Trump vs. the rule of law


Up until the afternoon of Jan. 6, 2021, it was possible to argue that President Trump’s refusal to accept the outcome of the 2020 presidential election wouldn’t have serious consequences. By nightfall, that assumption proved false, and the often apocalyptic predictions of Democrats about the consequences of Trump’s rhetoric and actions appeared to be playing out before our eyes. Not only was the peaceful transfer of power momentarily disrupted, but the Capitol itself was desecrated as a mob of Trump supporters successfully besieged and then stormed the building, chasing legislators to shelters as the halls of Congress were trashed by rioters.

In the end, the overwhelmed Capitol Police were reinforced and rallied to retake the building, though not before rioters had the opportunity to roam it like triumphant Visigoths through conquered Roman shrines as they posed at the rostrum of the Senate or lounged in House Speaker Nancy Pelosi’s office. Eventually, the House and Senate reconvened and, after some members did Trump’s will and objected to the Electoral College results, confirmed that Joe Biden and Kamala Harris would be duly sworn in on Jan. 20.

Trump’s violation of norms in the aftermath of the Nov. 3 vote had already shaken the nation and deprived it of the usual post-election cease-fire that, with the exception of the 2000 and 2016 elections, generally prevailed after the voters had rendered their verdict. It also cost the Republican Party dearly in the form of surrendering control of the Senate when the night before the march, Trump’s obsessive claims of fraud played a decisive role in handing the Democrats a double victory in the Georgia Senate runoffs.

Yet, until the moment that the “Stop the Steal” rally on the Ellipse, held that day to coincide with a joint session of Congress at which the votes of the Electoral College would be counted and accepted in a quadrennial, constitutionally mandated ritual, ended and many in the crowd of tens of thousands of the president’s supporters heeded his call to march on the Capitol, it could be seen as just another Trump campaign rally.

Such events are the moral equivalent of a concert. His fans travel great distances to attend and then wait hours for their idol to appear. Before he does, they listen to warm-up acts as fiery surrogates, such as Rudy Giuliani and Donald Trump Jr. and his girlfriend and former Fox News host Kimberly Guilfoyle, who all appeared at the Jan. 6 rally, stoke their passions before the main event.

Above all, a typical Trump rally is entertainment. Trump speaks extemporaneously and goes off on tangent after tangent, delighting his listeners with put-downs of people that he, and they, dislike, resent, and fear. He usually closes with an exhortation to vote or to support his efforts and then exits to high-energy music. Fans walk away with the glow of having been amused, excited, and energized.

But Trump’s Jan. 6 speech had a slightly different tone and a very different conclusion. His hourlong rant was short on humor and long on threats against erstwhile allies in Congress. He went into great detail about fictional evidence of massive fraud in the Nov. 3 presidential election in which he was defeated as well as outlandish claims that Vice President Mike Pence and congressional Republicans could reject the results and deny Biden the presidency. After his conclusion, Trump didn’t just exit while his satisfied followers headed home. After repeatedly claiming that the election had been stolen by Democratic Party thievery, he invited the crowd to join him in a march down Pennsylvania Avenue to the Capitol, where he urged them to encourage Republican lawmakers to “take back our country.”

While Trump was spewing a litany of false allegations about the election results, a number of congressional Republicans were about to voice their objections to the Electoral College votes in an effort to position themselves as loyal supporters of the president for his adoring base. Led by Texas Sen. Ted Cruz, a dozen senators were going to join over 100 House Republicans in a gesture that was, they thought, nothing more than some Trump-appeasing political theater. They would waste the public’s time by forcing both Houses to debate challenges to the votes of battleground states that Trump had narrowly lost and rehearse the same allegations of fraud that had been repeatedly shot down in the courts for lack of evidence, though this exercise would, they knew, do nothing to alter the outcome.

