What Comes Next

It was a difficult night, followed by a hard day. I’m not far enough away from the reelection of Donald Trump to have much in the way of perspective yet, and I’ll leave the post-mortems about what went wrong to others. It doesn’t feel important or valuable to me right now to have someone to blame. What I realized when I woke up this morning was that my concern had already turned towards what we’re going to do. What comes next?

After the election in 2016, which feels like a very like time ago—I was still at the Justice Department when Trump won—people like me knit the ubiquitous pink pussy hats and joined the Women’s March on January 21, the day after Trump was inaugurated. We prepared for the fight we knew was coming for civil rights, without knowing precisely what it would consist of or what we would be called to do.

In that moment, I learned something really important—that there is great value in community, fellowship, and sisterhood. That, when times are tough, you need to circle the wagons and be with the people you care about, the people who lift you up. There is nothing wrong with recharging your batteries by laughing with friends or enjoying a beautiful fall day. You can do that online or in person; it’s all good. The important thing is, Nolite te Bastardes Carborundorum. As Margaret Atwood’s novel, The Handmaid’s Tale says, don’t let the bastards get you down.

That’s not to say we should forget about the fact that this is bad, that a Trump 2.0 administration has the potential to be devastating. But living in a difficult time doesn’t mean that we are powerless. It means we have to be thoughtful about organizing and using our power, and that means we need to prepare, because we have work to do. I had hoped we would be talking about fixing democracy, repairing institutions that had been stretched out of shape, in 2025. Sadly, that is not where we are going to be.

Donald Trump won the election, and he won the popular vote. But he won it with almost ten million fewer people participating (71,725,928) than when Joe Biden won in 2020 (81,284,666). What that means about the level of support for his policies, as opposed to the general malaise of “prices are too high” that afflicted the country ahead of the election, remains to be seen. But if there are protests, and I suspect there will be, we are going to have to discuss how Trump will wield presidential powers, like those granted to him under the Insurrection Act, to quell any protest.

Earlier today, NBC’s Ken Dilanian reported that Jack Smith is consulting with DOJ officials about closing the two federal criminal cases against Trump since DOJ policy doesn’t permit prosecution of a sitting president. The reports painted a picture of prosecutors who had concluded their only option was to close up shop because Trump prevailed in the case. It’s possible that is what is happening, but there is another possibility, too.

At the conclusion of a special counsel’s investigation, section 600.9(a)(3) of the Special Counsel Regulations requires the Attorney General to provide Congressional leadership with “a description, and explanation of instances (if any)” where the Attorney General overruled an action the special counsel wanted to take. That requirement would be triggered if Smith proposed moving forward despite DOJ policy against prosecuting a sitting president (there were earlier reports he intended to continue his work through inauguration day), and the Attorney General countermanded him because of existing policy. It’s hard to assess what value a report like that might have, beyond information and evidence Smith’s court filings have already made public. It would at least guarantee there would be a permanent public record that would survive Trump’s certain demand that the Justice Department kill the cases against him. This is one potentially intriguing possibility in a day that didn’t have much optimism to offer. It bothers me deeply, nonetheless, that Trump has avoided accountability at the hands of a jury that would consider the evidence against him and decide whether to convict him or not. I know I’ll struggle with that for a long time.

Whatever the next days and weeks hold, the most important thing is not to let Donald Trump take away your sense of power as an American. Do not, as Tim Snyder says, obey in advance. We did not quit during Trump’s first four years in office and we are not going to quit now. We will pick our priorities and marshal our resources to do what must be done. Make sure you take the time now to nurture yourself for what is ahead. There will be a role for each of us.

It is very hard to lose an election, and this one more than most. I don’t know yet what specific challenges we’ll face and what we’ll be called upon to do. But I am confident we will meet those challenges just like we always have.

We’re in this together,

Joyce

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