Will Democrats Leave The Republic At Risk Of A Future Right Wing Coup Attempt?

Their party platform reflects a pre-Trump era mindset with no proposals to address the fatal flaws in our laws and governmental structure that nearly resulted in a successful overthrow of the constitutional order by Donald Trump. If elected, eliminating those vulnerabilities should be Kamala Harris's top priority during her first 100 days in office.

The opening of the Democratic National Convention in Chicago today will begin the week-long process of formally making Kamala Harris the party's presidential nominee. There will be distractions from the main event, likely coming from hard-left activists who continue to criticize the Biden-Harris administration for what detractors claim is a one-sided policy in the conflict between Israel and Hamas. It is these protests and demonstrations, along with the inevitable and pedantic political "horse race" coverage and prognostications, that will get the lion's share of media attention.

But it's what's not in the party platform, or in Harris's current stump speeches, that should concern us all and what should be the party's and Harris's top priority: concrete, actionable proposals to make it impossible for a future chief executive to pull off a coup that obliterates the Constitution and the Republic. 

The phrase "January 6" appears nowhere in the 2024 DNC platform--a rather shocking and telling omission about the party's actual stated priorities, which once again are largely retreads from previous presidential cycles. It will then come as no surprise that the platform makes no mention of the work of the bipartisan January 6 Select Committee, much less its recommendations for trying to make our political system at least nominally more "coup proof" from Trump or any "MAGA movement" successor.

And while it's true that some of the Select Committee's recommendations have been rendered moot by the insane presidential immunity decision handed down by the Supreme Court on July 1, their proposals to increase the penalties for attempted insurrections and strengthen both oversight and the capabilities of the U.S. Capitol Police remain sound and vital reform measures.

Yet even as the Select Committee report chronicled how Trump attempted to use the coercive power of key federal departments to either suppress protesters (Defense Department) or subvert the electoral process (Justice Department), the committee failed to push for the kinds of sweeping reform measures that are truly necessary to prevent a repeat of the January 6, 2021, attempted coup.

In my judgment, there are at least five key changes to existing federal law and governmental structure that are vital to preventing a future would-be authoritarian president from succeeding where Trump failed:

 Local control of the DC National Guard: Had Mayor Muriel Bowser had the unilateral authority to deploy the DC National Guard on January 6, 2021, it is likely that the Capitol would never have been breached. However, under current federal law, and unlike every other state in the Union, the D.C. National Guard is under the direct control of the Secretary of the Army. The DNC platform calls for DC statehood, which will be a political non-starter for any GOP-controlled Congressional chamber. However, getting bipartisan support for legislation to put the DC mayor on par with governors in terms of direct control of the DC Guard is at least plausible and should be the initial reform proposal pursued by Harris.

Insurrection Act reform: As the Select Committee investigation revealed, Trump actively considered invoking the Insurrection Act to try to stay in power. The sweeping language of the Act makes it a potentially decisive and lethal tool in the hands of an authoritarian chief executive. Accordingly, Congress should modify the Insurrection Act to make clear that it cannot be invoked or funds allocated for its implementation in connection with a presidential election, certification, or inauguration absent a 2/3 affirmative vote by both chambers of Congress via joint concurrent resolution. The revised Act should also include language making it a class A federal felony for any political appointee or civil servant (including members of the military) to carry out a presidential order pursuant to the Insurrection Act absent the aforementioned action by Congress.

Move the Justice Department under the Federal Judiciary: In many western democracies, the police function is the province of national courts, not the chief executive. In the American system, the concentration of massive, coercive, and lethal power under the presidency in the form of federal law enforcement and the military is an invitation for dictatorial rule by a committed authoritarian president. Trump's failed gambit to install a puppet Attorney General at the Justice Department in the week leading up to the January 6, 2021, attempted coup was a warning that we ignore at our peril.

Congress must repeal the Judiciary Act of 1789 and the 1870 law creating the Justice Department under the Executive branch and pass new legislation placing all federal law enforcement and U.S. Attorneys under the control of the federal judiciary, with the Attorney General (AG) in day-to-day control of the law enforcement bureaucracy as is currently the case. However, in the revised system I propose the AG would in turn answer to the Chief Justice of the Supreme Court, not the sitting president.

Moving the Justice Department out of the executive branch and placing it under the control of the federal judiciary would sharply reduce the total number of federal law enforcement officers available to an authoritarian president to violate the rights of Americans.

And because the Supreme Court decision in Trump v. U.S. applies only to the president in terms of immunity for criminal acts committed while in office, it would also mean that any appointee or civil servant in any agency or department of the federal government considering following an illegal order would have to think twice knowing the courts could send the FBI to arrest them if they did.

It's true that a president's pardon power could be wielded to engage in individual pardons or even a mass generalized pardon program as a means of thwarting arrests and prosecutions of federal employees who break the law. However, to preempt this, Congress should pass legislation that anyone pardoned by a sitting president for illegal acts for which they had been charged would be ineligible for reemployment with the federal government and no funds could be lawfully appropriated for any agency or department that attempts to reemploy such persons in defiance of the law.

Military Ground Force Structural and Chain of Command Reform: The American military was meant to be used only to protect the United States from external foreign aggression, not to be a back-up force for federal, state, or local law enforcement in actions aimed at domestic political protesters. Accordingly, with the exception of the XVIII Airborne Corps (which is needed for quick-reaction operations to protect American interests and allies overseas), all other existing Regular Army and Air Force combat units should be transferred to the control of the National Guard in the states where they are currently deployed.

Such a restructuring would still allow future presidents to call up Army and Air Force units in the event of a Congressional Authorization for the Use of Military Force or actual declaration of war but would otherwise ensure that the lethal combat power of the Army and Air Force remain under decentralized state control of their respective governors. The relatively small size and foreign operations focused posture of the U.S. Marine Corps make it less of a potentially useful tool of repression in the hands of an out-of-control president.

Abolish the Department of Homeland Security: A sprawling entity created by Congress without intelligent or considered debate in the period after the 9/11 attacks, DHS should be dismantled and its constituent law enforcement place under the control of the federal judiciary under the day-to-day control of the Attorney General. This approach would not only further restrict a potential authoritarian president's pool of armed agents to potentially go after political opponents, but it would also create a more rational allocation of national law enforcement personnel and assets.

Every proposal I've made would require only legislative action by Congress, not any constitutional amendments.

More broadly in the political sense, it recognizes that preventing the destruction of the Republic in the MAGA or post-MAGA/New Right era is about using the legislative process and the law to restore actual checks on executive power by eliminating the domestic concentration of that power in the executive branch.

Would all of this be controversial, especially with MAGA or MAGA-adjacent members of Congress? Almost certainly...but that's no reason not to take whatever action possible to prevent a repeat of the January 6, 2021, political nightmare and its aftermath. Whether Harris will embrace this kind of approach if elected is something only time will tell.

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