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  • On Liberal Centrism

    On Liberal Centrism

    This article on centrism appears in the second issue of The Vital Center, which can be read here. Read other essays on our blog here. Opinions expressed do not necessarily reflect Project Liberal.


    If we can build a centrist caucus within each of the two major parties, then the stakes of each election will go down substantially. We might not like it when the other party takes control, but we will feel more confident that they will at least promote policies and reforms everyone can live with. Most importantly, this will preserve America’s beautiful experiment for our children and grandchildren.

    The Cold War is back, and the American people are divided. Radicals on both the left and right support America’s enemies, and some even call for national divorce. Amid this intense division, liberalism finds itself under attack. Although there are many on the left and right who still love America and would like it to be there for our kids and grandkids, polarization seems like an intractable problem. And sometimes it seems like we do not have enough true adults to respond to it.

    But it is not too late. America has survived foreign invasion, slavery, civil war, reconstruction, and two world wars, and still it stands. And there is a feasible path to survival. But it will take people on both the left and right working together to expand the sensible center of our political communities. This means working to make both political parties more intelligent and competitive; it means accepting short-term imperfection for long-term sustainability; it involves public figures modeling civility and reciprocity, showing respect for processes and norms, and always putting country and moral principle ahead of tribalism. It means embracing what I call liberal centrism.

    NOT AN IDEOLOGY OR A COALITION

    Liberal centrism, as I defend it here, is not so much an ideology as an approach. It is “liberal” in the old sense that connotates both liberty and generosity. This was how it was used by Adam Smith when he wrote of a “liberal plan” for the economy, and by George Washington when he referred to America’s “liberal policy” of religious liberty. Centrism, moreover, is inseparable from liberalism. Among other things, it is an attitude in the context of disagreement that looks for solutions that everyone can at least live with. Thus, according to this conception of liberal centrism, “liberal” and “centrist” are mutually reenforcing terms. To be centrist is to be liberal, and to be liberal is to be centrist. And there have been plenty of self-described liberals and centrists who see themselves in this way.

    The United States is a model context for what I call liberal centrism because it was founded with an emphasis on the basic equality of people, and governance by consent. Moreover, its form of governance, with its separation of powers, checks and balances, and rule of law, provides time-tested tools for resolving conflict peacefully and fairly, and in a way that everyone can live with.

    Liberal centrism, in sum, is an approach to politics that is attentive to the health of a political community comprised of equals, and thus it is attentive to respect for the implicit and explicit rules that govern our political relationships.

    LIBERAL-CENTRIST POLICYMAKING: COMPROMISE AND CREATIVITY

    Any good government is a just government, but as the Duke of Albany puts it in King Lear, “striving to better, oft we mar what’s well.” The approach I defend recognizes this and seeks to prevent the many injustices that arise from pursuing progress inattentive to the reality of politics. A liberal-centrist approach is also more careful that the tensions of political disagreement are properly mitigated. Sometimes stability requires progress, and other times restraint. In extreme cases, radical measures are necessary to preserve what is worth preserving, as happens in justified revolutions. But often, we give up too much of the health and stability of our political community for gains that can soon enough be wiped away. Liberal centrism looks for progress that is sustainable.

    Within a nation, there are frequently strong convictions for policies that are imprudent and that experts find ignorant. This happens, for instance, with economic policy, and populists love to exploit it. A liberal centrist must, however, take into consideration these misguided but strongly held convictions. As scholastic social contract theorists already understood, no one person has natural political authority over others, and all legitimate political authority arises from the implicit or explicit social pact of the community of equals. A wise statesman and a well-designed constitution can temper the community’s irrationality, limiting the chaos of daily politics, but they cannot—and should not—ignore the community’s will completely if the polity is to be healthy and sustainable. This is not only a moral demand but a practical one. Idealism and impracticality also take away one’s opportunity to make the improvements that are politically feasible.

    For example, although I am inclined to disagree with Franklin Roosevelt’s reforms in the New Deal on economic grounds, the best argument for them was that they might have prevented the more radical politics of Roosevelt’s rivals. If this is true, then it is perfectly consistent with liberal centrism—at least a more center-left form of it—insofar as it looks to make things better in a context of imperfection, attentive to political limitations and other constraints. To be a part of a community of equals requires us to persuade others and often to make compromises. Unfortunately, both leftwing and rightwing radicals often have little faith in persuading their fellow citizens. When they do not get what they want, they abandon the cause of constitutional democracy altogether. But if America is to have a long future, we need more patience and a renewed faith in persuasion. There is no better alternative.

