‘Unthinkable’: Raskin on trauma and truth in America

"Unthinkable," the title of Rep. Jamie Raskin's new book, refers to two traumas. On the eve of December 30, 2020, Raskin's beloved son Thomas Bloom Raskin committed suicide in the family home. A second-year law student at Harvard, Tommy was by all accounts a loving, brilliant, funny and creative person. But he suffered from fragile mental health that included depression. Raskin begins and ends with the story of his son's life and idealism. "[E]verything I do today is consciously infused with my love for Tommy, informed by his beautiful, elusive values." For any reader whose relative, friend or colleague has committed or attempted suicide, Tommy's story and the father's grief will be wrenching, and the reader will understand the obsessive review of how this suicide could have happened, why it happened, whether it could have been stopped, and what a life cut short can still mean.

But it is the public trauma that occurred when a mob attacked the Capitol on January 6, 2021, that will attract many readers interested in law, democracy, and politics. For his detailed discussion of the events leading to the attack, the event, and the aftermath, Raskin could have cribbed a title from earlier authors: Philip Roth's "The Plot Against America" and Sinclair Lewis's "It Can't Happen Here."

Raskin, who taught constitutional law at American University for 25 years, deftly leads us through the strategy to subvert the electoral count that he presciently anticipated and explained to Democratic colleagues before January 6. That strategy hinged on the 12th Amendment. If Joe Biden could be stripped of electoral votes so no candidate won a majority, the 12th Amendment would require a "contingent election" to be immediately held in the House, where each state would cast a single vote. Since a majority of the state legislatures were controlled by Republicans, the Republican candidate would become the president. Interestingly, Raskin could not have known on January 6, as it was only in September that Bob Woodward disclosed this, that law professor John Eastman, the man in the brown overcoat standing next to Rudy Giuliani on the stage of the "Stop the Steal" rally, had drafted a six-point memo laying out the scheme for forcing a contingent election in the House. So much for the equal protection clause and the principle of one-person, one-vote. Indeed, this scheme gives an all-too-literal meaning to the Constitution's guarantee clause, guaranteeing the people "a Republican Form of Government." (Art. IV, Section 4).

Raskin unveiled his analysis to his colleagues. First, browbeat election officials to find a pretext to overturn popular results. ("All I want to do is this. I just want to find eleven thousand seven hundred and eighty votes, which is more than we have. Because we won the state.")

Second, convince GOP-run state legislatures to cancel out the vote and install their own electors. (Unknown till recently, alternative slates of unchosen electors would be cobbled together and deposited in the National Archives.)

And Donald Trump would put a target on Mike Pence to reject electoral votes in favor of Biden. On January 6, Trump would tweet: "Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected state of facts, not the fraudulent or inaccurate ones which they were previously asked to certify."

What Raskin did not foresee was a mob assault on the Capitol that would delay the counting of the electoral votes and terrorize congressional members. Instead, Raskin brought his chief of staff, his daughter, and his son-in-law to the Capitol for what he surely hoped would be an uplifting and historic event, as once more in our nation's history, power would be peacefully transferred. Instead, Raskin's guests ended up cowering under the furniture in majority leader Steny Hoyer's office, as the Capitol was invaded by uninvited guests roaming the corridors, causing disruption and fear. Later, Raskin's daughter would tell him she had no desire to return to the Capitol.

Lawyers will find tactical decisions made by Raskin as manager of the trial proceedings interesting. He knew he would have to deal with the argument one cannot falsely shout fire in a crowded theater, because the former president's allies would argue his belief the election was stolen was not a false belief. Here, Laurence Tribe came to Raskin's aid: "'Trump is not like a citizen who falsely shouts fire in a crowded theater,' Larry said. 'He's like a fire chief who sends the mob to burn the theater down.'" Continuing the metaphor, Raskin added, "And then when the people at the theater call the firehouse to report the blaze, the chief does nothing for several hours but sit back and enjoy the whole thing on television."

Yale historian Timothy Snyder, an authority on totalitarianism, offered rhetorical help. Raskin knew he would need to confront the argument that a president who had been impeached by the House could not be convicted after leaving office. Though Raskin convincingly argues the constitutional text and historical examples supported holding a trial after the president left office, he knew a good sound bite would help. And Snyder offered that sound bite: No "January exception" should immunize presidents who commit impeachable offenses in office, and leave office before they are tried. Following impeachment, the purpose of a conviction is to protect the public, and removal of an ex-president from holding further public office serves that purpose.

Another tactical decision Raskin made was to assemble a punchy 13-minute video for trial presentation. For one thing, many members of Congress, locked in during the assault on the Capitol, may not have seen what happened outside. Raskin recognized the value of "video images, the official language of the internet and pop culture." As George Orwell wrote in his essay, "In Front of Your Nose," "To see what is in front of one's nose needs a constant struggle."

Raskin made another tactical decision not to use the word "coup," concerned using that word, regardless of whether it was apt, would lose much of his audience. Unfortunately, he will alienate some readers by repeated use of the word "fascist," as in, "fascist-style mob insurrection," "fascists trashing our Capitol Building and killing people," "organized fascist violence," "Trump's fascist mayhem," "telling a group of fascist hooligans to 'stand by,'" and "Trump and his fascistic decision making on January 6," to cite a few examples.

