The last four years have made it clear that our institutions are suffering from too many years of deferred maintenance. That’s why I’ve been participating in the Guardrails of Democracy Project, an informal think tank made up of conservative, often Republican, lawyers who have grown increasingly concerned about the health of our democracy. Guardrails of Democracy is about identifying reforms designed to reinvigorate and secure our existing system of checks and balances.
To paraphrase Donald Rumsfeld, we’re soldiering through this election season with the checks and balances we’ve got. And it's going to be bad. The FBI has already broken up a serious plot to kidnap one and maybe two sitting governors, and authorities are bracing for the worst. In a recent poll, 55% of Americans said they anticipate violence in the election’s aftermath.
So we will launch this project by reviewing some of the guardrails that have been created with just such a situation in mind. While this is a discussion of federal law, lots of state laws would apply, too.
'Following orders' won't be a defense
First, the big one, seditious conspiracy. If you conspire to use force to hinder the application of any federal law or to seize federal property, you will spend up to 20 years in prison. Note that you don’t have to actually succeed. The essence of conspiracy is communication and agreement so you have committed seditious conspiracy even if you are simply planning this kind of “activity,” even if it is “just” over the internet. Oath Keepers, Proud Boys and other assorted militia organizations, take note.
There are several laws that criminalize interfering with an election or a vote count. For example, it’s a felony to attempt to intimidate voters or to attempt to interfere with voting. That means that while poll-watching is legal in most cases, poll watchers walk a fine line and had better be on their best behavior. It is most definitely not the moment to exercise your Second Amendment rights unless you fancy spending up to 10 years in federal prison.
Federal law views having armed people of any sort at the polls very seriously, much less potential vigilantes. It’s a felony for even a government official to send “armed men” to the polls. And there’s no exception for the attorney general or the president, on the contrary. That statute also runs right down the chain of command, so if armed federal agents were to show up at a polling place, everyone who had a hand in deploying them would be facing up to five years in prison. “I was just following orders.” won’t be a defense.
Here’s one you probably hadn’t considered: a statute that makes it felony to make a false statement about a material fact to the federal government or to falsify, conceal or cover up a material fact from the federal government. Normally, this statute is used when people outside the government are filing reports and answering questions. But there is nothing in the statute that would prevent employees and officers of the federal government from being prosecuted for making false statements or trying to hide the truth in an effort to influence government action.
So to anyone who might be pressured to come up with some handy “facts” about mail-in ballots and election fraud: Beware. There is no evidence that mail-in ballots are particularly likely to be fraudulent and any statements you might make to the contrary or any other effort you might make to hide or distort the truth could earn you up to five years in prison.
Texas GOP death wish: One dropbox in a county of 4.7 million people
These concerns are very real. President Donald Trump could not be making it clearer that he is going to push our democracy to the limit and, perhaps, beyond. He's spent months attempting to undermine our faith in the election, refused repeated opportunities to say that he would abide by the result, and, with his order to “stand back and stand by,” appointed the Proud Boys as the paramilitary wing of Trump's version of Nixon's 1971 Committee to Re-Elect the President.
Prison is a real possibility
But the situation we find ourselves in is not entirely unprecedented. The original Committee to Re-Elect the President was an arm of the Nixon campaign set up to engage in various illegal activities to make sure Nixon won the 1972 presidential election. Most of the members of the committee went to prison when their activities became public. Should the election and its aftermath be a train wreck, history is going to repeat itself.
First in their sights: A kidnap and murder plot targeted Gretchen Whitmer. It's no coincidence she's a woman.
If you are tempted to put your thumb on the election scale, do not try and fool yourself that this will never come out. Should Joe Biden become president, I have no doubt that one of the first orders of business will be a full and public investigation of what happened during the election. And even if Donald Trump should retain the presidency, the federal statute of limitations is at least five years for most crimes. The mills of the criminal justice system may grind slowly, but they grind incredibly fine. If you take action to subvert our democracy, your acts will neither be forgotten nor forgiven. Sooner or later, justice will find you.
In the end, it isn’t just America’s guardrails that are being tested. Americans are being tested. We live in a particular time. On Nov. 3, we have a choice to make, not just between candidates, but between democratic values on one hand, and fear and anger on the other. Choose wisely. We are all going to live with those choices for a very long time.
Republican Chris Truax, an appellate lawyer in San Diego and CEO of CertifiedVoter.com, is a member of USA TODAY's Board of Contributors.
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This article originally appeared on USA TODAY: Trump is pushing US democracy to the limit, don't break laws for him