Joe Biden's victory in the 2020 presidential election was (once again) confirmed by the Electoral College on Monday. Congress will meet in early January to certify Biden's victory, and on Jan. 20 he will be sworn in as the 46th president of the United States.
Donald Trump has been vanquished — but unfortunately, either does not believe that or refuses to admit it. As some general, somewhere, once observed in a war long forgotten, it is hard to truly defeat an enemy who does not know he has been beaten.
Trump's coup attempt is on-going. Despite being rejected by state officials and the country's highest courts, Trump and his agents are continuing their seditious and treasonous attempts to overthrow the results of the 2020 election — and, in effect, overthrow American democracy. These efforts to stop Biden from becoming president have extended to the use of stochastic terrorism and other provocations, to murmurs about martial law, political violence and a second civil war.
Because Trump yearns to be a neofascist strongman, his campaign to remain in power indefinitely will not stop. Michael D'Antonio, a CNN contributor and author of "The Truth About Trump", warned Salon about this during a recent phone conversation:
There is no quit in him…. This is the reality that we're going to face until he becomes disabled or deceased…. The storyline is going to be that there is a pretender in the White House and that Washington is more corrupt than it was when Trump arrived there, and that there needs to be a crusade to restore the leader. This is far from over.
Even after he is forced from office in January, Donald Trump will likely continue to claim that he is America's "real president" and try to rule in "exile," ginning up violence and other social upheaval by his political cult leaders and other deplorables. The power of this group of dead-enders to cause mayhem is not to be underestimated: Trump received 74 million votes in this election, 11 million more than in 2016.
The professional centrists and others desperate for a return to "normalcy" in the mainstream news media and the political class continue to downplay the damage already done by Donald Trump's fascist and authoritarian regime and by the reality of his coup attempt.
Why is that happening? Because the hope-peddlers, stenographers of current events, and other members of the Church of the Savvy are emotionally, financially, cognitively and professionally committed to the fictions of American folk democracy. These include the disproved belief that the American people are fundamentally good, and that fascism is something that only happens "over there." They are applying an outmoded and obsolete framework that fails to grasp how fascism and authoritarianism have evolved to fit 21st-century society.
Writing at the Atlantic, sociologist Zeynep Tufekci explores the problematic terminology of this moment:
Coup may not quite capture what we're witnessing in the United States right now, but there's also a danger here: Punditry can tend to focus too much on decorum and terminology, like the overachieving students so many of us once were, conflating the ridiculous with the unserious. The incoherence and incompetence of the attempt do not change its nature, however, nor do those traits allow us to dismiss it or ignore it until it finally fails on account of that incompetence.
Our focus, she continues, should not be "a debate about the proper terminology," but rather "the frightening substance of what we're facing":
If the Republican Party, itself entrenching minority rule on many levels, won't stand up to Trump's attempt to steal an election through lying and intimidation with the fury the situation demands; if the Democratic Party's leadership remains solely focused on preparing for the presidency of Joe Biden rather than talking openly about what's happening; and if ordinary citizens feel bewildered and disempowered, we may settle the terminological debate in the worst possible way: by accruing enough experience with illegitimate power grabs to evolve a more fine-grained vocabulary.
Act like this is your first coup, if you want to be sure that it's also your last.
What will the long-term impact of Trump's coup attempt be on American democracy and the rule of law? Is this attempted coup and abuse of the legal and political system a trial run for more effective and efficient efforts to overturn future elections? Are Trump and his allies guilty of sedition and treason as defined by the Constitution and the law? How should Joe Biden's administration proceed in terms of investigating or prosecuting Trump and members of his administration?
In an effort to answer these questions I recently spoke with Richard Painter, a longtime Republican lawyer who was White House chief ethics counsel under George W. Bush. Painter's new book, co-authored with Peter Golenbock, is "American Nero: The History of the Destruction of the Rule of Law, and Why Trump is the Worst Offender."
Painter is a frequent political commentator and analyst on CNN, MSNBC and other news networks. He is also a professor of corporate law at the University of Minnesota
This conversation has been edited, as usual, for clarity and length.
Donald Trump has no respect the rule of law and has engaged in a coup attempt against democracy by trying to overturn the 2020 presidential election. Even if he fails, the precedent is a threat to the United States and a type of victory for fascism in this country. As an expert on constitutional law, how are you making sense of these events?
The jig is up. Trump is not going to try a real coup. But the message, the warning to the United States, is that we better get our act together pretty damn fast. The next person who follows Trump's example is going to be much smarter. He's an incompetent dictator. On Twitter, for example, he is always talking about himself well over half the time. Whereas a real dictator is always talking about "the people." The next person who has Trump's aspirations to power may be a lot shrewder, more manipulative and therefore more effective.
Trump is also transparent as a self-centered crybaby. As a country we have to figure out: Do we believe in facts? We can have ideological differences. We can have different preferences and different views on public policy. But we should be able to look at facts and then have an opinion based on roughly the same reality. Of course, there will be some differences of opinion. But are we going to have wild deviations from the truth? If we do, I believe that the United States is going to be very vulnerable to a dictatorship or a successful coup.
There's all this celebration of the courts and the law and the country's "institutions" because even Republican judges have dismissed Trump and his allies' scheme to overturn the 2020 election. That is premature and misguided. They made those decisions not out of principle but out of pragmatism, because Biden won by such a large margin. If the election were closer, I have no doubt that Republican judges from the Supreme Court on down would have sided with Trump against Joe Biden.
What Trump and his attorneys have been trying is so ridiculous that I do not think even the most conservative court would have gone for it. What we are seeing is not a Bush v. Gore situation — and I do not agree with what the court did in Bush v. Gore. The Supreme Court should have left it alone. But what Trump is trying with the 2020 election is so far out that you would have had to have Supreme Court justices who were subject to removal by the president, or in fear of the president, for it to have worked.
