Topic
Enabling Acts and Enablers
Authoritarianism often disguises itself as order, wielding the law as a weapon against democracy itself. In the aftermath of the Reichstag fire, the Nazis did just that, exploiting existing laws and passing new ones—most notably the Enabling Act—to secure power and suppress dissent. Trump promises a repeat, to deploy the military against dissenters and to bypass our system of checks and balances. He failed to do so in his first term because he was restrained by those around him. Now he is poised to succeed, with loyalists by his side, a grant of immunity from the Supreme Court, the institutional support of Republicans, and the widespread failure to hold him accountable for anything.
Germany
Paving the way
In place of the Kaiser there was a Reich President who was to be elected, like the President of the United States, by popular vote. Not only did this give him independent legitimacy in his dealings with the legislature, it also encouraged his use of the extensive emergency powers which he was granted under the constitution’s Article 48. In times of trouble, he could rule by decree and use the army to restore law and order in any federated state if he thought they were under threat.
Friedrich Ebert was elected the first President of the Weimar Republic in 1919 and served until 1925. In those unstable early years, Ebert would rely often on Article 48 powers in order to maintain an uneasy peace as Germany recovered from war and reckoned with internal strife. Control was kept—but at a cost. Article 48 had no real provisions for the legislative body of the Reichstag to reassert control.
Ebert's use of Article 48 veered into overuse, and often misuse. These powers stood as a threat to democratic institutions. The Nazis would see their opening.
After his failed putsch of 1923 in Munich, Hitler came to realize that he must have some control of institutions if he wanted to take power. That meant winning votes and at least appearing to follow the law of the land. Much of the legwork for this was done by the lawyer Wilhelm Frick, who would eventually write the infamous Reichstag fire decree. The historian Irene Strenge had called this his "legal path to power." In an interview with New York Times reporter Harold Callender, Hitler shared his thinking:
The National Socialist movement will achieve power in Germany by methods permitted by the present Constitution—in a purely legal way. It will then give the German people the form of organization and government that suits our purposes.
The Nazis had spent a decade planning how to consolidate power once they had it. Even if they won the majority of the seats in the Reichstag and Hitler could be made Chancellor, they still would not have control of the army. The SA—the "brownshirts"—were Hitler's private army, and they would serve as the muscle in the army's stead. Frick drafted executive orders that would be used to break up the rallies of their political opponents with the help of the SA.
Nazi plans get laid
When Franz von Papen became the Chancellor, he did the Nazis a favor by taking emergency powers to their logical extremes, aided by President Hindenburg. Papen stirred up a "red scare" and took control of the state government of Prussia. On July 20, 1932 Papen addressed Germans by radio:
[When] high-level functionaries of the Prussian state offer their hand to leaders of the Communist Party to make possible the concealment of illegal plans for terrorist activities ... then the authority of the state is undermined from above in a way that is untenable for the security of the Reich.
Hitler struggled to take power from von Papen politically. He ran into one frustration after another. In an argument one day with Papen and Otto Meissner, President Hindenburg's chief of staff, Hitler's rage led to him blurt out his plans to impeach or prosecute his way into power if necessary.
Hitler becomes Chancellor
In the late January 1933 negotiations before Hitler became Chancellor, he sought the same emergency powers that President Hindenburg had granted his predecessors. Aiming for modesty, he acknowledged that "this law would need to be passed by the Reichstag and then presented to the Herr Field Marshal [Hindenburg] for signature."
Hindenburg did not immediately dismiss him, though he struggled with the idea, as relayed to Hitler after his failed negotiations in this note—which was immediately released to the press:
The Reich president fears that a presidial cabinet led by you would inevitably lead to a party dictatorship with all the attendant consequences of a dangerous exacerbation of the polarization among the German people, which he cannot justify before his oath or his conscience.
And Hitler was a competent and cunning politician. He knew how to play Hindenburg's ego and to lead him to believe that he would not abuse emergency powers. Most important to Hindenburg was to end the frequent Reichstag elections, though Hitler wanted an election called now that he would be Chancellor.
Hindenburg was reluctant to call for another, but Hitler promised these would be the last. New elections would be held March 5, 1933.
And Otto Meissner, the man who worried that Hitler would be a dictator? Well, he somehow found it in him to serve Hitler through 1945:
Hitler issues the Reichstag fire decree
As the Reichstag burned, the Nazis set their plans to consolidate power into motion. They immediately arrested 4,000 Communists. The Reichstag fire decree gave the Nazis their first taste of emergency power. But even the emergency powers of the Weimar Constitution in March 1933 were not sufficient to provide legal cover to a burgeoning dictatorship.
The calculus changed after the March 5th elections, as the Nazis and the Nationalists finally secured a right-wing majority in the Reichstag, propelled by fear of Communists, and the attendant fear of brownshirts patrolling the streets.
The Enabling Act
On March 23, 1933, the Reichstag met in the Kroll Opera House which now served as the temporary chamber for the legislature. All 81 Communist deputies at this point were either arrested or in hiding. Only 94 of the 120 Social Democrats were present, some in prison, others afraid.
With their minority position in the Reichstag before the fire, the Nazis could not have granted themselves an enabling act without significant support. They needed a two-thirds quorum and a two-thirds vote. With the arrests of the Communists and the reduced number of Social Democrats, the threshold was now lower.
But the Nazis still needed the support of the Centre Party—the Catholics. Hitler gave his assurance to their leader, Prelate Ludwig Kaas, that the Church would not be affected.
