The case for consequences

Why Republicans have to be held accountable for the attack on Capitol Hill.

It’s been less than a week since a mob whipped up by President Donald Trump attacked the US Capitol in his name, and Republicans in Congress are already telling Americans to move on. What’s needed now is not punishment for insurrection, they say, but rather “healing” for a country rent by partisan fissures.

“To deliver a better America, partisans of all stripes must first unite as Americans and show that a peaceful transition has occurred,” House Minority Leader Kevin McCarthy (R-CA) said in a Friday statement. “Impeaching the president … will only divide our country more.”

But there has not been a “peaceful transition.” Five people are dead, and dozens injured, because the president’s supporters attacked Congress in an effort to disrupt its confirmation of President-elect Joe Biden’s victory.

Had such an attack been perpetrated by jihadists or a foreign power, Republicans would not want to simply move on: They would demand consequences, action to ensure that it never happened again. The reason they are not now is that it is their party, from President Trump on down, that bears responsibility for inciting this mob by insisting that the 2020 election was fraudulent. McCarthy himself voted against certifying Biden’s Electoral College victory — even after the House was attacked by marauders with zip ties and a hanging noose.

It is true that America needs healing, but of a very different kind. The country requires an aggressive treatment regimen to fight the illness at the heart of American democracy: the Republican elite’s willingness to stoke paranoid and violent fantasies prevalent among its base. It is not just Trump to blame, but also those Republicans who led the charge in trying to overturn the election result: people like Sens. Josh Hawley (MO) and Ted Cruz (TX), and Reps. Mo Brooks (R-AL), and Andy Biggs (R-AZ).

The clearest and simplest path forward is to hold these elites accountable: to punish them for what they’ve done, sending a signal that such behavior will not be tolerated in a democracy.

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Impeachment, which the House plans to vote on Wednesday, is the most visible such punishment. But it isn’t the only one. Other forms of what political scientists call “horizontal accountability” — government officials holding each other accountable for wrongdoing — include barring Trump from holding future office under the 14th Amendment, censuring members of Congress like Hawley who directly enabled him, and launching criminal investigations into whether Trump and other speakers at the January 6 rally committed the crime of incitement. It is not clear yet which, if any, of these options will end up being merited, only that it is worth looking into all of them.

Because not doing so, according to experts on political violence and democracy, carries a profound risk: that the use of violence in US politics becomes normalized. Given the magnitude of the risk, American officials who care about democracy — Democrats, Republicans, executive branch officials, federal prosecutors, and more — have an obligation to pursue every tool that might plausibly head it off.

Trump and his allies “are exploiting a climate of absolute impunity and doing whatever they can get away with,” says Kate Cronin-Furman, an expert on war crimes accountability at University College London. “If it were harder to get away with shit, they’d act differently.”

The case for punishing Trump and his chief allies isn’t about political retribution. It’s about defending and repairing the country’s frayed democracy.

Healing it, if you will.

Violence poisons democracy

In an op-ed published in the Detroit Times on Saturday, Rep. Pete Meijer (R-MI) laid out the democratic danger posed by the Capitol Hill insurrection in unusually stark terms.

Meijer tells a story about another Republican Congress member who, once the House reconvened after the attack, voted to nullify Joe Biden’s victory in the 2020 — not out of conviction, or even political expedience, but out of fear of violent reprisal:

My colleague told me that efforts to overturn the election were wrong, and that voting to certify was a constitutional duty. But my colleague feared for family members, and the danger the vote would put them in. Profoundly shaken, my colleague voted to overturn.

An angry mob succeeded in threatening at least one member of Congress from performing what that member understood was a constitutional responsibility.

According to Meijer, the armed intimidation predated the attack, shaking those Republicans who have been brave enough to challenge Trump’s election fraud lies.

“Republican colleagues who have spoken out have been accosted on the street, received death threats, and even assigned armed security,” Meijer, who voted to certify Biden’s electoral victory, writes. “I have been called a traitor more times than I can count. I regret not bringing my gun to DC.”

We like to think of democracy and the politics of violence as being entirely separate. But as the political scientist Henry Farrell reminds us, they are not always that far away: Politicians in alleged democracies court violence as a means of holding and winning power, generally with catastrophic consequences for citizens and the stability of the democratic political system. By encouraging their followers to see their political opponents as illegitimate — and letting them follow that logic where it leads — Republicans have been flirting with this kind of anti-democratic behavior for years.

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“This … is the main cause of our current crisis — and of the difficulty in solving it,” Farrell writes. “Today’s Republican party is one where it is considered divisive to take decisive action against a faction that was trying to hunt down Democratic and Republican politicians a few days ago.”

Trump’s speech that inflamed the mob at the pre-insurrection rally is at the extreme end of this dangerous spectrum. Unlike most Republicans, who try to avoid directly condoning violence, Trump seems to revel in it. He continued to defend his conduct during the insurrection as legitimate as recently as a Tuesday press conference.

