The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One can never really predict the future, but yesterday sure felt like one of those turning-point days in American history, one in which a switch is thrown and we all move onto a very different track than the one we had been traveling on.
Over the past month, I had puzzled over the President's motives in deciding to continue—and to intensify—his attacks on the legitimacy of Biden's victory. Was he actually hoping that he'd get a January 6 Miracle? That Mike Pence would say "I will not count the certified electoral count from Arizona [and Georgia, and Pennsylvania]" and throw the election into the House? Could be. Or perhaps he was merely positioning himself for a post-presidency role as movement leader, Republican kingpin, or television star? Or perhaps it was just the simple inability of a very, very insecure man to accept the public humiliation of an electoral defeat, with no greater strategic goal in mind?
But whatever his motives were (or are), it seemed pretty clear that one virtually certain outcome of his provocations would be that the Republican Party would be rent in two. Thanks to his pressing the issue, Congressional Republicans would have no place to hide. He would force a totally unnecessary and entirely futile "are-you-with-me-or-are-you-against-me moment" on every one of them. And he would be taking names.
And so it happened—in a manner almost unimaginable a few days ago*—and the Republican Party has indeed been rent in two. It looks to me, though, like the President may have miscalculated a bit, and that, here again, he has come up short, and is left holding the smaller of the two portions.
* If you imagined that the President of the United States would send a message saying "We love you, you're very special" to armed rioters who had forcibly occupied the US Capitol, your powers of imagination are superior to mine.
I watched most of the Senate debate yesterday and last night, and the sight of the Republican Senators, one after another—McConnell, Toomey, Lee, Loeffler, Daines, Romney, Paul, Portman, Sasse, Graham, …—publicly repudiating the President, refusing to do the one thing everyone knew he wanted them to do, was absolutely breath-taking. It was as though they had all, suddenly, awoken from a bad dream, after four years in which they had collectively cowered in the corner, afraid to say a single word that might draw the ire of the Capo, lest he direct his terrible fury at them.
How many of them would have done so had not a majority of their colleagues also done so is an interesting question we'll never be able to answer. But the fact is that the majority of their Republican colleagues, for once, did not cave in, and one can't help but think that the collective nature of the response help strengthen some of the backbones involved.
It was the answer to the question that many of us had been asking for years: When, if ever, would they push back? What, if anything, is over the line? Is there anything—short of shooting someone on Fifth Avenue—that would make them say "Enough is enough"?
The President, intentionally or not, finally found the line—with two weeks to go in his presidency—that only the True Believers would cross.
He may declare war on the Infidels who refused to join him in the coming months and years, or others may do so on his behalf. We shall see. But he would be doing so from a much, much weaker position than he was in just a few days ago, because his "base," all of a sudden, is a lot smaller than it was before. The Party turned its back on him; only seven of 52 Republican Senators, once the line was drawn, crossed it at his behest. Fifteen percent—of Republicans. And I'm pretty confident that no more than the same small fraction of the Republican electorate—more than, say, that 15%—will stand behind a president (let alone an ex-president) who sent his love and good wishes to armed rioters** who had forcibly occupied the US Capitol.
**Although many commentators are using the term "insurrection" to describe yesterday's events, I prefer calling it a "mob riot." To my ears, "insurrection" connotes that someone has a plan. It may not be shared by others, and it might not even make a lot of sense; but once the gates are stormed, someone has a step 2: Take over the TV station, or run the new flag up the flagpole, or take opponents into custody (or shoot them on sight), or issue a declaration, … Something. From what I could see, it didn't look like anyone (let alone the collective) had a plan yesterday for their assault on the Capitol other than generally whooping it up and getting their picture taken sitting in Nancy Pelosi's office. This event looked quite a bit like the takeover of the University Administration Building at Columbia in 1968; it was much more serious than that, of course, because it was directed at the US Capitol, and because many of the rioters were, apparently, armed, but the perpetrators seemed to possess the same general cluelessness of what the point of the exercise was.
Donald Trump cannot control the Republican Party from that 15% perch. Two days ago the Republican Party was securely within his grip. Today, it is not.
As it turns out, the forces he unleashed gave him no place to hide.
What the Republican Party will look like in the aftermath of this debacle is anybody's guess. But I do think the rioters may actually have—inadvertently, to be sure—performed a great service for the country. I am among those who believe that the country needs something it has not had for some time: A functioning, principled, conservative Republican Party. The events of January 6 have exposed for all to see the anti-democratic and dictatorial heart of Trumpism, and helped to push push it off to the fringe of the political landscape where it belongs. For that, we should all be grateful.