As this country lurches toward the most critical election in its history, what happens in the next 10 months depends almost entirely on the Supreme Court—specifically how the court chooses to view Donald Trump’s role in the events that unfolded at the Capitol on Jan. 6, 2021, and the constitutional ramifications of his actions. Given the violent nature of those events and the potential likelihood of renewed violence in response to or leading up to the Supreme Court’s decision, neither we Americans nor any branch of our government have the luxury of simply waiting for the court’s ruling. For the Biden administration in particular, there is little choice but to prepare for the probable outcome in the (unlikely) event that Trump is, in fact, disqualified from running again for president.
Chris Mirasola is a Climenko Fellow and lecturer at Harvard Law School. His primary expertise involves national security matters and executive power. Writing for Lawfare, Mirasola put together a fascinating hypothetical examining the likely real-world implications should the U.S. Supreme Court uphold the Colorado Supreme Court’s decision disqualifying Donald Trump from running for office pursuant to Section 3 of the 14th Amendment to the U.S. Constitution. In his hypothetical, Mirasola addresses the probability of terrorist violence perpetrated by Trump supporters in reaction to such a decision, and how federal, state, and local governments might go about responding to such violence.
RELATED STORY: Republicans: Only the Supreme Court can say what an insurrection is
Mirasola explains that he does not intend this as an exercise in fearmongering, nor is he suggesting the Supreme Court consider these factors dispositive in making its decision. But he notes that in the event of such a ruling, “it is reasonable to expect an escalating cycle of unrest, culminating in President Biden having to use military force against Trump’s political supporters.” His essay here serves as an outline of the legitimate, constitutional means through which that outcome might ultimately play out.
It should be emphasized that Mirasola’s analysis omits (or only partially addresses) several factors that would undoubtedly figure in the event of the widespread Trump-inspired domestic terror Mirasola’s scenario anticipates. One of those is the role the media (including social media) would play in responding to, amplifying, or contextualizing the anticipated violence. The other is the role that complicit elected Republican officials sympathetic to Trump would play in influencing how the process unfolds.
It should also be understood that despite the forceful arguments of eminent conservative jurists such as Michael Luttig, for example, the likelihood that this Supreme Court upholds Colorado’s decision to disqualify Trump under constitutional grounds is quite low. The availability of multiple legal off-ramps to avoid that outcome is simply too attractive for the court’s conservative majority to ignore, if only to avoid such a repudiation of their political party’s standard-bearer.
With those caveats, however, Mirasola’s sobering scenario is certainly worth paying attention to. Relying on basic assumptions regarding Trump’s behavior and that of his supporters borne out by recent events, Mirasola outlines how the country’s institutions—specifically the judicial, legislative, and executive branches—might realistically respond to a Trump disqualification.
Mirasola begins with three core assumptions. The first is that Trump’s rhetoric will grow more enraged and his calls to violence from supporters will intensify as his legal jeopardy increases. The second is that the number of his supporters willing to commit violence will increase with those exhortations. Lastly, the federal government will respond in accordance with predictable, existing practices. For the third assumption, Mirasola relies on standard, institutionalized protocols about how the chain of command operates between local, state, and federal governments.
In his predictive forecast, Mirasola posits that events will unfold in three separate phases. In the first phase, as the Supreme Court hears arguments, the violent response from Trump and his supporters markedly increases, with Trump urging his supporters to direct their rage at the court itself “to prevent an elite coup.”
As Mirasola writes, the response—this “Phase One”—would initially proceed as follows:
In response to this worsening security environment, the Supreme Court Police reestablishes barricades around the courthouse (Assumption 3, like it did during Dobbs). It also coordinates with the U.S. Capitol Police (USCP) and District of Columbia Metropolitan Police Department (D.C. Police) to establish a heightened security posture across the Capitol Complex. This would be accomplished under 40 U.S.C. §§ 6121 and 6123 … The USCP requests significant military personnel support, since, unlike federal law enforcement support, military support may be provided on a nonreimbursable basis. D.C. Police also requests military support from the D.C. National Guard under § 49-103 of the D.C. Code.
He allows that if the D.C. National Guard presence is insufficient, guard units from various states could be called in. Mirasola notes that additional resources might be needed to protect federal buildings in Washington, D.C., under existing U.S. Code provisions and constitutional authority afforded to the president. His worst-case scenario involves calling in active-duty military for “potential deployment” pursuant to the Insurrection Act (as Trump did during the Black Lives Matter protests).
