Carnage and insurrection as Biden assumes office

The events of January 6 shattered the tradition of a peaceful transfer of power in the US. The US Capitol was stormed for the first time since the War of 1812, Confederate flags were marched through the halls and members of Congress and their staff barricaded their offices in fear of their lives. The open question of invoking the 25th Amendment, mass resignations from the White House and the US Cabinet, and ultimately the historic second impeachment of President Donald Trump for ‘incitement of insurrection’ have all followed.

The violence has been deemed by some as an act of insurrection, spurred on by Trump and his allies who vowed ‘trial by combat.’ Five people died and more violence is anticipated, leading Twitter and other social media platforms to take the unprecedented step of suspending or permanently blocking Trump’s accounts. With Biden taking office on January 20, a divided country awaits, and legal inquiries into Trump and his conduct are likely to continue. The Senate trial on whether to convict Trump on the charges issued by the House is scheduled to proceed after Biden’s inauguration.

A FRAUGHT TRANSITION

The transition period between the November election and the inauguration has been far from normal. The Biden team was denied access to briefings from federal agencies, and it took many weeks for the Government Services Administration — a little-known agency central to commencing and funding the presidential transition — to even certify Biden’s win. At the state level, numerous lawsuits challenging the election results were filed by Trump’s legal team and dismissed as frivolous. Some states, led by Texas and the Texas Attorney General, even sought to overturn other states’ results. Several senators and over 100 members of the House sided with Trump and vowed to block certification of the Electoral College results. Trump’s continued allegations that the November election was ‘stolen’ from him and his calls for supporters to “fight like hell [or] you’re not going to have a country anymore” culminated in the storming of the Capitol on January 6 and the deaths of 5 people.

After the insurrection disrupted Congressional certification of the November election, some Republican members backed down and revoked their objections. However, Republican Senators Ted Cruz of Texas and Josh Hawley of Missouri maintained their objections. Biden’s win has been certified by Congress, but his election is still seen as illegitimate by many Trump supporters across the country.

For President Trump, his son Donald Trump Jr., and attorney Rudy Giuliani, their militaristic and violent rhetoric likely serves as strong evidence of incitement to riot prior to the Capitol Hill storming and he faces a far less certain outcome from the Senate trial than his first impeach 12 months ago. Legal jeopardy also awaits Trump outside of Washington D.C. as well, where he is likely to face many other legal challenges in the months ahead. Audio of a phone call between Trump and Georgia Secretary of State Brad Raffensperger places Trump in possible violation of Georgia statutes on election interference. In New York state, an investigation is ongoing for tax evasion and other financial malpractices by the Trump Organization. Any charges in New York are beyond the reach of a presidential self-pardon, which would only cover federal charges. Should Trump decide to pursue a self-pardon, the legality and use of such a measure is also likely to be heavily litigated.

Since the insurrection and certification, Trump has been banned from Twitter, Facebook, and other platforms, and conservative-friendly app Parler is offline after being suspended by Amazon Web Services for incitement to violence. The reluctant response from the Capitol Police has also raised significant concerns about the infiltration of law enforcement by white nationalists when compared to the highly militarised and aggressive response to Black Lives Matter protests over the summer, who were forcibly removed with tear gas from Lafayette Square outside the White House. In comparison, the pro-Trump mob was able to storm the Capitol with little pushback from police, and video livestreams and images showed some of the rioters on friendly terms with the police, even posing for selfies. For the Biden team, this double standard is apparent, and the equitable administration of the law is likely to be of principal concern.

BIDEN’S FIRST YEAR

Biden’s first year in office is likely to continue to feature acts of insurrection and political violence against both Democratic and Republican officials. The FBI has issued a warning of armed protests at all 50 state capitols and has recommended security upgrades, including metal detectors for members of Congress. Combined with uncertainty and ongoing disruptions due to the COVID-19 pandemic, the first half of this year is likely to remain challenging for many Americans.

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The violent acts of insurrection confronting the Biden administration will likely require prosecution. Biden will need to be seen as tough on law and order while showing respect for the rule of law. This will be of particular importance with BLM protesters seeking to regain confidence that the aims of their movement will be democratically protected. In upholding the rule of law, there is the risk of investigations being perceived as partisan, which could lead to further political division. Even following the siege, almost 20% of House Republicans indicated their support of the siege, and Republican Senators have made unfounded allegations about the involvement of left-wing groups like Antifa in an attempt to deflect blame from their supporters.

The Senate trial of Trump will likely occur during Biden’s first 100 days in office. As Biden addresses the economic fallout and vaccine distribution for the COVID-19 pandemic, the prosecution of the former president will still hang in the air. Whether Trump is barred from public office by a conviction or is acquitted with the option to run for president again, Trumpism as a political and social force is unlikely to go away. Several new members of Congress, including conspiracy theorist Marjorie Taylor Greene of Georgia, are ardent Trump supporters who are determined to carry Trump’s base into the next administration.

Biden was partly elected based on his pitch as a healing figure and his record as a principled, centrist politician with a long history of bipartisan engagement. While many voted for him simply because he was not Trump, he was able to build a strong support base among many rural and older Republicans. But efforts to work with Republicans risk being seen as an appeasement to those bent on using political violence to achieve their goals, particularly as seen by the progressive wing of the Democratic Party. Democratic Representative Alexandria Ocasio-Cortez has called on Ted Cruz and Josh Hawley to resign, and House and Senate Democratic leaders are eager to discipline both Cruz and Hawley for their actions. Concerted action between Democrats and Republicans is unlikely bar the possibility of censuring or expelling Cruz and Hawley, combined with strongly worded condemnation from Congressional Republican leadership. While a Senate and House Democratic majority is certainly helpful to Biden for impeachment and other disciplinary measures, the Senate is split 50-50, with 60 votes required to end debate or pass any ‘controversial’ legislation. This new dynamic in the Senate also risks further fragmentation of the Republican Party as establishment and pro-Trump members fight for their political survival. Clear divisions are likely to develop, and views are likely to be driven to the extremes, making collaboration and compromise less likely.

The task before Biden is arduous but not insurmountable. It will likely depend on a unified Democratic response and legislative agenda, as well as a small but dedicated core of Republicans willing to embrace bipartisanship. Biden’s decades of experience in the US Senate has prepared him well for this moment, but the vitriol he will face as president is likely to be unprecedented. Biden is likely to take heed of Utah Republican Senator Mitt Romney’s passionate speech proclaiming the best way to show respect for the voters is to tell them the truth. Whether the truth will be heard across the vast information divide, let alone shared by a large swath of Americans, is likely the primary challenge to Biden’s presidency in his first year.