Written by Raunaq Jaiswal
In an election year underscored by the Covid-19 pandemic, the illusions of voter fraud have convinced US President Donald Trump to stretch a vague counterfeit dot to a bright red conspiracy line, which has blemished the very idea of American constitutionalism. On January 6, a joint Congressional session had assembled in Washington DC to approve the veracity of the Electoral College vote count and formally certify Joe Biden as the winner of the US presidential election. With a view to impede this eventuality, Trump had called out large sections of his supporters to Washington to prevent the Congress from declaring the results. Answering his call were members of far-right and neo-fascist groups such as the Proud Boys.
At the rally held outside the White House (and only a short walk from the Capitol), he reiterated his gripe that the outcome of the 2020 Presidential election had been stolen from him owing to voter fraud. “We will never give up, we will never concede,” he told them, before exhorting his crowd of supporters to walk to the Capitol and, “cheer on our brave senators and Congressmen and women”. Egged on by Trump, and his lawyer, Rudolph Giuliani, the mob of supporters stormed into the Capitol in a naked attempt to overawe the Congressmen who dared to oppose Trump’s claims, and occupied the premises for hours, causing the Congressional proceedings to be disrupted.
With the mob running riot in the Capitol, and clearly overwhelming the Capitol Police, President Trump dithered, opting to neither press the waiting National Guard into service or call the armed forces by invoking the provisions of the Insurrection Act. It is almost as if this was in anticipation of such an event, given that Trump had replaced the top officials in the Pentagon with people more favourable to his views. Rather than appealing to his mob of supporters as matters escalated, Trump initially appeared to condone their violent actions.
With this vitriolic speech, the latest in a series of inexcusable actions, President Trump shredded his constitutional oath, which binds him to follow the law of the land and to “preserve, protect and defend the Constitution of the United States” to the best of his ability. More importantly, his conduct unsheathed a sword at the very foundation on which the US Constitution stands, the Guarantee Clause. This little-known clause, memorably called “the sleeping giant”, provides that “The United States shall guarantee to every state in this union a republican form of government and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.”
Going by Trump’s actions on January 6, it seemed a dangerous game of testing the point at which the military could potentially be pressurised into intervening. The Insurrection Act allows the President to call out the armed forces on his own on two major grounds: First, at the behest of a state legislature or executive and second, on his own motion when unlawful combinations hinder the execution of laws. In this constitutional zero-sum game of smoke and mirrors, Trump seemingly engineered a situation of domestic violence in the Capitol, which would have given him the power to act unilaterally, since the legislature cannot be convened, and deploy the armed forces. This would also have given him — the executive — the room to manoeuvre and decide who the “unlawful combination” is, and which laws are being hindered.
It would be interesting to recall that the reason for including the Guarantee Clause in the US constitution was to prevent despots, tyrants, oppressors and their ilk from stroking the flames of violence within the country’s borders. Additionally, it is also interesting because it codified the manner and the conditions in which the executive can call out the armed forces. The Shays Rebellion was the catalyst that led to the inclusion of the Guarantee Clause in the US Constitution. In 1786, while the Rebellion had already been underway for quite a few days, the Congressional Committee was still hamstrung as it did not have the constitutional means to raise an armed force. Aware that the Union was heading for a civil war if the subversions were not suppressed, the Committee finally resolved to initiate collecting funds to mobilise the armed forces necessary to quell the rebellion.
Even before the rebellion was quelled, discussions were on between James Madison and George Washington as to the necessity for overcoming the arduous process to raise troops. In his letters to Washington, which summarised the problems of the Articles of Confederation, Madison highlighted the pressing need for a more unitary federation in times of crisis, which has to be in the form of a federal guarantee. In this way, Madison was echoing the point made by the French scholar, Montesquieu, who had remarked in his treatise that “that should [a] popular insurrection happen in one of the States (sic), the others are able to quell it…”. This, Madison counselled, would ensure that the federation had the tools to withstand the adversity brought on by the double-edged sword of despotism and domestic violence. It was in this manner that the fabric of federalism was stitched, one which had permitted states to “come together” to form a more perfect union.
Fortuitously, it was at the very moment when the sinews of the Guarantee Clause had begun to unravel that the Congress was reminded of its institutional duty to suppress popular insurrections, even one initiated not by a state, but by a co-equal branch of government. Rather than leave the baton to the President to call in the National Guard, it was Vice President Pence, the very person who was chairing the joint Congressional session, who reportedly activated the National Guard to arrest the violence, which prevented any further loss of lives. With order within the Capitol restored, the first thing that members of the Congress did was to condemn the actions of the President. Senator Mitt Romney called it an “insurrection incited by the president of the United States,”, while Senator Mitch McConnell labelled it a “failed insurrection”. Now, while the president has promised a peaceful transfer, what remains to be seen is whether the condemnations made by the senators result in some consequences for Trump.
The writer teaches law at the O P Jindal Global University