Tim Campbell Editorial Cartoons

Two days before the Capitol putsch, I wrote an op-ed for The Hill with this eye-catching headline “The silver lining of the Trump Presidency?” The gist was that there was a worthwhile byproduct to that shambolic administration: The rise of new nongovernmental organizations and the mobilization of existing ones in the face of the sudden onset of so many constitutional and human rights challenges.

Rereading that column an event-filled month later, it seems ridiculously Pollyannish. Sure, the country’s civil society mobilized under Trump and in important respects held back the tide, thanks in large measure to a federal judiciary that jealously guards its independence. With Joe Biden’s and Kamala Harris’ victory at the polls, and the pleasant surprise of a Democratic sweep in the twin Senate runoff elections in Georgia, the nation seemed poised for a new team to take the reins of government, despite being held back by the outgoing administration’s mockery of the usual transition process.

Forty-eight hours after that column ran, of course, we watched in horror as an armed mob took over the Capitol, egged on by a soon-to-be-ex-president blissfully — no, willfully — ignorant of the Constitution and our unwritten political norms, aided and abetted by (among others) elected officials who, like him, had sworn to uphold the Constitution.

That murderous takeover; the aggressive, continuing efforts to find, capture and prose-cute those at fault; and the willingness of so many federal legislators even now to manufacture ways for Trump to evade accountability prove to be a far greater silver lining than the one I wrote about on January 4th. Let me count the ways:

• We now know how unprepared the Capitol Police were.

• We now know how deficient lines of communications were between the Capitol Police and the National Guard and the Defense Department generally.

• We now know that law enforcement is not color-blind when dealing with unrest (compare the response to Black Lives Matter).

• We now know — if we didn’t before — just how broad and deep is the disaffection across the country, coupled with refusals to accept proven facts, willingness — even now — to follow Trump over a cliff, and indeed, to take up arms even against the country’s most iconic symbols of nationhood.

• We now know that many Americans who have worn the country’s uniform or still do share that disaffection and willingness to participate in extremist activities.

• We now know that members of the Senate and House of Representatives, including many who hold law degrees, are perfectly willing to betray their oath to the Constitution.

• We now know that local officials, including federal magistrates, cannot be counted on to take the putsch seriously, treating some local citizens who traveled great distances to participate as if the charges were on the level of littering in Yellowstone National Park.

So it’s grim. How about the other side of the ledger?

• We now know — if we ever doubted it — that the FBI and the Justice Department remain highly functional, and can be counted on to uphold the rule of law, despite the battering both took for four years from Trump and his henchmen

• We now know — if we ever doubted it — that the senior officers of the armed forces take their oaths seriously, despite Trump’s despicable efforts to use them for crass political purposes (think: General Mark Milley being famously tricked into appearing in the St. John’s Church photo op).

• We now know that there remains only a shriveled remnant of morality within the Republican Party, although Lord knows where the path leads for them. As the Prophet Ezekiel was asked, “Can these bones live?”

Those of us who, only weeks ago, looked forward to a time of reconstruction, dedication to the pressing business of ending the pandemic and its horrifying death toll, addressing neglected issues of social and economic inequality and resuming our country’s place in the community of nations now have to confront the gravity of the internal threat to the country and its most cherished institutions. At least now we know.

The challenge facing our elected and appointed leaders is to make progress on all of these fronts at the same time, while remaining true to our constitutional values. If there are gaps in our criminal laws, let’s fix them, although we also do not want to burn the constitutional village in order to save it. In any event, we have no excuse for being caught by surprise a second time.

Eugene R. Fidell is an adjunct professor of law at New York University and a senior research scholar at Yale Law School. He is on the steering committee of Lawyers Defending American Democracy.