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Whither American democracy and the rule of law?
By Josef Gregory Mahoney  ·  2021-01-18  ·   Source: NO.3 JANUARY 21, 2021

Supporters of U.S. President Donald Trump gather at the Capitol building in Washington, D.C., the U.S., on January 6 (XINHUA) 

Charging him with "incitement of insurrection" and describing him as a "clear and present danger" to the nation, the U.S. House of Representatives impeached President Donald Trump for a historic second time. Ten Republican members broke ranks and joined Democrats.  

Coming in the waning days of Trump's administration, the date of a Senate trial is still uncertain, but there are indications that it might proceed months later after the business of helping a new administration take root has been completed, and long after he has left office. 

The stakes are straightforward. If Trump is convicted, then he will lose the right to hold future political office, as well as his presidential pension and security detail. He would also likely face increased legal jeopardy in civil and criminal cases. In the meantime, these proceedings risk splitting the Republican Party and further agitating his diehard supporters, risking increased violence. 

While Democrats rail against Trump's "extraordinary" attack on democracy and while European leaders recoil at the images of Trump supporters ransacking the Capitol, there are two central concerns that few have addressed adequately.  

First, is or has the U.S. been truly democratic? And second, how has the Trump era, these past few weeks particularly, revealed an incredible threat to both U.S. and global security? 

Has U.S. democracy prevailed?  

To be sure, some are patting themselves on the back, asserting American democracy has prevailed over its greatest domestic threat in modern times. On the one hand, the results of the election were upheld, and the efforts to attack the legislature and courts have failed. The long feared possibility that Trump might resort to a military coup—encouraged by the pardoned former National Security Advisor and army general Michael Flynn but perhaps headed off by astonishing interventions by 10 former secretaries of defense and other leading military figures—has also come to nothing. 

On the other hand, there are several reasons to be suspicious of American "democracy." First, quite a large percentage of the American people are unsatisfied with the election results, and a veritable Pandora's box of domestic terror threatens everyone as Trump-supporting extremists vow to storm Washington and their state capitals. While this is a new development, broad discontent is not. It was true in 2016 when Hillary Clinton won the popular vote by several million but lost to Trump in the Electoral College, and it was almost true again this year despite Joe Biden winning by a margin exceeding 7 million. 

What else isn't new? What else disavows democracy? Decades of systemic, institutional racism and violence against minorities. 

In the meantime, Congress—the supposed foundation of American democracy—remains thoroughly divided and intensely partisan to the point of near paralysis. While the Democrats just picked up two seats in Georgia for the U.S. Senate, this brings the caucuses to a 50/50 split, with control falling to the Democrats only because Vice President-elect Kamala Harris is the constitutionally empowered tie-breaker. 

Meanwhile, although Democrats still hold their majority in the House, they actually lost 10 seats in the election, while Republicans gained 11. There is a total of 435 seats in the House, but the Democrats control only 10 more than Republicans. Proportionally, this is a very slim majority, and like the Senate, indicates a nation that is deeply polarized politically, and as other indicators demonstrate, also profoundly divided racially and economically. 

But whether the U.S. is truly functioning as a democracy at home has always obscured a larger question: Does it function democratically in terms of its foreign policy? To be sure, one can point to the Trump years as a steady retreat from democratic global engagement vis-à-vis his America First policy and assorted unilateralism. One then might draw some comfort from the prospect of a Biden administration that might reverse course and return the U.S. to a more democratic international norm. 

And yet, that is by no means certain, and even if it proves to be the case, it's difficult to imagine Biden willingly surrendering American global dominance and hegemony. Rather, there's every indication that Biden will simply shift tactics to reassert American power at home and abroad given Trump's abject failures. 

It's difficult to imagine Biden surrendering his incredible, autocratic power in foreign policy, including his ability to impose at will or whim sanctions, tariffs or worse. On the one hand, he'll need that power to undo Trump's policies; on the other hand, he'll also keep it to advance his own agenda. 

In short, Biden will also meddle undemocratically in the affairs of other countries, he'll simply do so differently stylistically if not substantively, and other forms of American power will reinforce him and likewise be reinforced. 

Is the U.S. a danger?  

Arthur Schlesinger first described the problem of America's "imperial presidency" in 1973. This problem has only got worse since then, not only in terms of foreign policy but also with the growth of executive power at the expense of the legislative branch. Indeed, one of the graver concerns of American democracy for several decades has been mounting Congressional dysfunction, and not simply in partisan terms. Rather, the inability to legislate in an increasingly politicized and highly technological society and economy, both of which outpace institutions deliberately designed in the 18th century to move slowly or not at all. 

But that's a separate matter. The imperial presidency is an unchecked global threat that can at a single leader's whim—elected by roughly 51 percent of the American voters, in Biden's case, only 81.2 million—directly and indirectly affect the lives of billions. To put this in its starkest perspective, one can reference Elaine Scarry's 2014 book about the U.S., Thermonuclear Monarchy, which illustrates the threat the American presidency poses globally. 

This is not an over-dramatic reference. Indeed, in the wake of the attack on the Capitol by Trump's supporters, House Speaker Nancy Pelosi contacted the Pentagon over concerns about Trump's capacity to launch a nuclear attack internationally. 

During the Capitol attack itself, Vice President Mike Pence contacted the Pentagon for military support given Trump's initial refusal to do so. 

In both cases, Pelosi and Pence exceeded their constitutional authority and undercut the president's power as commander in chief. So again, whither American democracy and the rule of law, but more fundamentally, who's actually in charge? On the one hand, we are told that Trump is an existential danger. On the other hand, not having a clear chain of command is also destabilizing—a danger to both U.S. and global security. 

What comes next?  

The U.S. Senate, if and when it tries Trump, is unlikely to convict him. While some Republicans will break ranks and vote against him, others will find reasons to avoid doing so, especially with him already out of office. The threshold of 66 votes for conviction is unlikely to be met. 

That said, even if Trump is convicted in the Senate, or rather, if he faces legal jeopardy in other federal cases, we should not be surprised if Biden pardons him as an act of national unity and goodwill. In fact, Biden is more likely to do so in order to preserve presidential power, and by immediate extension, his own power. But the world should have no illusions that these developments are for and by democracy, or that anyone is safer for them, including the U.S. itself.  

(Print Edition Title: An Imperial Presidency?) 

The author is professor of politics at East China Normal University  

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