I owe him an apology. My nephew asked if I thought we had just had our last democratic election. I arrogantly, churlishly responded, “Why would you say that?” I acted as if the question was paranoid, misguided. It was not.
My initial response was driven by several factors. First, we have no indication in the recent election that the Trumpista crazies who became election officials did anything to throw the election in Trump’s favor such as skewing the vote counts. If this did not happen with Donald Trump running, it is unlikely to occur with another candidate. The loyalties of those who want to upset our democratic norms are not to the Republican Party specifically nor to conservatism in general, but rather to Trump, and Trump will not be the running next time. And, thus, I had reasoned that the threat to our democracy would be minimal.
The nephew countered: Did I really think that Trump would not be a candidate in 2028? I referenced Trump’s age. He will be 82 in four years, if he survives that long. Even many Trumpistas will think he is too old to be president. In addition, many other Repubs want to be president and will work to prevent a fourth Trump run. And, then, of course, the Constitution forbids it. The opening clause of the Twenty-Second Amendment is as clear as anything in our national charter: “No person shall be elected to the office of President more than twice. . . .” Period. The end. I don’t see how even the most partisan Supreme Court justice could find a way around this unequivocal pronouncement. Trump won’t be running. And because he cares only about himself, not the Republican party or conservatism, Trump won’t be campaigning to overturn an election in which he is not a candidate. Without his efforts, we are unlikely to have fake electors or requests for changes in vote counts. So, I reasoned, Trump won’t be a candidate, nor will he be tampering with the election in 2028.
But then I had a horrific thought: What if Donald Trump, Jr. were a candidate? (Or Ivanka or maybe even Jared? Even the father couldn’t support Eric, could he?) Then take everything I said above off the table.
However, as I thought more about my uncharitable response to my nephew, I realized that true democratic elections require more than just an accurate vote count. They also need an active opposition and the free-flow of information. Those are threatened by the calls from Trump and his cronies and his nominees for retribution. Such retaliation will not only be a punishment for the past, but a deterrent for the future spread of ideas and information necessary for democratic elections.
It is important to note that the promised retribution is not for criminal conduct, or for any kind of illegal conduct; it is for speech. Speech. Kash Patel makes this clear when he says that he will “come after” the media for what they have said. While media may be first on his list, retribution against others will soon follow. And, of course, with threatened punishment for information and ideas, fewer will be willing to speak out. And democracy will suffer.
Will we have retribution for free speech, as Trump, Patel, and others desire? Certainly, harmful retaliation has become more likely because of the Supreme Court decisions giving once and future president Trump immunity forever — let me repeat, forever — from criminal and civil actions. While the Court-created exemption extends “only” to official actions, the Court’s vague definition of official action is incredibly broad and extends even to illegal conduct. The Court indicated that any presidential order to or conversation with anyone in the executive branch is an official act, and it garners immunity. This is so even if the command is to take an illegal action. In other words, Trump does not have to worry about criminal or civil liability for presidential orders to the Justice Department, the FBI, Homeland Security, and many other departments. (The Supreme Court immunity decisions do not address whether an executive branch official who performs an illegal act under a presidential order can be prosecuted. It would be a strange world, however, if the underling can be prosecuted but not the boss who issued the directive.)
Retribution does not have to be illegal to provide a powerful deterrent to a free society. Practically speaking, the executive branch can investigate whomever it wants for whatever reason it wants. If probable cause is found to believe that a person has committed a crime, that person can be prosecuted. Moreover, the federal criminal law is broad and often vague. Many, perhaps all, of us have committed crimes—ever take a pencil home from work?—and if enough resources are put into a retributive investigation, many people could be charged with a crime. Of course, such charges will deter others from criticizing or opposing Trump and his acolytes. And democracy will suffer.
Retributive investigations will deter freedoms even without prosecutions. Investigations by themselves can lead to onerous demands for documents and testimony. The target has to bear the costs in time and money, which can reach hundreds of thousands, even millions, of dollars in fees and costs. Few organizations, much less individuals, can afford such harassment. Many of us will decide that it is better to remain silent rather than face the possibility of such retribution. And democracy will suffer.
It is not just investigations and prosecutions that can deter free speech and undermine democratic elections. Peter Hegseth promises to remove wokeness from the military services. From what I have seen from other conservatives, the goal would be to fire, or at least not promote, some officers, not for their actions or performances, but because they have spoken out in favor of diversity and inclusion. If this is what combating wokeness means, it seeks the suppression of ideas in the very same way as the promises of retribution from Trump and Patel do. When ideas are punished, democracy suffers.
The coming years can provide other dangers to our democracy. Trump has said that he will pardon the January 6 mayhem makers. This undermines our democracy by indicating that there might not be penalties for obstructing a fair election. Trump has been urged to invoke the Insurrection Act. Perhaps we will discuss that Act someday, but let’s just say now that the vagueness of that eighteenth-century legislation could lead to alarming results.
And it is not just the Trump administration that is concerning. There is the anti-democratic institution of the Supreme Court. It is frightening what it might do in the coming years.
I am not saying that we are about to lose our democratic elections and the rule of law, but my glib response to my nephew was injudicious. I am no longer quite so certain that our democracy is safe.
