The premise of the American experiment in government by the people and for the people and of the people, even if shifting ideas kept redefining who “the people” were at any given time, was that “the people” actually knew what was going on. That meant free speech. Let everyone be heard. It was the same with freedom of the press. This new government could not tell anyone what they could or could not publish. There had to expectations, for national security and public safety and libel and whatnot, but this new government would never be allowed to censor any views it found troubling. People had to know what was going on, one way or the other. The government doesn’t get to hide just any old thing they want to hide. The facts are everything. Only an “informed public” could elect sensible people to run things sensibly, not knaves and fools.
That’s the idea, although the concept of an “informed public” has been stretched beyond recognition. Some people have done their own research and now know that vaccines don’t work and masks don’t work and social distancing doesn’t work and Anthony Fauci is a lizard-person from outer space and Elvis is alive and well and living the good life in Altoona – while some think science has answers to things and so do doctors, and maybe experts do have actual expertise, and maybe the moon landing wasn’t a hoax after all. There will be disagreements.
But it’s best to know what’s going on. It’s best to know what just happened. Or maybe not:
The White House is leaning toward releasing information to Congress about what Donald Trump and his aides were doing during the Jan. 6 attack on the U.S. Capitol despite the former president’s objections – a decision that could have significant political and legal ramifications.
Trump has said he will cite “executive privilege” to block information requests from the House select committee investigating the events of that day, banking on a legal theory that has successfully allowed presidents and their aides to avoid or delay congressional scrutiny for decades, including during the Trump administration.
But President Biden’s White House plans to err on the side of disclosure given the gravity of the events…
In this case, an “informed public” would be nice for a change:
In response to questions about White House deliberations over what information to release, Biden spokesman Michael J. Gwin said the president views the attack on the Capitol as “a dark stain on our country’s history” and is “deeply committed to ensuring that something like that can never happen again, and he supports a thorough investigation.”
And this can be done:
Members of the investigative committee argue that Trump no longer enjoys the protection of executive privilege, encouraging the White House to push aside institutional concerns about sharing information with Congress and aid the panel in an investigation focused on what Democrats and a handful of Republicans have called an assault on democracy.
“It’s not really relevant because there’s no president involved – there’s no such thing as a former president’s executive privilege,” said Rep. Jamie B. Raskin (D-Md.), a committee member who teaches constitutional law.
So, they’re going for it:
The debate over the validity of his executive privilege claims comes as the committee is moving into a new, more aggressive phase of its investigation. Having requested material from telecom, social media companies and the White House – and receiving some response – it is now looking at how best to compel testimony and documents from those reluctant to participate.
Committee Chairman Bennie G. Thompson (D-Miss.) said this week that his panel will soon issue subpoenas to witnesses and organizations, adding that the committee has started scheduling closed door testimony with cooperative witnesses.
On Thursday night, the committee issued subpoenas to former White House chief of staff Mark Meadows, former deputy chief of staff Dan Scavino, former Pentagon official Kash Patel and longtime Trump adviser Stephen K. Bannon. The committee is seeking documents as well as testimony from the four men.
They want to know what the hell happened. Donald Trump would rather they didn’t know:
Trump has derided the committee’s work as partisan and is promising to fight its effort to collect information and testimony related to the attack.
“The highly partisan, Communist-style ‘select committee’ has put forth an outrageously broad records request that lacks both legal precedent and legislative merit,” Trump spokesman Taylor Budowich said in a statement. “Executive privilege will be defended, not just on behalf of President Trump and his administration, but also on behalf of the Office of the President of the United States and the future of our nation.”
The January Six Committee shrugged. They may call Republican lawmakers, their colleagues, to testify too. Some of them bragged about talking with Trump more than a few times that day. How did Trump explain this to them that day? But mostly this is paperwork:
In response to the House panel’s request, the National Archives has already identified hundreds of pages of documents from the Trump White House relevant to its inquiry. As required by statute, the material is being turned over to the Biden White House and to Trump’s lawyers for review.
The committee’s Aug. 25 letter to the National Archives was both sweeping and detailed, asking for “all documents and communications within the White House on January 6, 2021, relating in any way” to the events of that day. They include examining whether the White House or Trump allies worked to delay or halt the counting of electoral votes and whether there was discussion of impeding the peaceful transfer of power.
The letter asked for call logs, schedules and meetings for a large group, including Trump’s adult children, son-in-law and senior adviser Jared Kushner and first lady Melania Trump as well as a host of aides and advisers, such as his attorney Rudolph W. Giuliani.
The committee has focused, in part, on seeking information about whether the Trump White House and members of Congress played any role in encouraging the demonstrations, which interrupted the constitutionally mandated certification of electoral votes and unleashed a series of violent confrontations with the U.S. Capitol Police.
