Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
Former Vice President Dick Cheney, a longtime conservative Republican, made headlines when he announced he would be voting for Kamala Harris. At the same time, he issued an ominous warning.
“In our nation’s 248-year history, there has never been an individual who is a greater threat to our republic than Donald Trump,” Cheney said. “He tried to steal the last election using lies and violence to keep himself in power after the voters had rejected him. He can never be trusted with power again.”
Cheney’s warning should be taken seriously by all Americans but especially by the Biden administration and the Harris campaign. What will they do if former President Trump wins another term in the White House when the votes are counted on Nov. 5? It seems likely he can only win a majority in the outdated Electoral College; he’s never won a popular majority and probably won’t this time.
The threat of complete control
It is not as if President Joe Biden and Vice President Harris needed Cheney’s warning to realize that allowing Trump to take power would likely mean the end of American democracy as we know it. The president has said so repeatedly throughout his time in office, and the Harris campaign has shown it understands the peril by releasing an ad called “Control” that highlights that threat.
Sign up for The Fulcrum newsletter
- YouTubewww.youtube.com
The ad says: “Donald Trump is back … and he is after complete control.” It cautions that he is after “unchecked power.” It ends, “He’ll take control. We’ll pay the price.”
Is the end of democracy a price we should be prepared to pay? If not, what should the Democrats do in the face of a Trump electoral victory?
Their options are limited, and none of them are good. If Trump wins, our leaders and all of us will confront a series of tragic choices.
Unlike others, my interest is not in what they should do after Trump takes office. The more urgent and harder question is whether they should stand by and allow that to happen.
It raises issues about the political tactics of the moment but, more importantly, questions of the most profound philosophical and moral kind.
The moral dilemma: Playing by the rules
One response to this situation might echo Michelle Obama’s 2016 admonition to Democrats: “When they go low, we go high.” Obama urged them not to play by the rules of their opponents and instead to bet on the justice of history’s judgment.
The political philosopher Michael Walzer offers a different perspective. He captures the tenor of the dilemma Democrats will face if Trump wins in what he calls “the dirty hands problem,” though he did not imagine the kind of dilemma Trump’s election would pose or suggest what anyone should do if they faced it.
However, Walzer did recognize that political leaders cannot “govern innocently.” In exigent circumstances, they must be prepared to get their hands dirty and do what is necessary for the good of the people they lead, even if it puts them in uncharted territory.
As Cheney suggests, Trump's election would put this country in such exigent circumstances.
Trump has made clear his disdain for the niceties and procedures of democratic politics and governance. He was found guilty of being an insurrectionist for his role in the Jan. 6, 2021, attack on the Capitol in the only three states (Colorado, Illinois and Maine) whose courts heard all the evidence.
If that were not enough, recall his 2022 statement saying that there are conditions that justify the “termination of all rules, regulations, and articles, even those found in the Constitution,” or his 2023 promise to be “a dictator on day one,” or what he said in July 2023 to a gathering of Christian conservatives: “You got to get out and vote. In four years, you don’t have to vote again. We’ll have it fixed so good, you’re not going to have to vote. …. You have to vote on Nov. 5. After that, you don’t have to worry about voting anymore.”
The risk of ignoring the threat
Last November, Robert Kagan, a senior fellow at the Brookings Institution and an editor-at-large for The Washington Post, illuminated the danger behind those words. Kagan argued that “the odds of the United States falling into dictatorship have grown considerably.”
“In just a few years,” Kagan observed, “we have gone from being relatively secure in our democracy to being a few short steps, and a matter of months, away from the possibility of dictatorship.”
Kagan noted: “The Trump dictatorship will not be a communist tyranny, where almost everyone feels the oppression and has their lives shaped by it. … The fact that this tyranny will depend entirely on the whims of one man will mean that Americans’ rights will be conditional rather than guaranteed.”
Kagan warned that one of the key reasons we may end up with a dictatorship is the tendency of people to believe that they can continue to “behave normally” in the face of the imminent threat posed by a Trump presidency. They “drift along passively, conducting business as usual, taking no dramatic action to change course, in the hope and expectation that something will happen.”