The final vote was 444-94 in favor.
Germany was now in a state of no-holds-barred national emergency, with Hitler granted sweeping powers that could help him to silence the opposition. The Reichstag could now be effectively bypassed as Hitler ruled by decree.
The suppression begins—and opponents fold
How do you legalize a coup d’état? The legalization of the 'March on Rome' was not completed until after Mussolini had undertaken an enormous cleansing process. That’s how you legalize high treason.
Reaction to the passage of the Enabling Act was mixed at best. Many political opponents simply folded under the pressure.
In a weak attempt to stay relevant, the Social Democrats on May 17th supported a relatively apolitical resolution calling for German equality in post-WW1 disarmament negotiations. They did not want to appear unpatriotic in the new political environment.
One by one, the Nazis rolled up their opposition. First, it was the Communists. Then von Papen and Joseph Goebbels demanded the dissolution of the Centre Party, which Hitler had promised would remain intact. Negotiations in Rome would lead to a Concordat with the Vatican on June 1st that, oddly, remains in effect today. The agreement banned priests from political activism. Heinrich Brüning dissolved the Centre Party four days later.
Then they came for their Nationalist allies. The party leader, Alfred Hugenberg, was ousted. There were rumors that he would resign as Nazi propaganda declared that he had lost the support of rural folks. He threatened to quit, thinking that his reading of the Enabling Act—which applied only to the "present government"—would make the act fall apart. The Nazi legal theorist Carl Schmitt read it differently: the "present government" was the new government led by Hitler and embodied in Hitler alone. Hugenberg ran to Hindenburg for help, but found none.
Franz von Papen is particularly pathetic. After giving a single speech intended to counter the Nazis and convince Hindenburg to abandon them, some of his staff are rounded up and killed. Papen attempted to run to Hindenburg, too:
If Papen can’t maintain discipline, he will have to take the consequences.
Papen would not get the help of his old friend. Hindenburg was pleased with Hitler simply because he had managed to contain the Communists.
Reports submitted to me show that by your resolute energy and courageous personal action you have crushed in the bud all traitorous machinations. Thereby you have rescued the German people from a great danger. For this I express to you my deepest thanks and my sincere appreciation.
Papen, for his part, then groveled with Hitler for mercy. He was eventually given an ambassadorship to Austria.
Party after party and group after group gave into the Nazis. On May 2, 1933, the labor unions were rolled up into Nazi labor organizations. Many simply worked to get ahead of the Nazis by nazifying themselves first. On June 28, 1933, the German Newspaper Publishers' Association made Nazi publisher Max Amann their chair and replaced council-members with reliable Nazis.
There was also (particularly among intellectuals) the belief that they could change the face of the Nazi Party by becoming a member, even now shift its direction. Then of course many jumped on the bandwagon, wanted to be part of a perceived success.
It's entirely possible that the Nazis did not need to go to such extremes in their quest for power. But it should not surprise one soul that extremists are usually quite willing to go to extremes.
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America
As in Germany in the 1930s, America today has an almost dizzying array of emergency powers at its disposal. Unlike Germany, there is little that a budding dictator would have to do in order to grant themselves more powers—they have, for the most part, already been granted. The most important among them is the Insurrection Act.
The Insurrection Act
For most of the historical and legal context presented here around the Act, we can be very thankful for the analysis done by Elizabeth Goiten and Joseph Nunn.
The modern history of the Insurrection Act
Without even knowing the name of the law, you probably already know about some of its past uses.
Since the Civil War the Insurrection Act has been most frequently invoked in cases surrounding race and fundamental rights—against the KKK or to ensure equal protection during Reconstruction. President Kennedy employed the Act on a number of occasions during desegregation.
In the wrong hands, limitless discretion to deploy the military as a domestic police force could be used as a tool of oppression.
The usage of the Act from 1965 onwards has really only been used to suppress civil disturbances or riots, and perhaps not coincidentally in cities with large black populations.
The Act saw its last usage during the 1992 race riots in Los Angeles after the beating of Rodney King Jr., President George H. W. Bush invoked the Act to bring the city under control. Marines and the National Guard deployed and started patrolling the streets of LA.
But the deployment of the military as a domestic police force brings risks. In LA, when Marines responded to a domestic dispute call alongside the LAPD, the police officers entered the home only to be met by shotgun fire. One officer called, "Cover me!"–a plea with a much different meaning for Marines trained in combat. They reacted to contact, returned fire, and peppered the walls with bullets.
The conditions for invoking the Insurrection Act
The purpose of the Act is to give the President the tools to suppress an insurrection, to calm unrest, and to ensure the proper enforcement of the laws when normal policing will not suffice.
This sounds clear on its face, but the criteria for its use are vague. Although both 10 U.S. Code § 252 and 253 are relevant here, to save some time we can skip to right to § 253. This is probably the more worrisome of all the sections under the Insurrection Act.
Section 253 allows the President to use "the militia or the armed forces, or both" and "any other means" to "take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy" if it "opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws."
This language is so overly broad that you could easily imagine it being employed in any number of conditions.
For instance, a president seeking to suppress dissent might consider an unpermitted protest against the implementation of a controversial executive order to be an "unlawful combination" that "opposes ... the execution of the laws of the United States."
The lack of checks against it
The sweeping conditions for the Act's contain another glaring problem: it is usually left to the President to make the determination of whether the conditions are met. The language "as he considers necessary" is key.
