Et tu, Biden?

We may now be in a position where the future of American democracy is in the hands of 'moderate' Republicans in the White House and Senate. Just as impeachment foundered because it failed to secure the support of a few Senate Republicans, a transition to a Biden Presidency might depend on their acquiescence.

As such, arguments for such a transition coming from the right of the political spectrum take on a particular importance. The intellectual authority behind this article isn't often invoked in modern political debates - but is certainly not a liberal. Indeed, Jean Bodin was the 16th century's foremost theorist of absolute monarchy: his most famous work (the Six Books of the Republic)  defended the right of tyrants to rule no matter how evil their policies are. Despite this, Bodin believed that, under Roman law, it is legal to murder someone who tries to seize control of the state - without a trial.

Barton Gellman's recent Atlantic article, The Election That Could Break America, explains the means by which Donald Trump might refuse to cede power after losing this year's presidential election. Most importantly, Gellman thinks that it is likely that Trump will win on election night, but that mail-in votes counted in the following days will subsequently flip key states and hand the victory to Biden. In previous elections, there was only a slight partisan bias to the mail-in vote, but Trump's efforts to undermine faith in vote-by-mail and encourage his own supporters to vote in person, along with Democrat efforts to encourage vote-by-mail, will almost certainly create a 'blue-shift' that sees election-deciding votes counted after election night. 

Trump himself has repeatedly refused to admit that he will concede defeat, as Al Gore eventually did on December 13th 2000. Asked directly if he would on Fox News this July, he said:

“I have to see. Look, you- I have to see. No,  I’m not going to just say yes”. 

Mitch McConnell ostensibly resolved the issue with a statement on September 24th: 

“The winner of the November 3rd election will be inaugurated on January 20th. There will be an orderly transition just as there has been every four years since 1792.”

But when we bear the likelihood of a 'blue-shift' in mind, McConnell's specific reference to the 'November 3rd election' seems ominous; he's preparing the ground for the argument that the only legitimate result is Election Night, not the additional mail-in ballots. Joe Biden knows about the 'blue-shift' too - when asked if he would respect the results, he said: “Sure, the full results. Count every vote.” 

It seems likely that the election will have a contested outcome. But will cooler heads prevail? Will there be a saviour, an impartial arbitrator ? Unfortunately, the answer seems to be no. The Transition Integrity Project (a group of experts) attempted to model the possible post-election scenarios, with proceedings wrangling through the House, the Senate, the Supreme Court, and out onto the streets. Gellman's discussion with Rosa Brooks, a Georgetown professor involved in the project, was not so much inconclusive as chilling. 

“We got to points in the scenarios where there was a constitutional impasse, no clear means of resolution in sight, street-level violence … Our goal in doing this was to try to identify intervention moments, to identify moments where we could then look back and say, ‘What would have changed this? What would have kept it from getting this bad?  ” Brooks said. The project didn’t make much progress there. No lessons were learned about how to restrain a lawless president once a conflict was under way, no alternative moves devised to stave off disaster. “I suppose you could say we were in terra incognita: no one could predict what would happen anymore.”

Well, if it's going to be terra incognita, then perhaps a classical solution might help: a weapon to cut through the Gordian knot. 

This is the hypothetical situation, told from a Democrat perspective. A sitting, democratically elected head of state has reached the end of his term and sought re-election. There is strong evidence that he lost that election, but the head of state (who is also Commander-in-Chief of the military) attempts to maintain power through judicial and extra-judicial means. The extremist wing of his supporters is heavily armed and prepared for violence. Legal proceedings have reached a 'constitutional impasse'. What could be done? Well, as Bodin wrote, "would it not be better to proceed by way of force rather than, in wishing to preserve the way of law, to lose the laws together with the state?"

While Bodin believed that "it is never permissible for a subject to attempt anything against a sovereign prince, no matter how wicked a tyrant he may be", he made an exception for cases in which the sovereignty, the legitimate right to rule, of a prince could be called into question. "If a subject seeks... in a democracy or aristocracy, to turn himself from a fellow-citizen into lord and master, he deserves to be put to death." If the usurper were an ordinary person, then it would be possible to give them a normal trial, but in our hypothetical, something more extreme would be required: as Bodin puts it, "how to bring someone to trial who has armed guards around him and has seized the fortresses?"

In these extreme cases, "when the tyrant has openly declared himself or when he has seized control of citadels and garrisons", Bodin invoked a subclause of an important piece of Roman law to declare that "it is nevertheless permissible to kill him, and to do so by force unless the tyrant, stripping off his authority, has given up his arms and put power back into the hands of the people in order to have its judgement. What tyrants force upon a people stripped of power cannot be called consent." The law in question is the Lex Valeria: its main purpose was to grant an appeal to the people for citizens condemned to death or flogging, but it also contained the provision that "no one should declare the election of any magistrate without appeal, and that he who should so declare might be put to death without offence to law or religion, and that such a homicide should not be held a capital crime."

Moving back to our hypothetical November, we can see that the criteria is met. The hypothetical President has already declared his intention to ignore an electoral defeat, and he would have control of the White House and the armed forces, not to mention a significant militia. By contesting the legitimacy of mail-in ballots, the President would be stripping the people of power, and in doing so, justify his own extra-judicial assassination. 

Roman law, of course, doesn't apply in the United States, but as a source of political principles and ground for exploring arguments it remains fertile and relevant. It's remarkable that even Europe's greatest defender of absolute monarchy believed that a president who contests an election by force might have to be assassinated - and a shocking reminder of the fragility of our democracies.