    LIBERAL-CENTRIST LEADERSHIP

    Our political culture lacks leaders who behave like adults. And today’s consumer demand for political entertainment produces something that looks closer to professional wrestling than intelligent discourse. What entertains us are the follies of our political opponents more than any positive and thoughtful alternative. And rather than challenging ourselves to learn, we prefer those who tell us what we already think. On the side of leaders, rhetoric as a tool for truth-sharing has been abandoned and replaced by flattery. Of course, this was always the case to some degree. But there is a growing sense that it has become worse in recent years.

    That the importance of leadership goes beyond policy is manifest in the behavior of Donald Trump, whose policy preferences are often shared by center-right Republicans. Yet I doubt even Trump’s supporters would call him a centrist. Even before his efforts to pressure officials to overturn the 2020 election, and before the events of January 6, his behavior was a constant source of political chaos. His supporters downplay this, saying Trump’s opponents are overreacting to ���mean tweets,” but he clearly sows division.

    We want the USA to survive, and for that reason we need leaders that bring people together, not ones that stoke the flames of animosity and resentment. Instead of Trump, we should look to people like Dwight D. Eisenhower, who carried himself not as the president of his supporters, or even the Republican party, but of the United States of America. Indeed, his public behavior was directed at unifying the country rather than dividing it. And for this he is fondly remembered.

    LIBERAL CENTRISM IN THE JUDICIARY

    A popular theory of constitutional interpretation on the right is called “originalism”; it takes different forms, but in its most common form it treats as authoritative the original public meaning of the amended Constitution. One strength of originalism is that it recognizes that the judiciary’s role is limited and, when dealing with any written law, the judge’s role is presumptively to identify the original meaning of that law, not to make a new one. That is compatible with the liberal centrism I have defended. But originalism can be applied in a rather non-centrist way when it is not combined with epistemic humility or sufficient respect for settled procedures and precedent. What is decisive is what is called the “role morality” of the judge, who should be attentive to his or her part in the political community. This requires prudence and cannot be reduced to a simple formula or a technique of historical interpretation. But ultimately it is about showing respect for the judge’s own limited authority within the community, a community whose written law and unwritten norms and customs are binding on the judge outside extreme cases that warrant civil disobedience. This is because, as noted already, the judge only has limited authority over others and the authority he or she has is delegated by the community and the social pact that binds it.

    During the 2021 storming of the United States Capitol, a gallows erected by the crowd loomed near the Capitol building. (Photo credit: Tyler Merbler via Wikimedia Commons)

    The difference between centrist and non-centrist judicial decisions comes out in cases in which the Court exercises judicial review to strike down laws. When text and precedent come together to form a more certain basis for the judgment to overturn democratic majorities, it is one thing, but when there is a good deal of discretion and uncertainty, judges should recognize their own limited place. Trusting one’s own judgment is important in life and poker, but even in the latter one must balance one’s certainty against the gains or losses of being right and wrong, and when it concerns the livelihoods of others, one should be even more cautious. As Judge Harvie Wilkinson III argues in his criticism of the Supreme Court’s landmark Second Amendment case, District of Columbia v. Heller, when it is a close call and there seems to be an element of discretion to a ruling, judges should show deference to other branches of government, if they do not want their own policy preferences to ultimately determine the case. Both conservative and liberal Justices have been guilty in this regard.

    Judicial restraint, as it is called, represents a crucial element in a more centrist judicial philosophy. It involves both deference to other branches of government and to the Court’s own precedent. There is often ambiguity in the law. James Madison understood that such ambiguities in the Constitution would have to be resolved over time. Sometimes the Court must provide tests and interpretive lenses for lower courts so that the law can be functional and applied consistently. And occasionally corrections must be made. A centrist approach errs on the side of precedent and restraint while still faithful to the law according to established and impartial rules of interpretation. It does not look to replace the roles of other branches of government.

    A LIBERAL-CENTRIST CULTURE

    Finally, a liberal-centrist approach takes on another form at the level of the citizenry and public discourse. An important desideratum for political culture is a shared attentiveness to promoting the health of the political community. This entails giving the “other side” their due, showing reciprocity and civility. A healthy political community is ultimately the responsibility of citizens. In the long run, the way they treat each other will be reflected in their leaders. That is why the effort to build a liberal center starts at the level of political culture.

