To Save Democracy: Open Your Eyes

By Jessie Seigel / January 8, 2025

Monday was January 6, the fourth anniversary of the Republicans' 2021 viciously violent attack on democracy. An assault on the Capitol in which Donald Trump's mob attempted to hunt down and kill representatives, senators, and then vice-president Pence, savagely beat capitol and DC police, and physicallly defiled the people's House. Republican politicians who initially condemned the attack very quickly turned about to join Trump in diminishing, denying, and even defending it. Their message: don't trust your lying eyes; nothing to see here; move on.

Monday was also the day when Congress counted the 2024 electoral votes and certified that Donald Trump--the instigator of that 2021 violence--had won the 2024 election. This occurred without a peep of even angry rhetoric, let alone violence, from the Democrats.

Some Democratic congressmen noted, almost in wonder, the difference in atmosphere from four years ago—as if the public would indirectly grasp the significance of that difference. They won’t. They need it spelled out. And shouted loudly into their ears.

The Republicans now in control of all branches of the federal government continue to back the violence and repression that their leader activates whenever he can.

There was no violence on this January 6 only because Trump happened to manage—with billionaire money—to get what he wanted from the election without having to send his mob to the Capitol again.

There was no violence this time because the Democrats, unlike the Republicans, actually believe in the democratic process. Unfortunately, for the most part, they are determined to stay so far above the fray that they will not open their mouths and use their tongues to baldly shout out this difference.

Two MSNBC hosts have had the courage to bluntly define the nation’s current situation. On her program Monday evening, Joy Reid declared:

…Fourteen days from today, you will hear many soberly and reverently laud the peaceful transfer of power… but you can’t peacefully transfer power to an insurrectionist simply because it took them an extra four years to finish the job. This was a violent transfer of power. The most violent in U.S. history, if we’re being honest.

Rachel Maddow acknowledged our country’s situation, and straightforwardly posed the question: “How do we ever get our democracy back now? Because we have, in effect, lost it.”

Unlike these journalists, most public figures have been either bought off, cowed into silence, or are blindly determined to pretend that our democracy is still working rather than admit it lies in tatters.

And as to the Rule of Law that must underlie a healthy democracy, most legal analysts anemically weigh this way and that, based on precedent, how the law is likely to be applied--as if the courts have not been allowing Trump and his cronies to stomp the Rule of Law underfoot.

The most current example is the judicial cowardice of New York State Supreme Court Judge Juan Merchan. He plans to sentence Donald Trump on Friday for his conviction on 34 felony counts. He has refused to vacate the jury's verdict, but has stated he probably will not impose any penalty.

Trump’s conviction occurred in May 2024, eight months ago. A 12-person jury unanimously found him guilty of falsifying business records to conceal a $130,000 hush money payment he made through his then-lawyer Michael Cohen to adult-film star Stormy Daniels. (The purpose of the pay-off was to keep her quiet about their alleged affair before the 2016 election. But the crime was falsifying business records to conceal it.)

Initially, Trump was scheduled to be sentenced for his felonies in July, but Judge Merchan postponed multiple times at the request of Trump’s lawyers. Ostensibly, Merchan did so because of the U.S. Supreme Court’s ruling that a president has immunity for actions related to his official duties while president. But, as Merchan finally ruled in December, the evidence presented by the Manhattan district attorney’s office was not related to Trump’s official conduct as president.

In my view, Merchan could have taken that position far earlier, gone ahead with sentencing, and let the legal correctness of his determination be argued out on appeal.

Instead, Merchan delayed sentencing again and again throughout the election season. Perhaps he was hoping that Trump would not be elected this time, and he could go forward with sentencing after the election. If so, more fool he.

In defending both his refusal to vacate the verdict as requested by Trump's attorneys, and going forward with sentencing only 10 days before Trump's inauguration, Merchan wrote:

To vacate this verdict on the grounds that the charges are insufficiently serious given the position Defendant once held, and is about to assume again, would constitute a disproportionate result and cause immeasurable damage to the citizenry's confidence in the Rule of Law.

Much of the media has heralded Merchan’s refusal to vacate and determination to sentence Trump so close to his January 20 inauguration as a brave stand preserving of the Rule of Law. In fact, it is the exact opposite.

Merchan has stated that "a sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow Defendant to pursue his appellate options."

As noted by NBC, “such a sentence would allow the conviction to stand but without Trump being fined, locked up or having to serve probation.” In other words, “unconditional discharge” means that the defendant pays no penalty whatsoever for his crimes.

Some in the media suggest, as consolation, that Trump will have a felony conviction on his record for all time, an embarrassment to him. So, Trump, like the pardoned Richard Nixon, suffers a little embarrassment. Does anyone truly think the judge can shame a man who has demonstrated over and over that he has no shame?

Some have argued that history will take account. But as George Bernard Shaw wrote, "History will tell lies as usual." President Trump and his minions will do their best to make sure of it.

The true lesson to the country of an unconditional discharge will be that crime pays. It pays very well. And if you join in and have the right connections, there will be no tangible penalty for anything you do.

If Judge Merchan feels hemmed in by the lateness of sentencing and its closeness to the criminal’s inauguration to the highest office in the land, that limitation was his own doing. In addition, finding a workable sentence or a timing for serving a sentence at this late date is a conundrum of the judge’s own making.

Leaving the conviction intact with an unconditional discharge is not courageous but, rather, a hollowing out of the Rule of Law. It makes the term “justice” a word empty of meaning.

Judge Merchan needs to spend the two days left before sentencing to rethink--find some creative way to fashion a sentence that has teeth in it.

And if pundits and public officials want to help get our democracy back, they must begin by honestly acknowledging the dangerous pickle we’re in and refusing to treat empty gestures as if they were a meaningful saving grace.

If you like what you read at My Washington Whispers, please feel free to subscribe below. It costs nothing, requires solely your email address, and will result only in a bi-weekly email announcing the latest issue. Feel free to pass articles on to your friends and acquaintances! And if you have thoughts, pro or con, about what is written here, please leave a comment below. (Subscribing, sharing, and commenting are greatly appreciated.)