By Michael Klarman
President Trump was the proximate cause of the violent assault on the Capitol on January 6, 2021. His words of incitement to a crowd of thousands of angry supporters -- including “[y]ou’ll never take back your country with weakness” -- may well qualify for criminal punishment notwithstanding the First Amendment. And those presidential words inciting insurrection certainly justified Trump’s second impeachment by the House.
The actions of Republican congressmen and senators who knowingly raised frivolous objections to Congress’s certification of the electoral college vote that same day, while not warranting criminal punishment, also deserve censure and contempt. Their effort to block the electoral vote count was an attempted coup against democracy -- just of a different sort from the simultaneous storming of the Capitol by a Trump-incited mob.
Indeed, these two coup attempts were related, and both were the logical culmination of the Republican Party’s two-decades-long assault upon democracy through gerrymandering and voter suppression and of the propagation of the big lie of voter fraud by GOP leaders and the right-wing media ecosystem. To focus censure mainly on Trump -- which has been a leading tactic among Republican elites, including Senate Minority Leader Mitch McConnell -- is to enable others who share significant responsibility for the dual coup attempts of January 6th to escape the blame they deserve.
Beginning around 2005, Republican-controlled state governments throughout the nation have enacted a variety of measures aimed at enabling the GOP to remain in power while no longer commanding the support of a majority of voters. Republicans have suppressed votes through restrictive voter identification laws and purges of the voter rolls -- both on the ostensible ground of preventing voter fraud, which numerous academic studies have conclusively demonstrated barely exists in the United States. Republicans have also grotesquely gerrymandered legislative districts, enabling them to maintain control of state legislatures and the House of Representatives while failing to win majorities of the vote.
Republicans have also erected obstacles to college students’ voting, delayed elections that they anticipated they would lose, eviscerated the powers of Democratic governors, and rejected the results of voter initiatives of which they disapproved as well as imposing obstacles to placing such initiatives on the ballot in the first place. In the months prior to the 2020 election, Republican officeholders sought to make it harder to vote during a once-in-a lifetime pandemic: refusing in some states to expand excuse-based absentee balloting, restricting the availability of drop boxes to collect absentee ballots, declining to relax witness-signature requirements for absentee ballots, and refusing to allow the counting of absentee ballots postmarked but not received by Election Day.
In addition, beginning with a contested U.S. Senate race in Missouri in 2000, when Republican Senator Kit Bond charged that “Democrats in the city of St. Louis are trying to steal the election,” Republicans have consistently propagated the myth of widespread voter fraud (especially in cities with large African American populations). After that election, the Justice Department of President George W. Bush established a voter integrity initiative to uncover evidence of voter fraud (of which it found almost none); Fox News broadcast fraudulent stories of pervasive voter fraud beginning after the 2000 election and “a new right-wing voter fraud movement was born.” In 2006, the Bush administration fired a dozen U.S. Attorneys for pretextual reasons after they failed to pursue voter-fraud allegations with sufficient ardor.
After losing the popular vote in 2016 by nearly three million votes, President Trump repeatedly insisted without any evidence that three to five million undocumented immigrants had voted in the election. President Trump then established his own “voter integrity” commission, which quickly folded after uncovering no significant evidence of voter fraud. The logical culmination of this voter-fraud lie was that 70 to 80 percent of Republicans after the November 2020 election denied that Joe Biden had been legitimately elected president of the United States, despite a complete absence of actual evidence of voter fraud or other electoral irregularities.
At the same time, Republican politicians overwhelmingly have remained silent in the face of Trump’s repeated exhortations to political violence. In 2015-16, candidate Trump regularly incited crowds to “knock the crap” out of protestors, and he offered to pay the legal expenses of anyone doing so. As president, Trump expressed admiration for Montana Republican congressional representative (now Governor) Greg Gianforte, who had physically assaulted a reporter during his 2017 special-election campaign. Trump has warned that immigrants being blocked at the border who threw rocks at American soldiers might be shot, and he has threatened war crimes against foreign foes and pardoned American war criminals.
In March, 2019, Trump said, “[y]ou know, the left plays a tougher game, it’s very funny. I actually think that the people on the right are tougher, but they don’t play it tougher. Okay? I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump -- I have the tough people, but they don’t play it tough -- until they go to a certain point, and then it would be very bad, very bad.”
Such incitements to violence came home to roost well before the insurrectionary assault on the Capitol on January 6th. Just before the 2018 midterm elections, as Trump described the Central American refugees’ caravanning to the United States as “criminals” and “an invasion,” two disturbed individuals possibly sharing the President’s stated animus towards immigrants took violent action. In late October, Cesar Altieri Sayoc, Jr., an ardent Trump supporter, mailed more than a dozen pipe bombs to prominent Trump critics. Just days later, Robert Gregory Bowers, a white supremacist and anti-Semite who had expressed alarm at the caravan bringing “invaders in that kill our people” and blamed it on the Hebrew Immigrant Aid Society, murdered eleven Jews in a Pittsburgh synagogue.
