Democrats Are Still Not Thinking Seriously About Preventing Another Jan. 6
The Democratic National Convention endorsed an error-riddled platform that offers no proposal to coup-proof the presidency
Dear Readers:
The four-day Democratic National Convention kicks off today. The Democratic Party's 2024 platform adopted at the convention was finalized days before President Joe Biden withdrew from the presidential race. It is a 92-page document (in contrast to the Republican Party's 16-page counterpart) that still needs a good scrubbing: it makes constant references to "Biden's second term.” Setting that aside, one reason the party has not rushed to revise the platform is that Harris has signaled that her candidacy will be broadly continuous with the Biden administration's core goals. That means that it is fair to view it as roughly descriptive of her own political vision.
Trump features prominently in the platform—his name invoked in well-over half of the document's 92 pages. Otherwise, the document is a wish list of old Democratic policy issues that has yet to adjust to the new political threats that Jan. 6 brought to the fore.
Patrick G. Eddington, a senior fellow in homeland security and civil liberties at the Cato Institute, fills some of those gaps in the Democratic imagination in the piece reprinted here from The Republic Sentinel, his blog. One does not have to accept all his recommendations to see what kind of thinking we should be engaging in to restrain executive power and ensure that a defeated president never again attempts another violent coup.
So do read. And if there is something else the Democratic Party platform didn't include that you think the Harris campaign should address, we’d love to hear from you in the comments section.
Berny Belvedere,
Senior Editor
The Democratic Party’s 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 Democratic 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 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 Jan. 6 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 D.C. National Guard
Had Mayor Muriel Bowser had the unilateral authority to deploy the D.C. National Guard on Jan. 6, 2021, it is likely that the Capitol would not 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 Democratic platform calls for D.C. statehood, which will be a political non-starter for any GOP-controlled congressional chamber. However, getting bipartisan support for legislation to put the D.C. mayor on par with governors in terms of direct control of the D.C. 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 two-thirds 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 Jan. 6 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 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 appointees or civil servants in any agency or department of the federal government considering following an illegal order would think twice before they do so because the courts could send the FBI to arrest them.
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 Congressional authorization for the use of military force or an actual declaration of war. This 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, the Department of Homeland Security should be dismantled and its constituent law enforcement placed 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 suggested would require only legislative action by Congress, not any constitutional amendments.
More broadly in the political sense, the proposals recognize 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 among MAGA or MAGA-adjacent members of Congress? Almost certainly … but that’s no reason not to take whatever action possible to prevent amother Jan. 6 political nightmare and its aftermath. Whether Harris will embrace this kind of approach if elected is something only time will tell. But it is troubling that she or her party thus far are not showing any signs that they are seriously thinking of steps to avoid a repeat.
An earlier version of this piece was first published in The Republic Sentinel, the author’s blog.
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Thank you for the serious analysis.
Its troubling how little of this sort of thing is being broadcast.
I’m worried about state level shenanigans this cycle
The GOP didn't even have a platform. You're giving way too much credit to platforms, which are mostly marketing efforts. No one's crazy enough to put coup-proofing in their marketing materials.