    The “national divorce” some radicals advocate would have disastrous consequences. Part of what makes the United States great is its ability to secure freedom of movement and trade over a large geographical area and to provide domestic peace and security for the same. Thus, America’s union is our greatest strength, and our best hope for preserving the union today is by expanding the liberal centers of our federal, state, and local political communities. Moreover, these liberal centers will always include center-right and center-left perspectives. But for both, it requires creativity in improving things without dividing people further. It involves a balancing of decentralization and centralization, of individual liberty and self-government; it also involves commitment to reciprocity and civility, to compromise and prudence, and to taking our losses with patience and our wins with mercy. That is what I mean by liberal centrism, and that is what we need today.

    What can be done in the short term? I suggest that the center-left and center-right develop their own caucuses for reforming the major parties. This is much more feasible than most people realize, because only 20 percent of the population votes in primaries. If people from each side produce an effective centrist caucus, that could reduce polarization significantly.

    Some partisans will not like this because an improvement to the opposing party makes winning elections more difficult. They hope that their party will continue to win indefinitely. But a one-party system is unsustainable. In 1950 the man who wrote the book The Vital Center, Arthur Schlesinger Jr., explains why:

    The Republican party, after due meditation in the wilderness, a while ago came forth with a statement of principles […]. A leading Fair Dealer was soon after heard to remark, “What this country needs is an intelligent opposition.” Now this wish should not be dismissed as a pious but insincere genuflection to the two-party system. The hard fact is that, while the Democrats may gain short-run benefits from the present absence of competition, thoughtful members of that party understand the long-run dangers from absence of competition. An essential function of a party in our system is to secure the concurrence in our political processes of that part of the community which it represents; and, if a party becomes so feeble and confused that it turns into an object of public pity or contempt, it can no longer assist in securing that concurrence. As a result our whole political fabric suffers; the party itself disappears; and there is no guarantee that any new party which rises in its place will have a basic respect for constitutional processes and public order.

    Others hope that a third party, more ideologically based, is the best hope to put a check on the two major parties. But we are de facto a two-party system and that is not changing anytime soon. Without substantial reforms, it is simply baked into the system. At the very least, it would take a long time to develop an alternative. It is therefore much easier and more efficient to build a centrist caucus within each of the two major parties. I would call the rightwing one the Eisenhower caucus [Author’s note: I have since decided to call it the Reagan Caucus]. Since only a portion of each side vote in primaries, it would be less difficult than many realize for such caucuses to substantially affect the kinds of candidates that each party promotes.

    If that succeeds, then the stakes of each election will go down substantially. We might not like it when the other party takes control, but we will feel more confident that they will at least promote policies and reforms everyone can live with. Most importantly, this will preserve America’s beautiful experiment for our children and grandchildren.



  • The Unlearned Lessons of January 6th

    The Unlearned Lessons of January 6th

    This article is an examination of the facts surrounding January 6. It originally appeared in the first issue of the Vital Center’s Journal, which you can read by clicking here.


    The Founders understood that the only permanent barrier to tyranny was an engaged and virtuous citizenry devoted to a constitutional system that restrains power and ensures its peaceful transition between political foes. That the January 6 Report landed with little more than a ripple in our politics suggested that this bulwark is faltering as well.

    John F. Kennedy once quipped, “Domestic policy can only defeat us; foreign policy can kill us.” If Kennedy was ever right about this, and I have my doubts, he is dead wrong today.

    For reasons that will soon become clear, Donald Trump’s attempt to subvert the 2020 election, culminating in the January 6 insurrection at the Capitol, posed a greater threat to the constitutional order than anything Russia or China could muster. This is an alarm bell to which Americans must pay more attention.

    Important legal steps have been taken to punish the lawyers who devised Trump’s scheme to overturn the election as well as the hundreds of actual violent insurrectionists. There remain in place, however, key political conditions for an attempt to subvert future elections. For one, Trump remains at the head of the 2024 GOP primary field, polling over 40 points ahead of his nearest rival, Ron DeSantis. And DeSantis has not only refused to condemn the riot but said that he might pardon January 6 insurrectionists, including Trump himself. Trump remains unapologetic about his actions and continues to claim that only fraud prevented him from winning in 2020.