But if the Act were in the hands of a dangerous President who intended to use it against his political opponents, we have to fall back on the system of checks and balances. And in this case, there really are none.
For all practical purposes, courts have been cut out of the process.
The courts might be your first thought here, but the language has not left the courts—even the Supreme Court—much room for oversight.
And what of Congress? Older versions stipulated its use only when Congress was out of session. Even then it would end 30 days after Congress next sat, assuming they did not vote to extend. Today's version lacks such niceties: Congress need not be informed, can neither approve nor disapprove, and—like the courts—lacks any oversight.
Your state's National Guard can be called up whether your Governor approves or not. There is no requirement to request it, no requirement to consent. The President need not attempt any alternative.
President Trump wanted to invoke it a number of times during his tenure as President: at the border at least several times, but most frequently during 2020—repeatedly during the Black Lives Matter protests and again after his election loss.
The only real check against him were people who refused to do what he said. In June of 2020, Trump's Secretary of Defense Mark Esper declined to invoke the Act, stating that he felt the conditions for its use had not been met.
At the time, Trump believed that Esper had somehow prevented him from invoking it altogether, rather than simply making it politically difficult. As we will see, Trump has since learned his lesson, and never forgave Esper for it.
As Senator Richard Blumenthal has said, throughout his attempts to reform the law, the burden for following lawful orders under the Insurrection Act rests solely on those serving in our military. They are our only real check.
There are an array of horrors that could result from Donald Trump’s unrestricted use of the Insurrection Act. A malignantly motivated president could use it in a vast variety of dictatorial ways unless at some point the military itself resisted what they deemed to be an unlawful order. But that places a very heavy burden on the military.
The powers it grants
We looked briefly before at the language § 253. But reflect for a moment on just how powerful the language here really is: the President can use "the militia or the armed forces, or both" and "any other means" to "take such measures as he considers necessary."
Basically, the President can have anyone they choose do whatever they find necessary. That seems...problematic. Trump could use the Proud Boys to police our streets. This is not idle speculation and this article is not the first to call notice to it:
Those Oath Keepers ... could cite Section 253’s authorization for the president to employ "any other means."
All a President must do in order to fulfill a desire to become a dictator is to find those in the military who would offer them blind allegiance. President Trump struggled in his first term to find those people. He has told us repeatedly since that he does not intend to repeat that mistake.
Efforts at reforming the Insurrection Act
Senator Blumenthal tried desperately to reform the Act in Congress. His proposals in the CIVIL Act are sensible and straightforward, aiming to set clear limits on its use to suppress civil rights.
While still acting as Trump's Secretary of Defense, Esper testified before Congress that he did not see a need to reform the Act.
What we can expect
The Trump camp has already told us all the ways they intend to use the Insurrection Act. They plan to invoke it on day one to suppress protestors on Inauguration Day. They plan to extend its use to deputizing the military, state, and local law enforcement to round up—the number varies every time—somewhere between 10-30 million people through militarized raids and place them in vast camps.
These are just the basic sketches of the plan. The details, we will have to treat separately in the next topics here. For his part, Mark Esper sees the threat. He now calls Trump a "threat to democracy."
Esper has argued that Trump could use the Act on Inauguration Day in 2025—which is exactly what Trump's allies have said he will do. And yet, unwittingly perhaps, Esper's testimony before Congress on the Insurrection Act has only helped to keep it at Trump's disposal. If his predictions come true, it will be to his great regret.
Enablers in the Court: Presidential Immunity
The Trump immunity case only makes our situation worse—significantly so:
The presidential immunity concocted today would have blessed most of Nixon’s crimes. Nixon ordered his White House counsel to pay hush money to burglars in an Oval Office meeting on March 21, 1973. Presumptively an official act? He dangled clemency before E. Howard Hunt, one of the conspirators. Use of the pardon power — entirely immune? He resigned when a tape revealed he had ordered the CIA to go to the FBI to end the investigation of the burglars sent by his campaign committee. "Play it tough," he told his White House chief of staff. On its face, official.
Trump v. United States
Before we get further into the weeds, this tidbit from the majority's opinion is worth noting.
One of the ways that a dictator can consolidate power is by removing disloyal civil servants who seek to uphold the rule of law by not following unlawful or unethical orders. In this decision, Chief Justice Roberts makes it clear that this is every President's prerogative:
We have thus held that Congress lacks authority to control the President’s "unrestricted power of removal" with respect to "executive officers of the
United States whom he has appointed." Myers v. United States, 272 U. S. 52, 106, 176 (1926); see Youngstown, 343 U. S., at 638, n. 4 (Jackson, J., concurring) (citing the President’s "exclusive power of removal in executive agencies" as an example of "conclusive and preclusive" constitutional authority); cf. Seila Law, 591 U. S., at 215 (noting only "two exceptions to the President’s unrestricted removal power").
Any concerns we might have about the consequences of a decision that makes a President immune to criminal prosecution are waved away:
As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine "in the first instance" whether and to what extent Trump’s remaining alleged conduct is entitled to immunity. Supra, at 24, 28, 30.
Worse still, we are to give the President presumptive immunity altogether.
But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.
Only one conservative on the Court—Justice Barrett—had any misgivings, and only partially. She rightly points out that it would be hard to prosecute even "unofficial acts" of a President since you would need to know the relationship to "official acts," but cannot even ask:
To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.
