Symposium | Trump Vs. Democracy

Doing Whatever He Can Get Away With

By Russell Pearce Evan Wolfson

Tagged DemocracyDonald Trump

Many believe, as we do, that Donald Trump is a threat to democracy and, indeed, that he is putting our democratic institutions to the ultimate test. Trump’s particular menace derives from his character as a Holmesian bad man, a character that requires us all to respond with a commitment and actions that go far beyond passive reliance on traditional norms and institutions alone to save us. Institutions, after all, are people; therefore, it is only action by we, the people, that can save our democratic institutions.

What is a Holmesian bad man? Supreme Court Justice Oliver Wendell Holmes originally coined the term as part of a methodology for understanding the law. “If you want to know the law, you must look at it as a bad man does, who cares only for the material consequences,” wrote Holmes, “Not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

Donald Trump is a Holmesian bad man, and an even worse President, pushing the bounds of corruption and authoritarianism, unbound by norms, the rule of law, a sense of shame, or even care for others. To deal with such a bad man will require more than the ordinary processes, checks and balances, and honor that have guided and constrained other presidents.

To deal with a Holmesian bad man will require more than the ordinary processes, checks and balances, and honor that have constrained other presidents.

Trump has made a point of openly defying, if not breaking, the law—as we witnessed with the disgusting abuse of the White House and other federal property (not to mention federal personnel, from his Cabinet on down, as well as the military) during the Republican Convention. And Trump and his confederates, including Attorney General William Barr and Acting Homeland Security Secretary Chad Wolf, continue to threaten the unconstitutional use of force they pioneered in D.C.’s Lafayette Square and then in Portland, Oregon—deploying federal paramilitary storm troopers to sow chaos, gin up images for his fear-mongering, division-stoking campaign ads, and even fire rubber bullets and tear gas, without probable cause or the consent of local authorities, at Americans exercising their First Amendment rights.

This is “performative authoritarianism,” according to historian Anne Applebaum. “That these tactics are not ‘totalitarian’ doesn’t make them legal, acceptable, or normal . . . Citizens’ rights [were] violated in Portland. People have been hauled off the streets into unmarked vehicles.”

Trump has shown again and again that, as a Holmesian bad man, he will do whatever he can get away with. It is a lesson Trump learned from his lawyer and mentor, Roy Cohn, as testified to by “Individual-1’s” lawyer and fixer, Michael Cohen. The tactics were honed during Trump’s career as a discriminatory and abusive developer and landlord: Flout norms and fairness, force litigation, make remedies and responses costly and cumbersome, overwhelm with falsehoods and fatigue, grind people and institutions down with the system—in short, break the law as you please, while using the law and legal procedures themselves as tools of abuse and evasion of accountability.

Unfortunately, too often our democratic institutions have proven unable to stop Trump. The Republican-controlled Senate refused to take impeachment seriously. The House has been unable to enforce the process necessary to its oversight duties. Courts have too often failed to act in a timely manner, or at all, to prevent Trump and his cohorts from acting unlawfully.

Civil society groups like the ACLU and Protect Democracy have been doing what they can. Some of Trump’s most egregious trial balloons (or warning shots) about subverting the election drew pushback from even his supporters, such as the co-founder of the Federalist Society, who called Trump’s tweet “fascistic” and “itself grounds for . . . immediate impeachment.” But it is not enough to deplore, to protest, or to initiate civil litigation. Trump’s tactics cannot be defeated solely by appeals to moral or legal obligations. Nor is Trump acting alone. A cowed and complicit Republican majority, led by Majority Leader Mitch McConnell, and too many “acting” officials, conscienceless collaborators, and pliant enablers have abetted Trump in discrediting and eroding our democratic system.

“Democracy is not a state. It is an act,” our late hero John Lewis exhorted from his deathbed. To confront and defeat authoritarianism, performative democracy requires all patriotic defenders of the republic to act—and to do so effectively. We should be mindful, as Holmes wrote, that “A man who cares nothing for an ethical rule which is believed and practiced by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.” The power centers at every level in our constitutional system must show they mean business by pushing back and imposing costs using the full measure of their powers under the law.

What, then, should those with political authority and power do?

In cities like Portland, when federal paramilitaries seize people off the street or use violence against them, they commit crimes. State and local officials should charge them and arrest them. Tampering with the election, violating the Hatch Act, and even impeding the mail violate the law; charge those responsible. Would Trump challenge such efforts in court? Probably. Might these efforts lead to standoffs between local police and Trump’s paramilitary? Perhaps. But charges would shift the burden on to the forces of authoritarianism and send a message that those who violate the law in Trump’s name are themselves vulnerable to prosecution.

In Washington, it’s way past time to meaningfully assert congressional oversight and power. Congress should wield its power of the purse to strip funds for illicit operations by corrupted agencies. Going further, why shouldn’t the House hold Trump’s defiant henchmen in contempt, fine them, and have the House’s Sergeant at Arms place them under arrest? Would the power of Congress be challenged in court? Probably. Might there be confrontations between the Sergeant at Arms and Trump’s minions? Perhaps. But full use of Congress’s lawful powers to stand up to a bully and his gang, to push back against a bad man, is the only way for Democratic and even Republican members of Congress to show that they give a damn about liberal democracy.

Nor is it only our members of Congress and officials at every level who must act. It is we the people who are the necessary and ultimate defenders of democracy. Like the diverse patriots protesting under the banner of Black Lives Matter, or the “Wall of Moms” in Portland, we must stand up, speak out, demonstrate, and put pressure on decision-makers. Like the NBA, which recently stepped up with a promise to turn sports facilities into polling places, we must assure turnout and make the election count. Above all, we must vote.

Finally, there must be a lawful reckoning—a full exposure of the corruption, complicity, and lawbreaking that have marked this regime from day one. It must be made clear to all who enable this bad man and bad President that they will be held accountable; shamed in history, in their social circles, and in the eyes of their fellow citizens; obliged to disgorge tax returns, campaign finance records, emoluments, and ill-gotten profits and prestige; prosecuted and fined or jailed where appropriate; and made to pay the price of betrayal of the American people, our values, and the rule of law that our republic depends on.

Any hope of deterring Trump and his accomplices and enablers now—and even more importantly, getting America back on track toward a more perfect union when he is gone—requires acting effectively in ways that a bad man can understand, and that the good demands.

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Russell Pearce holds the Edward & Marilyn Bellet Chair in Legal Ethics, Morality & Religion at Fordham University School of Law.

Evan Wolfson teaches law and social change at Georgetown Law and at Yale, and serves on the advisory board of Protect Democracy.

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