    The GOP has taken to whitewashing if not lionizing the insurrection. Its leadership failed to hold Trump accountable for orchestrating the insurrection in January 2021, when it could have permanently barred him from holding office. Instead, the party has censured and exiled those, like Liz Cheney and Adam Kinzinger, who told the truth about January 6 and tried to hold Trump accountable. Polls tell a dismal story: 27 percent of Republican primary voters outright approve of the riot, 54 percent think it was a form of “legitimate political discourse,” and 61 percent believe Biden did not win the 2020 election legitimately. The failure to take January 6 seriously is not confined to the right. Polling from last summer suggests that the January 6 hearings barely shifted public opinion on the insurrection. Trump’s approval ratings consistently outmatch Biden’s; there are many reasons to criticize Biden’s presidency, but he does not threaten the constitutional order itself. Fewer than half of Americans believe Trump bears “a lot” of responsibility for January 6, and 44 percent believe the country is making too much of January 6 and needs to move on.

    This last data point shows a fundamental misunderstanding of this event. The January 6 Report and other excellent books show that without Trump’s words and actions, the seizure of the Capitol almost certainly would not have happened. This same report documents, moreover, how the far-right militia members and conspiracy theorists who led the insurrection responded directly to his tweet on December 19 calling supporters to Washington D.C. for January 6. Extensive grassroots efforts to organize mass protests on that date began only after Trump’s prompting (Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol, 404–32). His top Cabinet officials did not urge Trump to launch this campaign nor did they involve themselves closely in it, although figures like Secretary of State Mike Pompeo reinforced his baseless claims of fraud in public. The impetus for January 6, in short, came from the top.

    Many Americans, not just Trump’s supporters, appear to view January 6 as a single, isolated incident, when it was in fact the culmination of a systematic effort to overturn the election that started immediately after Biden’s victory. As Greg Jacob, a legal advisor to Mike Pence, stated, “The reason the Capitol was assaulted was that the people who were breaching the capital believed that […] the election had not yet been determined, and, instead, there was some action that was supposed to take place in Washington, D.C., to determine it” (Final Report, 396). No one was more essential in creating that false belief than President Trump.

    By looking at January 6 not as an event but the climax of a months-long campaign of fraud, arm-twisting, and provocation, this article pinpoints several close calls between November and January of 2020–2021 that, had they taken different directions, could have led to a full-blown constitutional crisis. In doing so, it highlights key vulnerabilities in the American political system that leave the door open to future coup attempts.

    The Department of Justice Joins Trump’s Coup

    Trump’s attempt to overturn the election was not merely about spreading disinformation and hoping events turned his way. Instead, he sought to use federal and state actors and bureaucracies to support his efforts. The Department of Justice was one such battleground. To his credit, Attorney General Bill Barr repeatedly told Trump in November and December 2020 that the Department of Justice had found no credible evidence for his claims of electoral fraud. Trump grew “irate” at Barr, who resigned on December 14 (Final Report, 326–30).

    Jeffrey Rosen then became Acting Attorney General, and Trump immediately pressed him to investigate dubious accusations of fraud. Trump told Rosen, “just say the election was corrupt and leave the rest to me and the Republican Congressmen.” This was a reference to Trump’s plan, devised by his lawyer John Eastman, to have the states send false electoral slates to Congress, enabling the vice president on January 6 to declare that the election’s results were contested. This would kick the election to the House of Representatives for a vote by state delegation, where the GOP had a 26-24 edge (Final Report, 338).

    Rosen resisted this pressure, but unscrupulous opportunists sought to seize the moment and enlist the DOJ in Trump’s campaign. Republican Congressman Scott Perry introduced Trump to Jeffrey Clark, then the Acting Head of the Environmental and Natural Resources Division. Despite Clark’s lack of expertise in election law, he told the president that if he was appointed Attorney General, he could get the DOJ to support the president’s claim that the election was stolen.

    On December 28, Clark drafted a letter he hoped to send to officials in contested swing states saying that the DOJ was “investigating electoral irregularities,” including foreign interference, and that these states should hold special sessions to consider evidence of fraud (Final Report, 342). This might lead, he and Trump hoped, to those states changing their electoral votes for Biden or sending competing slates of electors. The January 6 Report notes that Trump and acolytes like Rudy Giuliani had been pressuring state officials to do the same for weeks, but the imprimatur of the neutral, upstanding DOJ would carry much more weight (p. 343).