That should cover everything, and Donald Trump may be out of luck:
Trump has 30 days following the delivery of the documents to decide whether to object to their release, according to the statute. Even if he opposes turning them over, the Biden White House has decision-making authority and can release them, over Trump’s objections, after an additional 60 days has elapsed. Trump’s remaining option would be to go to court to try to halt the release, legal advisers said.
But that may not work:
While Trump has struck a defiant tone, his options may be limited if Biden decides to handover the information the former president says should be protected, according to several legal experts – including those who have reviewed similar requests in the past.
“The law we have is not favorable to the former president,” said Bob Bauer, who served as White House counsel under President Barack Obama. “A former president has a chance to review the materials, to raise issues of privilege and if the former and the current presidents cannot reach some agreement, to take the dispute to the courts.”
Bauer added that while an inquiry into a former president is unique, legal precedents suggest disclosure of the information Congress is seeking.
“The circumstances here – the former president acting at the time in his capacity as a candidate seeking to challenge his defeat at the polls – make this uphill battle much, much tougher,” he said.
But don’t we know enough already? The Atlantic’s Adam Serwer thinks so:
Last year, John Eastman, whom CNN describes as an attorney working with Donald Trump’s legal team, wrote a preposterous memo outlining how then–Vice President Mike Pence could overturn the 2020 election by fiat or, failing that, throw the election to the House of Representatives, where Republicans could install Trump in office despite his loss to Joe Biden. The document, which was first reported by the Washington Post journalists Bob Woodward and Robert Costa in their new book, is a step-by-step plan to overthrow the government of the United States through a preposterous interpretation of legal procedure
Pence apparently took the idea seriously – so seriously, in fact, that, according to Woodward and Costa, former Vice President Dan Quayle had to talk him out of it. Prior to November, the possibility of Trump attempting a coup was seen as the deranged fever dream of crazed liberals. But as it turns out, Trump and his advisers had devised explicit plans for reversing Trump’s loss. Republican leaders deliberately stoked election conspiracy theories they knew to be false in order to lay a political pretext for invalidating the results.
But they hid nothing. Everyone saw what they did. Trump tried to pressure secretaries of state to not certify.:
Trump held early leads in vote counts in several states – not because he was ever actually ahead but because of discrepancies between when states count mail-in ballots and Election Day ballots. This so-called blue shift was written about long in advance of Election Day, and was partially the result of Trump’s own attacks on voting by mail. Nevertheless, Trump made this a key part of his election conspiracy theories (as many predicted he would), insisting that Democrats were somehow inserting fraudulent ballots into the vote count in the presidential election (something they apparently forgot to do in close House and Senate races, in which Democrats did worse than polls had anticipated). To help substantiate these falsehoods, the Trump campaign attempted to pressure secretaries of state to either not certify the results or “find” fraudulent ballots. In some states, spurred by the president’s fictions, pro-Trump mobs showed up at vote-counting sites and attempted to disrupt the proceedings.
That didn’t work out, so it was on to this:
Trump tried to pressure state legislatures to overturn the results. Trump personally attempted to coerce state legislators to overturn election results in a few states that voted for Biden, on the dubious legal theory that such legislatures could simply ignore the results of the popular vote in their own states. In Pennsylvania, Michigan, Arizona, and Georgia, Trump publicly urged Republican-controlled statehouses to “intervene to declare him the winner” and tweeted, “Hopefully the Courts and/or Legislatures will have the COURAGE to do what has to be done to maintain the integrity of our Elections, and the United States of America itself.” As my colleague Barton Gellman reported last year, the Trump campaign discussed “contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority.”
That didn’t work out, so it was on to this:
Trump tried to get the courts to overturn the results. The embattled attorney general of Texas, Ken Paxton, filed an absurd lawsuit demanding that the Supreme Court void the election results in Wisconsin, Georgia, Michigan, and Pennsylvania, four states Biden won. The large majority of the Republican delegation in Congress, as well as nearly 20 Republican state attorneys general, supported this attempt to get the conservative-controlled Supreme Court to overturn the 2020 election results by fiat. The justices declined to crown Trump – but the amount of support this bid received from Republican elected officials is itself alarming.
As part of this effort, we can include the baseless “Kraken” lawsuits, filled with conspiracy theories about vote changes. Trump attempted to coerce the Justice Department into providing him with a pretext to overturn the results, but his attorney general, Bill Barr, refused to do so. Had DOJ leadership acquiesced, it would have lent credibility to Trump’s other corrupt schemes to reverse his loss. In a meeting with the acting attorney general, Jeffrey Rosen, according to contemporaneous notes taken by Rosen’s deputy, Trump said, “Just say that the election was corrupt [and] leave the rest to me.”
