Donald Trump is now the American president-elect and the world will have to deal with it. For all the liberal hyperventilation about the threat to democracy he poses, it is worth examining how American institutions will handle Trump. On one hand, America has seen worse in the form of the Civil War in the 1860s and the combination of the Vietnam War and the tumultuous Civil Rights Era a century later to come out stronger. On the other hand, it has never dealt with such a deeply flawed leader in the past. It is now up to the judiciary, legislature and the civil society to minimise the potential harm Trump can cause to the institutions in the next four years.
Since the American judiciary has turned conservative over the past decade and strengthened the presidency, it will now have to reckon with the demons it has unleashed. Ruling that the presidents have virtually unchecked power when administering their official duties is perhaps
the one verdict that will come back to haunt it. One could give John Roberts Jr., the American Chief Justice, the benefit of doubt and agree with him that he was thinking about the presidency and not Donald Trump, the president. What he discounted in the process is the yawning gap between the lightning speed at which an authoritative president like Trump can move and the sluggishness of any judicial system that believes in due process.
The precarious balance between the executive and the judiciary is predicated on the assumption that demagogues and opportunists will be weeded out in the arduous American electoral process. Trump has successfully exploited the hyper-partisan primary system thrice and now poses a challenge to the judiciary on two counts. As a businessman before entering politics, he has perfected the art of always being one step ahead of the judiciary, exploiting its loopholes. He brought those same tactics to the White House during his first term. So much so, that the judiciary has not been able to hold him accountable for his egregious behaviour even four years after he left office. If this past is any indication, Trump has the ability to decimate, or at least significantly weaken, democratic institutions and let the judiciary deal with the inconsequential details long after he is gone.
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More importantly, while the judiciary might have taken a long-term view by granting the president seemingly unfettered power, it will now have to deal with the here and now. One can argue that even if presidents are immune from prosecution for their official duties, their
underlings who operationalise them are not. Perhaps this will deter Trump’s cabinet from executing his blatantly unconstitutional decisions, if any.
On the flip side, by wading into the issue of broader presidential immunity that it was not obligated to address, the Supreme Court has handed the Office of Legal Counsel – in charge of advising the executive branch on the legality of its policies – a roadmap to avoid judicial scrutiny. For those who remember John Yoo’s infamous torture memos in the aftermath of 9/11, it is easy to imagine the Office of Legal Counsel indulging any of Trump’s outlandish fantasies and framing them as official acts before he brings them to reality. With Trump’s pending cases slated to come to an abrupt end, we are now resigned to hoping that Trump commits one such act as president that shocks the Supreme Court’s conscience enough to qualify its presidential immunity ruling with sufficient guardrails.
The legislature, with its power to impeach the president, can often move faster than the judiciary. Once again, Trump’s last stint at the helm makes one wonder whether it has the gumption to stand up to him. Its hands are tied as long as Trump does not commit the mushy “high crimes and misdemeanours.” With the Republicans winning the House of Representatives, there is a good chance the energised Democratic base might flip it in the mid-term elections of 2026. Assuming that Trump commits such acts, and the House impeaches him, would the
Senate, the upper house, find the political courage to convict him?
In the past, conservative Senate leader Mitch McConnell, in his wanton quest for power, has managed to rationalise Trump’s impeachable offences. Even after Trump’s well-documented attempt to rig the 2020 elections, his incitement of the January 6, 2021 attack, and the
ensuing impeachment of Trump by the House, McConnell was concerned about convicting a president who had already left office. He was not worried about Trump winning the presidency again, purportedly because he trusted the judiciary to convict him.
If Trump commits unconstitutional acts in his second term, he will present Senate conservatives a stark choice; they can either preserve democracy or hold onto their political power. If they choose naked political power, it will scar the American system for generations
to come. Since McConnell and co. did not convict Trump even when he had lost the popular vote in his first term, his convincing victory and winning the popular vote now makes it even more unlikely.
Lastly, with the legitimate guardrails built into the judiciary to prevent arbitrary actions, and subservience the conservatives in the legislature have hitherto shown towards Trump, the civil society will have to step up to demand accountability from all sides. Democracy is not
the God-given right of any society. It is hard work and perpetuated by you and me and everyone we know. We will have to vigorously debate whether liberals ignore concerns about illegal immigration at their own peril. American academia’s obsession with political correctness and virtue-signalling at the expense of kitchen-table issues of everyday Americans will be questioned. And our Laissez-faire attitude towards social media regulation, which was highlighted after the 2016 and 2020 elections by liberals and conservatives alike, will have to be re-examined.
Several other democratic societies, including the European Union, India and Brazil have internalised the dangers of social media to democratic institutions and enacted laws, however imperfect, to hold them accountable. Questions will have to be raised again regarding Section 230 of the Communications Decency Act of 1996, which offers immunity to computer systems or online platforms against hosting third-party content. We will have to engage in a vigorous public debate about information and misinformation, and the ability of social media to create alternate universes for conservatives and liberals. Lack of civil dialogue and the desire to “own” the other side by, at times, even supporting foreign
interference in domestic issues, are becoming increasingly dangerous for democratic systems of governance.
While fundamental rights are enshrined in the US constitution, all other societal values, morals and priorities in free societies are endless negotiations. It is the basic contract between a democratic state and its citizens. As Benjamin Franklin, one of the American founding fathers, said at the end of the drafting of the American constitution, it is ‘a Republic, if you can keep it.’
Mauktik Kulkarni is a neuroscientist, author, entrepreneur, public speaker and a film-maker. He is the author of A Ghost of Che and Packing Up Without Looking Back.
