In America, there is one set of rules, laws and justice for rich white men and another set for everyone else. Donald Trump is living proof of that fact. Despite overwhelming public evidence of his high crimes, it appears likely that the House select committee investigating the events of Jan. 6, 2021, will not recommend to the Department of Justice that Trump should face criminal charges. This abdication of responsibility — to speak plainly, this act of cowardice — in the name of politics and appearances is a horrible mistake.
Indeed, it appears increasingly likely that there will be few if any negative consequences for Trump and his fellow coup plotters for their numerous crimes. In total, Jan. 6 may be one of the greatest crimes in American history and also one of the least punished, offering another example of how American democracy is dying, a little bit at a time.
Last Sunday, The New York Times reported that the leaders of the House committee “have grown divided” over the question of whether to make a criminal referral regarding Trump to the Justice Department, “even though they have concluded that they have enough evidence to do so.” Some committee members are reportedly “questioning whether there is any need to make a referral,” partly in hopes that Attorney General Merrick Garland has his own investigation underway, and partly out of reluctance “to saddle a criminal case with further partisan baggage” at a moment when Trump is openly flirting with another presidential campaign.
This shift in strategy, the Times reports is related to the ruling two weeks ago by a federal judge in California who found that it was “more likely than not” that Trump and his legal adviser, John Eastman, had both committed federal crimes:
The ruling led some committee and staff members to argue that even though they felt they had amassed enough evidence to justify calling for a prosecution, the judge’s decision would carry far greater weight with Mr. Garland than any referral letter they could write, according to people with knowledge of the conversations.
The members and aides who were reluctant to support a referral contended that making one would create the appearance that Mr. Garland was investigating Mr. Trump at the behest of a Democratic Congress and that if the committee could avoid that perception it should, the people said.
It’s certainly true that the House Jan. 6 committee is controlled by the Democrats, since only two renegade Republicans agreed to take part. But if its leaders decline to refer Trump to the Department of Justice for prosecution, they will demonstrate once again that they lack the most basic understanding of how the Republican Party, and the larger neofascist movement surrounding it, pose an existential threat to the future of the United States.
It is not just that today’s Democratic Party is “bad at politics,” although that’s true enough. The deeper truth is even worse: The Democrats are engaging in willful self-sabotage.
The examples are many. Republicans overwhelmingly view Democrats as their enemies, yet Democratic leaders continue to view Republicans as possible or at least potential partners in good government. The Democratic Party’s leaders behave as though they truly believe that the Republicans’ embrace of fascism and authoritarianism is just a phase or passing flirtation that will soon fade.
Such a pretense is beyond naïve. In a moment of existential democracy crisis, it is actually dangerous stupidity.
Today’s Republican Party and the larger white right have abandoned normal politics with its expectations of compromise, respect for existing democratic norms and institutions, and a shared investment in protecting the country’s democratic culture. They have instead become a reactionary revolutionary party, embracing political paralysis and destruction. As the entire nation should have learned on Jan. 6, Republicans and the white right view political violence and terrorism as a legitimate means to achieve their goals. To this point, the Democrats have offered no effective response.
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Republicans no longer believe that the Democrats (or liberals, progressives or the “left”) should have any legitimacy, power, authority or social standing. Their ultimate goal is to create a one-party state along the lines of Hungary, Turkey or Russia, governed by what political scientists describe as a system of “competitive authoritarianism.”
Republican leaders have already signaled that if and when they take control of the House of Representatives after the 2022 midterms they are likely to impeach Joe Biden, follow through on their witch-hunt obsessions with his son Hunter, launch innumerable investigations of the Democrats for imaginary crimes and corruption, continue to advance Trump’s Big Lie and more generally do everything possible to stop the Democrats from passing any legislation or pursuing any policy reforms. They will almost certainly also do whatever they can to overturn existing legislation, however popular those policies may be, in pursuit of their revolutionary goal to remake American society in their own evil image.
Disbanding the Jan. 6 House select committee will almost literally be Republicans’ first priority, and they may well replace it with some McCarthy-style kangaroo court designed to punish those who stood up to Donald Trump’s incipient fascist regime. Yet in the face of all this, Democratic leaders and the Jan. 6 committee remain concerned, first and foremost, about political optics, even as their Republican “colleagues” continue to give aid and comfort to Trump’s followers and the larger neofascist movement.
