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Democrats hate to be reminded that the saviour of US democracy is Mike Pence, the former vice-president, whose fawning loyalty to Donald Trump lasted until the moment it counted. Thankfully for the republic, Pence on January 6th resisted a pincer assault from Trump and a mob ransacking Capitol Hill to subvert the election outcome.
"You can either go down in history as a patriot or ... as a pussy," Trump warned Pence. Pence chose the former and upheld the electoral college certification. But for him, Joe Biden might not be president.
It would be wrong to attribute such resilience to the US system as a whole. Other democracies, including South Korea, Peru, Lithuania, Paraguay and Brazil, have removed presidents this century and in some cases jailed them. Nicolas Sarkozy, France's former president, received a one-year jail sentence (to be served at home) in September for illegal campaign financing. Compared to Trump's, most of their transgressions were trivial. Other democracies, some of them young and wobbly, have shown themselves far more capable of punishing abuses of power.
The absence of consequences makes it likelier that what Trump tried to do will happen again. Most blame for America's democratic backsliding belongs to Trump and the Republican Party, which has fallen in line behind his false claim that Biden stole the 2020 election. Republican-run states have also been passing bills that would make it easier to overturn an election outcome. Such efforts, in turn, will make it easier for sympathetic US judges to accept the letter of legality and ignore the underlying spirit of subversion.
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But a large dollop of blame also belongs to Biden, whose otherwise admirable tendency to see no evil and hear no evil is a liability in these times. The same applies to Merrick Garland, the US attorney general, who sees his overriding duty as restoring the Department of Justice's independence after four years of Trump's routine interference.
Trump's last attorney general, Bill Barr, deserves second prize to Pence for refusing the former's entreaties to challenge the result of the 2020 election. Like Pence, Barr catered to Trump's whims until it mattered.
Failed putsch
Garland, a former judge, is Barr’s mirror image. He is highly principled in his day-to-day work and yet is in severe danger of missing the big picture. It does not matter whether you label what happened on January 6th as an “attempted coup”, an “insurrection” or a failed putsch – my preferred description. History tells us that democracies that fail to protect themselves with the full force of the law are flirting with extinction.
As an "institutionalist", Garland is averse to prosecuting a former president though he has plenty of evidence to do so. In 2019, the special counsel Robert Mueller clearly documented 10 instances where Trump had obstructed justice. Barr torpedoed that report. Having left office, Trump is no longer shielded from prosecution.
For every inaction, Biden and Garland have reasonable excuses. They can point to the ongoing House of Representatives investigation into January 6th, which this week unearthed more incriminating evidence. Yet Congress has scant enforcement power.
Garland took his time to agree to prosecute Steve Bannon, Trump's former strategist, on contempt of Congress charges for ignoring its subpoenas. Bannon's trial will not begin until next July. If he loses, he can file an appeal. The clock is on Trump's side. In next November's midterms Republicans are likely to recapture the House and close its investigation. Would Garland grasp the nettle then?
Biden can blame the maths of a 50:50 Republican-Democratic Senate for its failure to pass bills to protect the US election process. This week the Senate found a way around the 60-vote filibuster to lift the US debt ceiling by simple majority vote. Protecting democracy seems to be a lower priority than averting a market crisis.
In his defence, Biden can also point to public opinion, which seems unconcerned by the country's backsliding. As Jay Inslee, a Democratic governor, recently put it: "The American psyche has not recognised we were one vice-president away from a coup."
It may be beyond the imagination of Americans to accept that their system is in jeopardy. Countries with radically different histories, such as South Korea, find it much easier. But the facts are staring the US in the face. What happened on January 6thhas so far gone unpunished, which means it is likely to be tried again. – Copyright The Financial Times Limited 2021