Biden Should Have Imprisoned Trump on Day One

Fighting fascists is messy. If you don’t do it, though, they win.

This week we’ve been subjected to another round of recriminations about Biden’s age and How Democrats Lost the Last Election. I wrote earlier this week at Public Notice about why this is futile and pointless.

I think it’s worth noting, though, that one of the most pernicious effects of this discourse is that it implies, or just directly states, that Biden’s main failing was that he clung to power, when in fact the real, enormous failure of his presidency was his refusal to use the power he had when it was necessary.

—
Everything Is Horrible depends on funding from readers—that means you! If you find my writing valuable, please consider becoming a paid subscriber. I’m having a sale right now; it’s 40% off, $30/yr. Please help me keep scribbling!

__

Specifically, on the day of his inauguration, Biden should have arrested Trump. He also should have arrested all Republicans in the House and the Senate who voted to overturn the election. Also all of Trump’s lawyers and henchman who participated in the coup, as well, of course, as anyone involved in the coup itself.

With the rump of Congress remaining, he should have then passed sweeping election reform, enfranchised DC, expanded the Supreme Court, and barred all insurrectionists from office forever, as per the Constitution.

I know that some will find these suggestions shocking. “What about due process?” they will say. “What’ about the rule of law?” If we don’t want Trump to exceed his authority and rule unilaterally, how can we argue that Biden should have?

The thing is, the rule of law in the United States is that insurrectionists should not hold office. It’s right there in the Constitution. It’s not ambiguous.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Congress can remove the disability of insurrectionists through a 2/3 vote. But beyond that, if you engage in insurrection or rebellion, you’re disqualified! This is part of the Constitution that Biden took an oath to defend.

If you believe in the rule of law, you should believe in the rule of this law! It’s important! Why do all other laws matter except the one that would disbar fascists from power?

The answer is that a lot of our leading very serious people think that holding powerful people accountable is messy and ugly and not to be done. They may dislike fascism. They may even dislike fascism a lot. But they dislike the idea of holding the powerful accountable even more.

Holding the powerful accountable, after all, is messy. It’s divisive. You’re likely to piss people off, because the powerful (by definition) have a lot of support and a lot of power. Better to only enforce laws against the powerless, and if the powerful break the law, just hem and haw and look the other way. Fighting too hard for the Constitution might damage the Constitution! The smarter, braver thing to do is to simply act as if all our institutions are fine, and insist that if we wait long enough and muddle through, the fascists will evaporate on their own.

You’d hope that the problems with this logic would be apparent now. Fascists do not generally evaporate on their own. The Constitution fought for half-heartedly is a Constitution that doesn’t have long for this world. Declaring your support for the rule of law except when the rule of law inconveniences fascists is going to leave you without any law except fascism.

It’s certainly true that if Biden had thrown Trump and his cronies (and a lot of Republican legislators) in jail right away, there would have been pushback. Jake Tapper would have called him a tyrant, probably. Susan Collins would have furrowed her brow. Maybe some Democrats like Manchin would have broken with him too. It would have been risky. It probably would have provoked a Constitutional crisis.

But. The thing is, we have a Constitutional crisis now. It is my contention that it is better to have a Constitutional crisis when the fascists do not have control of the military than to have one when they do.

Also, it’s better to have a Constitutional crisis when the fascists have discredited themselves as thoroughly as they did on January 6. People forget just how angry even Republicans were at Trump at that moment. I can’t say for sure whether Biden could have won public opinion and ended Trumpism once and for all if he struck hard then. But that was absolutely the best chance we had. There may never be a better.

Obviously, Biden was never going to do this. More, you can’t change the past, and in that sense this argument is academic.

I think it’s important and relevant to remember this as a signature Biden failure, though, because we are going to face these questions again—and in some sense are facing them now. At some point, Trump will leave office—or will refuse to leave office. What happens then? How do we handle it? When Trump goes, do we simply hope the GOP returns to normal? Do we try to turn the page, because arresting billionaires like Elon Musk would be hard, or because throwing the entire cabinet in jail immediately would set a bad precedent? Do we try to rid ourselves of fascism, or do we just muddle through?

In both the Civil War and World War II, people eventually decided that they really needed to rid themselves of fascism, even if it meant lighting a certain number of norms on fire. In contrast, at the end of Reconstruction, we decided to muddle through—which meant a century of Jim Crow and horrific racist violence, and has led, finally, to our current predicament, where the forces of racism, reaction, and Jim Crow have rallied once more and conquered the nation. At some point, we’re going to have to grapple with the truth that a rule of law that tolerates fascism is not going to be a rule of law for long. At some point, that is, unless Biden’s failure means that it is already too late.