The long-awaited federal indictment of Donald Trump for his efforts to overturn the 2020 election may be necessary to contain the threat to American democracy that he has unleashed. But it’s unlikely to be sufficient.
The germ of election denialism that Trump injected into the American political system has spread so far throughout the Republican Party that it is virtually certain to survive whatever legal accountability the former president faces.
With polls showing that most Republican voters still believe the election was stolen from Trump, that the January 6 riot was legitimate protest, and that Trump’s efforts to subvert the 2020 results did not violate the law or threaten the constitutional system, the United States faces a stark and unprecedented situation. For the first time in the nation’s modern history, the dominant faction in one of our two major parties has repeatedly demonstrated its willingness to accept antidemocratic means to advance its interests.
The most telling measure of that dynamic inside the GOP is that Trump remains the party’s central figure. Each time GOP voters and leaders have had the opportunity to move away from him–whether in the shock immediately after January 6, or the widespread disappointment over the poor performance of his handpicked candidates during the 2022 election–the party has sped past the off-ramp.
Polls now show Trump leading in the 2024 GOP presidential race by one of the biggest margins ever recorded for a primary candidate in either party. The Republican majority in the House of Representatives has been exploring ways to expunge his two impeachments and/or block the investigations he faces. Even the other candidates ostensibly running against him for the 2024 GOP nomination have almost uniformly condemned the indictments against him, rather than his underlying behavior. Prominent conservatives have argued that Trump cannot receive a fair trial in any Democratic-leaning jurisdiction.
All of these actions measure how much of the GOP is now willing to accept Trump’s repeated assaults on the basic structures of American democracy. While the key state-level Republicans rejected Trump’s direct demands to invalidate the results in their own states,most House Republicans voted to reject the election results and most Republican state attorneys general filed a lawsuit to decertify the outcome in the key swing states won by President Joe Biden. In the election’s aftermath, the majority of Republican-controlled states, inspired by Trump’s baseless claims of endemic voter fraud, passed laws on a party-line basis making it more difficult to vote, or increasing partisan control over election administration.
Sean Wilentz, a Princeton historian who specializes in American politics, told me that U.S. history has no exact precedent for a party embracing a leader so openly hostile to the core pillars of democracy. Presidents have often been accused of violating the Constitution through their policy actions, he said, but there is not another example of a president moving as systematically to”manipulate the apparatus of government or elections in order to subvert the will of the people.”
The closest parallel to Trump’s actions, Wilentz said, may be the strategies of the slaveholding South in the decades before the Civil War. Those included violent attacks on abolitionists, suppression of antislavery publications, and the promulgation of extreme legal theories such as the denial of basic rights to Black people in the Supreme Court’s 1857 Dred Scott decision, all of which were designed to protect slavery against the emerging national majority dubious of it. That decades-long “antidemocratic thrust” from the South, Wilentz noted, “finally culminated in the greatest violation of the American Constitution in our history, which was secession.”
By contrast, Wilentz added, the GOP’s continued embrace of Trump amid the evidence of his misconduct contrasts sharply with the party’s refusal to defend Richard Nixon in the final stages of Watergate. “When Richard Nixon was about to be impeached, he didn’t storm the Capitol to get rid of Barry Goldwater,” Wilentz said, referring to the conservative Republican senator who warned Nixon that he would lose a Senate vote to remove him. “He resigned.”
All of this suggests that personal accountability for Trump is unlikely to erase the tolerance for antidemocratic actions that has spread in the GOP since his emergence. Yet many experts who study the health of democracy still believe that prosecuting him remains essential.
Kristy Parker, a counsel at Protect Democracy, a bipartisan group that focuses on threats to democratic institutions, says it is crucial to show the “silent majority” of Americans who support the constitutional system that no one is above the law. “They need to see that the Department of Justice prosecutors are willing to take the risk of indicting Trump,” Parker told me. “They need to see the election workers ensuring that people get their vote counted. They need to see the police officers standing up to the rioters. They need to see people within the system working.”
Michael Waldman, the president and CEO of the Brennan Center for Justice at New York University Law School, told me that he has been ambivalent about indicting former presidents, because of the risk of precipitating a retaliatory spiral between the parties. “It is a line that we as a country have never crossed,” Waldman said shortly after the Trump indictment was disclosed last night. “One could imagine how it could be abused and become one more shattered norm.”
Waldman said that failing to indict Trump would have been far more dangerous, because such a decision would have suggested that there is no effective way to hold presidents accountable for misbehavior. Neither of Trump’s two impeachments really damaged his position in the party, Waldman noted, in part because virtually all GOP elected officials defended his behavior. But the multiple criminal indictments facing Trump, he said, show that “the criminal-justice system still is producing tangible legal consequences” that future presidents cannot brush off as easily as an impeachment.
Waldman said the trials of hundreds of January 6 rioters already demonstrate that prosecution can have some deterrent effect. Unruly crowds of supporters, Waldman noted, did not descend on courthouses in Manhattan or Florida after Trump’s earlier indictments, despite his signals that he’d like to see that happen. “The fact that this stuff is not just a bad idea but illegal and you can go to jail for it really makes a big difference,” Waldman said.
