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January 6: The Fire Rises

Today is the most dangerous moment our democracy has faced since the Civil War.
January 6, 2021
Featured Image
U.S. Senate Majority Leader Mitch McConnell (R-KY) takes questions as he speaks during a news conference with other Senate Republicans at the U.S. Capitol on December 15, 2020 in Washington, DC. (Photo by Tom Brenner-Pool/Getty Images)

Today’s joint session of Congress will be both the most comical and the most dangerous episode in American political history since the Civil War.

It’s comical because Mitch McConnell has spent the last four years ensuring that no Republican senator would ever be asked to vote on anything that might be politically embarrassing or annoying to Donald Trump. He did this only to find his caucus now, at the final hour, forced to choose between publicly advocating a completely bonkers, utterly baseless conspiracy theory about election fraud—or infuriating Donald Trump.

Four years of sycophancy, public rationalizations, studied ambiguity, and humiliation—all for naught.

Because it turned out that no matter how much congressional Republicans degraded themselves for four years, they will all be consigned to the outer darkness unless they formally abandon democracy and declare Donald Trump president by acclamation.

Schadenfreude, meet gallows humor. Because as darkly funny as it may be, today is also extremely dangerous and corrosive.

For several years now, Republicans have had a sizable “vote no, hope yes” caucus. Ted Cruz voted against overriding Trump’s veto on Friday not because he wanted to torpedo the NDAA but because he knew he wouldn’t. Cruz was free-riding on the integrity of others reasoning that, since there were enough other Republicans willing to do their jobs, he need not do his and was free to engage in virtue signaling—vice signaling?—to impress Trump and the MAGAverse.

This mis-aligned incentive structure is the same one facing ordinary congressional Republicans today. And it is going to result in well over a hundred House members and a dozen or more senators abandoning their constitutional duty in favor of their ambitions.

If they were to fulfill their oath to defend and protect the Constitution, thus rejecting the challenge to the Electoral College votes, then all their efforts to stay on Trump’s good side will have been wasted.

Also, since the House is controlled by Democrats, they know the challenge will fail anyway. So, if you are vulnerable to a primary challenge, why bother to do your duty? Why not cement your position with the MAGA crowd instead? What’s the harm?

If you view yourself as a presidential contender in 2024, that’s the smart play, too. To be president, you first have to win the Republican primaries and that means being viewed as a “fighter” by Trump’s supporters. Yes, plumping for authoritarianism might damage the Republican brand, but voters have short memories and that’s not your concern anyway. Your concern is simply getting to the top of the greasy poll in an era where the traditional party institutions are as weak as tissue paper.

This is how systems—and nations—fail.


The problem for the rest of us—meaning, “Americans who wish to preserve our democratic republic”—is that even though this putsch is doomed to fail, it was a close run thing.

It’s easy to mock Trump’s efforts to overturn the election results as a cross between Veep and The Benny Hill Show, with a touch of Dadaism thrown in. Whacky, nonsensical conspiracy theories involving Hugo Chavez, pizza boxes, and Sharpies. Sixty-odd—some of them very odd—lawsuits going down in flames. The Four Seasons Landscaping / porn shop / crematorium fiasco. Rudy Giuliani having an actual meltdown at a news conference . . . Hell, Rudy Giuliani doing anything.

But consider: McConnell’s objections to challenging the electors in swing states have been purely tactical.

Mitch McConnell hasn’t been trying to convince his members that it would be wrong to challenge the electors because the elections were fair and the results have been properly certified. No. McConnell objects to challenging electors because it would force Republican senators into a politically dangerous vote for no gain. Since the House is controlled by Democrats and since any challenge must be approved by both houses of Congress, McConnell argues, this is all a pointless gesture.

But suppose it weren’t a pointless gesture? Suppose Republicans had won seven more seats and controlled the House? Or that a dozen House Democrats aren’t able to participate because of COVID? If Republicans had an effective House majority today, would McConnell and McCarthy unite to defend the November election results?

Or would there be a full-court press to get Republicans to fall in line and hand the presidency to Donald Trump?

You get one guess. Because remember: Democracies have to be right every time. The authoritarians only have to be right once.


This effort to interfere with the Electoral College count is going to fail, but it has created a blueprint for the next time. The next aspiring authoritarian—and there will be one—will be smarter, smoother, and more organized. Today will be truly dangerous because it will demonstrate that under the current system, a party that controls both houses of Congress can install their candidate as president regardless of the election results. All they need is the political will to do so.

Or to put it another way: All they need is to believe that overturning the election is what the majority of their base voters want.


In other words, despite a nationwide vote fenced with elaborate legal and technical safeguards, the president of the United States will from now on be elected on the honor system by 535 members of Congress.

It’s important to understand that this isn’t a new concern. The drafters of the Electoral Count Act debated this very problem:

[T]he motives and incentives of a high ambition, or even the stimulating efficacy of party zeal, might cause a Senator . . . to abandon the atmosphere of purity and simple justice and act on other motives in his desire to adhere to the dictates of a party in deciding a question relating to this great subject of a Presidential count. It is not to be calculated that every Senator who went into this political meeting would always vote for the right against his party. We are just as apt to find a corrupt Senate as we are to find a corrupt House, either in the past or in the future.

In the nineteenth century, counting Electoral College votes was viewed as a political exercise and the ultimate guarantee was the integrity and sense of duty of members of Congress. The actions of the Republican party—not that long ago the party that stood for sober constitutionalism and the rule of law—makes it clear that these ideas are antiquated.

Today should be a wake-up call for anyone who believes in our system of constitutional democracy. Too often, its workings depend on a sense of honor, duty, and integrity that is simply no longer the norm. What we imagine to be guardrails of democracy are, as often as not, little more than white lines painted on the road.

That might have been enough in the nineteenth century, but it’s no longer sufficient.

Don’t let Trump’s buffoonery fool you. Worse things are waiting.

Chris Truax

Chris Truax is an appellate lawyer in San Diego and the CEO of CertifiedVoter.com, the first system designed to deter foreign interference in American social media.

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