The Post-Conflict Republic

Even assuming they win, what are Democrats supposed to do with the perpetrators in the current regime? Democrats better start thinking about this now.

It is a comforting trope of American exceptionalism that the republic is a self-correcting machine. This narrative suggests that if the excesses of the current illiberal wave can be defeated at the ballot box, our quarter millennium-old constitutional order will simply and naturally reset itself. Unfortunately, this narrative represents a dangerous misunderstanding of the political necrosis now consuming the American state. Even a decisive Democratic restoration in 2027 or 2029 would leave the victors presiding over a country primed for insurgency and a bureaucracy occupied by ideological saboteurs. In fact, restoring a functional American democracy will not take place via simple electoral correction, but instead will require a sustained high-stakes struggle to manage a domestic political environment that has begun to resemble a post-conflict failing state.

A primary challenge is the transformation of the Department of Homeland Security and the broader immigration enforcement complex into a laboratory for loyalty-based governance, what political scientists refer to as patrimonialism. Thousands of agents at ICE and CBP are being actively recruited and socialized into a culture that views the administrative state as an instrument of white nationalist dominance rather than a neutral enforcer of law. Many Democrats seem to think that if they manage to win, they can somehow either arrest former members of the regime en masse, or at minimum disband these agencies.

But even if a reformist administration somehow manages to regain formal political power, things will be far from simple. To begin with, the new government will face an immediate security dilemma. To preserve the integrity of the state, and to establish the new government’s legitimacy as a democratic successor to the present authoritarians, it must purge those who will have spent years being told they are above the law. Yet, ousting these individuals will create a new, perhaps more potent, threat: tens of thousands of angry, well-armed, and battle-hardened former officers who view the new government as illegitimate. The experience of the Insurgency in Iraq and the formation of ISIS shows what can happen if a military force is suddenly dissolved overnight. And as places like Northern Ireland of the Spanish Basque country can attest from historical experience, insurgencies with only a few hundred “hard men” can sustain themselves for decades, so long as a significant sector of the population sympathizes with the goals of the insurgents.¹

And this is important because no matter how much the bottom falls out of the post-Trump Republican party, there will still be tens of millions of Americans who support the present regime and will be angry to have seen them ousted. The lowest tally any party has gotten in a Congressional vote was the GOP in 1974, which three months after Nixon’s resignation managed only 39.4% of the vote. A similar scenario this Fall would mean at least 50 million people will vote for to affirm (if not actively enthusiastic about) a government engaged in brazen, unapologetic, on-camera extrajudicial killings of their fellow citizens. Many of these people will be deeply disinclined to accept or even believe the results of an election in which their team loses.

If this situation were taking place in any other country, international observers and local democratic activists would be calling for a program of Disarmament, Demobilization, and Reintegration (DDR). Typically reserved for regions emerging from civil war, DDR is a proven method for transitioning combatants into civilian life to prevent a slide into perpetual violence. Yet in Washington, the prospect of a formal DDR plan for radicalized domestic law enforcement is not even on the agenda. The Democratic Party remains wedded to the idea that a change in leadership at the top will trickle down into institutional obedience — a failure of imagination that ignores the need to track and de-radicalize this displaced paramilitary class. Without such a plan, the “best-case” victory risks merely moving the threat from the federal payroll to a domestic underground.

This instability is deepened by the American constitutional framework which, if unreformed, risks becoming a suicide pact. For a democracy to stabilize after such a period, it requires a mechanism for lustration — the vetting and disqualification of officials associated with an abusive regime. Lustration was deployed in particular in post-Communist Europe on the assumption that former regime loyalists were presumptively unreliable allies of the new democratic systems and rule of law.² A similar logic was also behind the third clause of the 14th Amendment, which stated, in reference to former Confederates, that no one who had engaged “insurrection or rebellion” against the United States, or had “given aid or comfort to the enemies thereof” was henceforth to “hold any office, civil or military” in the U.S. government. (This of course should have been applied after January 6th to Trump himself.)

In the present American context, the primary target of such would be the intellectual architects of the present lawless illiberalism, such as Stephen Miller. The “Miller Problem” is that American law offers no legal convention for permanent disqualification from public life for the specific types of constotutional subversion that the GOP is presently engaged with. In a healthy republic, the betrayal of the constitutional order would be a terminal career event; in the contemporary United States, it instead qualifies you for a job at a well-funded rightwing think tank like the Heritage Foundation or the Claremont Institute. It’s certainly doubtful that the present Supreme Court would countenance the use of this clause in a fulsome way against the present regime’s various officers.

The legal hurdles to lustration are formidable because Article I, Section 9 of the Constitution forbids Bills of Attainder. These are legislative acts that punish specific individuals or groups without a trial. Any attempt by Congress to bar a specific list of loyalists from future office would likely be struck down by the judiciary as unconstitutional. Unlike post-communist Eastern Europe, which could write new constitutions to excise the rot, America is trapped in a 1787 legal framework that protects the very people trying to dismantle it. This creates a cycle where the enemies of the state can fail repeatedly, but the state must be perfect every single time to survive.

Furthermore, with the Heritage Foundation busily stuffing the federal bureaucracy with tens of thousands of pre-vetted MAGA hacks, the civil service itself has become a legal fortress that protects the radicalized. Most federal agents enjoy “property interests” in their jobs, a doctrine established in cases like Cleveland Board of Education v. Loudermill. Firing a radicalized agent for their ideological alignment requires an individualized due process of hearings and appeals that would take years to process. The liberal state’s own commitment to the rule of law thus becomes an enabler of its own subversion. Even the disarmament portion of a DDR plan hits a wall; under the Second Amendment, there is no mechanism to disarm former officers simply because they hold radical views — thus leaving an aggrieved, trained force in possession of their personal arsenals.

The irony is that to fix this, a reformist government would likely have to adopt the very tools of its adversaries, such as utilizing a version of “Schedule F” to strip protections from federal employees and bypass the civil service bureaucracy. This creates a moral paradox and political conundrum: in order to save liberal democracy, the liberal state must become more efficient at purging its enemies, thereby validating the illiberal premise that the bureaucracy is merely a tool of the party in power. If the best-case scenario requires the victors to abandon the norms they claim to be defending just to achieve basic stability, the victory is pyrrhic at best.

And remember, everything I’ve just written is premised on the political best case scenario: one where the midterm election this Fall is free and fair, and also results in a massive political rebuke to the GOP. (The risks from there are almost entirely on the downside.) Even in that case, we are looking at a future where lustration is legally impossible, allowing architects of illiberalism to wait for the next election cycle, and where a massive, armed sub-culture of former state actors remains at large because the concept of domestic DDR remains a political taboo. In sum, even winning the next election will not get us out of these woods. Indeed, it may well usher in an even more dangerous phase of American history, for which the current political establishment is fundamentally unprepared.

1. As Seth G. Jones of the Center for Strategic and International Studies documented in his 2008 book Counterinsurgency in Afghanistan, an insurgency can be sustained by a force representing less than 0.1% of the population, provided they have wide passive support from people who won’t snitch to the government, as well as at least some active support from a small minority providing food, intelligence, and safe houses.

2. Most effective lustrations have involved payments to the lustrated members of the former regime in order to make the bitter medicine go down. But it seems improbable that a new Democratic government, having ridden back to power on a wave of disgust over the behavior of ICE and CBP, will have the political appetite to give a $10B+ payout to members of those very organizations.