Justice Sotomayor, in her dissent, highlights just how Trump has escaped accountability at every corner. He should not be impeached because he should be held accountable in court, instead. This Court played the Uno Reverse card and says: no, no—impeachment is the process.
Indeed, Trump’s own lawyers during his second impeachment trial assured Senators that declining to impeach Trump for his conduct related to January 6 would not leave him "in any way above the law." [...] They insisted that a former President "is like any other citizen and can be tried in a court of law." [...] (Trump’s impeachment counsel stating that “no former officeholder is immune" from the judicial process "for investigation, prosecution, and punishment") [...] (Trump’s impeachment counsel stating: "If my colleagues on this side of the Chamber actually think that President Trump committed a criminal offense ... [a]fter he is out of office, you go and arrest him"). Now that Trump is facing criminal charges for those acts, though, the tune has changed. Being treated "like any other citizen" no longer seems so appealing.
Most importantly, the dissents make clear that Trump would have dictatorial powers on day one.
In every use of official power, the President is now a king above the law. With fear for our democracy, I dissent.
Even Hitler needed an "enabling act" after he came to power. The Supreme Court has enabled him in advance.
Historians of the founding era brief the Court
The Court was briefed by historians who made clear that the Constitution with fear for a dictator and measures to prevent it. The majority's opinion departs from that entirely:
The motivations, experiences, and statements of the Framers and ratifiers all support an understanding that the President would, unlike a king, be subject to the law.
…
The Framers specifically contemplated that a President might conspire with others to remain in power after the end of his term.
Former flag officers and defense officials brief the Court
Most troubling to me personally, as a former Army officer, was the wide array of former defense officials—in particular flag and JAG officers—who had briefed the Court. Among them are deans of law schools, counsels general, and so on: all well-versed in the law; all with depth of understanding of the military.
Their statement should terrify any clear-minded American:
It is no exaggeration to say that this proposition is potentially the most dangerous that has ever been advanced in a court of law by any U.S. official. Indeed, it is a proposition that would convert the presidency from the greatest protector of the nation to its single greatest threat.
Broad command authority, as noted by Hamilton in Federalist 69, "would be unsustainable and would risk certain dictatorship if the same breadth of powers were extended without the assurance of accountability under the law."
We could see the military meddling in elections—which is exactly what retired General Mike Flynn attempted in December 2020.
The President might deploy troops to control polling places, violating 18 U.S.C. § 592 and 18 U.S.C. § 593, as discussed by the current Petitioner in a December 18, 2020, Oval Office meeting according to the January 6 Committee report.
...
A criminal president could ignore laws and use military force to coerce voters, state officials counting ballots, or obstruct the certification of election results under 18 U.S.C. § 1512(c).
Military officers, who swear their oath not to the President but to the Constitution, will regularly face decisions to obey or disobey orders from a criminally immune Commander-in-Chief.
At the same time, the illegality of a military order is an affirmative defense to a refusal to obey. It is presumed that orders are lawful, and a defendant charged with disobeying orders bears the burden of establishing illegality.
...
A criminal president could ignore these and other laws and use military force to coerce voters, to coerce state officials counting ballots, or to obstruct the official proceedings in which state legislatures and Congress certify results of elections. 18 U.S.C. § 1512(c) (criminal obstruction of an official proceeding).
But the President's immunity does not carry over to their subordinates.
Any president who ordered or encouraged a massacre of civilians would rightly be subject to prosecution for his role in such a heinous act. Furthermore, any subordinate who acted on such orders should not be able to claim a “following orders” defense—a defense that has been consistently rejected, including famously at the Nuremberg trials. See 10 U.S.C. § 892, Art. 92.
We are left in a novel world for the American military professional, one where there is real risk of being the last vestige of democracy—the last opportunity to stop a President determined to be a dictator. At best, this will cause uncertainty in the chain of command, perhaps chaos.
At worst, it forces our officer corps into making an unthinkable choice between following a Commander-in-Chief who destroys democracy, or conducting what can only be called a military coup to save it. Both choices are bad—and, in the short term, the only inoculation is to deny Trump a victory at the polls.
What does immunity allow?
As read by the minority—and argued by the President's own layers during oral argument—a President could assassinate a political rival under the guise of "official conduct" and not be prosecuted in the courts. Such accountability is reserved solely for impeachment by Congress. And the Senate has never once passed the two-thirds threshold to convict, far higher than the bar a simple court majority must clear in finding guilt.
But the immunity decision goes further than simply allowing for assassination. If the courts were try to ascertain if that conduct was official or unofficial, they cannot even question motive:
In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.
So although a President can be prosecuted for an "unofficial" act, prosecutors cannot use evidence from "official" acts to prove it.
It is hard to see how a President could ever be held accountable for dictatorial acts when the Court has granted such sweeping immunity in the court system, and we are left to rely on political constraints that have never once been successful in the 237 years since signing of the Constitution.
And it should not be altogether surprising that this Court has seen fit to shield this President from accountability. Supreme Court Justice Samuel Alito flew an upside-down American flag outside his home for at least a month following January 6th, along with the "Appeal to Heaven" flag found waving at the Capitol that day. Alito did not recuse.
Nor did Justice Clarence Thomas, whose own wife's text messages became a subject of interest in the January 6th investigations.
Help This Great President stand firm, Mark!!! … You are the leader, with him, who is standing for America’s constitutional governance at the precipice. The majority knows Biden and the Left is attempting the greatest Heist of our History.