We can assume that the prosecutions and sentences of the Trump-supporting Jan. 6 insurrectionists may dissuade some of Trump’s more virulent base from risking the same outcome for themselves. But we should also assume that blueprints for mobilization such as this are well understood by Trump’s supporters, and that they are prepared to act accordingly.
Next, in Mirasola’s scenario, there is “Phase Two:”
Phase Two: Trump campaign loses at the Supreme Court. Donald Trump responds with a flurry of posts on Truth Social. He pans the Supreme Court for capitulating to the radical left. He reposts statements from a wide swath of right-wing figures calling on supporters to retake the country (Assumption 1). Since the Court will likely render a decision on an accelerated timeline, it’s possible that a significant number of Trump supporters will either remain in D.C. for the decision or be ready to descend on D.C. quickly. It seems equally possible that these supporters would, if called upon to do so, again attack a variety of federal properties, including the Supreme Court.
This is the “inflection point,” so to speak. If the violence is to be a reality beyond “keyboard commando” bluster, it would really begin here. (Although Mirasola doesn’t suggest this, we might expect Trump to—obliquely if not explicitly—assure pardons for those carrying out attacks in his name.)
Mirasola then teases out the next logical phase:
Phase Three: Litigation begins to implement the Supreme Court decision through each state and territory election code. The locations at which we might reasonably expect violence would, at this point, proliferate. This stems largely from the fact that any ballot disqualifications must be implemented through individual state and territorial election law procedures …
There would be an urgent need, at this point, to protect state courthouses and election offices throughout the country. Governors would likely mobilize, perhaps in significant numbers, state law enforcement and National Guard personnel (as has been done in New York). Trump would likely call on “patriotic” state officials to not comply with what he would predictably call an “illegitimate” and “illegal” Supreme Court ruling (Assumption 1). He would call for his partisans to “help” these local officials “save our country” from elites. Right-wing militia groups throughout the country are likely to begin mobilizing for action (Assumption 2).
What would happen after that depends substantially on those (mostly) Republican elected officials. As Mirasola suggests, some might attempt to “reciprocate” by barring President Joe Biden from the voter ballots. The fact that they would have no legitimate reason to do this is—as Mirasola acknowledges—beside the point. They would do it out of sheer terror. As Mirasola notes, intimidated local and state officials might also simply refuse to comply with the court’s ruling.
Mirasola observes that many local and state officials would demand federal assistance. Under the Insurrection Act, the federal government would be compelled to resolve the crisis through federal troops.
As Mirasola writes, the act contains multiple provisions for the use of military force. For example:
Under … 10 U.S.C. § 252, the president, if he judges that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings” could then use military force independent of a state request.
Obviously the harrowing scenarios Mirasola poses here implicate unleashing destructive forces that the American republic might not survive. Accordingly he urges that all three branches of government consider their implications now, not when they are set into motion next month. (The court has scheduled oral argument on Trump’s disqualification for Feb. 8.)
For the Biden administration, the question is how to logistically prepare for such events in a manner that deescalates potential civil unrest. How, for example, does a president apply the Insurrection Act in states where there has been no request for aid? Many of these questions, as Mirasola notes, have historical precedents that can act as a guide, but those precedents are in some cases over a century old. As Mirasola observes, “the scale of foreseeable domestic unrest has the potential to far exceed what we experienced on Jan. 6.”
Again, Mirasola suggests that the administration be upfront and transparent with the American people about the potential for crisis before it actually happens. Nor should Congress sit on the sidelines: It should exercise its oversight powers to ensure that the administration in fact does have a workable plan of action.
And as hollow as that ultimately sounds, that’s about the best that can be done if our government is to be preserved. The government in this country is based on laws and those laws will—for better or for worse—dictate how the response to any Trump-inspired insurrection would unfold. But whatever may occur, there is one point that should never be forgotten: We would not be forced to consider such questions but for the malign and corrupt actions of one individual, and the cynical, cowardly, and heedless encouragement that the Republican Party has provided him.
RELATED STORY: Republicans actually published a blueprint for dismantling our democracy. It’s called Project 2025