Kagan called on his readers “to stop the wishful thinking and face the stark reality.” He asked the right question: “Are we going to do anything about it?”
But he offered no suggestions or plans. His hope, and mine, is that Trump loses the election. But what if he prevails?
Then what? What are the possibilities?
Exploring four possible responses to a Trump victory
Let me explore four options.
First, Biden can do nothing differently than he would have done for a winning Republican candidate who did not threaten to end democracy. This might be attractive because it honors the will of the voters, seems to keep faith with our constitutional processes and restores the practice of peacefully transferring power.
Choosing this option would also heed Obama’s wisdom by refusing to mimic what Trump and the MAGA crowd tried to do after the 2020 election.
But, as Kagan warns, doing nothing differently and behaving normally eases the way toward democracy’s end.
A second option would be for the Harris campaign to mount vigorous legal challenges to the election outcomes in states where Trump’s margin of victory is narrow and where there are plausible grounds for doing so. It could flood the zone with challenges to the election procedures and the vote counting in those states.
The campaign is already gearing up for a protracted legal battle in which they would defend a Harris electoral victory. But if they pursue the second option, they would have to take the offensive in places where Trump wins.
The problem here is that most courts, and surely the zealous MAGA majority on the Supreme Court, will not be willing to say that the Electoral College must be judicially ignored to save the Constitution, even when, as discussed below, the electoral clause provision comes in serious and practical conflict with the Constitution’s guarantee clause.
A third option focuses on using the post-election period to engage in a mass mobilization campaign, like the one that occurred after Trump was elected in 2016. This one would have to be designed to resist what Trump has said he would do once he is back in the White House, but it would be geared to put in place the infrastructure to sustain protest over the long term.
“It is likely,” Kagan writes, “that many people will engage in protests against the new regime, perhaps even before it has had a chance to prove itself deserving of them. But then what?” Kagan is not optimistic that the protest strategy could prevail, and neither am I.
The mass mobilization strategy could play directly into Trump’s hands. He might use demonstrations as the pretext for launching an assault on democratic values as soon as he takes office.
He has, in fact, already threatened to invoke the Insurrection Act, which allows the president to use the military as a domestic police force, on his first day in office.
In addition, in the face of a sustained assault on democracy and rights, people tend gradually to turn away from the political and tend to their private lives.
The fourth option is by far the riskiest and most controversial. While the first three can be pursued within well-established constitutional norms, the fourth would, at first glance, seem to transgress those norms.
Faced with the prospect of a Trump presidency, some, out of desperation, might urge Biden to turn the tables on Trump and refuse to transfer power to him. In this scenario, Biden would resign, and Harris would be sworn in as president. There would be no constitutional problem if he were to take this step.
Harris would then face the horrible possibility that her oath of office and promise to defend the Constitution against “all enemies, foreign and domestic” might require her not to transfer power to someone who has already said he might terminate the Constitution. Doing so is the kind of nuclear option that Walzer says good politicians must consider when circumstances warrant it.
Constitutional implications of refusal
On the surface, exercising this last option would dishonor the Constitution’s Electoral College system and the millions of Americans who had voted for Trump. But Harris might do so believing, as former Supreme Court Justice Robert Jackson said 75 years ago, “the Constitution is not a suicide pact.”
Proponents of this option might argue that until a new constitutional convention undoes it, the incumbent president has a duty to respect the existing Constitution and its guarantee of some form of republican government for the individual states. “Republican government,” in constitutional terms, does not refer to a political party but rather to government through representative institutions and respect for political rights.
The National Constitution Center explains that the guarantee clause requires the United States “to prevent any state from imposing rule by monarchy, dictatorship, aristocracy, or permanent military rule, even through majority vote.” The clause contemplates that the vote of a majority cannot itself authorize “monarchy,” “dictatorship,” “aristocracy” or “permanent military rule” in the states.
And if that is true for the states, it is also true for the federal government. The guarantee clause would be drained of all meaning if the federal government itself were not itself a republican form of government.
