Dr. Anthony Marcum and Dr. Katherine Simpson, Lecturer at at the University of Michigan and an International Arbitrator respectively, discuss the aftermath of the U.S. Capitol Violence and the case for reconciliation through investigation and prosecution, constitutional reform, and reparations...
Much of U.S. governance is held together by goodwill, unwritten norms, and the ideals that “that would never happen” and “no one would ever do that.” Every hope of continued reliance on these norms was “shattered” on January 6, 2021, when armed insurrectionists invaded the U.S. Capitol. Under the direction of the President, insurrectionists attempted to reverse an election and keep Mr. Trump in power. In doing so, Mr. Trump and his followers finally revealed that the U.S. has been resisting an autogolpe (autocoup, or “self-coup”), possibly since the 2016 election.
As the U.S. investigates, prosecutes, unwinds, and reclaims damages for this self-coup, it will confront opportunities to preserve American democracy by cultivating equality among every American. To prevent similar threats of dictatorship from materializing, the U.S. must amend the Constitution by implementing legal reforms that guarantee greater representation and democratic accountability within government institutions. The institutions of democracy – executive, legislative, and judicial – need to reflect more than a simple “winner takes all” approach, which enables easy consolidation of power, and one-person rule. Protection of minority party interests, the direct election of the executive, and the implementation of the principle of equality between the governing and the governed will ensure greater participation in and legitimacy of democratic decision-making.
The focus on promoting equality extends, however, beyond institutional reform. Inequality in all of its forms is a threat to democracy, especially when it becomes a unifying force for insurrectionists. Several individuals voted for Mr. Trump in 2016 when they recognized he shared their prejudices. Many voted for Mr. Trump in November 2020, after four years of seeing his racist beliefs in action. The U.S. must delegitimize these beliefs by beginning the process of paying reparations to African Americans for state-sanctioned racism and by creating institutions for the study of America’s history and airing of grievances.
II. Investigating and Prosecuting a Self-Coup
In a self-coup, a country’s lawful leader undermines the constitutionally proscribed separation of powers and the rule of law, ultimately to enhance his or her own political and legal authority and achieve ultimate power over the state. Being directed by someone(s) in power, a self-coup need not be overt or sudden. A president’s position would afford the luxury of time and the guise of authority, which one would then use to consolidate power.
For a successful self-coup, the leader must neutralize hindrances and/or limits to his ability to govern. Such hindrances might include (and are not limited to) legislative impediments, judicial independence, and – obviously – the loss of an election.
What makes a self-coup special is that the perpetrator is already in power. With enough support from his or her political party and other allies, the leader’s ability to neutralize hindrances would be limited only by his or her own creativity. The leader would not need to overtly close any institution. Instead, the leader could undermine the public’s confidence in government institutions, while simultaneously establishing him or herself as the only person who can provide a remedy.
A self-coup depends on insider support. There have been calls to discredit every person involved with, associated with, appointed by, related to, or otherwise officially involved in the Trump administration. A full investigation of Congress, the Capitol Police, the FBI, the Secret Service, and the Department of Defense to establish their involvement is warranted – both to find and later prosecute those who have committed offenses related to a self-coup, as well as to protect those guilty only by association. The attempted self-coup was a domestic attack on the U.S. It should be investigated with at least the same intensity, financial backing, and personnel as was contributed to the investigation of the 9/11 attacks.
A. The Self-Coup: Measuring by Events
As predicted by Foreign Policy in their 2016 article, “10 Ways to Tell if Your President is a Dictator”, Mr. Trump (1) intimidated the media and began building an official pro-Trump media network (similar to then-Governor Mike Pence’s state-run news service), (2) politicized civil service, the military, the Secret Service, the National Guard, and other domestic security agencies, at one point leading to the belief that he may attempt to build a personal army, (3) used his office to reward corporate backers and punish opponents, and (4) consistent with the idea that disparate response is one of the de-stabilizing tools and tactics used by word-be dictators to gain and remain in power, Mr. Trump ensured that the law was enforced more harshly for some as for others, in particular for black protesters as compared to white insurgents.