    Such a letter, the Report’s authors note, could have “provoked a constitutional crisis” in which state legislatures attempted to de-certify their own electoral results. Fortunately, Rosen and his Deputy Richard Donoghue refused to support this letter, which Donoghue said “would be a grave step for the Department to take” that could have “tremendous Constitutional, political, and social ramifications” (p. 344). Rosen continued to resist Trump’s dangerous proposals, including a request for the DOJ to seize voting machines from the states. A stymied Trump then offered the accommodating Jeffrey Clark the position of Acting Attorney General. Rosen and Donoghue confronted Clark, who said that he would decline this offer if they agreed to sign his dubious letter to the states (pp. 348–49). They refused, but Clark decided to accept the president’s offer anyway.

    This showdown culminated in a 3-hour meeting with Trump, Rosen, Clark, Donoghue, and other lawyers in the Oval Office on January 3. Every lawyer in the room besides Clark, along with a roster of assistant attorneys general, said that they would resign en masse if Trump replaced Rosen with Clark. This threat sufficed to deter Trump, keeping Rosen in office and preventing Clark from enlisting the DOJ as an arm of Trump’s campaign to overthrow the election (Final Report, 350–52).

    As Rosen later testified, Trump wanted the DOJ to take a host of actions that could have thrust the United States into constitutional crisis: appointing a special prosecutor, sending letters to states disputing the election’s outcome, publicly stating that the election was corrupt, and filing cases in the Supreme Court on behalf of the Trump campaign (p. 355).

    That the DOJ did none of these things, however, should prompt no sighs of relief. The professionalism and integrity of Barr, Rosen, Donoghue, and many other DOJ lawyers prevented Trump from using this agency to overturn the election. They were all Trump appointees, and they could have acted otherwise in order to save their careers or bolster their conservative bona fides. Trump himself could have easily called their bluff, appointed Clark as Attorney General, and weaponized the DOJ. A compliant GOP and right-wing media, which parroted his lies through the transition period, would have most likely backed this move and run interference for Clark and Trump.

    “Donald Trump’s attempt to subvert the 2020 election posed a greater threat to the constitutional order than anything Russia or China could muster.”

    Indeed, Trump and his most fanatical henchmen tried to purge his administration of anyone willing to contest his abuses. Cybersecurity and Infrastructure Security Chief Chris Krebs, for example, tweeted that claims of electoral malfeasance in Antrim Country, Michigan, were not valid, and Trump fired him the same day (Final Report, 242). Trump relied on Johnny McEntee, the 29-year-old Director of the Presidential Personnel Office, to monitor and purge members of the White House Staff who showed the slightest disapproval of Trump. In this position, McEntee was responsible for vetting ambassadors, cabinet secretaries, and top intelligence officials.

    McEntee’s team identified high-ranking officials, including Defense Secretary Mark Esper, for termination because of their shaky loyalty to Trump. Wholeheartedly embracing the “Stop the Steal” conspiracy, he drafted dubious legal memos arguing that Pence had the authority to simply declare Trump the winner of the election.

    In May 2023, McEntee joined Project 2025, the Heritage Foundation’s Presidential Transition Project for “the next conservative presidential administration,” presumably a Trump administration. In this role, he will help collect resumes and vet political applicants. He describes Project 2025 as “the flagship effort to take back our country” and “confront the Deep State.” A key lesson of Trump’s near-miss failure to use the DOJ to subvert the election is that a future Trump administration (or that of someone seeking to emulate him) will likely be filled with loyalists and fanatics, more Clarks and McEntees than Rosens and Donoghues. This makes it all the more probable that an attempt to use the DOJ or another federal agency such as the Defense Department to overturn an election will succeed where this one faltered.

    Swing State Legislatures Send Fraudulent Electoral Slates

    A key part of Trump’s effort to overturn the 2020 election was his pressure on state legislators and election officials to endorse his claims of fraud and overturn their states’ results. The notorious January 2 phone call to Georgia Secretary of State Brad Raffensperger, in which Trump asked him to “find 11,780 votes,” was the tip of the iceberg.

    After a state certifies its election results and announces a winner, it issues a certificate of ascertainment featuring the names of the duly chosen state electors. All fifty states have decided by law that the popular vote will determine their electors (Final Report, 261).