I will stand firm. We will fight until there is no fight left. Our country is too precious to give up on. Thanks for all you do.
Thomas continues to text Meadows. Later that day...
I will stand firm. We will fight until there is no fight left. Our country is too precious to give up on. Thanks for all you do.
Later, on November 24th, 2010:
This is a fight of good versus evil. Evil always looks like the victor until the King of Kings triumphs. Do not grow weary in well doing. The fight continues. I have staked my career on it. Well at least my time in DC on it.
Ginni Thomas actively engaged in conspiracy to help overturn the election. But Justice Thomas did not recuse.
The Court is not only not a check on a budding dictabuddng dictatortor—it is an active enabler of dictatorship.
Enablers in Congress
Congress is not likely to be an effective check on the President, particularly if Republicans are in the majority. Their desire to be relevant, to be in power, far outweighs their feelings of responsibility to the country. Just listen to Lindsey Graham describe his reasons for sticking with Trump:
Impeachment: the precedent from January 6th
For a brief moment after January 6th, it looked as though something had changed. It seemed possible that a significant minority of the Republican Party was willing to break with Trump. Even Lindsey Graham said he was done:
But then two days later at Reagan National Airpot, Graham is surrounded by angry Republican voters who scream that he is a traitor.
A large number of Republicans have reflected that their reluctance to impeach Trump stemmed from fears of their own constituents. Not only did they face the prospect of primary defeat, they faced legitimate fears of violence from people in their own party.
And just hours after the rioters were cleared from the House chamber, armed with zip ties to handcuff Congressmen, Republicans decided to side with them and object to the counting of electoral votes anyway. 120 objected to the counting of Arizona's votes; 140 to Pennsylvania.
Congressional Republicans on Trump today
We are left with a Republican Party that is, for lack of a better phrase, the party of Trump. If you thought for a moment that the majority of Republican politicians do not support Trump, think again.
Of the ten Republican House members who voted yes on impeachment, only one will remain. The rest retired rather than face defeat in re-election, or were themselves defeated. Republican voters writ large now have no tolerance for anti-Trumpism.
In 2024, Trump has been endorsed, as of my last count, by:
- 42 of 49 Republican Senators
- All Republican candidates in the 13 House tossup districts with a Democratic incumbent
- 192 of 220 Republican Representatives
- 25 of 27 incumbent Republican governors
There is no reason to believe that Congress will push back against Trump.
And even if they decided to push back, it may not matter anyway. Besides passing laws, Congress's primary power is the "power of the purse"—they control the money. But Trump plans to revive a Nixon-era tactic of "impounding" funds. In other words, he will not spend the money appropriated for policies he refuses to implement.
If the President simply disregards the role of Congress altogether, it can hardly serve as a check. And the situation is only made worse if Congress itself is compromised even in part.
Enablers in the federal government
Staffing the federal government will be an array of Trump acolytes across the agencies. The names that have been floated to serve in a possible Trump administration have included, among others:
- Stephen Miller (sometimes mentioned as Attorney General)
- Steve Bannon
- J.D. Vance (now confirmed as his Vice Presidential running mate)
- Ric Grenell, and
- Kash Patel (floated for FBI or CIA)
Hey, Kash! Which one? Which one are you going to take? CIA or FBI? Kash? Which one is it?
And the kind of people Trump wants surrounding him are wrathful loyalists:
Nothing is set in stone but the criteria is clear: potential Trump administration officials must be loyal, vengeful, and unrestrained.
Just listen to Kash Patel describing his intention to go after the media.
Enablers in federal law enforcement
To the credit of those around Trump during his first term, they often pushed back by simply refusing to do what he told them. Former Director of Homeland Security Kirstjen Nielsen deployed this tactic frequently:
Trump is on a rant about an idea he has...
Yes, sir.
She mutes the phone and turns to her aides.
We're not going to fucking do that.
Trump ultimately replaced Nielsen with someone he did not even bother to have confirmed in the Senate, a frequent tactic that is planned for a second term.
And Trump offered pardons for those who might break the law by implementing his agenda. Here is just one recorded instance:
Just send them back, we shouldn’t let them in.
[McAleenan explains that they cannot close the border entirely according to law.]
If you get in trouble for it, I’ll pardon you.
But largely Trump will not need to offer pardons or suffer insubordination. He plans to fire those not loyal to him and hire those who are.
The kind of people we should expect to see heading up federal law enforcement are the likes of Kash Patel, who is anticipated to head up either the FBI or the CIA. Here's how Patel plans to use his power:
And this is not just Kash Patel saying this. This is the position of the Republican establishment as put forth in Project 2025's "Mandate for Leadership."
...the Department of Justice should use all of the tools at its
disposal to investigate leaks and should rescind damaging guidance by
Attorney General Merrick Garland that limits investigators’ ability to
identify records of unauthorized disclosures of classified information to
the media. Personnel have sufficient access to legitimate whistleblower
claims under protections provided by Inspectors General and Congress. The
Director and IC must prioritize hiring additional counterintelligence and
security personnel to assist in this effort.
Enablers in the public
The whitewashing of the events of January 6th have been shockingly successful. In 2021, Republicans increasingly believed that the anger that fueled the Capitol riot was justified. That March they were a minority at 40%. Just eight months later that number rose to 54%.
Trump has described the insurrections in glowing terms, leading the shift as the Republican Party moves into the unthinkable territory of backing extremism.
Meanwhile, Trump has amped up rhetoric that paints Democrats as the "enemy from within." Listen to him describing Adam Schiff:
And if Trump were to decide to crack down on Democrats by painting them as terrorists, there is little reason to believe that he would not find support among many Americans. Only 33% say that anti-terrorism policies go too far in eroding civil liberties, while 49% say they have not gone far enough.
When the nation is under threat, Americans generally come together in support of the government. In October 2001, 60% of Americans said they trusted the government, the highest number reached in the 30 years before and the 20 years after.
In September 2001, 55% said it was necessary to curb civil liberties to fight terrorism. Only 29% said this in 1997—and 62% said it was unnecessary.
In other words, our new normal for the public's willingness to give up freedom to fight terrorism is the same as it was the month that two planes brought down the World Trade Center towers.
Trump intends to use the military against "the enemy from within." Here he is as I write this article on October 13, 2024:
If Trump were successful in his attempts to paint Democrats as an enemy—as terrorists—the public is already primed to allow it. Even worse, 58% of Americans think torture is justified to stop terrorism.
Enablers in the military
Early in 2017 Trump wanted to have a military parade in Washington DC. Ignoring the impracticality of Abrams tanks rolling down Constitution Ave., military leadership scoffed at the idea. Mattis said he would "rather swallow acid."
General Paul Selva, who grew up in Portugal watching one of the last fascist regimes from the 1930s, had this to say:
Parades were about showing the people who had the guns. And in this country, we don’t do that. It’s not who we are.
So you don’t like the idea?
No, it’s what dictators do.
Trump would go on to ask “dozens and dozens” more times.
Over time, Trump started to rely less on widely respected generals like Mattis and Selva and more on fringe generals like LTG Michael Flynn or BG Anthony Tata—a favorite Fox news personality for Trump. He complained about the generals who pushed back against his penchant for illegality and his desire to use the military against American civilians:
These were very untalented people and once I realized it, I did not rely on them, I relied on the real generals and admirals within the system.
In a fit of pique, Trump even asked why his generals could not be as loyal as Hitler's generals. Quotes like this make a job of comparing the two far too easy:
You fucking generals, why can't you be like the German generals?
Which generals?
The German generals in World War II.
You do know that they tried to kill Hitler three times and almost pulled it off?
No, no, no, they were totally loyal to him.
And the military had a tough task. Trump often pressed those he appointed to positions of power for loyalty before their appointments. People like General Milley would do their best to adapt their traditional understanding of civilian supremacy over the military to the world of Trump.
Mr. President, you’re going to be making the decisions. All I can guarantee from me is I’m going to give you an honest answer and I’m not going to talk about it on the front page of The Washington Post. I’ll give you an honest answer on everything I can. And you’re going to make the decisions and as long as they’re legal I’ll support it.
Milley would eventually be prepared to actively resist Trump in his last days in office.
People struggle with what to do
Things got so bad in the White House at the end that all ten living former Secretaries of Defense felt forced to publish an op-ed reminding the President—and the military who serves him—that the military should not be used to affect the outcome of an election.
As senior Defense Department leaders have noted, “there’s no role for the U.S. military in determining the outcome of a U.S. election.” Efforts to involve the U.S. armed forces in resolving election disputes would take us into dangerous, unlawful and unconstitutional territory.
Earlier in Trump's term, people like Lieutenant General H.R. McMaster would struggle with their allegiances, even despite being experts on their own situation:
Kelly followed McMaster to his office and pulled out his book, Derelection of Duty, holding the copy in front of him. The book details how President Johnson failed to receive good counsel from his generals in Vietnam.
You wrote the book! We’ve got to hang with this guy. Otherwise, God knows who he’ll bring in.
McMaster seemed stuck in a normal world where the President can be expected to act legally and where his position is to merely inform and advise.
Trump intends to avoid the dilemma altogether and appoint military leaders who will be completely loyal. As LTG Flynn and BG Tata have demonstrated, these people do exist within our ranks.
Purges—past and future
For those who already disagree with President Trump and his policies, and those who may do so in the future, there are plans for a purge.
Purges went both ways in Trump's first term. McMaster actively purged a number of the followers of Steve Bannon on the National Security Coucil staff. But there remained enemies "inside the wire."
The purge next time is intended to start all the way at the top. Russell Vought is one of the authors of Project 2025 and widely speculated to be a Trump appointee in a second term. Here he writes about how purges of the military would work in practice:
The NSC should rigorously review all general and flag officer promotions to prioritize the core roles and responsibilities of the military over social engineering and non-defense matters, including climate change, critical race theory, manufactured extremism, and other polarizing policies that weaken our armed forces and discourage our nation’s finest men and women from enlisting to serve in defense of our liberty.
Vought's use of the term "manufactured extremism" stands out, referring to the very real, much reported risk of right-wing extremism in the military. Here he blatantly wants opponents of that extremism—those who recognize it and fight it—gone.
More than 400 military nominees that were held up by Senator Tommy Tuberville for nearly ten months in 2003 were due to his objections over abortion policy at the Pentagon. Some have speculated that he had an additional reason to delay their promotions—so they could be vetted by a future Trump administration.
Pardons for anyone...who's loyal
Trump's abuse of his pardon power in his first time promises more risk of extremist acts in the ranks of the military in a second term. His pardon of Navy SEAL Edward Gallagher—who murdered civilians and a prisoner—reflects his willingness to overlook even the most illegal behavior in favor of loyalty.
