What Happens If Americans Stop Trusting the System?

What Happens If Americans Stop Trusting the System?

 It’s been quite a while now that the phrase “cold civil war” has been bandied about. And it’s useful, so far as it goes. Polarization has now become tribalism, and the tribe is now so powerful a force it is beginning to eclipse national loyalty. The two nations, to borrow Benjamin Disraeli’s description of 19th-century Britain, stand facing each other, without blinking, faces flush, equally matched, on trigger alert for offense or another set battle. What we don’t quite know is if this tenuous, balanced equilibrium is sustainable indefinitely, the system careening from one party’s bitterly contested rule to gridlock and back again, until our tribal tensions are somehow exhausted. Or whether the cold civil war could at some point get a little warmer, or even, shall we say, hot.

What we don’t know, in other words, is when the legitimacy of the entire political system could come into doubt, across the ideological spectrum, in a way that might sanction undemocratic responses. By legitimacy, I don’t mean having deep differences in policy with a president or his party; I don’t mean contempt for, or even mere opposition, to the powers that be; I mean denial of the core validity of the key institutions and players in our system. It’s one thing, after all, to disagree profoundly with an administration’s policies; and another thing entirely to believe an administration, or a congressional majority, or a Supreme Court majority, is fundamentally unjust, and its decisions therefore non-binding.

We currently, for example, have an acting attorney general, the appointment of whom was almost certainly unconstitutional. The last time anyone checked, the AG reports directly to the president, is a “principal officer” in the Cabinet, and wields extraordinary power over our entire system of justice. Installing him as acting attorney general without the advice and consent of the Senate breaks a fundamental principle of liberal democracy and American constitutionalism: No single person should have complete control of all those in the Executive branch, without some severe risk of corruption.

And corruption is, of course, the entire alpha and omega of Whitaker’s appointment. He is a partisan hack, far out of the legal mainstream (he once opined that Marbury v. Madison was wrongly decided, for Pete’s sake), and seemingly has been installed to shut down or neuter an independent investigation into the president’s campaign. That very possibility is why the Founders wanted the Senate to have a role in this level of appointment. Without such involvement, Whitaker is, in a word, illegitimate. And when the chief law enforcement officer in the country has no constitutional authority, the entire rule of law comes into question.

And this is no longer an abstract question. It’s happening right now.
Then there’s the Supreme Court. Its broad legitimacy is critical for the survival of a deeply divided republic because there are times when only the Court can resolve a destabilizing conflict, as it was forced to do in Bush v.Gore. But it has involved itself in recent decades with profoundly emotive questions — such as abortion — that split the country. Each time it does this, and sides with one tribe over another in a question as fundamental as when life begins, or who the president is, it loses a little institutional luster. It starts to fail the neutrality test — which is to say it loses part of its very legitimacy.

But with the abolition of the judicial filibuster, even at the Supreme Court level, and the GOP’s nakedly partisan refusal to give a hearing to the last president’s nominee, Merrick Garland, we are in a new zone of tenuousness. Gorsuch wasn’t ideal after Garland — but the addition of the rigid partisan Kavanaugh in the place of the quirky libertarian Kennedy has only further weakened the legitimacy of the Court. Kavanaugh revealed himself in the hearings as a Republican activist, dedicated to upholding the Executive branch’s immunity from prosecution (as Newt Gingrich made clear). In those circumstances, how much legitimacy would a 5-4 vote protecting Trump from Mueller have, if Kavanaugh was the deciding justice? And what would be left of the Court’s broader legitimacy then?

The legitimacy of elections themselves is also increasingly in doubt. For some on the left, the skew in the House, because of gerrymandering and the concentration of Democrats in urban areas, is undermining faith in the system. And it is indeed crazy that an opposition party needs to be around seven points ahead in the national polling to take back the majority (the gerrymandering of state legislatures is even worse). And think about the possible ramifications: If some of the close races last Tuesday had gone the other way, and the GOP had kept control of the House even though it lost the popular vote, where would our politics now be? In an acute crisis, I think.

Similarly, the Senate’s structural tilt toward the less populous, rural, and heartland states further disadvantages one party alone, the Democrats, and looks set to do so for the indefinite future. That takes one branch of government (along with the judiciary via the Senate’s role) and keeps it indefinitely out of the hands of one of the parties — a legitimacy problem if ever there was one. Then there’s the Electoral College’s occasional preference for the losing presidential candidate in terms of the popular vote. This is not a black-swan event anymore. In the 21st century, it could be said of the initial election of two out of three presidents, both Republicans. Two out of three. If that were to repeat itself going forward, a crisis of presidential legitimacy would be perfectly understandable.

Trump, meanwhile, has been hard at work delegitimizing any institution, office, or officeholder that stands in the way of his whims and temper, including the Department of Justice, the FBI, and the special counsel investigation — which he impugned yet again this week as the rigging work of Democratic partisans, rather than a lawful, independent inquiry, led by a Republican. By co-opting the military in a campaign stunt to halt the caravan, by staffing his administration with military figures, and by talking of the service members as somehow his, rather than the country’s, Trump has also risked the legitimacy of the military as a force utterly removed from party politics.

His entire political career is based, after all, on questioning the legitimacy of the Obama presidency. And that’s what birtherism was. It was not an argument against the policies or the character of the 44th president; it was a bid to erase his very eligibility to be president at all. If the conspiracy theory were proven, it would have repealed an entire presidency. And Trump was very happy to go there.

