Trump Is in Major Legal and Political Trouble—His Desperate Attempts to Escape It Could Lead America to Catastrophe
We should talk about and prepare against any drastic measures from war to martial law Trump may undertake to escape his crises.
Is it now time to imagine how far Trump and his Republican cronies in Congress might be able to push things? And how we, as Americans, might respond?
This isn’t the first time such a question has been raised.
A bit more than a week before the election of 2016—a week before Trump won the election—one of the few people on earth who’s really and truly studied Donald Trump up close and personal, Tony Schwartz, granted an interview to the British newspaper the Independent.
Schwartz, who wrote Trump’s book The Art of the Deal and spent months with Trump to gather information for the book, predicted that Trump would declare martial law. Not as a possibility, but as a near-certainty.
"While the time for freak-out is hopefully far in the future, imagining and gaming out our response to some of the worst-case and most extreme possibilities is not at all a hysterical reaction. If anything, it’s the essence of prudence."
Schwartz predicted that Trump would do three specific things, although not necessarily all at once or in any particular order: He’d attack the free press; he’d compile an enemies list and begin getting revenge on those he thinks slighted him; and he’d declare martial law to solidify his power.
“When I said that,” Schwartz told the Independent, “I got a lot of rolling of the eyes from people in the media and other people to whom I was making that case. I think today, people do really begin to understand that this is a volatile man with very low self control.”
How would this happen? Andrew Buncombe, who interviewed Schwartz for the Independent, wrote: “Asked how Mr. Trump would go about undertaking such a drastic measure, [Schwartz] said many of Mr. Trump’s supporters were police, members of the border guards force and the ‘far right wing’ of the military.”
It’s enough to make you think that Charlottesville was just a dress rehearsal for our version of the Brownshirts, and that Trump is counting on the support of these “very fine people” if he ever needs them in a pinch. Our very own version of Kristallnacht could be not far off.
For example, imagine that Trump, his family members, and numerous Republicans are indicted for actual crimes, and, particularly with the Nunes faction of Congress, for conspiring to conceal or obstruct investigations of those crimes. And the indictment comes right after the election in November when Democrats have won control of one or both houses of Congress, but Republicans are still in charge until January.
This combination would present Trump and his GOP with both a problem and an opportunity.
The problem, of course, is that Trump, Jared, Don Jr., and the Republicans who’ve conspired with Trump like Devin Nunes (for example) might all be heading toward jail, and possibly even impeachment after the first week of the New Year.
The opportunity is to create a constitutional crisis and grab even more power and immunity for themselves, possibly even “temporarily suspending” the 2020 presidential elections.
There are numerous possible scenarios; I’ll just outline a few trigger points, and you can fill in the rest.
Trump thrives on creating crises, and then “solving” the crisis he, himself created. He did it with DACA, with Obamacare, and with North Korea. It seems he’s trying the same playbook with Iran and immigration/asylum.
But what if the crisis he creates in this case involved what looked like widespread violence?
The Constitution gives Congress (controlled by the GOP) the power to “suppress insurrections,” while numerous laws including the Patriot Act and its successors give the president the power to declare various levels of emergency or even martial law. (It’s been done before; Lincoln did it and even suspended habeas corpus, which was clearly unconstitutional.)
In 2004, the Congressional Research Service (a federal agency that researches legal questions for members of Congress) looked into whether a president could suspend elections in a time of crisis. They concluded: “While the Executive Branch does not currently have this power, it appears that Congress may be able to delegate this power to the Executive Branch by enacting a statute.”
Is it inconceivable that our current Congress might do such a thing? Wouldn’t it depend on how many people were in the streets protesting (after the election it was a million-plus) and how many right-wing open-carry armed thugs show up?
If Heather Heyer was only the first anti-Trump protester murdered by white supremacists, and dozens or hundreds more were to fall to the guns or bombs of Trump’s Very Fine People, Congress may well consider it a state of emergency.
This was, after all, the exact scenario that Timothy McVeigh thought he would bring about. Following the Turner Diaries script, known to every white supremacist, McVeigh believed that President Bill Clinton would react to the Oklahoma City bombing with widespread gun control, which would cause all the good well-armed white people to start a killing frenzy against people of color and bring about the Aryan forces’ “triumph.”
And McVeigh’s thinking on the subject is widely shared in the hard-right-wing underground today.
We Americans tend to think of ourselves as totally unique, but numerous democratic republics have gone down this or similar roads in past generations. As Trump biographer Tony Schwartz noted, “Just look at any country that has been taken over by the military. He’d say there is a threat to the republic and the military needs to crack down and he would start with curfews, and the stop and frisk of anyone who is not white, male and rich.”
But what about the power of the Article III courts to restrain Trump, you might ask?
So far, with his Muslim ban and his brutal confinement of refugee children, Trump has gone along with the courts. But consider his presidential hero, Andrew Jackson, the man whose picture Trump hung by his desk in the Oval Office.
Not just the lower courts, but the Supreme Court itself told Jackson that he couldn’t do things—twice—and both times he simply defied them. One was ending the second National Bank, and the other was the genocidal Trail of Tears.
