This blog post started as a YouTube video. You can see it here.
I think the way the current fascist threat will be beaten back is most likely through thousand small cuts, each seemingly undramatic. After all, over the past several decades, Trump’s brand of fascism has gained as much power as it has by a thousand cuts.
What I plan to offer now is an overview.
Because there’s been a steady drip of evidence of Trump (and Republican) crimes, there’s an expectation among some that criminal prosecution will bring Trump—and his brand of American fascism—crashing down.
A few weeks ago, in a blog post called “Republican Lawbreaking,” I explained why I think criminal prosecution is unlikely to end the danger posed by what we might call the Trump-Newsmax-Fox Republican Party. (I used to call it the Trump-Fox Party but the sad fact is that right wing media has now moved far to the right of Fox News.)
If you missed that blog post, and your expectation is that criminal prosecution will (or can) put an end to American fascism, you might want to read that one first.
We have a political problem, and political problems require political solutions. What prosecution can do is help expose the truth. Fascism is built on lies. Rule of law, which requires a shared factuality, is based on truth. That’s why truth is the enemy of fascism.
Let’s look at some of these small cuts.
- The DOJ refused to defend Mo Brooks in the lawsuit about inciting the insurrection, which means it’s almost certain they’ll also refuse to defend Trump. If you don’t think that’s significant, consider what a DOJ under one of Trump’s appointees would be doing right now.
- Trump is being criminally investigated for that phone call to Georgia Secretary of State Raffensperger in which he told Raffensberger to “find” the votes that would make Trump the winner in Georgia.
- Congress is looking into the phone call with senior justice department officials in which Trump’s people pressured officials to say that the election was rigged as part of the larger scheme to undermine the 2020 election.
- These new revelations about the efforts of Trump government insiders to overturn the results of the 2020 election mean that the choice for voters in upcoming elections will be stark: Vote Republican and vote for a party that will actively undermine free and fair elections.
- Republican leaders were afraid these investigations would spill into 2022 and effect the midterm elections. Now it’s fairly certain that they will.
- And don’t forget: The Trump Organization has been indicted, and that investigation is ongoing. I strongly suspect more indictments are coming.
- Also in New York, Attorney General Letitia James has joined Vance’s criminal probe. In 2019, she opened a separate civil investigation into Trump’s business practices. When the public is bombarded with evidence that Trump got rich by cheating, it gets harder for him to claim he’s a successful businessman because he’s a good businessman and it narrows his appeal to those who think it’s perfectly fine to get rich cheating.
- And there’s the House Select Committee investigating the January 6 attack on the United States Capitol. There’s really no doubt that Trump incited that insurrection. Even McConnell said:
At the same time, there are signs that Trumpism isn’t going away, and Trump is not losing his grip on the Republican Party.
- Trump raised a stunning $100 million since losing office.
- While Trump’s pick in a Texas primary (Susan Wright) lost, his choice in Ohio (Mike Carey) won.
- Elected officials like Elise Stefanik obviously thinks it’s better for their political future to grovel at Trump’s feet.
- And of course, Republicans in numerous states are taking steps to make it easier to keep people from voting and to make it easier not to count votes from Democratic areas—but (without going too much into that right now) this can be stopped with legislation from Congress and only works in close elections because courts (even Trump appointed judges) have proven that they’re not going along with these lies.
In fact, one of the institutions that saved us from Trump’s attempted coup was the courts. I wrote about that in this Washington Post piece:
This brings me to Trump’s lawyers being sanctioned and possibly disbarred by the courts—which is among the thousands of cuts.
A Federal judge in Colorado sanctioned two lawyers who brought a conspiracy theory-filled lawsuit trying to overturn the 2020 election.
The judge found the case was “frivolous,” and “not warranted by existing law,” and filed “in bad faith.”
Similarly, in Michigan, Sidney Powell and Lin Wood are facing sanctions for bringing election fraud lawsuits that had no basis in law or fact.
In June, a New York appellate court suspended Rudy Giuliani’s license to practice law. I wrote about this when it happened in this NBC Think piece:
The court in that case said this:
Disbarment — a punishment meted out by a court for code violations —occurs when a lawyer commits an offense that directly relates to his or her fitness to practice law. This is serious and always devastating to a lawyer.
Given the harsh words the court had to say, and the way it made mincemeat of Giuliani’s silly defenses, it means that unless Giuliani comes up with better defenses than those he has already presented — and it is unlikely he can — he will never again practice law in New York.
You may be thinking, “so what?”
Well, for one thing, these rulings serves as warning to other lawyers who may try to use the courts as a vehicle for spreading lies.
Also, as a result of this, we have courts denouncing these lies. If you don’t think this is a big deal, imagine how you’d feel if courts were backing up the lie— which is what happens in autocracies.
And as I mentioned earlier, courts are one of the institutions that saved us from Trump’s attempt to overturn the 2020 election.
Let’s talk about one battle Trump will certainly lose: His fight to keep his tax returns out of the hands of Congress. I also wrote about that this past week in this Washington Post article:
So, here’s what’s going on. Last week the Department of Justice ordered the Internal Revenue Service to hand over Trump’s tax returns to Congress. On Monday, Ronald Fischetti, a lawyer for Trump, said Trump intends to fight the order.
He also made this statement to the press:
“There is no evidence of any wrongdoing here and I object to the release of the returns not only on behalf of my client but on behalf of all future holders of the office of the president of the United States,” He added that “this politicization and harassment of Mr. Trump is uncalled for and outrageous” and that he had “never seen anything like this.”
There are four gaping holes with this statement.
First, there is considerable evidence of wrongdoing. To begin with, the Trump Organization was indicted for tax fraud and falsification of records in what prosecutors described as a 15-year tax avoidance scheme “constituting a systematic ongoing course of conduct with intent to defraud.”