Americans will wonder when the alleged self-coup began. If investigators focus solely on the violence of January 6, 2021, the self-coup might appear as an aberration that necessitates little reform. Since a self-coup is an inside job, its start could be coextensive with an individual or party’s ascent to power. There should be a forensic review of every hiring and firing decision, appointment, resignation, new contract, and every contract continuation that occurred during Mr. Trump’s entire term. The legality of the events, appointments, or actions may be of little relevance if those occurred in furtherance of a conspiracy to defraud the U.S. or to commit a self-coup.
Knowing that Mr. Trump had no intention of leaving office after losing the election and that the U.S. may have been resisting a self-coup for years, different events might be understood in a new light. For example, investigators might consider whether the armed attack on Michigan’s state Capitol and the white supremacist plot to arrest and assassinate Governor Whitmer of Michigan (while she was running as a Vice Presidential candidate) may have formed part of any plan to seize or maintain power.
B. The Self-Coup: Branch by Branch
If the other two branches of Government were rendered dysfunctional – either by lack of public trust or an inability to function – the third would remain as the sole federal authority. A branch-by-branch investigation of the self-coup may be warranted.
1. Evidence of the Self-Coup in the Judicial Branch
One might undermine the judicial branch by reducing its independence and making its authority (appear to be) subservient to the will of the executive leader, rather than the law. Actions one might take to undermine the judiciary would include court closing or stacking the courts with judges who might favor the party and ideology over the rule of law.
With the cooperation of the Republican Party, Mr. Trump appointed 3 Supreme Court justices and 226 lower court judges. Mr. Trump may have believed that the appointment of judges was essential to winning the election, and later used the judiciary in his attempt to overturn the election.
The judiciary has demonstrated resilience and, to date, no judge has ruled in favor of Mr. Trump’s attempts to overturn the election. Still, the repeated allegations tarnished trust in elections and eroded the U.S. citizens’ confidence in the Constitution. For his supporters, it served to undermine the judiciary even further.
Along-side these rejections, Mr. Trump eroded the public’s confidence in the judicial system by issuing pardons to (1) those convicted of election interference to help him remain in office, (2) international war criminals, and (3) business partners and family. In the final months of his Presidency, Mr. Trump’s attempted to afford himself the right to assassinate U.S. citizens, without charges or trial. Through these, Mr. Trump showed himself as being above the law, and immune to the norm that “no one would ever do that.”
2. Evidence of the Self-Coup in the Legislative Branch
In a self-coup, the leader needs the legislature to be (seen as) ineffective because this enables the would-be dictator to usurp the legislative process and rule by decree. The U.S. Constitution and the long-standing expansion of executive authority make this easy: The implementation of Congressional goals is accomplished through Executive Agencies, led by presidential appointees. A President could support or undermine Congressional mandates – and likewise support or undermine the democratic process – at his option. With the right allies in Congress, presidential appointments could be pushed through with little meaningful objection or oversight.
Through these Cabinet Appointments and other actions, Mr. Trump undermined the legislature by making execution of their intentions impossible. He openly flaunted Congressional decision-making, even personally redirecting resources previously allocated for the military by Congress, to fund his border wall. Later, Mr. Trump attempted to take personal credit for Congress’s approval of stimulus money, by insisting that each cheque be signed as if personally issued by him. These actions made Congress appear ineffective or unnecessary. The violence at the Capitol Building was not Mr. Trump’s first attack on Congress.
3. Evidence of the Self-Coup in the Executive Branch
Within the executive branch, the President would still need to maintain authority and autonomy. A President might accomplish this by appointing only temporary actors to important Cabinet posts, thus ensuring that the executive is in a constant flow of disruption, while providing the President “flexibility” and perceived “complete and full authority” over every subject area.
The greatest obvious threat to the President would be the Vice President, who would only gain ultimate power through the death or removal of the President. In a failed self-coup scenario that would see the President removed, the Vice President would enter a Presidency already strengthened by the heavy Constitutional dismantling of the prior President, without any apparent ethical or legal culpability. It should, therefore, come as a little surprise that Mr. Trump perhaps saw Mr. Pence as a risk, and the mobs seeing to overturn the election sought to lynch Vice President Pence.
Following January 6, 2021, the U.S. found its answer to that awkward question, “What would happen if the President of the U.S. pretended his way through the democratic process, only later to consolidate and seize power all for himself?”
