Coup, Putsch, or Insurrection?
A Response to Ross Douthat
I was, of course, extremely flattered to be cited in Ross Douthat’s New York Times newsletter yesterday, entitled “Why Jan. 6 Wasn’t an Insurrection.” But unfortunately I must object to the use Douthat attempts to put my writing. Here’s what he writes:
A last aside: In reading the various historical antecedents invoked in analyses of Jan. 6, I think the strongest analogy is the one championed by the prolific Substack writer John Ganz, who has compared the Capitol riot to the far-right riot that broke out around the French Parliament on Feb. 6, 1934, during the investiture of a left-wing cabinet. That was, basically, an inchoate but nonetheless successful (in the short run) attempt to use protest politics to influence the operations of a legislature — a summary that tracks with the events of Jan. 6 much more closely than does Hitler’s attempted putsch or a farmers’ frontier rebellion.
So if I were creating a strong rebuttal to my own argument, I would try to fit Feb. 6, 1934, into the framework of the 14th Amendment, rather than relying on historical analogies that are more famous but whose details just don’t match what happened here.
Should I take this to mean that Douthat also accepts my characterization of both Trump and January 6 as, at the very least, semi-fascist?
I must give credit where credit is due. The comparison is Feb 6 1934 is not something that I came up with on my own: It was suggested to me by Robert Paxton, author of the Anatomy of Fascism, and therefore it seemed worthwhile to investigate.
On the whole, Douthat’s piece argues that January 6, unlike the Whiskey Rebellion or Hitler’s unsuccessful Beerhall putsch, it does not meet the standard of “insurrection” as defined in the 14th Amendment because it did not attempt overthrow the existing regime:
Note, first, that the 14th Amendment disqualifies anyone who engaged “in insurrection or rebellion against the same” — with “the same” referring back to “the Constitution of the United States” in the prior clause. This wording tracks with my own understanding: What transforms a political event from a violent riot or lawless mob (which Jan. 6 plainly was) to a genuinely insurrectionary event is the outright denial of the authority of the existing political order and the attempt to establish some alternative order in its place.
Moreover, even if it was successful, the whatever-it-was of January 6 did not involve an attempt on the constitution:
That the subsequent show of force by the federal government collapsed this rebellion without a pitched battle doesn’t change the fact that there was, for a period of time, an incipient political formation in those western counties opposed to the authority of the federal government and the Constitution. That, again, is not what happened on Jan. 6. The entire John Eastman fantasy was that Trump could get away with retaining the White House within the parameters of constitutionally delegated powers, using the supposed authority of Mike Pence to leverage an 1876-style legislative endgame for a disputed election. And when that implausible hope dissolved, the angry mob mostly believed itself to be standing up for constitutional government against the purported chicanery of Biden’s allegedly fraud-enabled victory. The rioter carrying a Confederate flag was invoking past insurrection, yes, but he was not practicing it in the way the Whiskey rebels clearly did.
In perhaps his most dubious argument, Douthat states that January 6 2021 was not an insurrection because no one said, “I declare insurrection.” — “had, say, one of Trump’s aides rushed to the Capitol and announced that Congress was disbanded and that President Trump was declaring a state of emergency and would henceforth be ruling by fiat — then the riot would have been transformed into an insurrectionary coup d’état.”
I think there are a few red herrings here. But first of all, I would just direct readers to the conclusion of my comparison of the events of January 6 2021 and February 6 1934:
In contrast [to Feb 6 1934,] the events of Jan 6 2021 was far more centrally directed and encouraged by Trump. It was an ill-conceived and arguably impossible effort, but it was very clear who would benefit and take control if the situation spiraled. It appears now that Trump fully believed that this desperate expedient might work. This seems foolish in retrospect, but it’s possible to imagine a scenario where Trump had successfully subverted and coopted the military and federal police. In a sense, Jan 6 2021 was much closer to the fascist seizures of power in interwar Europe than Feb 6 1934 because it included the in-power government trying to foment a crisis that would permit it to seize absolute control. Mussolini and Hitler were able to skillfully lead and balance the various parts of their organized movements through these crises, but Trump had deficits of political skill, organization, and mass consent that probably doomed the attempt from the start.
