The ex-president plans for his second term

In a nutshell, T**** plans to kill American democracy, mostly following the path Viktor Orban used to kill democracy in Hungary. The Atlantic writes: 

Ever since the U.S. Senate failed to convict Donald Trump for his role in the January 6 insurrection and disqualify him from running for president again, a lot of people, myself included, have been warning that a second Trump term could bring about the extinction of American democracy. Essential features of the system, including the rule of law, honest vote tallies, and orderly succession, would be at risk.

Today, however, we can do more than just speculate about how a second Trump term would unfold, because the MAGA movement has been telegraphing its plans in some detail. In a host of ways—including the overt embrace of illiberal foreign leaders; the ruthless behavior of Republican elected officials since the 2020 election; Trump allies’ elaborate scheming, as uncovered by the House’s January 6 committee, to prevent the peaceful transition of power; and Trump’s own actions in the waning weeks of his presidency and now as ex-president—the former president and his allies have laid out their model and their methods.

Begin with the model. Viktor Orbán has been the prime minister of Hungary twice. His current tenure began in 2010. He is not a heavy-handed tyrant; he has not led a military coup or appointed himself maximum leader. Instead, he follows the path of what he has called “illiberal democracy.” Combining populist rhetoric with machine politics, he and his party, Fidesz, have rotted Hungarian democracy from within by politicizing media regulation, buying or bankrupting independent media outlets, appointing judges who toe the party line, creating obstacles for opposition parties, and more. Hungary has not gone from democracy to dictatorship, but it has gone from democracy to democracy-ish. Freedom House rates it only partly free. The International Institute for Democracy and Electoral Assistance’s ratings show declines in every democratic indicator since Fidesz took power.

The MAGA movement has studied Orbán and Fidesz attentively. Hungary is where Tucker Carlson, the leading U.S. conservative-media personality (who is sometimes mentioned as a possible presidential contender), took his show for a week of fawning broadcasts. Orbán is the leader whom the Conservative Political Action Conference brought in as a keynote speaker in August. He told the group what it loves to hear: “We cannot fight successfully by liberal means.” Trump himself has made clear his admiration for Orbán, praising him as “a strong leader and respected by all.”

The U.S. is an older and better-established democracy than Hungary. How, then, could MAGA acolytes emulate Orbán in the American context? To simplify matters, set aside the possibility of a stolen or contested 2024 election and suppose that Trump wins a fair Electoral College victory. In this scenario, beginning on January 20, 2025, he and his supporters set about bringing Budapest to the Potomac by increments. Their playbook:

First, install toadies in key positions. Upon regaining the White House, the president systematically and unabashedly nominates personal loyalists, with or without qualifications, to Senate-confirmed jobs. Assisted by the likes of Johnny McEntee, a White House aide during his first term, and Kash Patel, a Pentagon staffer, he appoints officials willing to purge conscientious civil servants, neutralize or fire inspectors general, and ignore or overturn inconvenient rules.

Second, intimidate the career bureaucracy. On day one of his second term, Trump signs an executive order reinstating an innovation he calls Schedule F federal employment. This designation would effectively turn tens of thousands of civil servants who have a hand in shaping policy into at-will employees. He approved Schedule F in October of his final year in office, but he ran out of time to implement it and President Biden rescinded it.

Career civil servants have always been supervised by political appointees, and, within the boundaries of law and regulation, so they should be. Schedule F, however, gives Trump a new way to threaten bureaucrats with retaliation and termination if they resist or question him. The result is to weaken an important institutional safeguard against Trump’s demands to do everything from harass his enemies to alter weather forecasts.

Third, co-opt the armed forces. Having identified the military as a locus of resistance in his first term, Trump sets about cashiering senior military leaders. In their place, he promotes and installs officers who will raise no objection to stunts such as sending troops to round up undocumented immigrants or intimidate protesters (or shoot them). Within a couple of years, the military will grow used to acting as a political instrument for the White House.

