Was there a coup attempt on January 6? For the answer to be “yes,” there had to have been a realistic path by which some action on that day could have resulted in Donald Trump remaining president of the United States.
Watching the show trial on television, you could believe it might have been possible. The special committee’s TV show is dedicated to convincing a lay audience the Trump administration came “that close” to tossing away our democracy, with some mechanism almost clicking into place that would have left Trump in power.
It would be easier to take the Democrats seriously if they would coolly outline just how Trump could have stayed in office without the military, who were clearly not taking a partisan stance on January 6. Absent that, you had political theater and a riot, not a coup attempt. Think back to the 1960s and ask yourself if occupying the administration building on campus would have stopped the Vietnam War in its tracks. This is politically much ado about not much, except Democratic Party 2024 electioneering.
To stage a coup, you need tanks on the White House lawn. Instead, America transitioned peacefully from one administration to another. That hard reality is wholly missing from the Democrats’ January 6 committee hearings and all the frou-frou that accompanies them.
Could Trump have used the Capitol riot to declare martial law and stay in power? No. The president cannot use the military domestically in a way Congress does not agree with. The “web of laws” Congress enacted to govern the domestic activities of the armed forces—including the Posse Comitatus Act, which prohibits the use of federal troops to execute the law without express congressional authorization—would stop Trump cold.
According to well-settled principles of constitutional practice, the president cannot act in a way Congress has forbidden unless the Constitution gives the president “conclusive and preclusive” power over the issue in dispute. Martial law has been declared nine times since World War II, five of which were to counter resistance to desegregation in the South. Although an uneasy climate of mutual aid has always existed between the military and civilian law enforcement, Department of Defense personnel are limited in what they can do to enforce civil law. They can’t extend a presidential term. That business of tanks on the White House lawn? Someone has already thought it through.
The Insurrection Act of 1807 is the one statutory exception to the Posse Comitatus Act that does allow the president to deploy the military domestically, but, by precedent, the armed forces can only be used to suppress armed insurrections or to execute the laws when local or state authorities are unable or unwilling to do so. The military’s role under this law is limited, and the existence of the Insurrection Act in no way puts the military “in charge” and does not suspend the normal functions and authorities of Congress, state legislatures, or the courts.
More importantly, troops in the streets have nothing to do with votes that are already in ballot boxes. Same for seizing voting machines or ballots, which were already counted by January 6.
Anything Trump might have tried to do on January 6 would have required the military to play along, which there is no evidence the military did. Just the opposite, in fact. Chairman of the Joint Chiefs of Staff, General Mark Milley, took a number of steps to ensure any dramatic orders out of the White House would be confirmed, checked, and likely delayed, perhaps indefinitely. While some of Milley’s actions raise constitutional issues of their own, particularly his interference with the nuclear chain of command, clearly Milley was in no way priming his forces to participate in any sort of executive coup.
It is critical to point out how deeply the idea of civilian control of the military, and the separation of powers, is drummed into America’s officer corps. It’s like a religion. Unlike many countries in the developing world, America has a professional corps well-removed from politics, which sits atop an organization built from the ground up to respond to legal, civilian orders. If Trump had ordered the 82nd Airborne into the streets, their officers would have almost certainly said no.
With martial options well off the board, a coup would have had to rely on some sort of legalistic maneuver to exploit America’s complex electoral system. The biggest issue there is the 20th Amendment, which states unambiguously that a president’s term ends after four years. If Trump had somehow succeeded in preventing Joe Biden from being inaugurated, he still would have ceased to be president at noon on January 20, and Nancy Pelosi, as Speaker of the House, would have become president. There was no mechanism to stop that succession, ironic as it would have been.
The most quoted Trump plan ran something like this: “Somehow,” even though the Electoral College had met on December 14 and decided Biden was to be president, Republican-friendly legislatures in Arizona, Michigan, Wisconsin, and Pennsylvania would “ignore” the popular vote in their states and appoint their own pro-Trump electors. The law (the 19th-century Electoral Count Act) does allow legislatures to do this in the never-seen, highly unlikely event that a state fails to make a choice by the day the Electoral College meets, which, in this case, had passed before January 6.
Never mind the details; the idea, for Trump, was to introduce enough chaos into the system to force everyone in the United States to believe the only solution was to force the election, two months after voting, into Congress, where Vice President Pence himself would break the tie after every Republican agreed to play along with the scheme and choose Trump for another term.
In addition to every other problem with that scenario, Pence had no intention of doing any such thing. Trump maintained “The Vice President has the power to reject fraudulently chosen electors,” when in fact, Pence’s January 6 role was entirely ceremonial, presiding as electoral votes, conveyed by the states, were counted and certified, and then announcing the outcome.
The location of the riots did not matter. Although the riots slightly delayed the final announcement of the results, which still occurred at the Capitol, there is nothing in the Constitution that requires the receipt and certification to take place in the Capitol. Pence could have met with Congress at a truck stop outside Philadelphia and wrapped up business there. Pence, in a 2022 speech, said “I had no right to overturn the election. Frankly, there is almost no idea more un-American than the notion that any one person could choose the American president.”
To imagine a dystopian fiction where one state legislature blows past the vote to choose pro-Trump electors is difficult. To imagine several doing so simultaneously to gin up enough Trump electors, and then to imagine the Electoral College changing its mind, is impossible.
There was no indication Republicans in these important states considered going along with this anyway. Pennsylvania’s top state GOP official indicated his party would follow the law and award electors to the winner of the popular vote. He stated the state legislature “does not have and will not have a hand in choosing the state’s presidential electors or in deciding the outcome of the presidential election.” Besides, the borderline states all had Democratic governors who would have refused to approve after-the-fact Trump electors.
Such goofy schemes were also in the wind in 2016, when both Trump and many progressives looked to little-known electoral law for some sort of failsafe. They failed, too. Despite the many claims about how close we came to democracy failing, in reality, our complex system proved at least twice in recent years to be made of stiffer stuff.
What is missing most of all from the January 6 Democratic telethon is any acknowledgment that the system worked. The Constitution held. Officials from Vice President Pence on down did their jobs.
All the fear mongering, all the what-ifs Democrats now hope will distract Americans from their party’s failures of governance—war, inflation, gas prices, gun violence—miss the most important point of all. There was no attempted coup. That the committee does not plan to send a referral to the Justice Department is proof enough.
Democrats can’t win in 2024 on what they have to offer. With all the efforts to prosecute Donald Trump for something (including January 6) having failed, their sole strategy is to make people believe Trump tried to overturn the last election, and, upon failing to do so, chose t0 re-embrace the electoral process. This is little more than Trump’s third impeachment, televised.
If you are about preserving the rule of law, judgment for Trump’s actions must not come from a kangaroo court. The real message echoing from January 6? The system works. We were never even close to losing our democracy.
Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.