What if? The alternate history of January 6
Let's think about what might have happened on Insurrection Day.
Several years back, I discovered the world of alternate history. No, I don’t mean revisionist historical claims like the 1619 project or the notion that Irish immigrants were white slaves, but rather a genre of fiction that looks at the world as it might have been if we had taken the road not traveled.
There are several literary devices that can be used in the service of alternate history. My introduction to the idea was when I stumbled across a copy of Harry Turtledove’s “Guns of the South,” in which time travelers supply the Confederate army with assault rifles. Turtledove, the undisputed king of alternate history, used a less science-fictiony plot in his Southern Victory series, an 11-book look at what might have happened if General Lee’s Special Order 191 had not fallen into Union hands allowing General McClellan to stop the Confederates at Antietam. The series takes the Confederacy through World War II. If science fiction is your thing, however, yet another series involves an alien invasion at the height of WWII.
For today, however, I’m not thinking of science fiction. Looking back yesterday at the Capitol insurrection and the Trump campaign’s attempt to steal the election made me wonder what would have happened if the coup plot had come to fruition.
For those who came in late, we know a lot more about what the Trump campaign was up to now than we did a year ago. Former Trump aide Peter Navarro has offered several specifics about the plot to oust the president-elect and reinstall Donald Trump for a second term. Together with a memo authored by Trump lawyer John Eastman, we have a pretty clear picture of what was intended, as I discussed yesterday.
To recap, the plan was to have members of Congress object to the Electoral votes of seven battleground states. Mike Pence, who was the president of the Senate, would set aside these Electoral votes and unilaterally decide that no valid electors exist from those states because of the dispute. This would lower both the number of “electors appointed” as well as the number of Electoral votes required to win the presidency.
Eastman’s plan called for Democrats to oppose Pence’s actions. Pence would respond by sending the matter to the House under its 12th Amendment authority, where each state delegation would get one vote.
Per Eastman, “Republicans currently control 26 of the state delegations, the bare majority needed to win that vote.”
In a recent Rolling Stone interview, Navarro offered a similar take on the plot.
“One of two things could happen [when Pence rejects the Electoral votes],” Navarro said. “They go back there [to the states], they look at it and they say, ‘Nope. It’s certified.’ [The votes] come back, and that would be it. Fair enough.”
“But the more likely scenario based on our assessment of the evidence was that states would withdraw any certification,” he continued. “And the election would be thrown to the House of Representatives. And even though the House is controlled by Democrats, the way votes would be counted in a presidential election decided by the House, Trump would almost certainly win.”
So, knowing the plan and assuming that Trump had not so fired up the crowd at the Stop the Steal rally that they swarmed the defenses of the Capitol, what would have happened if Mike Pence had gone along with the demands of The Former Guy and his crowd of coup plotters? Could it have worked?
First off, Eastman and Navarro seem to assume that the states would just roll over and allow their voters to be disenfranchised. They also operate under the assumption that all Republicans would go along with their nefarious scheme. I don’t think either assumption is warranted.
The seven states to be challenged are not named in the memo, but let’s look back at the list of the closest contested states and which party had control:
Arizona - Republican governor and legislature
Georgia - Republican governor and legislature
Michigan - Democratic governor and Republican legislature
Nevada - Democratic governor and legislature
North Carolina - Democratic governor and Republican legislature (N.C. is the only one of the seven battleground states that Trump won.)
Pennsylvania - Democratic governor and Republican legislature
Wisconsin - Democratic governor and Republican legislature
Only two of the seven states have uncontested Republican control of state government. Other states, where Democrats have more power, would surely fight to protect Joe Biden’s victory and legislation overturning the election could be vetoed by governors. Even if the two Republican states could be persuaded not to fight having their election results overturned, it would not be enough to shift the Electoral College to Trump.
And second, it’s far from certain that even states where Republicans were in full control would go along with the plot. Both Doug Ducey of Arizona and Brian Kemp of Georgia pushed back against pressure by the Trump campaign to play ball. While some of the more radical Republican legislators would certainly have gone along with an effort to throw out the state electors (and those who would have done so should be fired by voters), it is far from clear that a majority would have done so, especially when Democratic votes are considered.
This argument also applies to Eastman and Navarro’s belief that Republican-majority state delegations would have voted to install Donald Trump over the objections of a majority of voters. As Eastman noted, Republicans controlled the “bare majority needed” and the plotters assumed that no delegation would split off as some Republican congressmen chose to do the right thing and accept the will of the voters.
As I pointed out yesterday, 147 Republicans in Congress including 139 in the House voted to overturn the election. That is a majority of the House Republican caucus, but it is far from unanimity. It is very possible that enough Republicans in the right places would have split off to deny Donald Trump a victory in the House.