Fourth, bring law enforcement to heel. Even more intimidating to the president’s opponents than a complaisant military is his securing full control, at long last, over the Justice Department.

In his first term, both of Trump’s attorneys general bowed to him in some respects but stood up to him when it mattered most: Jeff Sessions by recusing himself from the Russia investigation and allowing a special counsel to be appointed; Bill Barr by refusing to endorse Trump’s election lies and seize voting machines. Everyday prosecutions remained in the hands of ordinary prosecutors.

Fifth, weaponize the pardon. In Trump’s first term, officials stood up to many of his illegal and unethical demands because they feared legal jeopardy. The president has a fix for that, too. He wasn’t joking when he mused about pardoning the January 6 rioters. In his first term, he pardoned some of his cronies and dangled pardons to discourage potential testimony against him, but that was a mere dry run. Now, unrestrained by politics, he offers impunity to those who do his bidding. They may still face jeopardy under state law and from professional sanctions such as disbarment, but Trump’s promises to bestow pardons—and his threats to withhold them—open an unprecedented space for abuse and corruption.

Sixth, the final blow: defy court orders. Naturally, the president’s corrupt and lawless actions incite a blizzard of lawsuits. Members of Congress sue to block illegal appointments, interest groups sue to overturn corrupt rulemaking, targets of investigations sue to quash subpoenas, and so on. Trump meets these challenges with long-practiced aplomb. As he has always done, he uses every tactic in the book to contest, stonewall, tangle, and politicize litigation. He creates a perpetual-motion machine of appeals and delays while court after court rules against him.

At first, the president’s lawlessness seems shocking. Yet soon, as Republicans defend it, the public grows acclimated. To salvage what it can of its authority, the Supreme Court accommodates Trump more than the other way around. It becomes gun-shy about crossing him.

And so we arrive: With the courts relegated to advisory status, the rule of law no longer obtains. In other words, America is no longer a liberal democracy, and by this point, there is not much anyone can do about it.

--------

And so, after four years? America has crossed Freedom House’s line from “free” to “partly free.” The president’s powers are determined by what he can get away with. His opponents are harried, chilled, demoralized. He is term-limited, but the MAGA movement has entrenched itself. And Trump has demonstrated in the United States what Orbán proved in Hungary: The public will accept authoritarianism, provided it is of the creeping variety.

“We should not be afraid to go against the spirit of the age and build an illiberal political and state system [a dictatorship],” Orbán declared in 2014. Trump and his followers openly plan to emulate Orbán. We can’t say we weren’t warned. 

Q: Have we been adequately warned? (IMO we have not)

Acknowledgement: Thanks to milo for bringing this article to my attention.

Maybe the ex-president made a big boo-boo

Multiple sources are reporting that mistakes were made, as people responsible for mistakes like to say. The ex-president hoped to slow down the kerfuffle over documents he kept at Mar-a-Lago by asking the court of a special master to do special master things. Looks like the usually successful delay tactics the ex-president has relied on for decades backfired in this case. The New York Times writes:

Former President Donald J. Trump may have thought that he was playing offense when he asked a federal judge last week for an independent review of documents seized from his residence in Florida — a move that, at best, could delay but not derail an investigation into his handling of the records.

But on Tuesday night, the Justice Department used a routine court filing in the matter to initiate a blistering counteroffensive that disclosed new evidence that Mr. Trump and his legal team may have interfered with the inquiry.

In the filing, in Federal District Court for the Southern District of Florida, department officials revealed more details about the classified materials that Mr. Trump had taken from the White House, including a remarkable photograph of several of them arrayed on the floor of Mar-a-Lago, his home and private club in Florida. In what read at times like a road map for a potential prosecution down the road, the filing also laid out evidence that Mr. Trump and his lawyers may have obstructed justice.

It was as if Mr. Trump, seeming not to fully grasp the potential hazards of his modest legal move, cracked open a door, allowing the Justice Department to push past him and seize the initiative.

