Donald Trump should be very worried. The allegations contained in the grand jury indictment are damning. If the government proves its case, which seems likely, he will be convicted and likely sentenced to prison. The rule of law, which is the foundation of democracy, requires no less.
A functioning democracy requires a fair, impartial judicial system where even the powerful are held to account for their crime. However, in our system of checks and balances, no government institution operates in isolation. Indicting and trying former President Donald Trump while he is a candidate, in an election year, will have consequences for how our other institutions of democracy function.
Even in the best case, administering free and fair elections in 2024 was going to be difficult. Election deniers are more powerful and more plentiful than they were in 2020. In several key states, Republican legislatures have enacted new rounds of voter suppression and election subversion laws. The humiliating court defeats in 2020 and violent insurrection on Jan. 6, 2021 have motivated an extreme GOP to be even more extreme.
Before Trump was indicted, Republican politicians had already proclaimed him the victim of a partisan witch hunt. Their claim of a two-tier system of justice is aimed at protecting Trump from his criminal case today, as well as casting any future loss he suffers in court as a candidate as illegitimate. By turning him into a perpetual victim of a woke, deep state conspiracy, the GOP is already creating a permission structure to reject and contest unfavorable election results.
Our democracy’s survival will be despite the GOP, not because of it. Assuming responsible Republicans will help protect our democracy is like planning for peace in the Middle East based on the cooperation of moderates in Tehran. If they exist, they are too few and too powerless to matter. In both cases, the hardliners are the only ones with influence and power.
In 2020, Trump was willing to sabotage the country during a pandemic if it helped him win reelection. After he lost, he had his lawyers file frivolous lawsuits and stoke conspiracies to undermine the will of the voters. He pressured his vice president to refuse to certify the results and when that failed, he incited a mob to storm the Capitol to try to achieve the same results through violence.
The 2020 election demonstrated that Trump would do anything to hold power. There are no redlines he won’t cross; no norm, or custom or law he won’t transgress.
Now as candidate Trump, his power, influence and control over the Republican Party has grown. His willingness to denigrate democratic institutions and flout the law has made him feared and admired by the GOP. It is no wonder that being an accused criminal has made Trump stronger, not weaker.
With no government to run, no presidential legacy to consider and no government officials surrounding him to limit his most extreme impulses he is also more dangerous. Instead, he relies on a band of misfit sycophants and third-rate defense lawyers to curb his increasingly erratic behavior.
Now indicted and facing at least two criminal trials — one in Florida and another in New York — Trump is convinced that his entire future hinges on the results of the 2024 election: his legacy, his stature and, most importantly, his personal liberty.
All of this is setting up for the attacks on the 2024 elections to be worse than those in 2020. In addition to the threats posed directly by Trump, over the last two years we have witnessed competent election officials leave the field after experiencing waves of election denialism and harassment. Republican states have enacted additional voter suppression measures. Conservatives have organized vigilante groups, within the GOP and outside of it, to challenge and harass citizens trying to exercise their right to vote.
Conservatives have beefed up their cadre of lawyers willing to defend voter suppression laws and facilitate election subversion. The America First Legal Foundation, American Constitutional Rights Union, Foundation for Government Accountability, Honest Elections Project, Lawyers Democracy Fund, Public Interest Legal Foundation and Restoring Integrity and Trust in Elections are just a few of the groups that now regularly engage in anti-voting litigation.
Supported by the likes of Leonard Leo, Bill Barr, Karl Rove and Stephen Miller, these groups engage prominent conservative lawyers and law firms to litigate against voting rights and free and fair elections. Many of these groups have multimillion dollar litigation budgets, and collectively they aim to alter the landscape of election litigation.
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Democrats and progressives defeated voter suppression efforts in 2020 and defended President Joe Biden’s victory afterwards. As one of the lead lawyers in those efforts, I am proud of the work my team did to secure the right to vote for hundreds of thousands, and successfully defend Biden’s electoral victory more than 60 times in court.
However, as our attention is drawn to the indictments and the astounding evidence of Trump’s complete lawlessness, we cannot become distracted from the threats awaiting us in 2024. We cannot become complacent in believing that the criminal process will protect our democracy.
Instead, we must redouble our efforts to protect the elections that will take place in 2024. This includes the traditional programs aimed at recruiting and training volunteers to work at the polls and protect voters. But these tactics alone, like organizing voters, will not beat back the tide of voter suppression and election subversion. To do that, progressive organizations will need to think bigger, bolder and more creatively. The programs they run must address the new challenges we face and scale beyond anything we have seen previously.
Shortly after he was told he would be criminally charged; Donald Trump called the indictment “election interference at the highest level.” He understands how the current criminal charges against him will allow him to attack free and fair elections in 2024. Those who support democracy cannot wait until it is too late to understand that as well.