The problem with the word "fascist" is that it is notoriously slippery and polarizing. Raskin borrows from Madeleine Albright, who "argued that fascism is not a fixed ideological system but rather a strategy for taking and holding power."

This is similar to the meaning ascribed by the Columbia historian Robert O. Paxton, an authority on fascism, who argued in a 1998 essay, "The Five Stages of Fascism," that fascism is better understood not as another -ism like liberalism or conservatism that rests on a formal philosophical position, but rather that "fascist movements resemble each other mainly in their functions." "Feelings propel fascism more than thought does," and "[s]uccess depends on certain relatively precise conditions: the weakness of a liberal state, whose inadequacies seems to condemn the nation to disorder, decline, or humiliation; and political deadlock because the Right, the heir to power but unable to wield it alone, refuses to accept a growing Left as a legitimate governing partner." Paxton provides a functional definition: "Fascism is a system of political authority and social order intended to reinforce the unity, energy, and purity of communities in which liberal democracy stands accused of producing division and decline." Paxton argued that fascism must take on a local hue, writing "authentically popular fascism in the United States would be pious and anti-Black." Paxton hesitated to apply the label "fascist" to the ex-president, but changed his mind after the violence unleashed on January 6, 2021, writing: "Trump's incitement of the invasion of the Capitol on January 6, 2020 removes my objection to the fascist label. His open encouragement of civic violence to overturn an election crosses a red line."

Whether or not the word "fascist" loses Raskin's readers, it is clear he fears the strategic use of violence to destabilize our political system. In his own presentation during the trial, Raskin focused on violence. He points out when reporter Brian Karem asked Trump "whether he would abide by the peaceful transfer of power, Trump protested that he did not trust 'the ballots' and that there would not be a 'transfer of power but a continuation.'" Trump primed his base to believe well before the election that the only way he could lose would be if the election was stolen. Knowing a good sound bite when he hears one, Raskin mentions some 13 times that Trump invited his supporters to a "wild" protest in D.C., and Raskin mentions some 19 times Trump's pep talk at the "Stop the Steal" rally, "If you don't fight like hell, you're not going to have a country anymore." Trump said he would march to the Capitol, but apparently he or his security detail had second thoughts, because he did not do so. Once violence erupted, Trump was slow to act to put out the fire, which Raskin views as dereliction of duty. And on January 6, after hours of violence, Trump tweeted, "These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long." And Trump told his troops, "Remember this day forever."

"The enormous violence that shook the Capitol on January 6 was political in nature," writes Raskin. It "had the political quality of dividing the social world between 'friend and enemy,'" a concept developed by the German political theorist Carl Schmitt who joined the Nazi party in May 1933. Raskin also draws upon the statement of Schmitt, "Sovereign is he who decides on the exception." By "exception," Schmitt means a state of emergency, allowing the sovereign to step forward and follow extra-legal rules. During the invasion of the Capitol, Raskin feared a state of emergency might be invoked leading to the imposition of martial law activating the Insurrection Act.

Despite the violence of January 6, the constitutional order did not collapse. Election officials counted the votes and faithfully provided returns. Trolled by the president, Pence nevertheless recognized his role was ministerial and did not confer on him the right to throw the election. The Department of Justice refused to declare widespread fraud existed; even Attorney General Bill Barr described claims of massive fraud as "bullshit" and departed. Repeated efforts to recount votes in Arizona and elsewhere did not affect the outcome. Nor did 61 court cases change the outcome. And the Supreme Court proved to be no deus ex machina for the president.

While this is somewhat reassuring, January 6 exposes the fragilities of our republican government. Of the Electoral College, Raskin writes, "the old, rickety, accident-prone Electoral College still looms over America like a haunted house on Constitution Avenue, casting a long shadow over whoever gets to live at 1600 Pennsylvania Avenue." The 2020 election provides a learning experience about biases built into the Electoral College, the 12th Amendment, contingent elections, and the strategic use of political violence. Chain links that held together in 2020 have been revealed to be links which, if weakened, could have resulted in an entirely different outcome. We have learned that if we are to have free and fair elections, we must rely on the president, the vice president, election officials, legislatures, the Department of Justice, the courts, and the military to each act professionally and perform their roles with honor. In 2000 and 2016, the presidential candidate who won the most popular votes lost the count in the Electoral College. With the gutting of the Voting Rights Act, following Shelby v. Holder, many states enacted laws calculated to make voting more difficult. Though the social benefit of gerrymandering has never been explained, it is a widespread practice in the United States. Meanwhile, our demography is changing, as we become a more diverse nation. Raskin worries that if the political system develops so as to entrench minority rule, undermining faith in the fairness of our political system, the results will be destabilizing and dangerous.

One can only imagine that if Tommy Raskin had lived, he would have been profoundly shaken by January 6. One can also imagine that Tommy would have been proud of his father's role in defending the Constitution and writing a book. "Like son, like father," writes Raskin. "Like father, like son." 