“The Trump team got more than they bargained for,” said Preet Bharara, a former U.S. attorney in Manhattan and a longtime critic of Mr. Trump. “In response to a thin and tardy special master motion, D.O.J. was given the opportunity to be expansive.”

Covering its final page was what Mr. Bharara called “an extra proverbial thousand words”: an image of five yellow folders marked “Top Secret,” and a red one labeled “Secret,” lying on the ground beside a box of magazine covers.

The image, which seemed to be a standard evidence photo, was the sort of thing the government collects all the time for use at possible trials. But because Mr. Trump and his lawyers made disputed statements about their handling of the records, it gave the Justice Department an opportunity to publicize the photo, which has now appeared repeatedly on TV news.

 

On Wednesday, going back on the offensive, Mr. Trump attacked the image.

“Terrible the way the FBI, during the Raid on Mar-a-Lago, threw documents haphazardly all over the floor,” he wrote on his social media platform. He went to say, in a just-asking sort of way: “(Perhaps pretending it was me that did it!)”

John P. Fishwick Jr., an Obama appointee who served as the U.S. attorney for the Western District of Virginia and had been critical of the department’s previous, less expansive filings, said that the Justice Department had started to shift its tactics.

“They are starting to understand that you not only need to be speaking to the judge with these filings, you need to be speaking directly to the American people,” he said.

Over the past week, what was initially meant to be a tightly argued legal brief focused on objecting to the appointment of a special master expanded into something much broader, the officials said. The filing became a more pointed presentation of evidence of the Justice Department’s belief that it had no choice except to seek a warrant for the search at Mar-a-Lago.

Who knows? Maybe this time the ex-president's delay and obstruct tactics landed him into trouble he cannot squirm out of as usual. Maybe. One can hope, but not be sure.

An interview with an expert on democracy and government

In the NPR program, The Takeaway, Melissa Harris-Perry interviewed Duke U. Professor of Law Jedidiah Purdy. Purdy believes that our democracy is imperfect and messy, but nonetheless its better than autocracy-theocracy. Some of his comments are quite interesting.

Melissa Harris-Perry: Right now, about the dangers to our existing democracy, imperfect as it might be, what do you identify as the biggest dangers to democracy?

Professor Jedediah Purdy: I see a few dimensions of threats. The fact that the Republican Party increasingly identifies itself with the denial of valid election results and is flirting aggressively, maybe more than flirting, with the idea that if the wrong people win an election, that election can't be valid. That is the most basic existential threat to a democracy if elections can't solve the question of who's in charge.

I think there are some subtler threats. One is that the constitution itself as it's been interpreted is a deeply anti-democratic document in some ways. The Electoral College is an anti-democratic institution. The Senate is an anti-democratic institution. The Supreme Court is an anti-democratic institution. A lot of people who grew up thinking, "Basically, whatever democracy is, it probably is what's in the constitution. The Supreme Court is probably a wise and good interpreter of that idea," have been reminded that the reality can be exactly the opposite.

I guess I would put it this way. A party, Republican Party that has developed an increasingly anti-democratic politics, depends existentially on the support of an anti-democratic constitutional design. A Supreme Court that has become a leading threat to democracy values is produced and sustained by the anti-democratic presidency and the anti-democratic Senate, as well as by a constitution that, because it's so hard for living democratic majorities to affirm or amend, ends up meaning that our fundamental law is decided by a small set of judges.

I think the problem with the constitution is that they did constitutional politics essentially once and then froze it by making the barrier to amend so high that we haven't had a meaningful constitutional amendment in 50 years. We're not currently expecting to see one anytime soon. The beauty of the constitution in some ways is in the opening phrase, "We, the people," because it says the authority of this thing, what makes it fundamental law, is that it's made by a democratic politics of people deciding together what their own binding basic law is going to be.