In response, Americans can now say “we would be mortified and paralyzed. We would depend on the goodwill of the military to reassure allies and enemies alike that it would not allow them to be hurt during this upheaval.”
The lead up to World War II saw elected officials consolidate power for themselves and undermine democracy, with disastrous consequences. Following the War, these Constitutions were re-written to prevent the future rise of a dictator.
The same kinds of gaps that have enabled past dictators to rise still exist within the U.S. Constitution and legal order. Without reform, the same lacunae that enabled Mr. Trump to undermine U.S. democracy will embolden future attempts to seize and consolidate power. Democracy is about representation, good governance, human rights, respect for human dignity, diversity and separation of power, oversight, and equality, and limits. The U.S. must reform its Constitution such that it compels good governance, without reliance on the “goodwill” gestures. Each branch of government needs to function reliably, with oversight, no matter who is controlling it.
A. Constitutional Reform: Protection of Minority Party Interests in Congress
The Trump administration began with one party controlling the White House, the Senate, and the House of Representatives, and no mechanism requiring the consideration or inclusion of minority views for law-making or appointments. This is problematic for democratic accountability: it would support a self-coup by a party in power. Concretely, it enabled Mr. Trump’s attacks on American democracy.
Rather than operate by “tyranny of the majority”, parties in Congress can be forced to work together. In addition to majority voting, it can be required that a certain number of representatives from the minority party vote in favor of legislation or an appointment, for it to pass. Further protections could ensure that the views of different regions of the U.S. are represented and included in the legislative process. The result would be that more of the U.S. would be represented in and have oversight over the democratic decision-making that affects all of the U.S.
B. Constitutional Reform: Direct Election of the President
Direct election of the President and the elimination of the Electoral College would make federal elections more reflective of the popular will and more efficient. The Electoral College failed in its arguable ultimate purpose of preventing the rise of demagogues. A popular vote, however, would have prevented this exact leader from emerging: Hillary Clinton won the popular vote in 2016.
The Electoral College is part of slavery’s legacy and afforded slave states additional electoral votes for maintaining slaves (counted as three-fifths of a person), without allowing slaves to vote. Removing the Electoral College is part of removing the “stains of slavery” from U.S. governance and of promoting the equality of each U.S. citizen.
On its surface, the January 6, 2021 violence at the Capitol might have looked like any mob attempting to help a failed politician retain power. Viewed from another angle, however, the violence was “another chapter in America’s ongoing battle over race.” If successful, this event would have disenfranchised 90% of Black American voters, who were the key demographic group that elected Biden into office.
The racist overtures of January 6, 2021, cannot be ignored. The insurrectionists waved Confederate flags and other polarizing symbols of white supremacy. They wore shirts that read “Civil War.” They erected gallows and threatened to lynch Vice President Pence. The insurrectionists came from ultra-right-wing, racist, conspiracy-laden circles, including the same “Proud Bois” who Trump ordered to “stand back and stand by” during a Presidential debate. In coordinated protests around the country on January 6, 2021, protestors chanted in favor of Trump and against Black Lives Matter (“BLM”), connecting the two. Mr. Trump compared the overt violence in the U.S. Capital to the peaceful BLM protests, calling the BLM protests “a real problem.”
Immediately prior to the violence, Sen. Ted Cruz urged Congress to view the Compromise of 1877 as inspirational for resolving election concerns. While he expressly referred to its creation of an emergency election commission, the suggestion was one that sent a strong signal to those scholars and advocates who recall this Compromise as the start of Jim Crow America. The comparison might have signaled nothing to a casual observer, but to insurrectionists and African Americans, this proposal suggested a return to institutionalized segregation and marginalization.
Civil War rhetoric still has power in the U.S. because that conflict remains an open chapter in the country’s history. Funding for the Civil War extended to at least May 31, 2020, when the last Civil War pension recipient, Irene Triplett, died. She outlived George Floyd, and her family collected the monthly pension of $73.13, for 155 years (approximately $136.021, with no adjustment for inflation). The last remaining widow of a veteran of the Civil War (never claimed a pension) also outlived George Floyd, dying on December 16, 2020.
