A Political Thought Experiment: Democracy’s Survival Is Predicated on the Judicial Conviction and Imprisonment of Donald Trump

Synopsis:

  • Ex-President Trump will control the Republican Party for the foreseeable future.
  • He has demonstrated no remorse for his attempted coup and vowed to try again.
  • America has a very narrow window to ensure that Trump can not attempt another coup.

Over the last few years we have seen Congressional Republicans display a remarkable to fealty to Donald Trump and a reckless disregard for their Oath to protect the US Constitution.

Consider:

On January 6, 2021

66% of House Republicans and

16% of Republican Senators

voted to discard the results of the 2020 Presidential Electoral College.

On January 13, 2021

95% of House Republicans

voted against impeaching Trump despite his attempted coup.

On February  13, 2021

86% of Senate Republican

voted to acquit Trump on a technicality despite acknowledging his pivotal role in the attempted coup.

Clearly, Congressional Republicans remain overwhelmingly loyal to Donald Trump despite the fact that he is no longer President. 

Despite the pronouncements of the intellectual political class who have told us that the Trump political era is behind us, polling data suggests that Republican voters remain strongly committed to Donald Trump and they will neither vote for and will attempt to remove from office any Congressional Republican who does not demonstrate unfailing fealty to Mr. Trump.

A Political Thought Experiment

In an attempt to determine how to protect America’s democracy from Trump, I propose a political thought experiment.

Currently the House and the Senate are composed of nearly equal numbers of Republicans and Democrats. 

History has shown that there is a reasonable probability that the Republicans will take control of the House in the mid-term 2022 election. This outcome is even more likely if the State Republicans are successful in their ongoing attempts to implement additional voting restrictions at the state level. 

In the 2022 election, Democrats will have 14 Senators and Republicans will have 20 Senators on the ballot. Making a prediction as to who will control the Senate after the next mid-term election is a fool’s errand at this time.

Based on the all of the above, it is not unreasonable to conclude that there is at least a realistic probability that the Republicans could capture control of both the Senate and the House in the 2022 mid-term election.  Given Trump’s unfailing support by the Republican base (i.e. the dominant voting block in the Republican primaries,) there is every reason to believe that all freshman Congressional Republicans are likely to be even more supportive of Donald Trump than existing Congressional Republicans.

Continuing this political thought experiment, we next speculate as to the ramifications of having Congress under the control of loyal Trump Republicans.

Once the Republicans control either the House or Senate we can be certain, given their prior behavior, that they will initiate innumerable investigations into the Biden and Obama administrations. While these investigations are likely to be legally meritless, as before, they will have an impact on the public discourse and Republicans will use them as an opportunity to advance baseless QAnon conspiracy theories as if they were objective facts.

Fox News has also demonstrated unfailing fealty to Trump. Thus, we can expect that Fox News will broadcast these Congressional sessions live while amplifying the conspiracy theory of the day when Congress is out of session.

We can also anticipated that Trump will acquire a new Twitter-like megaphone or maybe he will become a full-time presence on FoxNews where he can personally and daily direct the conspiracy mayhem as he incites his supporters.

In response to this political maelstrom, extant and aspiring Congressional Republicans will need Trump’s support to obviate a primary challenge. As a result, their fealty to Trump will only get progressively more manic. As they did in the House and Senate on Jan 6th, 13th and Feb 13th, Congressional Republicans will again quickly set aside their oath to the US Constitution in an effort to ensure they secure a “100% Trump rating”.

In the end, America will become even more polarized, no Republican politician will tell their constituents the truth, half the American public will know nothing about the real political issues of the day, Trump will have embedded the next “big lie” into half of America’s consciousness and he will have prepared his supporters, should he need them, for his next coup attempt.

Should there occur a major political instability after the 2022 mid-term election (e.g. more coronavirus deaths, economic downturn, international political event, domestic terrorism, crime wave, government scandal) it is likely that Trump will easily be able to win the Electoral College and assume the Office of the Presidency in 2024. As Trump’s candidates would control the House and Senate, we can assume he will immediately institute policies that will end all Judicial and Congressional oversight of the Executive Branch, permanently end our tripartite constitutional democracy and leave him in power for years.

Of course it is impossible to predict what is going to happen in the political world 2-4 years hence, but one must acknowledge that the above scenario is at least plausible.

What must we do today to protect America’s democracy from Donald Trump?

In my opinion the solution to this problem requires two things to occur:

  1. Mr. Trump must be prohibited from assuming any future political office and
  2. Mr. Trump’s ability to influence the political sphere must be legally restricted. 

Constitutional scholar Laurence Tribe tweeted on 2/14/2021 at 8:22 AM

18 USC 2383: “Whoever incites,… assists, or engages in …insurrection against … the United States or the laws thereof, or gives aid or comfort thereto, shall be … imprisoned not more than ten years … and shall be incapable of holding any office under the United States.” 

and on 2/14/2021 at 5:24 PM

Congress could … authorize the attorney general to bring an action to enforce Section 3 against Trump before the U.S. Court of Appeals for the DC Circuit (or a 3-judge federal district court panel) and allow for immediate, expedited appeal to SCOTUS. 

 

After the Senate voted to acquit Trump on 2/13/2021, Senator McConnell said “There’s no question — none — that President Trump is practically and morally responsible for provoking …” the attempted coup. And … “We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.” 

There are few times in recent history when Harvard’s Constitutional scholar Lawrence Tribe and Senate Minority Leader Mitch McConnell agree, but I suspect that this might be one of those times.

Minority Leader McConnell  and Majority Leader Schumer must immediately authorize the US Attorney General to file charges against Mr. Trump before the US Court of Appeals for the DC Circuit charging that his coup attempt, as documented during his second impeachment trial, violates

U.S. Code, Title 18 – Crimes and Criminal Procedures, Part I – Crimes, Chapter 115 – Treason, Sedition, and Subversive Activities. Sec. 2383 – Rebellion or insurrection.

Because Trump has not given up on his goal of making the American Presidency is personal property, as revealed in his statement that his movement “has only just begun” and his failure to demonstrate any remorse for his attempted coup, the Court is obligated to impose the maximum penalty, which is 10 years in prison, and a prohibition against running for political office. The Court should also demand that he refrain from all political activities and interaction with all political operatives, possibly as part of a plea bargain agreement. The US Supreme Court must quickly affirm the lower Court’s decision as any delay will threaten the existent of our democracy.

Once in prison, Mr. Trump’s ability to communicate with and direct his supporters will be severely restricted if he is treated the same as all other Federal prisoners. And thus will end his political terrorization of America’s democracy.

While I hope that history will demonstrate that my “political thought experiment” was no more real than a nightmare, we must lose no time in bringing Mr. Trump to justice as there is only a narrow window during which time we can ensure that America’s great experiment in representative democracy will continue for another 2.5 centuries.

 

Hayward Zwerling

2/15/2021