I think that shouldn't be once and for all. As it recedes further into history, and we can't pick that ball up again and take it in a new direction, it becomes less democratic. It becomes a kind of tyranny of the past over the present and it also becomes a tyranny of the interpreters over the rest of us. It's often been thought that it is a perfect document or perfect enough that we can just interpret it a little better and it will guide us forever into the future. I think that can't be right.

I think questions like, "Is there a fundamental right to choose abortion? Are corporations allowed to spend unlimited funds in politics? Are race-conscious policies' affirmative action permitted or not under the equality principle?" I think, fundamentally, these are questions that the people who are going to live with them have to answer. The constitution is set up now in such a way that we can't. "We, the people," is only them. It's not us. We can't be framers anymore. I think that's an unnecessarily undemocratic place for our fundamental law to get stuck.

I've seen arguments by experts that the barriers to amending the constitution were intentionally made to be high so that one group cannot easily overthrow democracy and install some form of tyranny. That is understandable. 

On the other hand, the constitution's inflexibility needed to be deal with somehow to adopt the law to changes in society and technology. The courts responded to natural changes by relying on American Legal Realism, which I discussed in this book review. 

At present, the Republican Party in its authoritarianism-Christian theocracy rejects and crushes ALR whenever it gets in the way of Republican dogma demands. To get what they want, Republican Supreme Court judges invent (i) unworkable legal theories like Originalism and Textualism, (ii) make their reasoning up out of nothing, or (iii) do some of both and/or God only knows what else, e.g., latter day haruspication.*

* Divining the law by looking at a fresh pile of animal guts. 

I've posted this quote about ALR many times, but it's relevant and worth recalling again:

“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.”

Those comments reflect the need in law for some mechanism like ALR to respond to natural social and technological changes. Amending the constitution is not a practical means to do that. Legislatures either cannot keep up with change, or they do not want to keep up. That leaves it to the courts to try to keep up, assuming that is what the judges want to do.

It is not the case that Republican Party authoritarian-theocratic dogma wants no changes. It demands massive changes to society. Most of those ordained-by-God changes involve undoing important things that ALR led to, e.g., same-sex marriage rights, abortion rights, secular public education, due process, and anti-discrimination laws.

This is just another warning about the dire threat that modern Republican Party authoritarianism-Christian fundamentalist theocracy poses to American democracy, the rule of law, tolerant pluralism and civil liberties. The anti-democratic threat is right now, not sometime in the future.

The US/NATO Alliance scuttled Ukraine/Russia settlement talks

This is a post is about an exceptionally important recent event that was suggested to me as worth looking into. I am not sure most people are aware of this. This bit of news and recent history strikes me as something everyone in America and Europe should know all about, but probably do not. The story has to be pieced together from various sources to get a sense of what happened and how important it was and still is.

Last April, Ukraine and Russia were apparently prepared to reach a negotiated settlement to the war. That was before Boris Johnson, representing the “collective West,” scuttled it. That left us with the prospect of a long war, maybe with the complete destruction of Ukraine.

Alex Jordan,  a policy analyst at the Quincy Institute of Responsible Statecraft, has alerted journalists on Twitter that the consummate national security insider, Fiona Hill, accidentally let slip in her latest article for Foreign Affairs, some important details about the aborted talks to reach a negotiated settlement between Ukraine and Russia in April of 2022 in Turkey. She confirmed in a passing paragraph that at that time (about 5 weeks into the war) Russia and Ukraine agreed on a tentative settlement, that if had it been finalized, would have stopped the war. Ms. Hill writes:

“According to multiple former senior U.S. officials we spoke with, in April 2022, Russian and Ukrainian negotiators appeared to have tentatively agreed on the outlines of a negotiated interim settlement: Russia would withdraw to its position on February 23, when it controlled part of the Donbas region and all of Crimea, and in exchange, Ukraine would promise not to seek NATO membership and instead receive security guarantees from a number of countries.”  

 Hill omits to mention the fact that then-PM Boris Johnson immediately flew to Kyiv to scuttle the negotiation that was in progress. How do we know this? From Ukraine’s own online newspaper, Ukrainska Pravda. An English-language summary of the article by Ukrainska Pravda in English states that the Russian side was ready to negotiate but “two things happened.”