    Trump’s team embraced the incorrect theory that because state legislatures had the constitutional authority to decide how electoral college electors are chosen before the election took place, they could simply choose Trump/Pence electors after the election results came in, based on false accusations of fraud. John Eastmann, once again, devised this theory in a memo entitled “The Constitutional Theory of State Legislatures to Choose Electors” (pp. 262–64).

    Following this dubious theory, the Trump team “engaged in at least 200 apparent acts of public or private outreach, pressure, or condemnation” directed at state legislators or election officials (Final Report, 267). They tried to get state legislators to ignore vote counts and hold special legislative sessions to appoint Trump electors to vote in the electoral college. This could lead to either false or competing slates of electors being sent to Washington, D.C. On November 25, he called into a meeting of GOP state legislators in Pennsylvania to tell them “this election has to be turned around […] certainly overturn it in your state” (p. 273). Trump and Giuliani called Arizona House Speaker Russell Bowers and Georgia Governor Brian Kemp to pressure them to publicly endorse claims of fraud and hold a vote to decertify their states’ election outcomes (pp. 284–85). According to a Trump campaign staffer’s spreadsheet, the campaign tried to contact over 190 Republican state legislators in Arizona, Georgia, and Michigan (p. 277).

    Trump openly accused a number of officials and legislators of fraud, and his attacks prompted threats against these individuals. Pennsylvania Senate Majority Leader Mike Shirkey received over four thousand hostile text messages after Trump tweeted his personal cell number on January 3 (p. 279).

    On December 14, individual state legislators in seven states met to produce fake electoral slates, falsely claiming to be “duly elected and qualified Elector.” This was the same day certified electors met to cast their electoral votes for the candidate who won their state’s popular vote (Final Report, 317).

    Nonetheless, this effort to disenfranchise millions of Americans and illegally reverse electoral results failed for several reasons. For one, these efforts came too late, as state legislators could not go back and de-certify already established electoral results. They were also procedurally illegitimate, as their statements had not received certificates of ascertainment and, in most relevant states, only the governor could convene a special legislative session to revisit election results (p. 317).

    Once again, the integrity of many state and local lawmakers and officials, including numerous Republicans, was crucial to preventing this scheme from gaining ground and possibly contributing to a constitutional crisis. No state legislature or governor agreed to the president’s demands to appoint a pro-Trump slate (Final Report, 306). But they could have chosen, as people like Pennsylvania State Senator Doug Mastriano did, to embrace Trump’s scheme, parrot claims of fraud, and try to hold special legislative sessions to approve “alternative” slates of electors. Such confusion would have further undermined public trust in the electoral system and possibly given the vice president an opening to refuse to certify the election’s results on January 6.

    Since then, the GOP has sought to root out principled public servants and sow the electoral system with ideological loyalists. These efforts have met with mixed successes but are still concerning. The Center for American Progress assessed that although three hundred election deniers appeared on local, state, and national ballots around the country in the 2022 midterms, voters in key battleground states “ultimately shunned election denialism when voting for offices with a responsibility to administer or oversee elections.” Brad Raffensperger defeated a Trump ally and retained his position in the 2022 midterms, and prominent election deniers like Mastriano and Kari Lake lost their respective elections.

    However, other candidates who embraced election fraud claims have won races for local electoral offices or been appointed to such offices, particularly on county canvassing boards charged with certifying electoral results. Right-wing groups, with the GOP’s support, are recruiting tens of thousands of people into poll-watching operations that are poised to harass officials and voters while spreading disinformation. The Michigan GOP has developed a formal plan to insert partisan poll workers who will be linked to attorneys who can intervene instantly to challenge ostensible irregularities. Steve Bannon, a former advisor to Trump, summarizes these efforts as the “precinct strategy.”

    Meanwhile, Republican-controlled state legislatures are pursuing greater authority over the conduct of elections. This includes extensive efforts to restrict access to voting and legislation that empowers partisan officials to challenge or reject election results. Georgia, for instance, passed a law that removes the Secretary of State as the chairman and voting member of the State Election Board, which investigates potential fraud and now has three Republicans and one Democrat. A GOP bill in Arizona, which died in committee, would have given the state legislature the authority to change the certification of presidential electors by a simple majority vote, a proposal that would have written the Trump team’s fantastical theories into state law.