If he gets away with this, it would be a signal that extreme anti-democratic behavior is acceptable in the GOP. The same will be true if the politicians who took the lead on legitimizing Trump’s false claims of voter fraud, like Hawley and Cruz, suffer no consequences for their actions. Violence may become not only acceptable but perhaps routinized as a response when Republicans don’t come out ahead via the democratic process.

There are already warning signs. A plurality of Republican voters — 45 percent — approve of the attack on the Capitol, per a YouGov poll conducted late last week. According to Capitol Police, there is an ongoing plot to attack the Capitol again around Biden’s inauguration.

Democracy demands accountability

If we want our political elites to stop courting anti-democratic elements — and we do — then we need to change their incentives.

“If there isn’t political punishment for politicians backing — whether openly or tacitly — political violence, they have incentives to keep playing with fire like this,” says Paul Staniland, a professor at the University of Chicago who studies political violence. “If there are practices that are bad for democracy but you don’t impose costs on those who engage in these practices, then they have less reason to worry about continuing to act in democracy-undermining ways.”

Holding politicians accountable for damaging democracy means imposing real consequences for their behavior — creating a deterrent to future anti-democratic behavior. Few politicians are willing to test the limits and risk their career ending in impeachment, censure, or even arrest.

“I think Trump and co. also figured there would be little consequence for trying and failing. I.e., a failed putsch would be cheap, at least for them personally. This is why it’s so important to punish them,” writes Jay Ulfelder, a scholar of democratic breakdown at Harvard’s Carr Center for Human Rights. “If you want to deter them from trying this crap again, you have to change their expectations about how painful it will be to try again & fail.”

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But accountability doesn’t only deter; it also repairs damage to democratic norms. Healthy democracies don’t need to arrest leaders for inciting an attack on their Capitol; in those countries, their leaders wouldn’t even dream of it. They would believe it to be not only politically costly but wrong — not the sort of behavior that politicians can justifiably engage in.

From this point of view, punishing Trump and his allies sends an extremely powerful signal to government officials and ordinary Americans: that no one is above the law, and that we as a society will not tolerate neo-Confederate nonsense. Beliefs get reinforced by political action, a virtuous cycle in which important demonstrations of democratic resilience boost faith in the system, in turn making citizens independently less likely to take actions that undermine it.

In the short run, deterrence is democracy’s most powerful weapon. Those Republicans who are manifestly uninterested in democratic norms have shown that they will not act decently on their own; they need to be compelled.

But in the long run, norms need to be restored: Americans must be socialized into believing that what just happened was fundamentally undemocratic, against everything our country ought to stand for. Those that enabled it should be remembered in the same breath as the likes of Sen. Joseph McCarthy (R-WI).

To strengthen both democratic deterrence and democratic norms, we must do to Trump and his allies what was once done to McCarthy: inflict consequences for wrongdoing.

What real accountability looks like

The late Guillermo O’Donnell, one of the leading scholars of imperiled democracies in Latin America, distinguished between two broad ways to punish politicians for misbehavior in a democracy.

“Vertical accountability” is when citizens hold government officials accountable; “horizontal accountability” is when government officials hold one another accountable. A fully stable and healthy democratic system, according to O’Donnell, has multiple mechanisms of accountability — a series of overlapping vertical and horizontal checks on power aimed at preventing any one official or branch of government from abusing their authority.

Elections are the primary mechanism of vertical accountability in a democracy, a direct method for the people to reward or punish elected officials based on their performance. But electoral defeat, even the loss of both the presidency and the Senate, failed to deter Trump and his GOP allies from engaging in anti-democratic behavior. In fact, electoral defeat is what caused the president’s actions: He was rebuked by the voters and tried to seize power anyway.

In cases of such severe anti-democratic behavior, horizontal accountability becomes even more important. Political elites have to hold the line and be a check on one another.

House Democrats’ impeachment push is the most obvious way forward. Pursuing it is worthwhile even if they believe, most likely correctly, that the Senate would be likely to once again acquit Trump.

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The difference between this impeachment and the last one is the gravity of the president’s offense. This isn’t merely a phone call attempting to solicit foreign interference in the US election, as was the case in the Ukraine scandal. This is the president egging on a direct and violent attack on the Capitol that killed five people, successfully intimidated legislators, and disrupted the functioning of US democracy.

For these reasons, you’re hearing a handful of Senate Republicans, including the moderate Lisa Murkowski (AK) and the conservative Pat Toomey (PA), calling on Trump to resign — a sentiment that could, in theory, be converted to impeachment votes. It’s at the very least worth attempting, as impeachment is the clear first choice in the US Constitution for punishing presidential misbehavior. This will be the legislature’s best chance to hold the line against such a drastic departure from democratic norms.

But impeachment isn’t the only consequence available.