John Marshall was Chief Justice of the Supreme Court at the time. President Jackson simply ignored the earlier SCOTUS ruling in the constitutionality of the bank (McCulloch v Maryland), and ignored legislation supporting the Court and the bank that passed through both the House and the Senate.
Ignoring the law and legal precedent, Jackson proceeded to shut the bank down, an action that, in part (along with paying off the national debt), produced the deepest and longest depression in the history of the United States.
And when Marshall ordered him not to forcibly relocate the Cherokee Indians from Georgia to Oklahoma (indirectly; the case had to do with a Vermont man held in Georgia who was going to be relocated along with the Cherokee), Jackson was said to have bragged to his friends, “John Marshall has made his decision; now let him enforce it!”
So, what if Trump were to simply follow the example of his hero, Jackson?
If Mueller used federal courts to indict Trump and his merry band, and Trump directed the police agencies of the U.S. to ignore the order (as Jackson directed the U.S. Army to ignore the Supreme Court and relocate the Cherokee, and they complied), then Mueller may find that he has precisely as much power over Trump and his family and friends as Chief Justice John Marshall had over Andrew Jackson.
This wouldn’t just provoke a constitutional crisis; it’s the very definition of one.
As Alexander Hamilton noted in #78 of the Federalist Papers, “The judiciary… has no influence over either the sword [President] or the purse [Congress]; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (Capitals Hamilton’s.)
But Trump doesn’t need a fight with Mueller in the courts to provoke a crisis: war works just as well.
FDR declared martial law in Hawaii (which wasn’t even a state then) after Pearl Harbor, and [then-General] Andrew Jackson declared martial law in New Orleans during the War of 1812. (There’s that name again…)
Provoking Iran or North Korea into a limited war may give Trump all the power he needs.
And, as George W. Bush noted to his biographer Mickey Herskowitz in 1999, war gives a president political capital. Bush even thought he’d get enough political capital from invading Iraq (this was before he was elected, keep in mind) that he could use it to privatize Social Security.
“One of the keys to being seen as a great leader is to be seen as a commander-in-chief,” Herskowitz told reporter Russ Baker that Bush told him.
“My father had all this political capital built up when he drove the Iraqis out of Kuwait and he wasted it,” Bush said, adding, “If I have a chance to invade…. if I had that much capital, I’m not going to waste it. I’m going to get everything passed that I want to get passed and I’m going to have a successful presidency.”
(Much like Schwartz writing Trump’s autobiography, Herskowitz wrote the first draft of George W. Bush’s autobiography A Charge to Keep. We should attend to the warnings of presidential biographers.)
Privatizing Social Security was very, very important to George W. Bush (maybe as important as staying out of jail is to Trump). Bush ran an unsuccessful campaign for the House of Representatives in 1978 in Texas on that singular platform.
And, after winning reelection and being sworn back into office in 2005, Bush began a campaign, traveling all across the country, trying to convince people privatization was a good idea.
As the San Francisco Chronicle’s Washington bureau chief Marc Sandalow wrote the day after Bush won reelection, “President Bush proclaimed his election as evidence that Americans embrace his plans to reform Social Security… Bush staked his claim to a broad mandate and announced his top priorities at a post-election news conference, saying his 3.5 million vote victory had won him political capital that he would spend enacting his conservative agenda.”
“I earned capital in this campaign, political capital, and now I intend to spend it,” Bush told reporters. “It is my style.”
The more Bush traveled pitching the idea, though, the more people hated it. He ultimately gave it up, as Brookings reported.
But if Bush was willing to start a war with Iraq to get himself reelected and privatize Social Security, imagine how much more motivated Trump may be to start a war—with anybody, anywhere—if he saw his financial empire slipping away, his presidency imperiled, and his children facing jail time.
The Australian Broadcasting Corporation (that country’s version of NPR/PBS) is reporting right now that Donald Trump is studying plans to bomb Iran as soon as a month from now. To quote the article that is rocking Australia right now: “Senior figures in the Turnbull Government have told the ABC they believe the United States is prepared to bomb Iran’s nuclear facilities, perhaps as early as next month, and that Australia is poised to help identify possible targets.”
If Trump believes that Bush was right that war is good for politics and lifts war-making presidents and parties, perhaps this is his midterm strategy in the face of terrible poll numbers. Tragically, such a bombing could well bring Iran’s allies, including Russia and China, into a larger war, triggering World War III in a manner similar to how World War I spiraled out of control.
Late in the 2016 presidential campaign, and early in the Trump presidency, it was nearly impossible to imagine the things that he would later do and get away with.
That failure of imagination has cost us dearly.
While the time for freak-out is hopefully far in the future, imagining and gaming out our response to some of the worst-case and most extreme possibilities is not at all a hysterical reaction. If anything, it’s the essence of prudence.
What do you think he could do? And how should we best react?
An entire generation of Germans, Italians, and Spaniards are aging into their twilight years right now wishing they’d had such imagination in the early 1930s.
It’s time for a conversation.
This article was produced by the Independent Media Institute.
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