It would be an inexcusable folly for the US to continue the vainglorious boast about its tattered democratic system because it has been overshadowed by a pall of despondency brought about by the Capitol Hill riot of January 2021. Besides exposing the major faults and fissures of American democracy, the Capitol riot has raised the awful specter of partisan and group polarization for this partially shining city upon a hill. Francis Fukuyama tries to explain the unhealthy relationship between partisan polarization, interest-group lobbying and vetocracy in his book Political Order and Political Decay: From the Industrial Revolution to the Globalization of Democracy. Vetocracy and partisan polarization can produce congressional standoffs and the blocking of partisan attempts to solve socioeconomic problems. Spreading to every corner of the US, group polarization is more dangerous because members of one political camp tend to embrace more intensely negative feelings toward opponents. To make matters worse, former US president Donald Trump likes to exploit these negative feelings.
According to law professor Claire Finkelstein, the Capitol riot was an act of sedition. The rioters tried to halt the democratic machinery from going forward and they also tried to stop the peaceful transition of power from one administration to the next. If Trump is a co-conspirator, he may be charged with the offense of seditious conspiracy: Title 18 of the US Code, Section 2384. Two questions arise for consideration; namely, whether Trump’s words incited his followers to storm the Capitol, and, if so, whether the prosecutor has sufficient evidence to charge Trump with the offense of seditious conspiracy.
On Jan 6, 2021, Trump urged protestors to rally outside the White House shortly beforehand to peacefully march on Congress. The debate centered on whether Trump’s words at the material time contained clear instructions for his followers to attack the Capitol. Trump said, “If you don’t fight like hell, you’re not going to have a country anymore.” For the prosecutor, Trump’s remark has brought to the forefront the rioters’ fear of the “illegitimate victory” of Joe Biden brought about by what they called “mass voter fraud”. His words were the smoking gun. For the defense, the word “fight” was a mere metaphor, akin to “fighting for one’s principles”.
US Representative Liz Cheney, who sits on the congressional committee investigating the Capitol riot, has hinted that the panel could recommend a criminal probe into Trump’s post-election behavior. But we are not sure whether the prosecution is able to gather sufficient evidence to initiate legal proceedings against Trump. The investigators of the riot have found gaps in official White House telephone logs on the day of the deadly attack on the Capitol. This example demonstrates the difficulty faced by the prosecution in gathering evidence. A series of lawsuits accusing Trump and his allies of bearing responsibility for the riot is also ongoing, with the most recent ones being filed by police officers who defended the Capitol.
At the time of writing, Trump has not been officially charged with any crimes for his actions in connection with the riot. Because of the failure to bring Trump to justice, dark clouds have hovered over the credibility of the judicial system of the US. Federal prosecutors have charged more than 725 individuals with various crimes in connection with the riot. Although more than 325 of them were charged with felonies, including many for assaulting officers or obstructing Congress’ proceedings, more than half of the 71 Capitol rioters sentenced in 2021 avoided jail time.
Partly because Trump has not been held accountable for his allegedly seditious acts and partly because the courts are reluctant to impose a deterrent sentence on rioters, the US finds it hard to hold itself up as a global champion for the rule of law. As Fukuyama has pointed out, the capability of the executive to exercise power, the rule of law, and democratic accountability are the three pillars of the modern state. Common sense also tells us that the roots of an ideal democratic system should sink deep into the soils of the rule of law. Judging from above, the tattered American democratic system has been brought to its knees.
It is also worthy to note that the second impeachment trial of Trump, on a charge of incitement of insurrection, failed to convict him because of partisan division. Trump was acquitted by the Senate. Forty-eight Democrats voted for impeachment, but 43 Republicans voted against impeachment and seven for. The total in favor failed to reach the two-thirds threshold necessary for conviction in the 100-member Senate. A new poll says most Republicans feel the rioters were defending democracy; on crowdfunding pages, millions of dollars in donations have flowed to cover the rioters’ legal fees. Besides being a main cause of vetocracy, partisan polarization has imperceptibly undermined the foundation of American democracy because of its slow-motion attack on the check-and-balance accountability system.
The violent behavior of the rioters and the report that they came from diverse backgrounds have prompted deep reflection on the dangerous phenomenon of group polarization in the US. As Robert Talisse has pointed out, fanatical supporters of a political camp like to define themselves and others in terms of partisanship. Although these fanatics are scattered across the country, they are locked within their own narrow esoteric world. Eventually, politics expands beyond policy ideas and into entire lifestyles. When the citizenry is divided into two hostile camps, populist politicians have incentives to amplify hostility toward their partisan opponents. If Trump makes a 2024 comeback attempt, he will probably entrench group polarization and further aggravate the festering fissures in American society.
Three retired US military generals recently raised the alarm over their fears about the aftermath of the 2024 presidential election and the potential for lethal chaos inside the US military. Their scary remarks and similar warnings by scholars strengthen the contention that the US has reached a critical point of partisan and group polarization from which there is no return. Worse still, the failure of the government to deliver good governance, vetocracy and income inequality have eaten away at social cohesion. Not only is the US a “backsliding democracy” with reference to the research of the International Institute for Democracy and Electoral Assistance, it may also be teetering on the brink of national disintegration.
Junius Ho Kwan-yiu is a Legislative Council member and a solicitor.
Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and the Macao Basic Law Research Center, and co-founder of Together We Can and the Hong Kong Coalition.