At the New Republic, Michael Tomasky explores the logic behind the concerns that a criminal referral of Trump might “backfire”:
Democrats really have to stop worrying about things backfiring and just do them. Of course it may backfire. Lots of things may backfire. That isn’t a reason not to do them.
Do Republicans worry about things backfiring? Hardly ever that I can see. They just do them. Eighty jillion Benghazi hearings. Voting, as nearly 150 of them did, to deny Joe Biden the presidency. Pushing these blatantly undemocratic voter-suppression laws. They never worry about backfiring. The irony is that sometimes their zealotry does backfire on Republicans. The impeachment of Bill Clinton backfired on Newt Gingrich such that he lost his job over it. But they just keep on doing outrageous things, and their winning percentage, tragically, is pretty good.
In other words: The backfiring worry is very overstated in a hyper-polarized age. Of course a formal referral will infuriate Trumpists. And it will give Trump a little fodder to complain about a partisan “witch hunt.” But Democrats can counter that the committee has two Republicans. Liberals will nod, conservatives will be enraged, and most voters in the middle will shrug. It’s a relatively minor thing, this referral. There’s no harm in doing it.
In an essay for MSNBC, Charles Sykes warns that the select committee and the Justice Department “both seem to be caught in a cycle of hand-wringing”:
They worry about the “taint” of a referral and agonize over fears that Trump and the GOP will discredit any investigation as a partisan witch hunt.
But here’s a reality check: No matter what they do, no matter how cautiously they act, Trump will react with bad faith and demagoguery.
The Justice Department could hire an avatar of respectability and integrity to handle the prosecution (see: Robert Mueller) — and it wouldn’t matter. Whatever it does, Trump will let loose the dogs of disinformation, deceit and obstruction.
Knowing it can’t control the reaction, maybe the select committee should just do the right thing — and finally, finally end the cycle of timidity, self-deterrence and buck-passing.
Public opinion polls show that an increasingly large percentage of Americans have lost interest in the events of Jan. 6. and want the entire matter to be thrown down the memory hole. A great deal of this sentiment results from the fact that many leading Democrats and pundits repeatedly say that Trump and the Republicans are a threat to American democracy, yet in real-world terms do not act as if that really matters. Why should the American people care that Trump and his cabal attempted to overthrow democracy if the Democrats are continuing with business as usual?
In their losing war against the Republicans, the “conservative” movement and the larger white right, the Democrats have been trading space for time since at least Barack Obama’s presidency. By comparison, the Republicans are constantly on the attack, spreading the “critical race theory” moral panic, circulating the QAnon conspiracy theory, weaponizing anti-LGBTQ bigotry or terrorizing white parents with lies that Democrats are sexual predators who are “grooming” children. Republicans have all the momentum on their side and are using it to shape the political battlefield such that Democrats are forced to react from a position of weakness.
As documented by historian Nancy MacLean and other experts, and contrary to what some observers would like to believe, Republicans are not simply improvising their culture-war tactics. When viewed in the aggregate, these attacks serve a highly refined strategy. Democrats also seem to think that somehow the Republican-fascists and their allies will become tired, or will have an epiphany that their cause is immoral, irrational or misguided.
As is their habit, the Democrats and too many liberals are projecting their own reasoning and motivations onto their enemies. This too is a classic mistake in politics or war.
The Republican Party and the neofascist movement are engaged, energized and willing to fight. In comparison, most Democrats — whether “centrists,” mainstream liberals or left-progressives — appear exhausted, frustrated and increasingly demobilized.
If the House select committee decides not to issue a criminal referral to the Department of Justice for Trump’s crimes, that marks another Democratic Party surrender in the battle to protect American democracy. The Republican-fascists and their allies have no respect for the supposed rules of political combat in a democracy. Moreover, they have consistently demonstrated that they will offer no quarter or compassion to their opposition. They view the Democrats’ talk about bipartisanship, compromise, consensus and democratic norms with contempt, as a form of weakness not worthy of respect.
In the end, the Democratic Party and its leaders must approach this political battle not as “normal” politics but as a life-or-death struggle for the future of American democracy and society. Victory in war is all too often fundamentally determined by the human factors: morale, discipline, dedication, belief in the cause and motivation. By those criteria, the Democrats are losing badly. Is it too late for them to turn the tide?
Read more on the continuing investigation into Jan. 6, 2021: