It’s not too late to harden American democracy

BERKELEY — As usual, Trump signals what he’s planning to do before he does it.

He’s already signaled that he won’t accept the results of the 2024 election if he loses. Since announcing his candidacy, he has cast doubt on the fairness of the 2024 election on average once a day (according to an analysis by The New York Times).

As he did before the 2020 election, Trump refuses to commit to accepting the 2024 election results. “If everything’s honest, I’ll gladly accept the results,” he said in a May 1 interview with The Milwaukee Journal Sentinel.” If it’s not, you have to fight for the right of the country.”

Trump has also signaled that if elected he’ll use the Justice Department against his “enemies.”

Before announcing his candidacy, Trump falsely claimed that President Biden was “weaponizing” the Justice Department against him. More recently, he’s been claiming that the multiple legal indictments against him constitute a “new way of cheating” in order to “interfere” in the 2024 election. And he’s been open about his plans to seek vengeance by using the Justice Department if he wins reelection.

In one post about special counsel Jack Smith’s investigation, Trump warned there will be “repercussions far greater than anything that Biden or his Thugs could understand” and that if the investigations continue, it would open a “Pandora’s Box” of retribution. In another, Trump wrote that his federal indictments are “setting a BAD precedent for yourself, Joe. The same can happen to you.”

In another post, he asked, “When will Joe Biden be Indicted for his many crimes against our Nation?”

Trump has also said he plans to invoke the Insurrection Act on his first day in office. The Act empowers a president to “take such measures as he considers necessary” to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy.”

He has warned us of his plans. What can be done to harden American democracy in advance?

The Electoral Count Reform Act will help. It has given authority to governors (not state legislatures) to certify electoral slates at the state level. It raised the threshold for challenges in the Joint Session of Congress under the 12th Amendment. It has expressly limited the time for floor debate. And it has clarified the role of the president of the Senate (the vice president) in counting the electoral votes as solely ministerial and thus without any discretion to invalidate electors or choose between dueling slates.

But the Act doesn’t require that members of Congress commit to certifying the results of the Electoral College (or even that members commit to certifying the results of congressional elections).

Democrats should now be demanding that Republican lawmakers commit to certifying the results of the Electoral College and of congressional elections and introduce legislation requiring this. The media should ask Republican leaders if they will make this commitment, and if not, why not.

Another step would be to amend the Presidential Succession Act so that if no one has been deemed the winner by Inauguration Day, the speaker of the House will not automatically become “acting president,” who can then turn the decision over to state delegations under the 12th Amendment.

A team of lawyers should be organized immediately to challenge state and local voting irregularities, including interventions by Trump and Trump loyalists and attempts to frighten or intimidate election workers.

How to prepare for a President Trump seeking to take over the Justice Department?

Explicit regulations should be put in place right now to prevent Trump (or any president) from taking over the Justice Department and using it for personal political ends.

In addition, Congress should pass the Protecting Our Democracy Act, which would curb abuses of power by presidents of both parties and strengthen Congress’ ability to fulfill its constitutional role as a check on executive branch overreach. The Protecting Our Democracy Act passed in the House on a bipartisan basis in December 2021, but most of the bill was never taken up by the Senate.

One important part of that initiative is the Security from Political Interference in Justice Act, which would prevent the White House from interfering in the work of law enforcement and the DOJ, including exerting pressure to prosecute the president’s political enemies.

How to prepare for a President Trump using the Insurrection Act against opponents?

It’s not too late to amend the Insurrection Act to require that a president get permission from state governors before deploying federal troops in a state. Also, clarify that no president can deploy the military under the Act unless violence overwhelms the capacity of current authorities to protect public safety and security.

What else can be done?

As Mark Medish and Joel McCleary suggest in the The Washington Spectator, a bipartisan group of former and current members of Congress, governors, and other leaders should be assembled and prepared to engage in sustained vocal advocacy to protect the democratic principles of the Constitution.

Their principled advocacy should begin in advance of November as a clear warning to Trump or any others who might try to hijack the presidential transition or seize power unconstitutionally.

Do we still have time to harden our democracy in the fewer than five months remaining before the 2024 election?

Getting any legislation through Congress will be difficult if not impossible, but such legislation should at least be introduced so that the media and the public can learn of its purposes and the dangers it seeks to prevent.

America mobilized for war with Germany and Japan in months after the Dec. 7, 1941, attack on Pearl Harbor. Trump’s clear threats to our democracy should set off no fewer alarms.


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