THE ASSAULT ON CAPITOL HILL AND LONG-TERM CONSEQUENCES

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THE ASSAULT ON CAPITOL HILL AND LONG-TERM CONSEQUENCES

By Luis Fleischman

Institutions of government, such as the fundamental and time-tested law, have a significant and steadying meaning as long as we are willing to respect them and behave accordingly. 

The 18th-century German philosopher Immanuel Kant pointed out that institutions such as the law are not by themselves sufficient to lead people into moral behavior. Or in the words of Martin Luther King, Jr., “you cannot legislate morality.” Laws can force people to act or not to act in certain way but may not immediately change people’s moral thoughts or attitudes. Yet, Kant emphasized the interdependence between governmental institutions and individual character, cautioning that the institutional influence upon morality needs to be gradual and indirect, established through education and habituation. 

Yes, indeed, in America, the implementation of the laws in all their dimensions leads to behavioral habits and created normative expectations. However, a breakdown of such institutional-normative integration has taken place in the Trump era. 

In a recent book,  constitutional lawyers Jack Goldsmith and Bob Bauer distinguished between formal laws and norms that are not enacted into law. For example, U.S presidents, mainly after Richard Nixon, knew that showing their tax returns to the public is the right thing to do – as transparency is a value worth pursuing and, as Justice Brandeis often repeated, sunlight is the best disinfectant – although no law forced them to do so. The same applies to other norms. For example, as annoying or as ominous as it can be for a President to be subjected to an investigation (as Bill Clinton experienced in the Whitewater and Lewinsky cases),  the response is not to fire those conducting the investigation. The President has the right to fire the FBI director, a  U.S attorney, or the Attorney General, but Presidents in the post-Nixon era have abstained from doing this as a matter of social norm. That is not the case with Donald Trump. He did not hesitate to fire FBI Director James Comey because he investigated the Russian involvement in the 2016 election. He dismissed five cabinet departments’ inspectors general either because they recommended investigations the President didn’t like or in retaliation. He also removed U.S Attorney Geoffrey Berman for investigating cases that could have implicated Trump or members of his inner circle in illegal behavior. Likewise, he tormented and eventually forced his own Attorney General out, Jeff Sessions, for reasons as scurrilous as a recusal required by legal norms governing conflicts of interest. Trump, oblivious to such standards, expected help in advancing a loyal cover-up. 

The division of powers exists to create balances and counterbalances to excesses of power, whether the abuse comes from the executive, the legislative, or judicial branches. But the division of powers is also intimately linked to fear of the people, what it is commonly known as the “tyranny of the majority,” an issue James Madison saw as crucial to prevent factionalist abuses against political minorities.  Invoking Alexis De Tocqueville, we would also say that the “tyranny of the majority” refers to the act of prioritizing numbers above reason, above tolerance, compromise, good government, and above intermediary institutions, including the law itself. In Trump’s America, plebiscitary majorities or the tyranny of the majority have played a nefarious role in determining the absence of normative self-restraint in the Administration. The President saw himself as the embodiment of the majority’s will against all those defined as “the other.”  The intensity of such despotic populism caught fire among Republican members of Congress, governors, and other officials, from city council members to the U.S. Senate.

Even after Trump was shown on tape requesting the Georgia Secretary of State to change numbers in the electoral count to favor the President and subsequently mobilized right-wing throngs to storm Capitol Hill, a significant number of Republican lawmakers, particularly in the House of Representatives, voted to object to the result of the national elections that elected Joe Biden as President of the United States.

Their objections were not rooted in genuine skepticism as to whether the election was fair and just. They knew it was. It is because of their fear of the Trump mass phenomenon. They are convinced that Trump is so popular among their constituencies that the power of such a populist phenomenon will come back to haunt them. They chose electoral self-interest over good government.

In a previous article, I pointed out that parties in the United States have become more uniform in the last several decades. They increasingly resemble their counterparts in parliamentarian regimes where party discipline largely defines the lawmaker’s vote. As a result, the parliamentarian loses his or her independence and autonomy as a decision-maker. Such dependency of the lawmaker on party discipline and party leadership can easily lead to a disconnect from the constituency. In this case, the party leadership, whose leader has recently been Trump, becomes the primary reference for their electability. The tyranny of the majority is represented by the populist connection between this majority and the leader. Here Trump, the leader, strengthens his relationship with the majority by claiming to be their dedicated representative even above the law, above Congress, and above the country’s institutions. Trump portrayed himself and was perceived as the embodiment of the people against the establishment, a concept that views politics as the relation between hostile or antagonistic groups (friend-enemy). This notion of politics was championed by the German conservative turned Nazi theorist Carl Schmitt. Even in power, Trump’s discourse was oppositionist, rooted in an over-heated and often misplaced grievance politics. Such an antagonistic position implied the revolutionary destruction of the state as we know it. Thus, Trump and his allies proceeded to attack the institutional and legal system including, Congress, the judiciary, and civil servants. The attacks on the “deep state” are not mere attacks against red tape, cumbersome regulations, or mediocre bureaucrats. It began as an attack on a meritocracy, the rule of law, and credentialed civil government. In other words, it turned into a rejection of the entire concept of America as a nation of laws. 

In other words, Trump has severed the normative consensus that built the integration between the political class and the institutions. This break has consequences as it deconstructs the habits that have evolved. As a result, trust has been broken between civil society and the state.   Norms, once taken for granted, are no longer valid. The law has fewer teeth in the face of executive prerogatives.  

As I am writing these lines, there is a discussion on the possibility of impeaching Mr. Trump or declaring him unfit for office through the 25th Constitutional Amendment. 

The most important thing now is to find a mechanism that could ensure that Trump will no longer be eligible to hold public office. That threat is disabling, the reality even worse. We need a more reassuring future. Otherwise, the Kantian institutional, social, and cultural harmony will not be rebuilt.  

Donald Trump’s majority ghost is affecting local Republicans who remain fearful of antagonizing Trump supporters. The best Republican Congressmen and local elected officials can do is to reinforce relations with their constituencies and establish an independent leadership.  Even if this leads to clientelism and patronage, as it has often been the case, it is still a better scenario than an unmediated authoritarian populism that has characterized the Trump era. That is, petty, horse-trading, special interest-driven, and small-minded politics may be depressing and mediocre, but it is neither authoritarian nor anti-democratic. That matters. Preventing Trump from running for office will diminish his movement’s intensity, mitigate the schism between his followers and his loathers, and enable the U.S. to re-establish a healthy relationship between civil society and the state.  

About Luis Fleischman

Luis Fleischman is a professor of Sociology at Palm Beach State College, the co-founder of the think-tank the Palm Beach Center for Democracy and Policy Research. He is also the author of “Latin America in the Post-Chavez Era: The Threat to U.S. Security,” and the author of a forthcoming book, “The Middle East Riddle: The Arab-Israeli Conflict in Light of Political and Social Transformations in the Arab World,” to be published by New Academia.”