    “The pressure campaign on Pence, and the reckless legal theory behind it, showed another weakness in our electoral system.”

    Jeff Timmer, the former chair of the Michigan Republican Party, stated that “the officials who fulfilled their legal duty after the last election are now being replaced by people who are pledging to throw a wrench in the gears of the next election.” This movement to corrupt the electoral system has not just bubbled up from the base but trickled down from the federal level. Nothing illustrates this more than the 139 House Republicans who formally objected, on no evidentiary grounds, to the certification of Arizona and Pennsylvania’s electoral results on January 6 (eighty-two Republicans voted to certify).

    The news on this front is not all bad. Overall, the GOP’s embrace of election denialism appears to have alienated many moderate voters. Many Republicans believe that election conspiracism is hurting the party and that a shift to other issues is warranted. In Michigan, sixteen Republican state legislators have been charged with felonies such as forgery for falsely portraying themselves as legitimate electors in order to help Trump. Moreover, in the 2023 case Moore v. Harper, the Supreme Court negated the “independent state legislature” theory, which holds that state legislatures had broad, uncontestable authority to regulate federal elections. State legislatures, the Court ruled, are subject to judicial review of the laws and regulations they pass regarding elections. As David French argues, this decision “strips away the foundation of GOP arguments that the [2020] election was legally problematic because of state court interventions.”

    Nonetheless, the 2020 election demonstrated that there is ample room for state officials and legislators to spread disinformation and insert chaos into our electoral system. This remains a vulnerability as future elections loom.

    Pence’s Refusal to Play Along

    As the Trump team pushed forward in its attempt to subvert the 2020 election, they increasingly centered on the role of the Vice President certifying the election. The Constitution states that the Vice President will “open all the certificates and the votes shall then be counted.” This has long been interpreted as a merely ceremonial role for the Vice President as President of the Senate.

    Eastmann, Kenneth Chesebro, and other Trump lawyers, however, argued that the Constitution empowered the Vice President “not just to open the votes, but to count them—including making judgments about what to do if there are conflicting votes” (Final Report, 308). If Pence received competing slates of electors on January 6, Trump’s lawyers posited that he could require the states to reconsider their votes after further investigations, kick the election to the House to decide, or even simply declare Trump the winner (p. 320, 363). As Eastman audaciously argued, Pence was “the ultimate arbiter” who could actually throw out the electoral college votes of seven states that Biden won. “Pence then gavels President Trump as re-elected,” he wrote (pp. 361–62, 375).

    This was hardly a serious legal argument, as Eastmann himself had rejected it before the 2020 election (p. 362). Still, it provided a pretext for Trump to pressure Pence in the weeks before January 6, including numerous tweets and heated meetings on January 4 and 6 in which he harangued Pence, even calling him a “p—-” for refusing to do so (p. 374, 386–88).

    It is crucial to connect this pressure campaign to the violence on January 6. Trump called for a rally precisely on the date that his Vice President would be certifying the vote and incited a mob to march on the Capitol. He added criticism of Pence, which speechwriters had left out, to drafts of his speech to the Stop the Steal rally on the morning of the 6th (Final Report, 449–51). As the rioters descended upon Capitol Police and forced the evacuation of Pence and the Congressional leadership, Trump not only refused to protect Congress but tweeted that “Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones.”

    An angry mob challenges the nation’s authority: A tax collector ridden out of town on a rail amid the Whiskey Rebellion.

    On the ground, numerous leaders of the insurrection understood themselves to be pressuring Pence specifically to reject the election’s results. Three Percenter Lucas Denney, for example, wrote on Facebook on December 30 that “Trump has called for this himself. For everyone to come. It’s the day the electoral college is supposed to be certified by Congress to officially elect Biden. But, Pence is in charge of this and he’s going to throw out all the votes from States that were proved to have fraud” (p. 424).

    While Pence had defended Trump doggedly for years, in this case he stood up to the president and refused to decertify the election. He and his advisors recognized that this was not within his constitutional authorities and that it would undermine popular faith in the electoral system and possibly lead to violence (Final Report, 379–81). He released a statement on January 6 reaffirming that “I do not believe that the Founders of our country intended to invest the Vice President with unilateral authority to decide which electoral votes should be counted […] and no Vice President in American History has ever asserted such authority” (p. 392).

