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Analysis | The institutions of government aren’t going to protect democracy

What happened on Jan. 6, 2021 — and in the weeks before — is very obvious. But our governmental institutions are unwilling or unable to address it.

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There is no real question about the intent of the riot at the Capitol on Jan. 6, 2021.

Donald Trump made clear his interest in undermining the results of the 2020 election for months beforehand, sowing misleading and dishonest stories about the reliability of mail-in ballots in a pandemic election year that would undoubtedly see huge numbers of them. Before Election Day, there was reporting that he would try to leverage the skepticism he had sown to claim victory before votes could be counted, which is what he did.

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He convinced a lot of people. A Fox News poll out Sunday found that 30 percent of Americans still, to this day, think President Biden wasn’t legitimately elected, including 56 percent of Republicans.

But Trump’s post-election tactics for retaining power weren’t as clearly articulated as the pre-election one. November and December were more scattershot, entertaining and seemingly invariably implementing theories of how he might remain president. Blocking certification, fake electors, having the Justice Department lean on Georgia, leaning on Georgia himself, etc.

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Jan. 6 became a focal point in mid-December when Trump pointed his supporters to the date, promising a protest that would be “wild.” He spent the next few weeks celebrating public statements from elected officials that they would oppose pro-Biden electoral votes from a handful of states. He tried to use his bully pulpit to hammer Vice President Mike Pence into agreement, without success. Then, on the morning of Jan. 6, he directed an angry crowd toward Capitol Hill. He wanted to join them, as he said, but instead resigned himself to sitting in the White House watching.

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Again, this was all obvious in the moment and remains obvious today. Trump lost the election and tried over and over to upend that reality. It ended acutely, with a mob he had summoned and encouraged pushing past police and into Congress to stop the process of formalizing Trump’s defeat.

And to this date — including this date, in fact — Trump has in no significant way been held accountable. That includes government institutions that are the product of our democracy proving unwilling or unable to implement any accountability.

There was a months-long investigation into his actions in the House that fleshed out the contours of Trump’s efforts … and led to no repercussions. Yes, he was impeached by the House, but he had been impeached before. Republicans in the Senate, including Senate Minority Leader Mitch McConnell (R-Ky.), opted not to convict Trump for his actions in early 2021. McConnell, of course, is soon to leave that post, having given up on his scattershot efforts to keep the Republican Party from collapsing entirely into an entity centered on Trump’s power rather than its own. Far from paying a price within his party, Trump will almost certainly be his party’s nominee for president in November.

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Trump has been sued civilly and charged criminally for his post-election efforts. Neither case is resolved. Trump last week got a boost when the Supreme Court opted to entertain arguments centered on the idea that, as president, his actions were immune from criminal prosecution — arguments that will be hard to support but which serve to delay his criminal trial so that it might well still be underway on Election Day.

Judges in several states, considering Trump’s actions, determined that he had engaged in an insurrection barring him from eligibility for service as president under Section 3 of the 14th Amendment. This was an understandably controversial position to hold, that courts in individual states might block a party nominee from the ballot after determining that the nominee had engaged in something less than being a member of the Confederate army. But if the two months that followed the 2020 election weren’t an effort to subvert a democratic election and if the riot at the Capitol wasn’t “an act or instance of revolting against civil authority or an established government” (as Merriam-Webster defines it), then what was it?

Trump and his allies argue that it was a natural response to legitimate concerns about the election. But this is garbage. There were never legitimate concerns about the election results nor evidence that more than the usual few dozen votes had been cast illegally. This is most obvious in Trump’s orbit: Allies desperate to prove their loyalty to him — and keep appealing to his base — devised the argument that the election wasn’t stolen but “rigged,” allowing them to complain that something hazy had happened and, therefore, that Trump was (at least in broad strokes) right.

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The effort to reframe Trump’s actions as understandable, if not acceptable, has been broadly successful. It is not only the case that most Republicans think that Biden’s election was illegitimate, it is also the case that traditional media outlets have at times treated as controversial not the question of whether Trump met the unclear standard of “insurrection” but even whether he tried to subvert the election results. Other Republicans have internalized the idea that the way in which Trump responded to his loss was within the bounds of acceptability — not only by petulantly refusing to concede defeat but by treating the relentless, norm- and law-bending effort to wring victory from defeat as part of the process of winning power.

Because there has been no accountability for Trump.

The Supreme Court on March 4 unanimously overruled a Colorado decision that would have kept former president Donald Trump off the ballot in 2024. (Video: Anna Liss-Roy, JM Rieger/The Washington Post, Photo: Scott Muthersbaugh/The Washington Post)

On Monday morning, the Supreme Court offered its assessment of a state Supreme Court decision in Colorado barring Trump from the ballot. Unsurprisingly — given the ideological constitution of the court — it declined to endorse the idea that Trump was ineligible to hold the presidency. But the decision was unanimous.

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“Responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States,” the decision read. “The judgment of the Colorado Supreme Court therefore cannot stand. All nine Members of the Court agree with that result.”

Justice Amy Coney Barrett emphasized that latter point again in a concurrence.

“All nine Justices agree on the outcome of this case,” the Trump appointee wrote. “That is the message Americans should take home.”

But several liberal members of the court added some nuance, arguing that the conservative majority also decided “novel constitutional questions to insulate this Court and petitioner” — that is, Trump — “from future controversy.”

“Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President,” Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson write. “Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision.”

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The superficial agreement on the decision erodes in the details, which isn’t uncommon. The result, though, is that the institution of the Supreme Court has decided that the institution of Congress is the only element of the American system that can apply the 14th Amendment to a candidate. And Congress, very obviously, won’t do so for Trump.

One would assume that a democratic system predicated on checks and balances would have some process in place to enforce punitive measures when democracy itself was threatened or undermined, but it does not. It has decisions from motivated actors, enough of whom agree politically or ideologically with Trump that his specific actions are waved away. Instead of a defense of democracy, we are repeatedly asked to believe that anything short of Trump retaining power doesn’t count as a substantive challenge to democracy and, therefore, that his participation in the democratic process should be defended.

Had he retained power after Jan. 20, 2021? Then, perhaps, his efforts to do so would have been considered a legitimate threat. And by then, the system that we would assume might hold him to account would already be destroyed.