In a close-call election, however? Yes, they probably would have given the election to Trump and the Republicans. But they were not going to give him the 2020 election. If the country keeps going in this direction, we are going to have someone in the future who is much shrewder than Donald Trump, who gets more respect from the military and the like, who could engineer a coup quite easily. That is my ultimate concern.
Trump's coup attempt is an effort to overthrow the people's will in the context of a decades-long extremist push by the Republicans to take total control by ending democracy and replacing it with one-party rule. The Republican Party knows that they cannot win if they allow everyone to vote.
We're either committed to democracy or we are not. We are committed to one person, one vote, or we are not. But what is happening now is that Trump and the Republicans are just trying to further polarize our society.
There are legal scholars, historians and other political observers who are warning that Trump's coup attempt, however ridiculous it may look to some people, is a test run, a prototype for the future. Republicans and other elements of the right wing see what works now and then perfect it for later. What is your assessment?
What is happening is a test of how much can one get away with in the courts. Moreover, how much can one get away with in the court of public opinion by distorting facts and reality?
Donald Trump and his Republican Party's coup attempt has been described by some people as sedition or treason. What does the law actually say on these matters?
I don't think you can prosecute him. If you ask, "What is treason, in the broader sense of the word?" Donald Trump is betraying his country. He has held the highest office in the land for four years. If he were smart, Trump would consider that an honor. I think he wasted those four years. He is a narcissist with an obsession about himself and his own ego.
He tried to undermine and attack the government. I am not a big fan of using sedition statutes and so forth, because that is what Joe McCarthy did. The problem with Trump and the Republicans now is that we are dealing with people who really do believe that there is this "deep state." They want to completely transform the United States government and country to make it conform to their ideology. This is all very dangerous, because through Trump they have power at the highest levels of the government.
Are Trump and his agents engaging in sedition as defined by the Constitution?
I would not use that kind of criminal statute. But I would certainly use obstruction of justice and the false statements statutes. I think there are crimes which are yet to be prosecuted. If you want to talk about what sedition is, in a broader sense, it is a repudiation of our republican form of government and of the country's Constitution and history of constitutional rule.
Many House Republicans have participated in Trump's coup attempt. Should Speaker Nancy Pelosi not allow them to be seated, under the 14th Amendment?
I would not do it. I would just go ahead and let them be seated and shoot their mouths off. The Republicans are trying to use the power that you have as president, and in other high government positions, to suppress dissent by the Democrats and others. This is what the Republican Party wants to stand for? Filing crazy lawsuits, writing crazy letters, and saying things that are completely false? We have had people in the Congress who have said crazy things in the past. Unfortunately, there are an awful lot of them now.
Joe Biden wants there to be "healing." He wants us to put this dark episode behind us. I fundamentally disagree. I am of the thinking that Trump and his administration, as well as their supporters and allies, should be investigated, and if merited, punished for their crimes. What advice would you give Biden on that question?
If Joe Biden wants to pardon Trump, he can pardon Trump. The only discretion the president has is a pardon. Otherwise, the Justice Department should prosecute anyone who committed a crime. I don't care if it's Donald Trump or if it's the guy next door. We're all equal. The mandate for the attorney general is that we prosecute anyone who committed crimes.
I think if there are accusations made against high-ranking people in the Trump administration, or high-ranking people in the Biden administration, or any members of the president's family, have an independent counsel investigate it and make the professional decision with professional prosecutors. It should never be a political decision as to whether someone gets prosecuted or not.
Trump and his administration are actively trying to sabotage Biden's presidency by putting key Trump agents in positions at the highest levels throughout the United States government. What can be done by Biden to remove them?
Many of these people are presidential appointees. Biden can remove an awful lot of people. Trump and his people are trying various games by putting people into career slots. It is called "burrowing," where you take a political appointee and stick them into career slots. It is hard to get rid of them.
Why are the Republican attorneys general, members of Congress and others going along with Trump's coup attempt? Especially since it appears doomed to fail in the short term.
It is money. Trump has raised a lot of money for them. It is all about ideology and appealing to the right wing and getting airtime on right-wing talk radio. They are going along to not be targeted by other right-wingers. Now Republicans will do one of two things. They'll lay low and try to have nothing to do with it — those are the smart ones. There are other Republicans, such as Ted Cruz, who will play along and go for the ride. Cruz is trying to get Trump's supporters to love him so he can be the leading candidate in 2024.
Should the attorneys general who tried to overturn the election be disbarred?
They may want to run for Senate. Texas Attorney General [Ken] Paxton, he probably wants to run for senator. State attorneys general always have political ambitions. It's a steppingstone to the next and more powerful job. These attorneys general want attention. They know that they are not going to be disbarred. They probably should be, but the Texas bar is not going to disbar Paxton.
How do you think this coup attempt, and Trump's authoritarian behavior more generally, has impacted the United States?
It is polarizing our country. We have got much work to do to bring the United States back together. I trust Joe Biden is going to be able to do that. I'm a political independent: Biden was never my favorite candidate in the primaries, but he is a good guy. We as Americans need to realize that we have so much more to benefit from being together in this country. We may disagree on some things, but our political system has worked for over 200 years.
Yes, we had the Civil War. Yes, we have been through great challenges. But we do have a system that works. I was never a big fan of Ronald Reagan, I was a moderate Republican. But the one thing I liked about Reagan was his optimism and how much he believed in America. Reagan never had the cynicism that underlies Trumpism with this idea of the "deep state" and that somehow "the establishment" is evil. With Trumpism, I see too many similarities with the fascist movements in Europe in the 1930s.
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