In contrast to Rep. Mo Brooks, who had actually appeared at the Trump rally and spoken of the need to start “taking down names [of Republicans who refused to back the fraud claims] and kicking ass,” Cruz insisted he wasn’t actually trying to reject the votes of the states but start a conversation about creating a commission along the lines of the one that settled the disputed 1876 presidential election. The dance that he and other Republicans such as Sen. Josh Hawley, another potential 2024 presidential contender, were engaged in was intended to signal to the Trump base their sympathy while doing nothing to hinder Biden or transgress congressional propriety.

But the crowd at the Trump rally was more in tune with Brooks than Cruz’s intellectual dodge.

Trump didn’t keep his promise to walk with them the short distance to the Capitol. But those who did make the trek immediately set about actually trying to enter it. Within moments, the inexplicably underprepared Capitol Police were set upon by an angry mob looking for a fight. Like a besieged fortress whose defenders hadn’t the numbers to man the walls, the police were sent fleeing into the interior of the building with the mob following close behind while others scaled walls and broke through windows.

For the first time since the British sacked Washington in 1814, the heart of the American republic became, at least for a short time, conquered territory.

In the hours after the shocking images of the scene spread on television screens and the internet, many on the Right were in denial. Almost immediately, Trump supporters began spreading rumors that those who had broken into the Capitol were false-flag provocateurs from antifa rather than the president’s followers. Yet given that a contingent from the violent extremists who call themselves Proud Boys had entered the Trump rally en masse, the notion that all of the president’s supporters were merely honest citizens engaging in peaceful protest fell flat.

In addition to the plain fact that the mob had moved directly from the Trump rally to the Capitol under the eyes of the nation, this myth was almost immediately contradicted by the revelation of the identity of the one fatality among the casualties from the battle between police and the rioters. Ashli Babbitt, a married 14-year veteran of the U.S. Air Force and an ardent supporter of the president, was killed by a shot that was presumably fired by law enforcement personnel after she climbed a ledge inside a Capitol doorway while draped in a flag.

While conservatives had mocked the claims by liberals and legacy media commentators that the summer’s Black Lives Matter demonstrations had been “mostly peaceful” despite the widespread violence and looting in dozens of cities, Trump apologists were reduced to asserting that those who had not condemned those crimes were in no position to judge the frustrations of Trump supporters. Others claimed that the Trump riot could be explained in the same way by pointing to the excesses of the Left and the refusal of the establishment, including many congressional Republicans, to listen to their complaints about election fraud.

Yet these assertions rang hollow. The Capitol riot was the inevitable result of two things: Trump’s stubborn refusal to accept his loss and the incitement that he and his warm-up acts had conducted that afternoon.

The 2020 election was unprecedented because of the widespread use of mail-in ballots as fear of the coronavirus pandemic led tens of millions of voters to avoid polling places. It’s possible to argue that the prevalence of such ballots in states unused to dealing with an election conducted via the mail made some of the usual safeguards against fraud harder to maintain. And like virtually all elections, this one had its share of questionable or suspicious actions by officials and vote counters. Yet Trump’s allegations of fraud failed to be sustained in dozens of lawsuits that were thrown out of courts around the nation.

The grim reality for Republicans is that the president lost the popular vote by 7 million votes nationally and was narrowly beaten in some of the same battleground states that he had won in 2016. This result needn’t have been the end of either the Trump movement or the Republican Party that had tied its fortunes to his star. The GOP had done unexpectedly well in down-ballot congressional races, gaining seats in the House and, until the Georgia debacle on Jan. 5, holding its own in the Senate. It had every expectation of rebounding and taking control of Congress in 2022 during the usual midterm setback for an incumbent administration and being set up to have at least an even chance of taking back the White House in 2024.

But Trump and his true believers believed that he could only be defeated by fraud and that losing the election was an eschatological event that marked the collapse of the American republic and its descent into Marxist tyranny at the hands of radical Democrats.

Such thinking did not come out of nowhere. Both Republicans and Democrats tend to speak of each other as threats in one way or another to democracy. They fail to realize that this hatred and intolerance for opponents is itself antithetical to democratic government. Unless both sides understand that they must accept election defeats with equanimity if not good grace, the normal workings of government cannot continue. That was made manifest by the Democrats’ unwillingness to accept the legitimacy of Trump’s 2016 victory and the subsequent years spent pursuing “resistance” rather than loyal opposition and attempts to reverse the results via unproven accusations of Russian collusion or impeachment over Ukraine policy. But that didn’t justify denial of the 2020 results or minimize the impact of a president choosing not to concede after being beaten.

