Jeffrey C. Isaac is the James H. Rudy Professor in the Department of Political Science at Indiana University
Donald Trump said from the start that he would not honor any election that he did not win, and in this, he has proven a man of his word.
For the past seven weeks we have watched as he has attempted to subvert the election in the states and in the courts, and as he has repeatedly failed. The constitutionally-prescribed December 14 vote of the Electoral College seemed to many like a final defeat. It even led a few Republican leaders, including Mitch McConnell, to finally admit that Joe Biden is the President-elect. But Trump persists. And as the dismal year 2020 sputters to a close, all eyes are now on January 6 when, according to the Constitution, both houses of Congress will meet, presided over by Vice-President Mike Pence, to validate the Electoral College victory of Joe Biden and Kamala Harris.
Trump has no time to deal with the COVID-19 crisis, a serious economic relief bill, or any other business of governance. But in between his rounds of golf he, along with his allies, is still at work trying to dismantle our constitutional democracy.
A news article in the Washington Post reports that “Trump allies launch desperate final efforts ahead of congressional confirmation of Biden win,” focusing on efforts, by House Republicans Mo Brooks and Louie Gohmert, to pressure Vice President Mike Pence to validate rogue Trump elector slates when Congress meets on January 6.
Gohmert stats: “We continue to hold out hope that there is a federal judge who understands that the fraud that stole this election will mean the end of our republic, and this suit would insure that the Vice-President will only accept electors legitimately and legally elected.” Today’s announcement, by Republican Senator Josh Hawley, that he intends to support this move, makes clear that some form of obstruction will be performed on January 6.
Regarding this scenario, Edward B. Foley, the election law specialist recently appointed a regular Post columnist, opines “Sorry, President Trump. January 6 is not an election do-over.” Foley points out that according to the 12th Amendment of the U.S. Constitution, Pence’s only role is to “open all the certificates,” and that the Electoral Count Act of 1887 makes clear that only certificates that are certified by the governors of the states will be considered valid.
In other words, Trumpist hopes that Pence might overturn a Biden win are mere fantasies, for Pence has no such power. The election is a done deal.
There is no reason to doubt Foley’s mastery of the relevant Constitutional provisions and federal election laws and precedents. Nor is there reason to doubt that Foley’s prescription corresponds to the institutional norms governing U.S. presidential elections at least since 1877.
But a question nonetheless remains: is it possible that a political clique with designs on power and hostility towards constitutional democracy might attempt to overturn the law and retain its hold on government via unconstitutional means, either because it believes its own fatuous legal interpretations or simply because it believes it can get enough Americans to believe them or at least accept them as a fait accompli?
This is not a legal question. It is a political question. And, as I argued last week in Common Dreams, illegality does not mean political impossibility.
Along these lines, a New York Times op-ed co-authored Neal K. Katyal–also an election law expert, who served as Acting Solicitor General of the U.S. under Obama—frames the question more accurately: “Will Pence Do The Right Thing?” The caption neatly states the core argument: “On Jan. 6, the vice president will preside as Congress counts the Electoral College’s votes. Let’s hope he doesn’t do the unthinkable—and unconstitutional.”
Where Foley casts the matter as factual—”January 6 is not a do-over”—Katyal first poses a question and then follows with an expression of hope. And through this slight semantic difference, he makes clear that it is very possible that Pence will do the wrong thing, the unconstitutional thing, the thing that has long been “unthinkable” and remains “unthinkable” by all who respect the law, but is supremely thinkable by some people who do not respect the law. This group includes the sitting President of the U.S., some of his closest advisers, and important Republican members of Congress and state legislatures who continue to support him. It includes many millions of voters, some of whom will surely descend upon the streets of Washington, D.C. on January 6—some even armed—as they have been encouraged to do by the sitting President of the U.S., as a way of expressing their (violent?) outrage at Biden victory and the legality that seems to support it (“Stop the Steal!!!”).
This is a rather large and formidable group, even if it does not comprise a majority.
Does it also include Mike Pence, the servile sitting Vice President, who has spent the past four years aiding and abetting Donald Trump as he has lied, cheated, grifted, incited violence, and attacked the Constitution—and who has continued to support Trump as he has spent the last seven weeks seeking to overturn the November election and to obstruct a peaceful and orderly transition?
Katyal and his co-author are Washington insiders. They are hopeful about the system and about the integrity of those who govern it. And so their piece, written in the third person and not as an open letter to Pence, lays out with hopefulness the rationale for Pence to do the right thing, and casts this as an opportunity for real courage:
“He now stands on the edge of history as he begins his most consequential act of leadership . . . Can he show the integrity demonstrated by every previous administration? . . . Like all those who have come before him, he should count the votes as they have been certified and do everything he can to oppose those who would do otherwise. This is no time for anyone to be a bystander—our Republic is on the line.”
Pence should do this. But will he? His conduct over the past four years furnishes little basis for optimism, though there is some hopefulness perhaps to be felt in his cowardice—hardly a civic virtue!–which might in the end hold him back from doing anything decisive at all, and thus incline him to let norms stand.
Our republic is on the line. Democracy is on the line.
And, as Katyal and his co-author say, now is no time for bystanders.
But Pence has never been a bystander. He has been an enabler of authoritarianism. He has been complicit in the gutting of constitutional democracy.
The question regarding Pence is simply this: is there no limit to his hostility towards liberalism and his cravenness towards power? Or will January 6 be the day that, finally, he recognizes a limit, and expends his very mediocre energies in the service of institutional precedent and the rule of law rather than in the service of autocracy?
We will see.
But we don’t have to wait any longer to acknowledge that the situation is grave and that it underscores the fragility of even that most minimal condition of our constitutional democracy—a free and fair democratic election that is respected by those who compete in the election.
What is clear is that there are people “on the inside,” at the very heart of our government, who do not respect the election and are willing to do their part to subvert it. It is also clear that there are many people on the outside who are willing to support them, through physical intimidation, threats of violence, plots of kidnapping and violence, and perhaps even the use of force on the streets.
Attention now is focused rightly on Mike Pence. But what he does on January 6 is so important only because of all that has already been done, and all that still might be done, by so many others, many acting in concert.
What this entire situation exposes is the fragility of constitutional democracy. The rule of law is a precious thing. But it only continues when it has institutional and political support, among political parties and their leaders, and political elites in and out of public office, and a broad swath of the citizenry.
Now is the time for the supporters of constitutional democracy to pay attention; to be prepared to speak out and act together to defend the election; and to redouble their commitment to strengthening the institutions that can ensure the continued survival of constitutional democracy.
Constitutional democracy is on the line.
This is no time for bystanders.