Further, assuming that everything had gone according to plan for the coup plotters up to this point and Trump had either won a victory in a diminished Electoral College or the House of Representatives, did the Trump campaign really think that would have been the end of the issue? They apparently did, but again, that seems to be a bad assumption.
The 2020 election was already the subject of a plethora of lawsuits. Throwing out Electoral votes and shifting the election to the House under fraudulent pretenses would have undoubtedly generated many more. At least some of those lawsuits would have reached the Supreme Court. This would probably have happened very quickly via the emergency docket.
What would the Supreme Court have decided? We do have some precedent to help us know the answer to that question. When election cases on Trump’s behalf made it to the Supreme Court, the originalist, constructionist justices on the Court, three of whom were appointed by Trump himself, denied their requests. These cases include both a lawsuit by Texas seeking to throw out the election results from battleground states and a handful of cases from Trump lawyers in various states.
The justices would not help Trump throw out the votes of battleground states via a lawsuit, so are we to believe that these same justices would stand idly by and allow the vice president and the House to toss out these same ballots on even-thinner-than-dubious grounds? I have very little doubt that the Court would have intervened to stop the steal if it had reached this point.
But what would have happened then? If in our alternate timeline, violence had not erupted on January 6 then I think it certainly would have as the process unfolded. This is especially true if the Trump campaign had decided that since it had already come this far, it might as well ignore the Supreme Court and try to hold onto power by force. In for a penny, in for a pound. Some might deny this possibility, but most of those same folks denied that Trump would refuse to accept the election results in the first place.
There would have been mass demonstrations by rightfully angry crowds that would have been met by pro-Trump crowds. Political violence would likely have erupted in cities across the country. Many cities would have resembled Portland with rival partisan mobs battling each other in the streets.
With the violence being far more broad than what we saw on the real January 6, the potential for deaths and serious injuries would have been greater as well. It would have been far more likely that something would have happened to touch off widespread fighting.
While I’m not in favor of political violence, I’m also not in favor of standing idly by while crooked politicians steal elections. In this alternate timeline, the anti-steal demonstrators would have been in the right, at least in their goals if not necessarily their methods. This would not have been just the Antifa, anarchist, professional rioters. These demonstrations would have included large numbers of moderates and even some law-and-order Republicans who believed that even though their candidate lost that election results should be honored.
I don’t know how bad the violence would have gotten, but I have believed for a long time that Trump’s attempt to steal the election could have touched off a civil war. I think that particular crisis was averted for at least a few more years by Mike Pence and other honorable Republicans who refused to comply.
One final what-if is what would have happened if, against all odds, Donald Trump had managed to secure a second term? After feeling betrayed by traditional Republicans and the justices and judges that he had appointed to the courts, Trump would have surrounded himself with yes-men (to an even greater extent than in his first term) and would be sure to appoint “loyal” judges to future openings. A second Trump term would have been even more insular and abusive of presidential powers and Republicans would have been even less prone to say “no.”
Trump might well have spent the following four years stacking the deck and making it even more difficult for voters to pry him or his designated successor out of office in 2024. After all, if the Constitution’s rules on Electoral College votes are no bar to stealing a second term of office, why should its term limits stop him from stealing a third? He’d have four years to find an answer to that question.
This is, of course, all speculation. No one knows exactly what would have happened if the events of January 6 had taken an alternate course, but I do believe that it would have taken America to a very dark place, one to which I hope we never go.
As an addendum to my piece on anti-vax Republicans, I found this gem of a quote from Ron Johnson (R-Wis.), who recently asked, “Why do we think that we can create something better than God in terms of combating disease? Why do we assume that the body’s natural immune system isn't the marvel that it really is?”
I know that I’ll be accused of picking on Republicans, but if they’d stop saying stupid stuff then I could stop reporting on it.
It’s always notable when right-wingers take on Donald Trump, but this is particularly interesting. In the Tweet of the Day, an Arizona Senate candidate calls The Former Guy “a little b-tch” and criticizes him for endorsing vaccines and “lockdowns,” among other things. Daniel McCarthy is now a member of the Patriot Party of Arizona, a splinter group of the Arizona Republican Party for former Republicans who don’t believe the GOP is radical or crazy enough.
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That Ron Johnson quote is something else.
I think Joe Biden and the Democrats would benefit from reading your column here David, in addition to Republicans in Congress. Someone needs to drill it into their thick heads and get them to realize how bad things could've gotten. Maybe that is what they need to stop the partisan posturing and get the ball rolling on reforming the Electoral Count Act. At least we will be able to thwart potential alternate histories in future election years.