In 2019, in El Paso, Texas, a man who posted an anti-immigrant manifesto filled with Trumpian warnings of an “Hispanic invasion” and Democratic support for “open borders” murdered more than twenty people, mostly Latino. During last summer’s racial-justice protests against the killing of African American George Floyd by a white police officer in Minneapolis, Trump invoked an old white-supremacist adage from the 1960s: “When the lootings start, the shooting starts.” Trump also told governors on a phone call that they were “weak” and being made to “look like a bunch of jerks,” and exhorted them to get “much tougher” and to “dominate” the streets. How many Republican politicians and Fox News commentators voiced outrage at any of these Trumpian incitements to violence? Indeed, to the contrary, many apologists for the president expressed outrage at any suggestion that Trump bore responsibility for the violence that followed his words of incitement.
The violent insurrection against Congress on January 6 was predictable. If you lie to people long enough about the prevalence of voter fraud and convince them that their democracy is being stolen from them, why would they not rise up in resistance? And if you have consistently encouraged them to regard their political rivals as “traitors,” “communists,” and “Satan-worshiping pedophiles,” while declining to admonish the president for inciting political violence, why would they not believe that violence was a legitimate form of resistance?
Polls conducted after January 6 show that substantial majorities of Republicans still do not regard Joe Biden as a legitimate president. Yet this is not the only lie that has convinced a majority of Republicans, who still choose to believe that Barack Obama was not born in the United States, that human-caused climate change is not real, and that the Trump administration did a fine job responding to the coronavirus pandemic. How does one go about fixing a nation in which a majority of the supporters of one of the two major political parties live in an alternative factual universe?
For starters, Republican voters who do live in the world of facts, science, and expertise might ask themselves if lower taxes, anti-abortion judges, and economic deregulation are more important to them than the degradation of American democracy. Studies and articles -- including in the October 31, 2020 edition of The Economist and in an October 26, 2020 article from The Guardian -- have shown that today’s Republican Party is no more committed to democratic norms and institutions than the far-right authoritarian parties of Eastern Europe. Republican voters need to face up to that fact when they go to the polls.
In addition, pressure should be exerted on the Republican Party and the right-wing media ecosystem by forces to which they will respond. Fox News has made enormous profits over the last quarter century by stoking racial outrage and resentment, spreading the myth of voter fraud, and supporting President Trump’s authoritarian assault on democratic norms and institutions.
Likewise, with the aid of voter suppression and the exploitation of systematic democratic deficits in the American political system, the Republican Party has continued to hold onto political power while pursuing a distinctively unpopular economic agenda by appealing to racial resentment, anti-immigrant sentiment, and fear of Democratic socialism. Since January 6th -- when years of Republicans’ bashing democracy, vilifying Democrats, and baselessly alleging voter fraud predictably culminated in a violent assault upon Congress -- some corporate backers of the Republican Party and the right-wing media ecosystem finally have threatened to turn off the financial spigots. Such corporate “responsibility” would be a lot more convincing and effective if it targeted the long-term assaults on democratic institutions and sensibilities rather than waiting until their logical culmination in violence.
But the most promising avenue for heading off further political violence would be to stop the Republican Party’s assaults upon it. The Biden administration and the new Democratic Congress must protect and expand access to the ballot. Voter registration should be automatic when citizens turn eighteen and easy for older citizens. Same-day registration enhances turnout without increasing fraud, as Republicans baselessly charge. Felon disfranchisement, which has enormous racially disparate effects and often was instituted with a racially discriminatory purpose, should be ended. Election Day should be made a national holiday. The number of early-voting days, polling places, and voting machines should be increased, to end the national disgrace of working-class African Americans in Atlanta having to wait in lines for as long as ten hours to vote. Absentee ballots should be available without excuse. Onerous identification requirements for voting should be eliminated because they reduce turnout on the pretext of reducing fraud. Partisan gerrymandering has no plausible justification and should be ended.
Such democracy-entrenching legislation could facilitate a new political epoch. In this altered political environment, the unpopularity of the Republican Party’s agenda stoking racial and religious resentment and xenophobia combined with plutocratic economic policies such as tax cuts for the wealthy, economic deregulation, and environmental degradation -- might cause the party to consistently lose elections.
A series of electoral defeats might lead the Republican party to adopt policies more appealing to today’s voters. Such a party might also stop lying to its supporters about voter fraud, take responsibility for its electoral defeats, and refrain from stoking conspiracy theories about the political opposition that incite violence. A Republican Party -- and a complicit right-wing media ecosystem -- that stopped misleading supporters into believing that democracy was being stolen from them and ceased backing politicians like Trump who encourage the use of political violence, would be much less likely to incite any more January 6-style coup attempts.
About the Author:
Professor Michael J. Klarman is the Kirkland & Ellis Professor at Harvard Law School.