Trump went on to pardon Mike Flynn late in 2020. A week later Flynn endorsed an ad to "temporarily suspend the Constitution" for a "revote."
The signal to those who back Trump through pardons like these is that the President has your back. He is quoted as saying as much in other contexts. But this is incredibly dangerous in the context of the military.
Pushback from some
Often Trump would come very near to making catastrophic decisions for national security.
He wanted to pull out of NATO on a number of occasions. That was actually much more serious than people realized.
Only pushback from his advisers could prevent these kinds of alliance-ending moves. But often appropriate pushback is challenging to give while also serving at the pleasure of the President:
I thought it was my job to give him all the options. I was working for the guy who got elected; so were they.
The ethical dilemma he faced is understandable: how do you serve your oath and your President if the two are in conflict? Although we can—and should—criticize McMaster's reluctance to do more, there is no easy answer.
We, as voters, should not put our military into this position in the first place. Even when McMaster did make inarguably correct decisions like firing Ezra Cohen, he would be blocked by loyalists numerous times from doing so:
[Ezra Cohen] was running a collection operation inside of our organization and then leaking whatever he thought would be damaging.
Trump often just ignored pushback and pretended he had the support of military leadership even when he did not. His ban on transgender troops—delivered via Twitter—had to be walked back as advisors clarified within the White House how policy should be dictated; mostly not on your phone while on the toilet.
When President Trump tweeted his ban on transgendered individuals in the military on the morning of July 26, 2017, it affected me personally. I was serving as a Platoon Leader in a California Army National Guard unit. That morning—smack in the middle of our Annual Training—I was sitting at my desk in our company orderly room when we heard about the tweet.
Myself and the other officers were immediately worried, wondering about the implications. Was this an official order? Were we supposed to vet incoming soldiers, or comb our own ranks? It was troubling. We went upstairs to JAG to consult, and were told that until we heard from personnel directly, we should ignore the tweet.
It was a minor incident, but demonstrates the kind of chaos that even a tiny little post to Twitter can set off down the chain of command when the Commander-in-Chief ignores the chain entirely.
Enablers in the White House
"You're fired!"
Trump's TV persona on "The Apprentice" was his tool of choice for dealing with perceived disloyalty.
In the aftermath of the 2018 midterm elections Trump felt liberated from the political handcuffs that prevented him from firing people, less he incur the wrath of voters. He went on a firing spree unlike any to that point in his administration.
After he fired John Kelly as his chief of staff, Kelly tried to prevent him from bringing in even worse enablers of Trump's worst instincts.
You don’t want to hire someone who’s going to be a yes-man.
I don’t give a shit anymore. I want a yes-man!
Yes men
Kelly had good reason to fear his presence. Mulvaney had done an about face on Trump during the election once it was clear he would win. He went from saying Trump could undo the Constitution to endorsing and then serving him.
As he greeted staff on his first day, he summarized his stance in this astonishing, nearly self-aware statement:
We’re not here to protect the country against the president.
We can be thankful that in Trump's first term sheer incompetency was one of the country's best defenses.
Some of the executive orders came in looking like crayon on the back of a napkin. It was that bad.
But the Trumpists in the Republican Party have learned from their mistakes. They have plans to prevent a repeat.
The President never had a policy process that was designed to give him what he actually wanted and campaigned on. [We are] sorting through the legal authorities, the mechanics, and providing the momentum for a future Administration.
Mike Pompeo: "A heat-seeking missile for Trump’s ass"
Perhaps one of the worst among the yes men in Trump's first cabinet was Mike Pompeo, who served first as the Director of the Central Intelligence Agency and then later as Secretary of State.
Like many other Republicans, Pompeo was critical of Trump when he ran in 2016. He endorsed Ted Cruz instead. Ironically, when Pompeo is appointed, Cruz's campaign manager called Jared Kushner to remind him of his disloyalty.
Jeff Roe calls Jared Kushner to remind him that Mike Pompeo slandered him in Kansas during the campaign to help Ted Cruz. Kusher puts him on speakerphone...
No! That was him? We’ve got to take it back. This is what I get for letting Pence pick everyone.
Pompeo ultimately found that the way to keep Trump's approval was to get face time with the President. He often hung out at the White House outside the Oval Office, rather than his office at CIA headquarters, just in case Trump walked by.
Trump came to notice his fealty.
I argue with everyone, except Pompeo.
Pompeo would provide cover for Trump frequently, often denying the simple reality of events. When Secretary of Defense James Mattis resigned in protest over Trump doing a rug-pull on allies in Syria, Pompeo just said it didn't happen.
Fake news. There’s no contradiction whatsoever.
He was so eager to please Trump that a former US Ambassador put it best, if bluntly:
He’s like a heat-seeking missile for Trump’s ass.
Resigning yourself
While some in Trump's orbit chose to resign, or at least considered the possibility, the course of events was very often weird. Attorney General Bill Barr once off-handedly remarked to an agitated Trump that he would offer his resignation if needed.
I understand you are very frustrated with me, Mr. President,” Barr said, “and I am willing to submit my resignation. But I have—
Trump bangs on the table.
Accepted! Leave and don’t go back to your office. You are done right now. Go home!
No!
No!
Others who considered resigning weighed the downsides against the benefits. In the wake of January 6th, economic advisor Larry Kudlow was among the could-be resignations. But Kudlow was close to a deal for a show on Fox Business, and why risk that?