In the third presidential debate, Trump pushed the envelope again and refused to say that he would abide by the results of the 2016 election in advance: “I will keep you in suspense.” After he actually won the election, he nonetheless claimed that several million votes had been cast for Hillary Clinton illegally and that he had, if not for these fraudulent ballots, won the popular vote. He has never withdrawn this fantastic, destabilizing lie. It sits ominously in the air, its toxins slowly dissipating.

Trump subsequently set up a commission to investigate and eradicate “fraud” in the electoral system (which collapsed upon encountering reality) and still has not disavowed his suspicion of the integrity of the vote. This past week, he insisted that there was foul play in the vote count in Florida and that the only valid result was the one reached on Tuesday night before many Democratic votes had been counted.

This is what the man ultimately tasked with the enforcement of the law tweeted: “The Florida Election should be called in favor of Rick Scott and Ron DeSantis in that large numbers of new ballots showed up out of nowhere, and many ballots are missing or forged. An honest vote count is no longer possible - ballots massively infected.” Note the hyperbole: “ballots showing up out of nowhere … massively infected.” No room for ambiguity there. He even detailed how he thinks the fraud happens: “Sometimes the [fraudulent voters] go to their car, put on a different hat, put on a different shirt, come in and vote again.” What Trump is claiming is that if Bill Nelson were to win the ongoing recount (which he probably won’t), he would not be a legitimate senator. Does that mean his vote should not be counted in Washington? Who else’s could be called suspect?

The rhetoric of illegitimacy is spreading. Even the solid Ohio senator Sherrod Brown went there this week. “In America, we will never give up the hallowed ground of patriotism to the extremists … and the extremists in this White House,” he said. “We also will never give in on voting rights … if Stacey Abrams doesn’t win in Georgia, they stole it, it’s clear. It’s clear. I say that publicly.” Stole it? Cory Booker agreed that the “election is being stolen” from Stacey Abrams. Now it’s perfectly fair to protest voter suppression, and indeed the role of Brian Kemp in overseeing an election he took part in. But to declare an election stolen takes everything up another rhetorical — and constitutional — notch. It renders the victor of such an election fraud.

The more pressing source of illegitimacy, of course, could well be the president himself. It is perfectly possible that the various investigations underway will find evidence, and possibly quite soon, that his campaign conspired with a foreign power to tilt an election decided by only some tens of thousands of votes in a few midwestern states. In other words, it could be argued that he won the election, by unfair and even criminal means, and is thereby not a legitimate president. It’s also highly possible that prosecutors will discover money laundering, bribes, shakedowns, scams, and other crimes in the history of his own company, rendering him a de facto corporate criminal in the Oval Office.

If Kavanaugh’s swing vote lets Trump off the hook on these legal challenges, especially if Mueller comes up with substantive evidence of wrongdoing, the opposition could lose it. He may be impeached in the House but there’s no chance, barring a massive surprise from Mueller, that he would be convicted by a supermajority of the Senate. He’d be sitting there — an emperor with no clothes, but still perched on the throne.

Which brings me to the ultimate legitimacy worry: Could Trump refuse to accept the results of the next presidential election? For many, even considering this possibility is a function of Trump Derangement Syndrome. But I ask you: If Trump has denied the validity of the results of elections in 2016 and 2018, why would he not deny the validity of the results in 2020? He would have a lot at stake — his entire legacy of always “winning,” about as deep a psychological need as he has. (It’s noteworthy, it seems to me, that he declared the midterm election as a “big victory.” That’s how hard it is for him to concede defeat in any way.)

The margins in 2020 could be close. Several states could have narrow majorities for his opponent that could be challenged in the courts. Trump could yet again claim that millions of illegal immigrants had voted. He could blame … China. Or he could caricature the vote-counting process — just as he currently is in the Florida recount — in a way that discredits the result, and tears the country apart.

Here is what he has said so far about Florida’s vote: “Bad things have gone on in Broward County, really bad things. [Brenda Snipes]’s been to court. She’s had a lot of problems … I say this: He [Scott] easily won. But every hour it seems to be going down … What’s happening in Florida is a disgrace … Go down and see what happened over the last period of time, ten years. Take a look at Broward County. Take a look at the total dishonesty of what happened with respect to Broward County.” Now imagine him saying that about the certified results of a state in a presidential power struggle.
I remember the disturbing end of the presidential election of 2000. Its role is underestimated, it seems to me, in the history of American division. We had a situation in which we really did not know who was going to be president of the United States for weeks. The procedures for resolving this failed … until the Supreme Court stepped in. I felt a tension in the atmosphere back then that I haven’t since: It was a crisis of authority and legitimacy. And it scared me.

In the end, it took Al Gore’s character and patriotism to defuse the constitutional crisis, when he accepted the Court decision (which was effectively arbitrary). The same, in fact, could be said of the very close presidential contest of 1960, when Nixon also demonstrated a deeper loyalty to the system as a whole than to his own short-term interests.

But Trump is no Gore; he doesn’t even have the character of Nixon, who retained, even in his disgrace, a sense of shame and understanding of democracy’s norms. Trump has no shame and no such understanding. In a crisis, he would break this democratic system, not save it.

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Knowledge Is Power: The New Realistic Observer is a non-profit blog dedicated to bringing as much truth as possible to the readers.

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