John Dean, the White House counsel whose Senate testimony helped doom Nixon during Watergate, also considers prosecution of Trump to be “essential,” he told me. President Gerald Ford’s decision to pardon Nixon and preempt a trial, Dean said, was “a historical disaster,” because it emboldened presidents to believe they would never face criminal charges for their actions. Allowing Trump to avoid consequences, Dean believes, would send an even more dangerous signal than Ford did with Nixon. “Trump’s corruption is so much more fundamental to the system than Nixon’s,” Dean said. “Nixon, he abused power, he had his enemies list, he wanted to make government work for the benefit of Republicans and not Democrats. But he wasn’t going after the foundations of government and the system like Trump.”
Trump’s effort to overturn the 2020 election required the cooperation of many other GOP officials and conservative activists and lawyers. Now a growing number of them face consequences of their own, including disbarment proceedings, ongoing state and local investigations, and the potential of further federal charges from Special Counsel Jack Smith against the six unnamed co-conspirators listed in the Trump indictment.
“I’m not sure how much additional prosecutions will deter Trump–unfortunately, he’s all-in on winning as a way to stay out of prison at this point,” says the Dartmouth College political scientist Brendan Nyhan, a co-founder of Bright Line Watch, a collaborative of political scientists studying threats to U.S. democracy. “But Republican operatives and activists may hesitate as the evidence mounts that participating in an attempted coup puts you in legal jeopardy. That’s important, because Trump can’t carry out his plots by himself.”
Some analysts have worried that the trials could strengthen Trump if die-hard supporters of his on a jury refuse to convict him regardless of the evidence. But Parker told me that cannot be allowed to dissuade prosecutors from bringing cases when there’s evidence that Trump violated the law. The problem, she said, is analogous to the challenges she faced as a Department of Justice civil-rights attorney prosecuting excessive-force cases against police officers who were likely more popular in the community than the victims they abused: “You can’t just give in and allow, effectively, a bully to force his way out of accountability, because then you’ve crushed the ideal that no one is above the law.”
Yet although all these possible sanctions create legal reasons for the GOP to resist another Trump-led attack on democracy, the party’s political incentives point in the opposite direction.
A recent national poll released by the Bright Line Watch project found that the majority of Republican voters accepted all of Trump’s key arguments about 2020 and the multiplying legal challenges accumulating against him. In that survey, only small minorities of Republicans said that he had committed crimes in any of the cases he’s facing. Most Republicans said Trump was singled out for prosecution for behavior that would not have prompted charges against other people. Six in 10 Republicans described the January 6 riot as “legitimate protest.” And although the share of Republicans who said that Biden was elected through fraud had declined somewhat from its peak of about three-fourths, nearly two-thirds of them still denied the legitimacy of his victory.
These attitudes provide an ominous backdrop to Trump’s hints that if he wins the nomination but loses the general election, he’s likely to challenge the results again. Trump might not attempt another mass physical attack on the Capitol in 2025, but such sentiments could allow him to enlist Republicans again for a more targeted legal effort to overthrow the results in a few key states or in Congress, Nyhan told me. The widespread Republican rejection of the idea that Trump violated any laws in his actions after 2020 offers reason to doubt that the party would object any more strenuously if he launched another campaign to delegitimize the results in 2024.
Nyhan said he can imagine future circumstances in which Democrats at some point challenge the legitimacy of a presidential race, such as the election coming down to a Republican-controlled state that has restricted voting rights. But he said the more immediate danger is that Republicans won’t accept any presidential race they lose. Traditionally, presidential nominees from each party, including Al Gore and John McCain, have made statements in which “the losing side specifically affirms the legitimacy of the winner,” Nyhan said. But for the GOP next year, he added, “we can no longer take that for granted whether or not Trump is the nominee, and that’s really worrisome.”
Trump may constitute a unique threat to America’s democratic traditions. But he has always connected his claims of pervasive electoral fraud to the widespread anxiety among white, Christian conservatives that they are losing control of the country to a racially diverse, secular, and LGBTQ-friendly Democratic coalition centered in the nation’s largest cities. As Trump put it during one 2020 rally before a predominantly white, rural audience in Georgia: “This is our country. And you know this, and you see it, but they are trying to take it from us through rigging, fraud, deception, and deceit.” Whether Trump is convicted for trying to overturn the 2020 election or not, voters who accept that argument will remain the most powerful force in the GOP coalition. And they will continue to demand leaders who will fight the changes that they believe threaten their position in American society.
Those other Republican leaders may not attempt to overturn an election as brazenly as Trump did with the conduct Smith catalogs in his indictment. But, as Wilentz told me, for the foreseeable future, they are likely to pursue other means “toward the same end: that majoritarian democracy cannot be tolerated under any circumstances if the outcome is not what you wanted it to be.”
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