Trump’s former longtime personal lawyer Michael Cohen testified before Congress about crimes he said he had committed at Trump’s behest. Those crimes included misusing charity funds, and bank and insurance fraud. Cohen testified that Trump inflated or deflated the value of properties depending upon his needs at a given moment. Cohen presented copies of Trump’s bank and financial records to back up his claims.
On Sept. 27, 2020, the New York Times published information it obtained from Trump’s tax records extending over more than two decades. The records showed that, despite Trump’s repeated claims that he was a successful businessman and a billionaire, he paid no income tax at all in 10 of the 15 years preceding his presidency. These records revealed struggling properties, outsize tax write-offs and a taxpayer in serious trouble with hundreds of millions of dollars in debt coming due.
Fischetti’s statement that there is “no evidence of wrongdoing” is an insult to all of us, who have been bombarded by such evidence for years.
Second—another gaping hole in his statement—Congress had a legitimate legislative purpose for requesting the tax returns. The House Ways and Means Committee sought Trump’s returns to determine whether the IRS was fully and appropriately auditing the president.
At issue is the balance of power between the executive and legislative branches. The Trump administration was consistent in its claim that the president was “absolutely immune” from legislative oversight and he even said that I have Article II [of the Constitution], where I have the right the right to do whatever I want as president” — a dangerous doctrine designed to create an autocrat.
In her book, Strongmen: Mussolini to the Present, New York University professor Ruth Ben-Ghiat defines authoritarianism as a political system in which executive power is asserted at the expense of the legislative and judicial branches of government.
If for no other reason than to limit the power of the executive branch, these records should be furnished to Congress.
The third problem in Fischetti’s “defense” is the idea that Trump is objecting on behalf of “all future presidents.” Rule of law literally means that the law applies to the president as much as it does to anyone. Anything else is autocracy.
The fourth hole is fairly obvious: How is making Trump’s tax returns available to Congress “harassment” — unless Trump has much to hide? He was, after all, the first president to refuse to disclose his taxes. Richard Nixon voluntarily released his returns when media reports suggested that he paid only $792 in federal income tax in 1970 and only $878 in 1971, even though he earned more than $200,000 in each of those years. To allay public concerns, Nixon subsequently released his tax returns for every year between 1969, when he entered office, and 1972.
Every president since Nixon voluntarily released his tax returns.
On Thursday, Trump’s lawyers filed their motion in court.
Interestingly, it was quite professional and didn’t include any of the outlandish lies that his lawyer had said to the press. His lawyers were perfectly willing to lie to the press, but if they don’t lie to the court, they’re less likely to get into trouble with bar associations. I suggest that those lawyers took more care because of all the sanctioning going on of Trump’s other lawyers. In other words, those sanctions and possible disbarments are serving as a deterrent.
The argument his lawyers presented in court, in a nutshell, was that Super Special Trump shouldn’t have to comply because Big Bad Congress is being really, really mean to him.
I don’t expect that argument to fly.
Basically, it was silly—and if the courts take it seriously, it’s dangerous—but it wasn’t sanctionable. I suggest that the lawyers took more care because of all the sanctioning going on of Trump’s other lawyers.
So while Trump still controls the Republican Party and he managed to raise $100 million since the election, what looms larger is that he has hundreds of millions of dollars coming due, plus a growing pile of legal bills, and a shortage of lawyers willing to work for him. Plus his businesses are on shaky footing right now.
After I tweeted my theory that if American fascism is to be defeated, it will be through a series of small cuts, I was hit with cynicism from left-leaning Twitter. Here’s a sampling:
About that last one: Investigations take time. The tapes are not by themselves evidence beyond a reasonable doubt because proving intent is tricky. Due process is a lengthy process. In an autocracy, you can have instant justice. The autocrat says, “The tapes prove it, he’s guilty,” and that’s the end of it. That’s not how it works in a rule of law democracy.
Here’s another:
. . . again, as if that’s a magic bullet. It’s isn’t. See my post on Republican Lawbreaking.
And this one:
Remember, we’re in a transition. Since 1954, the United States has been [mostly] trying to transition from a representative democracy dominated by white men with institutions that entirely served white men to a true racially diverse democracy—and we’ve been facing fierce backlash.
Given that we are in transition, looking to our history as an excuse to feel pessimistic about a possible future undercuts our ability to make the transition.
There’s a reason the great liberal leaders and trailblazers of the past—the ones who made a real difference—didn’t spread doomsday gloom. They inspired people with possibilities. Martin Luther King, Jr. had a dream.
I’ll go further and suggest that “leaders” who spread messages of doom are not leaders. Leaders take us forward to a better world.
I’ll also add that cynicism is a hallmark of fascism. People who embrace fascism often don’t believe equality is possible. They don’t believe fairness is possible. If you don’t believe fairness and equality are possible, politics becomes about who can “win” by any means necessary.
So don’t be cynical. We will only make this transition if enough people feel empowered by possibilities instead of paralyzed by cynicism.
Well, I said a lot of that and got more pushback:
The problem was that Trump was shielded by a major political party, including the Senate. The failure was in the Republican Party. They chose to shield a lawbreaking president.
Institutions can’t be any better than the people who form them.
After I posted that, the same person responded, saying:
The Constitution provides a remedy for a lawbreaking president: The House impeaches. The Senate convicts and removes. After the president is removed, the Constitution specifically says that the president can then be tried in a criminal court.
Things went wrong during the Trump presidency at the Senate trial stage.
The Constitution also provides a remedy for Senators who don’t do their jobs and refuse to convict when they should: Vote them out.
The buck stops with the voters.
