Today’s Edition: “Not dead yet.”

September 27, 2021

         Last Friday, Washington Post columnist Robert Kagan published an essay entitled, “Our constitutional crisis is already here.” Rachel Maddow read lengthy portions of Kagan’s essay on her Friday evening program and provided a punctuation to her dramatic reading with an appearance by Steve Schmidt (of Lincoln Project fame). Those events were enough to move dozens of readers to send me a copy of Kagan’s essay attached to emails expressing varying degrees of panic, fear, and despondency. Later that evening, Heather Cox Richardson published her daily column, which reviewed the memo by John Eastman that laid out a six-step plan for Trump’s coup. Like Kagan, Professor Richardson’s thesis is that our democracy is in extremis and that politicians are failing to respond to that crisis with urgency. As Professor Richardson put it, “If this is not a hair-on-fire, screaming emergency, what is?” Many readers asked me to give my views of the Kagan/Maddow/Schmidt/Richardson dire warnings for our democracy.

          Let me start by saying that I am optimistic about the future of our nation. You should be, too. But, as always, I believe we should be realists. To overcome the challenges we face, we must understand them and fashion our responses accordingly. We should neither underestimate nor overestimate those threats. Like Kagan, Richardson, Maddow, and Schmidt, I have tried to rally faithful servants of democracy to its defense. There is an honored place in our history for calls to action intended to awaken a somnolent public. We should encourage and praise such efforts, not dismiss them. The truth can be hard to hear, and we should not punish the messenger.

          I will focus my comments on Kagan’s expansive essay. Most of what Kagan writes is unassailably true. He ably describes the hostile takeover of the Republican Party by Trump. It is an ugly and disturbing tale. Though the GOP began its current decline with Newt Gingrich in 1994, the Trump blitzkrieg succeeded too easily and quickly. The party faithful were primed for a demagogue like Trump to give voice to their grievances. When Trump appeared, they surrendered without a fight. Or, rather, they recognized Trump as their own and embraced him with relief and delight.

          All of this we know. We have witnessed the sad spectacle and watched in horror as men and women we believed were decent have debased themselves before Trump. We lived through the most serious test of democracy since the Civil War. We have watched in frustration and puzzlement as the DOJ has treated insurrectionists as trespassers and all-but-ignored the coup plotters, the ringleaders, and the co-conspirators.

          What, then, are we to make of what the last five years portends for the next four? Here is where I part company with Kagan. In my view, things are bad and will get worse before they get better. But in Kagan’s view, there is “a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves.” Kagan then provides an extensive analysis of why he believes the nation will fall into civil war. Before I dispute Kagan’s conclusion, I will summarize his primary arguments.  

          Kagan argues that Trump will win in 2024, which will “lead to a temporary suspension of democracy as we have known it.” Kagan says Trump will win the 2024 GOP nomination because

[t]he Republican Party today is a zombie party. Its leaders [only] go through the motions of governing in pursuit of traditional Republican goals . . . . The result is that even anti-Trump Republicans are enabling the insurrection.

          Kagan notes that Big Lie proponents are attempting the takeover of local election infrastructure such that no “red” state will allow its citizens to instruct Electors to vote for a Democratic candidate for president. Kagan predicts chaos in 2025 when Congress counts the Electoral ballots and asserts that “[i]t would be foolish to imagine that the violence of Jan. 6 was an aberration that will not be repeated.

          Finally, Kagan attempts to disarm dissenters, like me, who disagree with his conclusion. He says that “the same people who said that Trump wouldn’t try to overturn the last election now say we have nothing to worry about with the next one.” Kagan has resorted to a “straw man” argument to support his conclusion. No one is saying “we have nothing to worry about.” We have plenty to worry about and should be acting like our democracy depends on the vigor of our defense (because it does). So, as I disagree with Kagan’s assertion that we will fall into civil war, I am not saying “We have nothing to worry about.” I am saying that Kagan has underestimated the scale and heft and momentum of our democracy.

          Let’s start by recognizing a fact that Kagan dismisses with the back of his hand. Democracy survived a coup attempt in 2020 when the coup plotters controlled the presidency and a corrupt DOJ, had staged a hostile takeover of the Department of Defense, had stuffed the Supreme Court with Trump loyalists, and incited several thousand domestic terrorists to attack the Capitol to stop the Electoral count. That was a stress test unlike any in our history—and democracy survived. We should expect an even stronger defense in 2024.

          The Supreme Court repeatedly rebuffed Trump in 2020, and we should expect it will do so in 2024. The DOJ will have a non-corrupt attorney General at its helm in 2025 and Vice President Kamala Harris will preside over the vote of the Electoral ballots. Will Republicans attempt to subvert the Constitution? Without doubt! But the strong likelihood is that those challenges will be resolved in Congress and the courts, not in the streets.

          What about Kagan’s dire prediction of “mass violence in the streets”? Here is where Kagan really misses the mark. I agree that the Capitol insurrection was an enormous threat to our nation. (Indeed, I am puzzled and frustrated that Democrats are acting like it was a protest gone awry.) But let’s put things in perspective. At his worst, Trump was able to draw several thousand loyalists to his blatant call to arms to “Stop the Steal.” There are 330 million citizens in America, 74 million of whom voted for Trump. Of those enormous numbers, a fraction of a smidgen of a percent showed up on January 6th. (Assuming 3,000 people entered the Capitol, the number is 10^-5 of the population. That’s a really small number. It is one hundred-thousandth of a percent.)