There is a provision in the 14th Amendment — Section 3 — that was explicitly designed to bar ex-Confederates from holding high office in postwar America. It operates entirely separately from any impeachment proceedings, and so could be used even if Senate Republicans acquit Trump. Here’s the text:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

In theory, this provision might allow Congress to bar Trump — or, for that matter, legislators like Hawley and McCarthy who backed his seditious activity — from holding public office again. How this would actually work — whether Congress could implement it by simple majority vote or something more complicated — isn’t exactly clear.

But two constitutional law experts, Yale’s Bruce Ackerman and Indiana University’s Gerard Magliocca, believe that Trump’s behavior does qualify under Section 3, and that the incoming Democratic Congress could punish him under it if they so chose. Some House Democrats, including Rep. Alexandria Ocasio-Cortez (D-NY), are already investigating the option (potentially for use against some legislators).

If Trump were to be barred from public office on 14th Amendment grounds, the threat of him running again in 2024 and starting all of this over again would be defused. It would also pose a strong deterrent to other Republicans by threatening what they value most: their political careers.

There are other sorts of consequences that can be imposed on the legislators who supported Trump’s bid to overturn the election. While it’s very unlikely that people like Hawley and Cruz would be expelled under the normal procedure these bodies use for expelling a member (a two-thirds vote), a censure vote only requires a simple majority. The 14th Amendment could also be applied to bar them from holding office, though it would be wise to consider it only in extreme cases.

Finally, Congress isn’t the only part of the US government that can impose a form of horizontal accountability on Trump. The most prominent among these others is the justice system.

During the rally before the insurrection, Trump directly instructed his supporters to march on the Capitol. Though at one point he asked them to do so “peacefully,” other lines in his speech were more aggressive.

“We’re going walk down to the Capitol,” Trump told the crowd. “We’re probably not going to be cheering so much for some of them [legislators] because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”

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I spoke with several legal experts about whether this speech qualified as “incitement”: encouraging others to an “imminent lawless action,” a category of violent speech that is not protected by the First Amendment. Some said they believed it did; others weren’t sure. All agreed that it was a close call and would depend a lot on what we learn in the coming months about Trump’s intentions — how closely (if at all) the White House coordinated with the rioters beforehand, whether Trump really was “delighted” by the violence he saw (as Sen. Ben Sasse has claimed he was told by White House aides).

“If there is enough evidence that Trump intended to incite violence, then I think his language could be read as advocating violence,” says Caroline Mala Corbin, a First Amendment scholar at the University of Miami law school. Trump has denied that his words amounted to incitement, saying on Tuesday that “if you read my speech … people thought that what I said was totally appropriate.” Some people, perhaps.

Trump is not the only elected official who may have engaged in incitement. Rep. Mo Brooks said in his speech at the rally that “today is the day American patriots start taking down names and kicking ass.”

Karl Racine, Washington, DC’s attorney general, has already begun an inquiry.

“I’m looking at a charge under the DC code of inciting violence, and that would apply where there’s a clear recognition that one’s incitement could lead to foreseeable violence,” he said on Monday. “We still have more investigation to do, and that’s what we’re going to do.”

Disrupting a culture of elite impunity

Criminal prosecution of prominent individuals is the most powerful signal any democracy can send that its leadership class is not above the law.

Many other contemporary democracies, ranging from Peru to France to South Korea to Malawi, have punished leaders for crimes committed in office. Scholars of democracy see it as a vital form of horizontal accountability, of ensuring that leaders are deterred from engaging in the most egregious abuses of power.

This might seem strange to Americans because we have a culture of elite impunity, where lower-level criminals in government are punished but the leaders behind their actions escape criminal investigation. None of the architects of George W. Bush’s torture policy were arrested or even faced serious professional sanction, despite strong evidence that they broke domestic and international law.

The Obama administration chose not to go after them in order to avoid getting their legislative agenda mired in a controversial battle; “a belief that we need to look forward as opposed to looking backwards,” as then-President Obama put it.

This logic is seductive — and what Republicans are parroting now. ”It is past time for all of us to try to heal our country and move forward,” Sen. Lindsey Graham (R-SC) wrote last week.

Democrats “are placing a desire for vengeance above the best interests of the country,” Rep. Kevin Brady (R-TX) tweeted. “We have great and important tasks to accomplish soon and we must focus on defeating Covid, rebuilding our economy and getting back to normal.”

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Indeed, stopping the pandemic and repairing the economy are pressing problems. But we have seen what elite impunity has wrought: a political leadership class that sees little risk from behaving dangerously and even perhaps illegally, allowing members of one party to court the most extreme anti-democratic forces — including outright insurrectionists — in the pursuit of their political ends.

For the United States to solve its problems, it needs a functioning political system. Working to hold Trump and other culpable Republicans accountable is not “vengeance,” but rather an effort to save the United States from the worst catastrophe of all: a political meltdown that threatens the stability of the government itself.

“The greatest threat the US faces now is not from more divisiveness or polarization, but from not holding elected and party officials accountable to democratic norms and values,” writes Jennifer Victor, a political scientist at George Mason University.

“Until that happens, things get worse.”