Illegal does not mean impossible, and seeking consolation about Trump from legal experts might be stupid

The question at hand is not what the law says, but whether it is possible for a tyrant to violate and overturn the rule of law.

by Jeffrey C. Isaac

Sunday, December 27, 2020

Thursday’s Washington Post features an “analysis” by Amber Phillips whose title provocatively asks: “Could Trump declare martial law to try to steal the election?” This question is on the minds of many, and with good reason, because Trump continues to insist that the election was stolen from him, and many of his avid supporters continue to believe him, and he appears to be increasingly unhinged in his war against constitutional democracy.

Phillips, along with her editors, surely knows this. Her piece’s publication otherwise makes no sense.

And yet, instead of taking this question seriously as a question, Phillips seems determined to invoke the words of people really in the know in order to provide us with comfort: “That and other efforts his allies are floating won’t work, say legal and national security experts. Here’s why.”

What follows is a series of expert “takes” on the most troubling scenarios, as refined for popular consumption by Phillips herself.

Trump has defied conventional wisdom, expert forecasting, and the Constitution itself time and time again these past four years. (Photo: Gage Skidmore/Flickr/cc)

Martial law? Apparently the experts say this is impossible. “There’s no legal precedent for it.”

The experts apparently also say that even if martial law were declared, it would be ineffectual, because, in Phillips’ words, it “wouldn’t do anything to change votes.”

Invoke the Insurrection Act? “It’s supposed to be used only in times of emergency? But what emergency is there right now that would warrant the military taking to the streets?”

Might Trump incite his violent mob of supporters to provoke an emergency? “But this tactic would almost certainly face legal challenges and political blowback.” Furthermore, nothing about the Insurrection Act says that a president can stay in office after losing an election. And so, again, Phillips dismisses this scenario.

Might Trump’s supporters in Congress protest the election on January 6?

It’s unlikely that this could succeed, but in any case, “there’s no legal basis not to accept state’s electors that, taken together, make Biden president.”

So, Phillips insists, “all of this talk about possible actions is just that: talk.” And while Trump can talk and Tweet all he wants in the coming days, Phillips concludes, at noon on January 20 “he will be the former president.” Period.

(One wonders: if what Trump says is “just talk,” then what is what Phillips says?)

Simple. Right?

Most of what is actually reported in this piece is not wrong. But the piece as a whole is worse than wrong. It is stupid. For while Phillips would have us believe that she is discussing whether a Trump theft of the election is possible, in every instance, what she tells us is that such a move, in the view of most experts, would be illegal.

It is important for readers to know this. But it is equally important for readers to understand that at a moment of constitutional crisis, it is absurd to try to reassure people by telling them that anti-constitutional maneuvers are unconstitutional and unprecedented. For the question at hand is not what the law says, but whether it is possible for a tyrant to violate and indeed overturn the law in a big way.

This is not a legal question, it is a political one.

And illegality is something very different than political impossibility.

The absurdity of Phillip’s way of calling upon the experts is epitomized by her quote of Rachel Klienfeld, “a national security expert” at Carnegie Endowment for International Peace: “If you have martial law, you have total suspension of the Constitution. So that’s a coup, and a coup in this country isn’t going to happen.”

So, apparently martial law is impossible almost by definition, because that would be a coup and a coup is impossible here.

But why is a coup impossible here?

Phillips never says. Yet earlier in her piece, she furnishes another quote from Klienfeld that seems to say something rather different than what Phillips would have us believe: “This is really dangerous stuff to start playing with. You cannot normalize extrajudicial action outside the rule of law and believe democracy will hold. Democracies are fragile, even ours.”

In other words: while Trump’s maneuverings might be morally outrageous and contrary to law, they are also really dangerous, and if such efforts gain traction, we cannot assume that “democracy will hold.” For democracies are fragile. Even ours. And if subverted, weakened, and attacked, a democracy might well give way. Even ours.

How likely is it that Trump’s efforts will gain traction in the coming weeks, and will move forward in a way that decisively subverts the election?

Phillips says almost nothing about this.

As someone who has taught political science for almost four decades, I know that the chances of Trump moving forward successfully to overthrow the election and thus our democracy are small. Very small. But they are not non-zero. And this matters. It means that the lack of legal warrant and legal precedent tells us very little, and that we are still in the midst of a very dangerous interlude, a moment of real uncertainty, in which a very malevolent and sociopathic individual remains Commander-in-Chief.

Only two days ago, CNN’s Barbara Starr reported that “Pentagon anxiety rises as officers wait for Trump’s next unpredictable move.” Interesting, isn’t it, that those officers are so anxious? Perhaps they need to spend more time with national security experts. Or perhaps they have reason for concern.

Just yesterday, Maggie Haberman and Michael S. Schmidt filed a New York Times piece entitled “A President Unhappy, Unleashed, and Unpredictable” reporting that Trump is increasingly unhinged. According to the report: “Most of his advisors believe Mr. Trump will depart the White House for a final time by Jan. 20 . . . Still, his erratic behavior and detachment from his duties have even some of his most loyal aides deeply concerned.” Most believe. Deeply concerned. Read those words again. And again.

This is all deeply concerning. Indeed, it is downright terrifying. It means that some of those most close to the situation really have no idea how far Trump will go to try to hold onto his power and what is likely to happen in the event that he truly goes beyond the bounds. Some apparently think he might even stay in the White House past January 20.

On December 22, Claire O. Finkelstein and Richard Painter posted an important piece at Just Security, arguing that “Invoking Martial Law to Reverse the 2020 Election Could Be Criminal Sedition.” These two are both serious legal scholars. Painter in particular, who served as chief White House ethics lawyer in the George W. Bush White House, has spent the last four years indefatigably documenting Trump’s many violations of constitutional law. There is no reason to doubt their argument on the legal merits: if Trump were to invoke martial law to reverse the 2020 election, this could be an act of criminal sedition.

With Finkelstein and Painter, one might hope that, were such a crime attempted, it would fail, and the perpetrator would face criminal prosecution.

But the question at hand right hand now is not a legal question. It is a political one: might Trump engage in a seditious attempt to overthrow the Constitution, and if so, what would likely happen? In other words, might he break the law and get away with it because he is in fact in charge?

We can game this question out. But we cannot know the answer in advance.

There are many good reasons to believe that the proverbial “center will hold” in such a scenario.

But Trump has defied conventional wisdom, expert forecasting, and the Constitution itself time and time again these past four years. We are living at a moment of real crisis, and Trump is a uniquely dangerous and despotic individual with a real political base of support. The peaceful transfer of power through democratic means is not a law of nature. It is indeed a historical rarity. Power is often taken, or seized, or overthrown. Our own constitutional democracy was indeed the result of such a break in the normal course of human events. Such breaks happen. And they are not always good. Such a break might yet happen now. And it would be very bad.

It is really important, now more than ever, that citizens who care about democracy pay careful attention to everything that is going on, and that we take nothing for granted about the continued functioning of constitutional democracy.

And it is equally important that journalists and pundits who care about democracy abandon the kind of knowing arrogance displayed in the piece by Phillips. Trump’s rhetoric might be hyperbole. Things might well be more complicated than he can ever fathom. And his fantasies of dominion may run contrary to the law. But this is an exceptional moment, and homilies about legal precedent and Inauguration Day are a distraction from the exceptional danger we face.

Jeffrey C. Isaac is James H. Rudy Professor of Political Science at Indiana University, Bloomington. His books include: “Democracy in Dark Times“(1998); “The Poverty of Progressivism: The Future of American Democracy in a Time of Liberal Decline” (2003), and “Arendt, Camus, and Modern Rebellion” (1994).

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