          At Trump’s follow-up rally on September 18 (to protest the “unfair treatment of political prisoners arrested on January 6th), a charitable interpretation is that 200 Trump supporters showed up. As Samuel Goldwyn said, “People stayed away in droves.” Why? Because they understood that they would be arrested if they engaged in violent behavior. Even if they only risk arrest for trespassing, most of Trump’s supporters are worried about paying the rent, feeding their kids, and showing up to work on time. Getting arrested interferes with those activities, bigly! Indeed, Kagan recognizes this fact when he says, “Most Trump supporters are good parents, good neighbors and solid members of their communities.”

          Kagan’s prediction of mass violence arises from the cognitive bias caused by the availability heuristic. In short, Kagan is predicting mass violence because he observed repeated images of violence on January 6th. That misjudgment causes Kagan (and us) to overweight the likelihood of mass violence in the future.

          Will there be violence related to the 2024 election? Yes, to a 100% certainty. Will it be a mass violence? Not likely. Kagan is extrapolating from a data set of one event. The margin for error is massive in such a small sample.

          Am I saying we should dismiss the potential for violence? No! To the contrary, I believe (like Kagan) that we should be prosecuting the insurrectionists with greater vigor and urgency to prevent a repeat of violence. In short, I agree with Kagan that politicians and prosecutors are failing to act with sufficient urgency. But I disagree with Kagan’s conclusion that the inescapable result is an apocalyptic and violent ending to democracy.

          I also disagree with Kagan’s premise that if we experience a confusing and disputed election in 2024, that will be the end of democracy. Raise your hand if you remember the dramatic events of the 2000 election. When that debacle ended with a shameful resolution by the Supreme Court, what happened? Tens of millions of Americans believed Al Gore was the legitimate president of the United States, but democracy survived. The Constitution abided, even though the political outcome was repulsive to most Americans.

          Though I won’t get into details in this newsletter, if Trump successfully interferes with the operation of the Electoral college (which I doubt), the most likely outcome is that we end up with an Acting President under the 1947 Presidential Succession Act (as amended). That will be Nancy Pelosi, Kevin McCarthy, or whoever is the Speaker of the House at the time. Then the Supreme Court will sort it out, or not. A new president will be elected one way or another in 2028. My point is that the Constitution will control the outcome, even if the result is a period of political uncertainty. We can tolerate political uncertainty, as long was we have constitutional certainty.

          Finally, what irritates me about the genre of disaster prediction is that it assumes that in the face of an overthrow of democracy, the American people will shrug their shoulders and say, “Darn! I hate it when that happens,” and go back to scrolling through Facebook. If Trump “wins” in 2024 because Republican legislatures overrule the votes of their citizens (which I doubt), Trump’s tenure will be short. A hundred million Americans will mount street protests, tax strikes, work strikes, and civil disobedience that will paralyze the country and the economy. At that point, the Republican corporate masters will understand that their support for a coup-plotter is bad for business and demand that the cause of their decline in profitability resign ASAP. Do not underestimate the power of panicked capitalists watching their net worth in free-fall.

          In other words, don’t sell the American people short. It may take a lot to rouse them, but woe to the person who underestimates their loyalty to the Constitution and their ability to achieve great things when challenged.

          I respect the thoroughness and thoughtfulness of Kagan’s essay and the nobility of his purpose. But I believe that the genre of disaster prediction is, in general, an easy and cheap way to gain traction in a crowded marketplace of internet-based journalism. In the run-up to the 2020 election, I spent months rebutting the notion that the president had hundreds of “secret powers” to suspend the Constitution and remain in power. A single, poorly written article by an otherwise reputable organization spawned that falsehood, which was recycled dozens of times by respected outlets. See, e.g., NYTimes, “Trump Has Emergency Powers We Aren’t Allowed to Know About.”

          The authors of those “secret power” articles confidently predicted that Trump would send U.S. Marshalls to seize ballots and impose martial law to remain president. They were wrong. Does anyone remember their predictions? No! Why? Because when a disaster prediction turns out to be correct, the prognosticator is fêted. When the predictions do not come true, no one remembers. There is thus no downside to predicting disaster. And the more dire the prediction, the better for circulation.

          In the end, we do not need to motivate people by scaring them with exaggerated or remote outcomes. The real challenges we face are more than enough to cause each of us to fight for our democracy with a sense of urgency as never before. Indeed, there is danger in claiming that “All is lost” or “The next Trump coup is unstoppable.” I can attest that Mr. Kagan has demoralized and depressed many readers of this newsletter. I doubt that was his intent but predicting mass violence and the breakdown of federal authority tends to have that effect.

          So, I reject Kagan’s conclusions even though most of his observations of the current state of the Republican Party are accurate. I am not giving up. Neither should you. We should contest every race in 2022 and 2024, fight a Trump candidacy with all our might, litigate every illegal maneuver by the GOP, show up at every protest, boycott every corporate funder, and punish every politician who enables or ignores the slow rolling effort to subvert the Constitution.

Concluding Thoughts.

          I have said enough. There are tens of millions of us. We have work to do. Let’s not waste our time fretting over predictions of disaster we have the ability to avert. Democracy is not dead yet. With our shared effort and passion, it will endure long after the crooks and charlatans of the GOP have been assigned to the ash heap of history.

          Stay strong! Talk to you tomorrow!