The Civil War remains an open wound because reparations were never paid to African Americans. Reparations were ONLY paid to former slave owners, who received “compensation” from the U.S. government, at the rate of $300 per freed slave (approximately $7,736.85, adjusted for inflation) for 2989 freed people, for a total of approximately $896,700 (approximately $23,125,449.09, adjusted for inflation). According to the Brookings Institute, African Americans remain the only population that has not received reparations for U.S. state-sanctioned racial discrimination.
The U.S. must create a forum for the study of America’s history, the airing of grievances, and the payment of reparations: it is required under international law, and it is also economically and psychologically advisable:
“As a moral and legal matter, this is a question of providing access to justice when an entire nation is implicated in the wrongdoing — as the United States has been in its enduring legacy of racism. … Justice is served not simply by compensation or a determination of right and wrong, but also is served through the creation of a forum in which grievances can be aired, collective wrongdoing recognized, history corrected, and mechanisms for atonement and reparation implemented. Through the redress provided by reparations, a society recognizes the victims of historical injustice as full and equal citizens who suffered wrongdoing enabled by an entire society.”
The payment of reparations is necessary for equality, and to ensure that the voices of victims are heard, understood, and addressed. Reparations are also an opportunity for delegitimizing the racial divides and animosity that fuel the Capitol insurrectionists. Paying reparations would undermine Mr. Trump and his sympathizers of the power exerted by him in the disparate treatment of African Americans. Conversely, a failure to study the issue and ultimately pay reparations could be viewed as placation of the insurrectionists and a continuation of the status quo: one where the insurrectionists remain emboldened and African Americans struggle to be treated as full and equal citizens.
There is no stronger way to disengage from the insurrectionists than by organizing and ultimately paying reparations, starting by passing H.R. 40, “Commission to Study and Develop Reparation Proposals for African-Americans Act” introduced by Representative Sheila Jackson Lee in January 2019 and S.Con.Res.50 “A Concurrent Resolution Urging the Establishment of a United States Commission on Truth, Racial Healing, and Transformation”, introduced by Senator Cory Booker in December 2020.
Unwinding the self-coup may initially bear a stark resemblance to the unwinding of Mr. Pence’s term as Governor in Indiana. Within days, Pence-era contracts to lease state-owned cell phone towers were canceled, the repeatedly-denied pardon of a wrongfully convicted African American was finally granted, a disaster emergency declaration was issued for East Chicago, and the state began to address Mr. Pence’s failed response to a public health crisis that left rural Indiana with a higher HIV incidence than any country in sub-Saharan Africa.
For President Biden, investigating, prosecuting, and unwinding the self-coup will require (1) determination of when the self-coup began, (2) evaluation of the contracts and appointments made in relation to the self-coup, (3) the prosecution of all self-coup actors, including those who physically attacked the Capitol on January 6, 2021, and those who facilitated the consolidation of power, (4) the unwinding of all executive orders that furthered the self-coup, (5) the return of all gains by those involved in the self-coup, and (6) punishment of the perpetrators.
In addition, President Biden will confront a task that has proven difficult for many leaders. Recognizing the principal institutional weaknesses that have enabled a self-coup, the incoming President must constrain the power of his own office and political party, such that no other can use the Presidency or the Constitution to unlawfully seize power. President Biden must also close the Civil War chapter of U.S. history, by cultivating the equality of every American, in part through the payment of reparations.
The clock is ticking.
Dr. Anthony Marcum is a Lecturer with the Program in International and Comparative Studies at the University of Michigan. His research interests broadly focus on post-conflict reconstruction and democratization. His current work addresses how victorious states engage in military occupations to settle political disputes and ensure their preferred peace.
Dr. Katherine Simpson, FCIArb. is an international arbitrator with offices in the US (Simpson Dispute Resolution) and London (33 Bedford Row Chambers). Katherine has taught international commercial arbitration at the University of Michigan Law School (Adjunct Professor). She is a licensed attorney (Maryland, New Jersey) and recently co-authored “The New List – Arbitrators of African Descent.”
Suggested Citation: Anthony Marcum and Katherine Simpson, Cleaning Up After A Self-Coup: A Case for Reconciliation, JURIST – Academic Commentary, January 18, 2021, https://www.jurist.org/commentary/2021/01/marcum-simpson-self-coup-reconciliation/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at email@example.com.
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