January 6 Might Have Been a Constitutional Crisis

Dave Volek
Jan 23 · 5 min read
Andy Feliciotti: Unsplash

Has anyone really wondered why the insurgents in the Capital Building were so happy? Big smiles, laughter, total disregard for the consequences of their actions. There did not seem to be any reservation for what they were doing. Why?

Coming from Canada, I find the American practice of multiple legal steps to put a new president in place somewhat perplexing. When we Canadians change out our governing political party, it usually takes less than a week to dot the i’s and cross the t’s. There still might a constituency election or two that end up in the courtroom. But the overall result is pretty clear and undisputed. Our Election Day more or less ends before the stroke of midnight.

Normally, each legal step of the American process is regarded a formality. But each step is also a potential source for the train to derail.

On January 6, 2021, the USA was going through one of these legal steps to give legitimacy to the Biden presidency. Congress was certifying the results of the Electoral College. But what if that certification was not carried out?

Many commentators have espoused that the intent of the insurrection was to disrupt the certification process. But there’s no further explanation what this disruption could actually mean. Yes, the process was delayed for a few hours, but the final result was the same as if the protesters never appeared. Even with a delay, was the certification always a foregone conclusion?

Just imagine if the Metropolitan Police had been delayed by another half hour in their advance to the Capitol. The frenzied insurgents might have found a few high-ranking politicians: assassination would have been within the realm of possibility.

Here is the speech Mr. Trump would have preferred to have given later on that day:

I have called on the military to deal with the unrest at the Capitol Building. To prevent further chaos, I am hereby suspending Congress until such time we regain safety of our elected officials. Should there be any further disruption of civil order, I will order martial law.

From a legal perspective, this means the certification of the Electoral College was not done. So Mr. Biden cannot be president according to the Constitution and the rules around that Constitution. Mr. Trump would continue in that office — until such a time when Mr. Trump could declare Congress safe enough to resume sitting.

Could this have really happened? Is it not within the possibility of Trump logic? Remember this is a man who says he believes the election was stolen after 60 court cases that failed to prove it was stolen.

The sad part is that a significant minority of Americans would have approved of the suspension of Congress. Of course, many other Americans would take to the streets in protest. And there would be some violence. That would have given reason for martial law — and a more permanent suspension of Congress.

The military would have been in a difficult position indeed. Their oath is to uphold the Constitution, not support a particular party or its leader. The Constitution says that until the certification process is complete, the new president cannot take office. The certification process was not complete. So what should the generals do?

Some generals might have realized a coup is in the works. So they would have resisted. But the Constitution says the president can replace generals at any time. The new generals would have upheld the interpretation of the Constitution that the cause of the suspension was not the effect of the suspension. Recent history tells us there are too many professional people who will sacrifice democratic principles for personal gain. The system has clearly not weeded them out.

I have watched a lot of CNN in this last week. Not one of the commentators and talking heads have reached a conclusion I have reached. Nearly all of the Medium political articles I have read have also not reached this conclusion:

I won’t try to predict the outcome of such a crisis other than it would have been messy.

And the fact that the insurgents were thwarted is not a sign of a well-functioning democracy.

The insurgents knew what was supposed to happen. That is why they were so happy. They were on the front lines of making a new American history. Their faces were to be honored a generation from now. And they were going to rise higher in the new American pecking order.

They were pawns who didn’t finish the job in time. They might not have understood how far they were supposed to take their mission. Their puppet masters depended on mob hysteria to carry them through to their task. A coin flip decided when the Metropolitan Police could move in. Another half hour police delay would have meant the USA would be in a different place today.

I watched Mr. Biden’s inaugural address. While he made a fine statesmanlike speech, I thought he didn’t fully understand the situation when he said that that the American people have spoken. Really? If a high school basketball game finished with a score of 81 to 74, can we really say the team with the 81 is vastly superior to the team with the 74? No, we can’t. So many things could have changed the winner of that game: a few shots that should have gone in or not gone in, a one-player roster difference, bad calls from the refs, coaching decisions, etc. No, both teams are fairly equal in talent, skills, and motivation. Their next game might go the other way.

The 2020 election was almost a coin flip. Mr. Biden entered the race with a slight edge and finished with that slight edge. The USA did not soundly repudiate the Trump style of governance. Had a fellow by the name of George Floyd and had a virus named Covid-19 not come along to demonstrate the ineptness to sleepy voters, Mr. Trump still might have the President’s job.

More and more, the future of the United States is being decided by coin flips.

How much longer can the USA continue to dance the tango on the edge of a cliff? While flipping its coins?

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Dave Volek

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