A key difference between Feb 6 1934 and Jan 6 2021 is that the French far right may have all hoped for a replacement of the parliamentary republic with a stronger executive lead by a providential man, they had not yet found him: each group had its own chieftain, and even the most popular one, François de La Rocque, head of Croix de Feu, did not take the initiative to attempt to seize power on that day. In contrast, all the varied groups, although they were not organized and united under a single leadership, had Trump as their man — they already had their Duce. And it cannot be seriously denied that Trump has taken on the role of almost messianic leader in the minds of his dedicated followers. He directed them to march on the Capitol and hoped to profit by their efforts.
Second, Trump was, at that time in charge of the executive by constitutional means and was attempting a seizure of power from within government. This is much more analogous to the situations Mussolini and Hitler put themselves in: They had both been invested with power legally—if not democratically—and then took advantage of a crisis to make this power permanent. Mussolini slowly capitalized on the Matteotti crisis and Hitler quickly jumped on the Reichstag fire. Like those cases, this was an attempt to do “a coup from within.” Failed fascist parties in other places in Europe that attempted to seize power from outside by coup d’etat were crushed, often by more traditional authoritarian conservatives, who above all wanted to avoid public disorder.
The question of constitutionality and the notion that the rioters on January 6 believed they were defending the republic and the Constitution seems to be an utterly misleading and borderline sophistic line of argument that has been pursued by those on the left as well. Again, both historical fascist leaders came to power through constitutional channels. Mussolini’s regime worked more or less in a constitutional framework until 1925 and Hitler’s seizure of power was made possible by the emergency powers granted under the Weimar constitution’s Article 48. In fact, neither regime totally undid their constitutions: Mussolini was still “prime minister” under King Vittorio Emmanuelle III when he was pushed from office in 1943 and the Weimar constitution was never officially thrown out by the Nazi regime.
The “constitutionality” of the theories cooked by the Claremont Institute need to be put in proper context, which Douthat neglects to do: they come from an organization whose members have consistently advocated “counter-revolution” and a kind of custodial dictatorship or “Caesarism” to save America from supposed terminal decadence. Their “constitutional” efforts should be looked on as American equivalents of Carl Schmitt’s arguments for the legitimacy and legality of a “limited” dictatorship. And lastly, since the U.S. Constitution is perhaps the most central symbol of the American political tradition: no movement, especially one on the right that presents itself as upholding the old social oder, would abandon its mythic power.
What Trump was attempting to do on January 6 was to use squadrismo to assert his political will. Trump has never wanted to dissociate himself with the various extreme right formations—the organized or semi-organized mob— that have flocked to him, because he sees them as politically important. Simply put, on January 6 wanted to intimidate the legislature and the vice president into keeping him in office. While Trump does not directly control these groups to the extent either Hitler and Mussolini did, and therefore they are more like the splintered groups that appeared on Feb 6 1934, it’s important to note that even those leaders had trouble controlling their paramilitary movements, which had their own ambitious chiefs, and they sometimes sought to contain or minimize them in order to seek normalizing arrangements with conservative elites. And sometimes squadrist actions threatened these leaders relationships with their conservative allies. After the murder of Matteotti it looked as if the establishment might break with Mussolini, just as in the wake of January 6 it looked like Trump might have lost even the begrudging acceptance of Republican leadership. Though he lost the day, Trump weathered that crisis politically and his relationship with the conservative elite remains mostly intact.
As far as I’m concerned, the narrow legal discussion about the meaning of “insurrection” is somewhat besides the point. The simple fact is that Trump tried to use a mob to overthrow a democratic government. Like the fascist leaders before him, he has attempted to create a personal rule through the combination of intra-elite maneuvering, electoral politics, and sheer thuggery—albeit much less skillfully and with less luck. His electoral strength and personal popularity, which far outstrips either Mussolini or Hitler during their campaigns for power, makes violence a less important part of the whole equation for him. It could also be that the arrests and prosecutions taken in the wake of Jan 6 have substantially reduced squadrismo as a viable option for Trump. The question now is whether conservative elites will decide that someone like Trump and his most radical followers provide the better alternative—the less “disorderly” path—and they therefore decide to endorse another illegal gambit for power like January 6. The framework is already in place: January 6 is constantly being minimized as compared to the greater chaos and “actual threat” to public order of the George Floyd protests. The explosive combination would be a period of “left wing” disorder—say, mass protests—that a Trump figure might be able to both foment and take advantage of. I wonder what Ross Douthat will say then?