Whatever the constitutional niceties, Harris would be at pains to distinguish her refusal to turn over power from Trump’s effort to overthrow the 2020 election in the service of his own autocratic ambitions. She would no doubt say that she was not honoring the election results in order to preserve democracy in the face of those ambitions.
How might that argument go?
As political scientist Manjeet Ramgotra argues, “Democracy is about more than just voting. It is about freedom of speech, the separation of executive from legislative power, judicial independence, and political equality. Democratic institutions exist to keep power from becoming centralized in a single, despotic location. Once these institutions begin to weaken, and the only remaining element of democracy is the pretense of elections, then democracy in its meaningful form is already gone.”
Those who would condone the kind of extreme action that option four requires might also take comfort from something Thomas Jefferson said in 1810 about the obligations of democratic citizens and their leaders.
As Jefferson explained, “A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and … thus absurdly sacrificing the ends to the means."
Jefferson called on “officers of high trust” to act for “the salus populi” — the health, welfare, good, salvation, felicity of the people. That, he said, must be “supreme over the written law.”
The officer “called to act on this superior ground does,” Jefferson conceded, “risks himself on the justice of the controlling powers of the constitution.” However, Jefferson concluded, as if foreseeing the situation Biden and Harris may confront if Trump wins, “his station makes it his duty to incur that risk.”
Whether Jefferson was right or not, refusing to turn over power, whatever its motivation, would run into various real problems. First, it would put the American military in a very difficult position.
Would they be duty-bound to follow orders from a president who refused to follow the letter of the law? Recall that in January 2021, the joint chiefs of staff issued a statement reaffirming the military’s commitment to support and defend the Constitution and that “any act to disrupt the Constitutional process is … against our traditions, values, and oath.”
Beyond that, how long would Harris stay in office? And when and how could she restore the electoral system? As the experience of other nations shows, it is never easy to figure this out once elections have been suspended or election results ignored.
The true cost of extreme threats
Even if those and other problems could be solved, there is no escape from the damage that refusing to honor the 2024 election results would do to our already frayed democratic norms and how it might incite violent responses. In the long run, instead of diffusing a constitutional crisis, it might contribute to the kind of maximalist thinking that makes constitutional crises more likely in the future.
The dilemma that Trump’s election would pose is not just whether his threat to democracy justifies doing something genuinely unprecedented. It is whether Trump’s extreme threat to democracy justifies doing something that injures democracy in another way and with potentially lasting anti-democratic effects.
What seems abstract now, I fear, will take on real urgency the day after Trump wins.
At that time, the nation will have to decide whether the prospects highlighted by Cheney and Kagan require action that Trump will call treasonous and others will see as expressing patriotic allegiance to constitutionalism.
A moment of reckoning
As we contemplate the terrible choices listed above, we should recognize that the prospect of tyranny changes everything. However we respond to that prospect, as my colleague Michael Kunichika wrote me, it will lead to “deforming our own values.”
The option of withholding the keys to the White House would be another breaking point in the arc of American history. It would be a moment when both of our major parties, though for distinct reasons, would have signaled their view that the electoral system is, at least for the moment, not an adequate mechanism to protect democracy.
The possibilities that may lie before us are almost unimaginable, but we must imagine them. It is not just that we need to think about what Trump would do if he were returned to the Oval Office. That is hard enough.
What is even harder is thinking about what we would be prepared to do or to support our leaders in doing, to stop him.
“These are the times,” Thomas Paine once said, “that try men’s souls.” The question of what to do if Trump wins puts us squarely in the dilemma of our Founders in 1775.
Who would ever have thought that we would actually be forced to have our souls so tried? But here we are, about a month away from the serious possibility of having to endure just that.
In the end, Cheney’s admonition that Trump “can never be trusted with power again” is a reminder of just how much is at stake in the November election. It is not just a contest between Democrats and Republicans.
It pits those who care about the Constitution against those who want to shred it. If we are to avoid confronting the tragic choices that await us if Trump wins, we will need to vote as if our political lives depended on the outcome of the 2024 election.
Because they do.