That didn’t work out, so it was on to this:
It is hard to pick the most ridiculous means of executing a coup, but insisting that the vice president has the power to unilaterally decide who won an election is up there. Trump publicly hounded Pence to reject the results prior to the traditionally ceremonial electoral-vote count in Congress, and Pence reportedly took that demand seriously enough to seek advice from Dan Quayle on the matter, “asking if there were any grounds to pause the certification because of ongoing legal challenges,” according to Costa and Woodward. That this got so far is profoundly disturbing, but even more disturbing is Eastman’s memo, which shows that the Trump team had thought very deliberately about how this scheme would work.
According to the memo, Pence could refuse to certify the results in particular states, giving Trump more electoral votes than Biden, and Pence would declare Trump the victor. If Democrats objected (as surely, they would), the vote would then go to the House. Because the Constitution gives one vote to each state in disputed presidential elections, and the Republicans were the majority in 26 of 50 state delegations, the Democratic House majority would be unable to prevent Republicans from throwing the election to Trump. The election-law expert Ned Foley writes that the scheme would likely not have prevailed, given the Democrats’ ability to prevent a joint session, but that seems almost beside the point, which is that a sitting president and vice president were considering how to keep themselves in power following an election they lost.
That also didn’t work out, so it was on to this:
When all else failed, Trump tried to get a mob to overturn the results. At the rally prior to the vote count in Congress, Trump urged the crowd to act, saying, “If you don’t fight like hell, you’re not going to have a country anymore.” The explicit goal of the rally and subsequent riot was to pressure Congress, and Pence in particular, into overturning the election results. Trump told his followers, “If Mike Pence does the right thing, we win the election.”
This scheme didn’t work on its own, but it certainly could have helped one of the others: Imagine if Pence had gone along with Eastman’s absurd plan, and a mob had been present at the Capitol to help enforce the decision and menace lawmakers who tried to oppose it – then what?
Who knows? But none of this was done in secret. Trump hid nothing, and Serwer adds this”
At the core of these attempts is a dangerous ideology – the presumption that because Trump supporters represent “Real Americans,” the will of democratic majorities can be disregarded. This does not mean that the Republican Party is capable of winning majorities, but that winning them is irrelevant to whether or not the party’s Trumpist faithful believe they are entitled to wield power. Win or lose, their claim to be the sole authentic inheritors of the American tradition means they are the only ones who can legitimately govern and are therefore justified in seizing power by any means. This is the modern incarnation of an old ideology, one that has justified excluding certain groups of Americans from the suffrage on the basis that their participation is an affront to the political process.
Shifting ideas do keep redefining who “the people” are at any given time. Trump supporters represent “Real Americans” now, or so they think.
This is a bit dangerous. Robert Kagan is sure of that:
The United States is heading into its greatest political and constitutional crisis since the Civil War, with 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. The warning signs may be obscured by the distractions of politics, the pandemic, the economy and global crises, and by wishful thinking and denial. But about these things there should be no doubt:
And it’s quite simple:
First, Donald Trump will be the Republican candidate for president in 2024. The hope and expectation that he would fade in visibility and influence have been delusional. He enjoys mammoth leads in the polls; he is building a massive campaign war chest; and at this moment the Democratic ticket looks vulnerable. Barring health problems, he is running.
Second, Trump and his Republican allies are actively preparing to ensure his victory by whatever means necessary. Trump’s charges of fraud in the 2020 election are now primarily aimed at establishing the predicate to challenge future election results that do not go his way. Some Republican candidates have already begun preparing to declare fraud in 2022, just as Larry Elder tried meekly to do in the California recall contest.
Meanwhile, the amateurish “stop the steal” efforts of 2020 have given way to an organized nationwide campaign to ensure that Trump and his supporters will have the control over state and local election officials that they lacked in 2020. Those recalcitrant Republican state officials who effectively saved the country from calamity by refusing to falsely declare fraud or to “find” more votes for Trump are being systematically removed or hounded from office. Republican legislatures are giving themselves greater control over the election certification process. As of this spring, Republicans have proposed or passed measures in at least 16 states that would shift certain election authorities from the purview of the governor, secretary of state or other executive-branch officers to the legislature. An Arizona bill flatly states that the legislature may “revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election” by a simple majority vote.