A refusal to accept that defeat wasn’t just another example of Trump’s petulant personality. It was a blow to the foundations of the republic dating back to the first peaceful transfer of power in 1801, when President John Adams and the Federalists handed over the reins to Thomas Jefferson and the Democratic-Republicans in what historians rightly consider the true culmination of the American Revolution. The peaceful transfer confirmed that, unlike previous attempts at republican government throughout history, the American experiment would succeed.

That exchange was neither amicable nor civil, as Adams refused to attend the inauguration of the old friend with whom he had helped found the republic in 1776 but had since become a bitter political foe. The second president sulkily left the capital the morning of the ceremony and never returned.

Trump’s attempt to pressure Georgia’s secretary of state to effectively falsify that state’s presidential vote only days before the Capitol riot demonstrated that he was not merely sulking but was actively seeking to overturn the results. That controversy, and his claims that the Senate runoffs set for the following Tuesday were “illegal and invalid,” doomed the two Republican candidates.

Neither can it be denied that the rhetoric at the “Stop the Steal” rally, in which the president demanded that his listeners pressure Congress to change the results and his lawyer Rudy Giuliani demanded a “trial by combat” over the allegations, could easily be seen as incitement to the violence that ensued at the Capitol. Moreover, Trump’s weak response to the rioting and refusal to condemn unequivocally those who had taken part in the violence until a day later only confirmed that while he may not have been attempting a coup or an insurrection, he had transgressed the basic requirement of democracy in which the losers of elections must not only concede but actively oppose any effort on the part of their supporters to overturn an outcome that has been certified by the courts and the states.

The unacceptable nature of the Jan. 6 rally and congressional theater was understood by some Republicans.

Senate Majority Leader Mitch McConnell was right when he said that his vote on the normally anodyne acceptance of the Electoral College count was the most important he cast in his 36 years in the Senate. If, he argued, “the election were overturned by mere allegations by the losing side, our democracy would enter a death spiral” in which no election result would ever again go unchallenged.

Former Attorney General William Barr, who had been demonized by Democrats for his support for the president against unfounded Russian collusion charges and a partisan impeachment but resigned after Trump wouldn’t accept his conclusion that there was no evidence of election fraud, was clear about what had occurred. “Orchestrating a mob to pressure Congress” was “inexcusable.”

For four years, Trump had pushed the envelope of propriety in many respects, using language unheard of in a president as he tweeted on the news of the day and “counter-punching” against anyone who contradicted or criticized him. He shredded precedents of every kind and ignored both the advice of experts and conventional wisdom.

In doing so, he was responding to a genuine sense on the part of many that the governing classes had ignored their plight and were operating for their own selfish benefit. His unconventional instincts served him well on issues as diverse as trade policy, deregulation, and Middle East peace. And, at least up until the pandemic hit the nation in 2020, he could claim to have had more successes than setbacks despite the way his conduct had divided the nation.

But his refusal to accept defeat and the Capitol riot he incited were not merely inappropriate; they constituted a direct threat to the rule of law. He justified every accusation of would-be authoritarianism on the part of his partisan detractors. By not recognizing that the peaceful transfer of power from one administration to the next must be preserved, Trump committed an offense that was both inexcusable and from which there can be no conceivable political comeback.

It remains to be seen whether the line Trump crossed on Jan. 6 will stand as an example of misbehavior unique in history or whether the unhinged spirit of partisan anger that produced his presidency is a permanent fixture of American politics that will make a return to the normalcy of previous eras impossible. Yet it must be hoped that by going so far out of line as to set in motion a series of tragic images and events on the Capitol, Trump’s disreputable example will stand forever as one that must be avoided at all costs by any possible successor.

Jonathan S. Tobin is editor in chief of and a columnist for the New York Post . Follow him on Twitter at: @jonathans_tobin.

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