Kudlow got what he wanted.
As some former officials have pointed out, resignations may not much matter anyway.
The fact remains that the entire cabinet could resign and it’s not going to change the policy probably. If the goal is, would you change the president’s mind, the entire cabinet resigning en masse wasn’t going to change that.
But as is the theme here, it does not matter a lick. Trump has decided that anyone considering resignation in the future will just be fired.
I let them quit because I have a heart. I don’t want to embarrass anybody. I don’t think I’ll do that again. From now on, I’ll fire.
The boss in "The Apprentice" is back with a literal vengeance.
Working around the defenders of democracy
Many of Trump's most loyal people would simply find ways to maneuver around those they found disloyal. They would even skip multiple layers in the chain of command to make it happen.
The United States nearly withdrew from Afghanistan on January 15th, 2021 in an order signed with a Sharpie. It was drafted by Kash Patel shortly after the firing of Mark Esper, despite his lack of authority to do so.
Stephen Miller would work his way down the chain of command below department Secretaries. He would give orders in the President's name to people in Homeland Security serving under Kirstjen Nielsen without her knowledge or approval.
Even if any of the other checks on Trump were somehow to succeed, it is hard to see how his loyalists can be fully prevented from this kind of surreptitious maneuvering.
A President Trump
He is the most dangerous person ever. I had suspicions when I talked to you about his mental decline and so forth, but now I realize he’s a total fascist. He is now the most dangerous person to this country.
A second Trump presidency represents a clear and present danger for American democracy. has made his intentions crystal clear through his actions. And we can look at what he has said himself.
He values loyalty and conflates any perceived slight as disloyalty. Take the case of Bill Barr, who suffered such accusations simply for pointing out the obvious.
To date, we have not seen fraud on a scale that could have affected a different outcome in the election.
Trump was furious and asked why Barr hated him. Telling the truth to the public was disloyalty to Trump.
You must hate Trump. You would only have said that if you hate Trump.
No, Mr. President, I don’t hate you.
Trump has made it clear that he has no more tolerance for disloyalty. After numerous firings, the French Ambassador to the United States had cabled Paris saying that Trump is well past letting himself be pushed around.
He has decided enough is enough. He is taking the power. The new team, their mission is to do what he tells them to do.
Trump has never enjoyed limits or even much listened to the advice of his advisors. Even when physically beside him, they could not prevent him going off the rails. After all, he was President and they were not.
It did not matter that Mike Pompeo, John Bolton, and John Kelly never let Trump out of their sight in Singapore. In the end, he did what he came to do while they were sitting right next to him and none of them could stop him.
Trump has told us that his sense of disloyalty to him extends so far that he is wiling to risk the life of his own Vice President.
According to court filings, only minutes after sending this tweet, Trump was told that Pence was being moved for his own safety. He replied, "So what?"
Trump has told voters to vote just this one last time and then they won't have to vote anymore. He's not just telegraphing his intentions. He's broadcasting them.
Trump has told us he wants to be a dictator, though just for "one day."
Even if we should believe him about single day time limit, one day is really all it takes. His allies have told us they intend to deploy the military on day one to put down protestors and to have his office rush through a raft of executive orders that completely undoes the basic constraints against a lawless President. The orders are already drafted, they have told us.
And Trump has even just outright said that he does not mind terminating parts of the Constitution to serve his interests, like staying in office despite losing.
In his first term, Trump did not make use of his most enabling act by invoking the Insurrection Act in his first term. His defenders often point to this and say, "Look! He didn't do it then. Why would he now?" Trump has an answer for them:
To vote for Donald Trump now is to ignore all the evidence—everything laid out before you here—in favor of some other story you might tell yourself.
Hitler told Germans what he was going to do just often enough that he could give himself a mandate, but infrequently enough that he could deny he ever said it or meant it. Trump has done the same, telling us in sometimes excruciating and often absurdly Hitlerian detail that he intends to be a dictator, to use the military against his political opponents, to exact revenge.
The details of what he plans to do are so painfully similar to the trajectory the Nazis took that it almost feels as if he's actively cheating on a test, copying them nearly word for word. And the plans are so profoundly disturbing—and incredibly detailed—that it will take us several more articles to work through them.
Trump will invoke the Insurrection Act on January 20th, 2025. The military will deploy to our streets and "militarized raids" in many parts of the country will become commonplace. Somewhere between 10-30 million people will be deported or placed in "sweeping camps." Trump will target "the enemy from within"—as he tells it, Democrats. The military will put down protests. If he finds it necessary, the Constitution will be suspended. We may not vote again.
It is somehow 1933 all over again. A vote for Trump is a vote to end democracy. You can't say he didn't warn us.
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Conflict of interest disclosure
Silly as it is, I should mention any potential conflict of interest. I was born in 1986 in the on-base military hospital in Fort Hood—now named Fort Cavazos. At the time, my father was serving as an armor Platoon Leader. His fellow Platoon Leader was H.R. McMaster. Before I was born, Katie McMaster threw my mom a baby shower.
Probably more meaningful is the recollection that my father did not particularly like 2LT McMaster. An OCS graduate, he held some contempt for graduates of West Point and, I assume, had some jealously for the much younger McMaster's considerable intellect, accomplishments, and career trajectory.
My criticism of McMaster in this article bears no relationship to my father's feelings almost forty years ago. And, as far as I know, my family has maintained no relationship with the McMasters, though maybe I still have a bunny.
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