque and multistep process,” she continued, “afforded Trump a number of postelection opportunities to contest or undermine, in terms framed in law and legal process, the results of an election he had plainly lost.”
Rather than try to call out the Army or foment a mob, Trump’s opening gambit in his attempt to overturn the election was to contest our strange and byzantine system for choosing presidents — a system that runs as much on the good faith of the various participants as it does on law and procedure. And so, before Jan. 6, there was the attempt to delay certification of electors, the attempt to find new electors who would vote in Trump’s favor, the attempt to pressure Republican-led state legislatures into seizing the process and deciding their elections for Trump and the attempt to pressure the vice president into throwing the election to the House of Representatives, where statewide Republican delegations would give Trump the victory he couldn’t win himself.
But it’s not just that our process for choosing presidents is less resilient than it looks. In addition to its structural flaws, the Electoral College also inculcates a set of political fictions — like the idea that a “red” state is uniformly Republican or that a “blue” one is uniformly Democratic — that can make it easier, for some voters, to believe claims of fraud.
There is also the broader problem of the American political system when taken in its entirety. There is the inequality of voting power among citizens I mentioned earlier — some votes are worth much more than others, whether it’s a vote for president, senator or member of the House — and the way that that inequality can encourage some voters to think of themselves as “more equal” and more entitled to power than others.
Trump is pathological, and our political system, to say nothing of one of our two major political parties, has enabled his pathology. We do not know how the former president will fare in the courts, and it is still too early to say how he will do in the next election if he stands, for a third time, as the Republican nominee for president.
But one thing is clear, if not obvious: If we truly hope to avoid another Jan. 6, or something worse, we have to deal with our undemocratic system as much as we do with the perpetrators of that particular incident. Whatever benefits our unusual rules and procedures are supposed to have are more than outweighed, at this point in our history, by the danger they pose to the entire American experiment. The threat to the integrity of the Republic is coming, as it often has, from inside the house.
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Source: Elections - nytimes.com
