The "Concerned Non-Trumpist" Response to the NY Indictment Hints at a Successful (albeit thankfully bloodless) Coup in 2024
by Neil H. Buchanan
The endless repetition of the claim that the Trump indictment in New York is "unprecedented" annoyingly elides the fact that there is a reason for the never-before-seen situation in which we find ourselves -- actually two reasons: (1) Donald Trump is almost uniquely corrupt and so is uniquely susceptible to criminal indictment, and (2) the "almost" in #1 is Richard Nixon, who received a preemptive pardon. Are we surprised that, say, Harry Truman was never criminally charged? Or, notwithstanding all of his other faults, James Buchanan (no relation)? Taft? Monroe?
The one thing that one would hope to see from US Senators who are not bomb-throwers is restraint in the face of political volatility and uncertainty. Even so, it has become an insta-conventional wisdom among those conservatives who think of themselves as moderates that the Trump indictment was somehow unwise. Thus we have two extremely conservative senators, Joe Manchin and Bill Cassidy, weighing in on the Trump indictment in the most annoying way possible, as reported in a New York Times news article under the infuriating headline: "2 Pro-Impeachment Senators Question Motives Behind Trump Indictment."
This is nonsense, but it is much worse than the already-bad immediate nonsense. As the headline to this column indicates, I believe that this kind of political response offers insight into the likelihood that the 2024 election will be given to the Republican candidate in a bloodless coup. This might appear to be not so much a counter-intuitive claim as simply a non sequitur, but appearances can be deceiving. Even as the legal system is holding up very well to Trump's depredations, the reactions of political leaders including Manchin and Cassidy show how many of them might go along with a rather simple coup scenario 21 months from now.
I should begin by pointing out that I am among those who in no way buy into the idea that the hush-money payments that set this whole series of events in motion were politically unimportant. Professor Dorf, in a column two weeks ago, summarized (without in any way endorsing) the nihilistic story nicely:
Anyone paying the slightest bit of attention in 2016 could hardly have failed to notice that Trump was, at best, a sexual libertine. The premise of the hush-money payment had to have been that some number of Trump voters thought like this: "I was planning to vote for this racist boor who cheated on his first wife, has been accused of multiple sexual assaults, and even bragged about committing such assaults, but now that I've learned that he once had extramarital sex with a porn star, that's it, I'm not going to vote for him."
But of course, context and timing are everything. As one of the MSNBC shows pointed out (I think it was Chris Hayes, because his is the only one of them that I watch with any regularity), the hush money was paid at exactly the moment when yet one more major negative story could have broken Trump -- especially one that had to do with tawdry sex stuff. His campaign was on the precipice of a complete meltdown after the "Access Hollywood" bombshell, so the hush-money payments were not paid in a void but at exactly the moment when further revelations could have been a death blow. (Sorry for the mixed metaphors, which will continue unabated.)
Although I share the view expressed by Professor Dorf (and many others) that it makes no sense to think that Trump's remaining supporters had any red line that would have made them walk away, sense has nothing to do with it. It is in fact possible that a dam would have broken. Many people had been holding their noses and saying things like "but her emails" or "Democrats are socialists," and one more negative story could have been the knockout punch, causing a stampede for the doors. (See what I meant about the mixed metaphors?)
As Professor Dorf pointed out, Trump apparently agreed with this view:
Nonetheless, Trump ... did pay the hush money. And maybe it was politically sensible. After all, his margins in the key swing states in 2016 were razor-thin. Some number of low-information voters could have been influenced by greater prominence to the Stormy Daniels story on the eve of the election.
Quite so. There is simply no honest way to doubt the political importance of the factual backstory to the Manhattan DA's charges, given the situation that Trump was in when he made the payments. And his corrupt intent is obvious in how he handled those payments. He committed crimes that DA's pursue and charge all the time, and now that the indictment includes a tax crime (which I, as a tax professor, had been waiting for all along), there is not even the slightest good-faith argument that this is anything like the "banana republic" kind of prosecution that Trump and his enablers have been shrieking about for years now.
Indeed, much like the first Trump impeachment, where the weird defense was that the House Democrats had leveled too few charges against him (ignoring, for example, the entire substance of the Mueller Report, which laid out ten areas of possible criminal activity by Trump and his people), the bleating from the Trumpists now is that DA Alvin Bragg's charges are not interesting enough to matter. So he (Bragg) must be doing politics, not law. Right? Except that if Bragg or another one of the investigating prosecutors brought bigger charges that are not routinely pursued (because many of Trump's crimes, unlike fraud, are not routinely committed by other people), the complaint from the Trumpists would be that the case is too big, or too complicated, or "legally novel" in some other way.
It should come as no surprise that there would be a fair amount of pearl-clutching among actual centrists and center-rightists. (Here, I am thinking of people like the Washington Post's editors rather than the likes of Manchin, who has revealed himself over and over to be an arch-conservative on the environment, the economy, voting rights, and so on). Many of those Very Serious People seem again to have found a way to coalesce around the idea that maybe, somehow Trump's supporters are right that it is the Democrats who are at fault. That is what the "inside the Beltway" mentality is all about, creating an uneven playing field that holds Democrats to impossible standards as a means of enforcing some vague expectations of political responsibility on only one of the major parties.
Even so, the Manchin/Cassidy comments were hugely irresponsible, most obviously (but by no means only) because those two men had to have known that the story would indeed be spun (as the headline in The Times predictably put it) that two guys who are clearly not in Trump's pocket are nonetheless trolling Bragg. The article quotes Manchin saying this (on "Fox News Sunday," by the way):
It’s just a very, very sad day for America. Especially when people are maybe believing that the rule of law or justice is not working the way it’s supposed to and it’s biased — we can’t have that. But on the other hand, no one’s above the law. But no one should be targeted by the law.