The first thing was the revelation of the atrocities, rapes, murders, massacres, looting, indiscriminate bombings and hundreds and thousands of other war crimes committed by Russian troops in the temporarily occupied Ukrainian territories.

The second “obstacle”[sic] arrived in Kyiv on 9, April. [i.e. Boris Johnson]...According Ukrainska Pravda sources close to Zelenskyy, the Prime Minister of the United Kingdom Boris Johnson, who appeared in the capital almost without warning, brought two simple messages.

The first is that Putin is a war criminal, he should be pressured, not negotiated with.

And the second is that even if Ukraine is ready to sign some agreements on guarantees with Putin, they are not. [emphasis added]

Johnson’s position was that the collective West,  [i.e. the US led coalition of EU, Britain and the US]which back in February had suggested Zelenskyy should surrender and flee, now felt that Putin was not really as powerful as they had previously imagined, and that here was a chance to ‘press him.’ 

Three days after Johnson left for Britain, Putin went public and said talks with Ukraine “had turned into a dead end.” (Original article in Ukrainian here, U. Pravda's English condensed version here) 

In Hill’s account, there is a temporal ellipsis. She goes directly from noting the Russians being prepared to negotiate as summarized above in April directly to words spoken months later in July by feisty Foreign Minister Sergey Lavrov in an entirely different context. Hill writes:

But as Russian Foreign Minister Sergey Lavrov stated in a July interview with his country’s state media, this compromise is no longer an option. Even giving Russia all of the Donbas is not enough. “Now the geography is different,” Lavrov asserted, in describing Russia’s short-term military aims. “It’s also Kherson and the Zaporizhzhya regions and a number of other territories.” The goal is not negotiation, but Ukrainian capitulation. [ibid]

 What is left out, of course, is the fact reported by the Ukrainian press that Boris Johnson, representing the "collective West" on which Ukraine depends for weapons and economic support had given Zelensky an ultimatum--" even if Ukraine is ready to sign some agreements on guarantees with Putin, they [the collective West] are not." By the time Lavrov made the statement quoted by Hill in July, Sec. of State Blinken and Sec. of Defense Lloyd Austin had already elaborated on Johnson’s hastily delivered message when they visited Kyiv in late April. They referenced Johnson’s visit, and announced a "new strategy." The New York Times' lead article covering the visit on April 24 states:

WASHINGTON — When Defense Secretary Lloyd J. Austin III declared Monday at the end of a stealth visit to Ukraine that America’s goal is to see Russia so “weakened” that it would no longer have the power to invade a neighboring state, he was acknowledging a transformation of the conflict, from a battle over control of Ukraine to one that pits Washington more directly against Moscow. [emphasis added]   

 Even the generally supportive NYT, in the article noted that:

"Mr. Austin and others in the Biden administration are becoming more explicit about the future they see: years of continuous contest for power and influence with Moscow that in some ways resembles what President John F. Kennedy termed the “long twilight struggle” of the Cold War." 

David Sanger of the NYT wrote that Secretary of State Blinken announced that Putin had “already lost” in the struggle over Ukraine, reflect[ing] a decision made by the Biden administration and its closest allies, several officials said on Monday, to talk more openly and optimistically about the possibility of Ukrainian victory.

The issue here is how to square the scuttling of negotiations, and the high pressure exerted on Zelensky to stop negotiations with the Russians with the official position of the US/NATO that we do not tell Ukraine whether to fight or pursue diplomacy,  or how to fight the war. We are allies and not war planners. 

 As for the optimistic statements made in April, things look a bit different now. About 20% of the total area of Ukraine is controlled by Russia according to Zelensky. Much of that territory is some of the most valuable geo-politically and in terms of resources. About 7 million refugees are scattered throughout Europe, and many more internally displace persons live in abject misery within Ukraine. 