And that ends the American experiment. But not without a fight. And that won’t be pretty:
Imagine weeks of competing mass protests across multiple states as lawmakers from both parties claim victory and charge the other with unconstitutional efforts to take power. Partisans on both sides are likely to be better armed and more willing to inflict harm than they were in 2020. Would governors call out the National Guard? Would President Biden nationalize the Guard and place it under his control, invoke the Insurrection Act, and send troops into Pennsylvania or Texas or Wisconsin to quell violent protests? Deploying federal power in the states would be decried as tyranny. Biden would find himself where other presidents have been – where Andrew Jackson was during the nullification crisis, or where Abraham Lincoln was after the South seceded – navigating without rules or precedents, making his own judgments about what constitutional powers he does and doesn’t have.
Today’s arguments over the filibuster will seem quaint in three years if the American political system enters a crisis for which the Constitution offers no remedy.
Nope. The Framers didn’t think about this sort of thing. We’re on our own. We goofed::
As has so often been the case in other countries where fascist leaders arise, their would-be opponents are paralyzed in confusion and amazement at this charismatic authoritarian. They have followed the standard model of appeasement, which always begins with underestimation. The political and intellectual establishments in both parties have been underestimating Trump since he emerged on the scene in 2015. They underestimated the extent of his popularity and the strength of his hold on his followers; they underestimated his ability to take control of the Republican Party; and then they underestimated how far he was willing to go to retain power.
The fact that he failed to overturn the 2020 election has reassured many that the American system remains secure, though it easily could have gone the other way – if Biden had not been safely ahead in all four states where the vote was close; if Trump had been more competent and more in control of the decision-makers in his administration, Congress and the states. As it was, Trump came close to bringing off a coup earlier this year. All that prevented it was a handful of state officials with notable courage and integrity, and the reluctance of two attorneys general and a vice president to obey orders they deemed inappropriate.
But that means the Constitution is useless here:
The Framers did not establish safeguards against the possibility that national-party solidarity would transcend state boundaries because they did not imagine such a thing was possible. Nor did they foresee that members of Congress, and perhaps members of the judicial branch, too, would refuse to check the power of a president from their own party.
Yes, this is all new now:
What makes the Trump movement historically unique is not its passions and paranoias. It is the fact that for millions of Americans, Trump himself is the response to their fears and resentments. This is a stronger bond between leader and followers than anything seen before in U.S. political movements. Although the Founders feared the rise of a king or a Caesar, for two centuries Americans proved relatively immune to unwavering hero-worship of politicians. Their men on horseback – Theodore Roosevelt, Grant, even Washington = were not regarded as infallible. This was true of great populist leaders as well. William Jennings Bryan a century ago was venerated because he advanced certain ideas and policies, but he did not enjoy unquestioning loyalty from his followers. Even Reagan was criticized by conservatives for selling out conservative principles, for deficit spending, for his equivocal stance on abortion, for being “soft” on the Soviet Union.
Trump is different, which is one reason the political system has struggled to understand, much less contain, him.
The American liberal worldview tends to search for material and economic explanations for everything, and no doubt a good number of Trump supporters have grounds to complain about their lot in life. But their bond with Trump has little to do with economics or other material concerns. They believe the U.S. government and society have been captured by socialists, minority groups and sexual deviants. They see the Republican Party establishment as corrupt and weak = “losers,” to use Trump’s word, unable to challenge the reigning liberal hegemony. They view Trump as strong and defiant, willing to take on the establishment, Democrats, RINOs, liberal media, antifa, the Squad, Big Tech and the “Mitch McConnell Republicans.” His charismatic leadership has given millions of Americans a feeling of purpose and empowerment, a new sense of identity. While Trump’s critics see him as too narcissistic to be any kind of leader, his supporters admire his unapologetic, militant selfishness.
Unlike establishment Republicans, Trump speaks without embarrassment on behalf of an aggrieved segment of Americans, not exclusively White, who feel they have been taking it on the chin for too long. And that is all he needs to do.
And that is enough. And that leads here:
The Trump movement might not have begun as an insurrection, but it became one after its leader claimed he had been cheated out of reelection. For Trump supporters, the events of Jan. 6 were not an embarrassing debacle but a patriotic effort to save the nation, by violent action if necessary. As one 56-year-old Michigan woman explained: “We weren’t there to steal things. We weren’t there to do damage. We were just there to overthrow the government.”
But don’t dismiss that:
t would be foolish to imagine that the violence of Jan. 6 was an aberration that will not be repeated. Because Trump supporters see those events as a patriotic defense of the nation, there is every reason to expect more such episodes. Trump has returned to the explosive rhetoric of that day, insisting that he won in a “landslide,” that the “radical left Democrat communist party” stole the presidency in the “most corrupt, dishonest, and unfair election in the history of our country” and that they have to take it back.
This will not end well. But that’s no secret now.