    It may be harder in future elections to execute a coup via the Vice Presidency, as Trump sought to do in 2020. Congress in 2022 reformed the Electoral Count Act to specify that the Vice President’s role in electoral proceedings is completely ceremonial. These reforms also identify the state-level officials who will submit the electoral slates, provide for expedited judicial review of claims about a state’s electoral certificates, and raise the threshold to object to electors to one fifth of the House and Senate rather than a single member being able to raise objections.

    Nonetheless, the pressure campaign on Pence, and the reckless legal theory behind it, showed another weakness in our electoral system that we did not even know we had. Seemingly ceremonial duties can be targeted for politicization, potentially sowing chaos in the transition of power. Had Pence wavered under the pressure of Trump and the mob or had less principled advisors, he could have sparked a constitutional crisis by declaring Trump the victor or kicking the election over to the House or the states. This was not a far-fetched scenario. While the January 6 Report portrays Pence as never wavering from his constitutional duty, Bob Woodward reported that Pence called former Vice President Dan Quayle and “asked if there was anything he could do,” telling Quayle, “you don’t know the position I’m in.” Quayle fortunately confirmed that Pence had no wiggle room on his role for January 6, and Pence stuck to that position. As the GOP isolates principled moderates and promotes fanatical loyalists, the possibility of a sitting Vice President going along with presidential plotting becomes increasingly concerning. Mike Pence did his duty on January 6, 2020, but could we trust Vice President Kari Lake to do the same in January of 2028 following a Trump victory in 2024?

    Trump Joins the Rioters

    Most of the dark scenarios outlined above depend on the manipulation of complex electoral law and the promulgation of unfounded legal theories. This is not so for one additional close call, one which we now know was a distinct possibility: What if Trump had gotten his way and marched to the Capitol to support the insurrection?

    Thanks to the courageous testimony of Cassidy Hutchinson and others, we know that Trump wanted to drive to the Capitol in support of the crowds flocking there. He was seated in his motorcade vehicle at 1:17 pm, and he argued with aides and Secret Service members who told him it was too dangerous to go to the Capitol. A Secret Service agent testified that Trump was “animated and irritated” at not being able to join his supporters (Final Report, 454–60).

    Once again, responsible adults held the line against Trump’s worst impulses, although numerous aides failed for three hours to get him to tell the rioters to go home. Again, things could have been different. Aides could have caved to his desires, or Trump just could have pushed ahead with moving to the Capitol. This would have raised the spectacle of Trump joining an insurrectionary mob as they assaulted a co-equal branch of government in the process of executing its constitutional responsibility. An image of Trump wading through the mob and egging them on in person truly baffles the mind, and it easily could have escalated the violence of January 6 to unprecedented degrees.

    Conclusion

    The January 6 Report nearly exhausts its reader with the relentless single-mindedness of Trump’s campaign to subvert the 2020 election. Trump signaled that he would do this in advance of the election, kickstarted the effort as soon as Biden was declared the winner, persisted despite losing dozens of court cases, ignored more reasonable advisors who told him the claims of fraud were untrue, switched to more mendacious advisors and courtiers, and pursued a multi-pronged attempt to subvert the will of the American people.

    In the course of this campaign, he stomped on a host of norms that have undergirded our constitutional system for centuries. The most consequential of these were the orderly transfer of power between political rivals and the system of checks and balances that prevents undue concentrations of power. That he would try something like this was absolutely foreseeable, given his low character, ignorance, and willingness to trample any norm that stood in his way.

    The Framers of the Constitution understood that legal structures alone could not save the republic from extremist political movements. In Federalist 48, James Madison noted that “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” In a democracy, the legislature’s “impetuous vortex” threatened to undercut the other branches, whereas in monarchies the executive was the true menace. The larger point, though, was that laws were mere “parchment barriers” if the human beings who operate the government acted in direct contradiction to the spirit of the law or failed to exercise proper restraints against the encroachments of other branches.

    There are many possible legal and technical fixes that can help prevent a future January 6, but the focus on structural flaws can only do so much. The Founders understood that the only permanent barrier to tyranny was an engaged and virtuous citizenry devoted to a constitutional system that restrains power and ensures its peaceful transition between political foes. That the January 6 Report landed with little more than a ripple in our politics suggested that this bulwark is faltering as well. If the January 6 campaign proves to be a mere prelude to something far worse, we cannot say we weren’t warned.