On the other other hand, that is pure mush, while Cassidy's comments (also on "Fox News Sunday") were outright bad: "It’s wrong. I’ll put it this way — no one should be the target of the law. This seems to be more about the person than about the crime."
You know who should be the target of the law? Someone for whom there is extensive, credible evidence that he broke the law. Note also that these comments were made before the indictment was unsealed, with the article in The Times deliciously added this quote from Hawaiian Senator Brian Schatz: "Just a reminder that there is no rule that you have to express your opinion before reading the indictment."
OK, fine, but how do I get from all of that to a 2024 bloodless coup? Glad you asked.
It is worth noting that this is all happening in what otherwise would be an increasingly optimistic atmosphere. Over the weekend, as I was returning to the US from my most recent research trip abroad, I was worried that the riots and violence that Trump had tried to instigate -- oh sorry, that he merely predicted -- would be starting just as I reentered the country. No one knows what will happen next, of course, but if ever there were a political dud, this seems to be it. The idea that the streets would be filled with Trump supporters, with early April 2023 making January 6, 2021 look like a kegger gone awry, is laughable in immediate hindsight.
In that way, at least, the news is good. The idea that Trump in 2024 will again be able to instigate violence now seems less plausible. He seems all but certain to be the nominee, but he also seems all but certain to be unable to pull off the last, desperate stage of trying to steal an election. How is that not good news? I am among the most pessimistic of political observers in this country, but the meh response from Trump's supporters over the last few weeks makes even me feel somewhat less despondent. The fever is not breaking, but maybe there are simply not as many people as we thought who are willing to go that far in supporting him.
Which brings us back to the bloodless part of a coup attempt. With the Vice Presidency in Democratic hands, and with the Electoral Count Act having been somewhat improved last year, where are the remaining soft spots in our system? They are still quite numerous, starting from local elections boards having been radicalized and continuing through the "independent state legislature" theory that the Supreme Court might yet endorse, but I want to focus on the last step of the process.
It is January 6, 2025, and the Democratic nominee has beaten the Republican nominee just as soundly as in the 2020 election, with the swing states having been decided by larger margins than four years prior. Even so, because of gerrymandering and continued voter suppression, the wackos running the House under the nominal leadership of Kevin McCarthy have maintained their majority. Senate Democrats, facing a brutal map (with six vulnerable Democratic seats and every Republican seat a safe one), did less badly than feared, but they still lost three seats (if one includes Kirsten Sinema as a Democrat, which for these purposes only I do) and thus took their oaths of office three days prior to January 6 as the minority party, with a 48-52 disadvantage.
Trump, or a Trump-like Republican nominee, now knows the following: Even without an Eastman-memo-like bit of nonsense, the law still allows simple majorities in both Houses to reject electoral votes in cases of "irregularities." Are there irregularities? Of course not, but we will have heard months of stories about all of the crazy things that still haunt Trump (ballot dumps, suitcases of ballots, software hacking, Italian/Venezuelan meddling) plus entirely new, even sillier "theories" that supposedly prove that some combination of swing states were stolen by Democrats.
It is not even up for serious debate whether House Republicans would vote to reject as many Democratic electors as their candidate needed. Even with a 218-217 split, the pressure (not just political and financial, but physical) on the handful of potentially wobbly members of that caucus to stay in line would be intense. But the Senate? The Republicans, who held the majority in the upper house on January 6, 2021, did not vote (with only a few loud exceptions) to disqualify any of the slates for Biden -- and that was true even before the violent insurrection caused a few of the dissenting Senate Republicans to come to their senses.
Even so, as I have been saying ever since then, those Republican Senate votes were not meaningful. They all understood that there was exactly zero chance that the Democratic majority that then controlled the House would vote to disqualify any electors. And because both houses must vote no, the Senate's vote in 2021 did not matter. So what did Republican senators do? They engaged in virtue signalling! The super-crazies, led by Cruz and Hawley, wanted to prove that they were true of heart by insisting that the election was stolen, trying to gain praise by tilting against that windmill. The rest of the Republicans could demonstrate to the political world that they are "reasonable" conservatives who respect the Constitution, the law, and the institutions of government. No nutcases they!
But in 2025, we are looking at Republican majorities in both houses of Congress, which means that the pressure on Republicans in both houses to fall in line will be beyond belief. They managed to keep everyone under control for ten months in 2016 to steal a Supreme Court seat, based on the most fatuous of claims about how "the voters" should decide who gets to pick the next justice (which the voters had already done). Why were they willing to stay the course? Because they wanted that Supreme Court seat. Why would they allow institutional concerns to stop them from taking the White House from the person who in fact won the election? To take one obvious example, Lindsey Graham voted to certify Biden's 2020 win. Does anyone think he would do so next time, especially if his vote would actually secure the presidency for the Republican candidate?
Would that not look bad? Well, as a backdrop, there will inevitably be nonstop claims that the Democrats did something sneaky or illegal or wrong to win the presidential election. Cue the concerned, oh-so-reasonable non-Trumpy fake centrists. Honestly, if Cassidy feels comfortable spending some of his "I voted to convict Trump in '21" credibility with completely gratuitous conservative virtue signalling in the form of taking swipes at Alvin Bragg, why would he not burn it all down when the presidency was at stake? He and others could say that they are concerned about the uncertainty of it all and then say something pompous about how "Democrats should be more worried about the good of the country than keeping Joe Biden in the Oval Office."
In short, I am not saying that the paths to a bloodless Republican coup have changed. I am only saying that it is now possible to see with a bit more clarity how the self-styled reasonable types will be able to offer up utter bullsh*t to justify their part in voting to end the American experiment.