The unprecedented sanctions regime designed mainly in Washington has hurt the West more than it has damaged the Russian War Machine. The Wall St. Journal reported this week that “Moscow is raking in more revenue than ever with the help of new buyers, new traders and the world’s seemingly insatiable demand for crude.” Much of the world (including India, China, Singapore, Saudi Arabia et al.) are more than happy to buy Russian no matter what the “leaders of the free world” in Washington tell them to do. And this was predictable. 

Now it remains to be seen whether or not the citizens in European countries will continue to support a sanctions regime, and a protracted war against Russia, if a cold winter and severe energy shortages cause immense suffering, stagflation and industrial shutdowns as many economists are predicting. In late July, the NYT reported:

As Russia tightens its chokehold on supplies of natural gas, Europe is looking everywhere for energy to keep its economy running. Coal-fired power plants are being revived. Billions are being spent on terminals to bring in liquefied natural gas, much of it from shale fields in Texas. Officials and heads of state are flying to Qatar, Azerbaijan, Norway and Algeria to nail down energy deals.

Across Europe, fears are growing that a cutoff of Russian gas will force governments to ration fuel and businesses to close factories, moves that could put thousands of jobs at risk. 

Somewhat awkwardly, Biden, who called the Saudis “butchers” and “pariahs” during his campaign, was photographed fist-bumping MBS—a man with American blood on his hands-- during a visit during which he pleaded with the Saudis to ramp up production. They have. But according to this week’s WSJ article (cited above), they also buy Russian crude and mix it with other oil to conceal its Russian source—an increasingly common workaround seen in several countries. Biden who had condemned Venezuela’s Pres. Maduro, eased restrictions on Venezuelan oil due to the emergency caused by the sanctions regime intended to paralyze Russia. All of this is exacerbating inflation in Europe, the US, and the global south, which has suffered severe food shortages. Those food shortages arose in no small measure because of the conflict, including both the Russian Black Sea Embargo and the West’s sanctions regime. 

Despite all of this, we are told that “Ukraine is winning.” We are told that Europe will achieve energy independence and put the Russian energy dependency problem behind them. We are told all of this is not bringing us into an escalated conflict, perhaps involving nuclear nightmares. This even as UN Inspectors/IAEA try to delicately work their way into the the nuclear facility in Zaporizhzhia after it explosions there, with Ukrainians operating the plant at gun point.  

The consequences and costs of this war for Ukrainians, and also its global effects have been far more troubling than experts in Washington have maintained, and continue to maintain. It is probably too late for the negotiated settlement previously argued for in a post here. 

It is deeply troubling to see evidence that the US/NATO powers gave Zelensky an ultimatum to stop talking to the Russians in April when there was still one last window of opportunity. We’ll never know if it would have gone anywhere or not. But that’s not the point. It was never—or so we were told—up to the “Collective West,” as Boris Johnson dubbed the US/NATO alliance.

Qs: Since the West blocked settlement talks last April, does that impose a greater moral obligation to support Ukraine and its people, no matter how much it costs? 

How should the US and NATO deal with the risks of protracted war and maybe even nuclear war in view of their role in creating the risks, or are the US and NATO blameless, e.g., because there is no way to know if those talks would have led to the end of Putin’s war against Ukraine?

Is this information about the US and NATO forcing a stop to settlement negotiations between Ukraine and Russia surprising news, or is this something most Americans are fully aware of, e.g., because all of this was published by major professional US news outlets?

Does this story foster any feeling, e.g., a sense of dread, that Western political leaders are out of their depth and incapable of competent governance, or is that interpretation just too bad to be true, e.g., are we being lied to about a dangerous war, yet again?

Although we are told by our leaders that “Ukraine is winning,” does that feel true, or does this sound too much like confident but false assurances from our political and military leaders that the wars in Vietnam and Afghanistan were going well and “we are winning,” when in fact were were losing in both and either knew it (Vietnam) or damn well should have known it (Afghanistan)?