Conservative anti-Trump law professor explains why the 'prognosis for democracy is bleak' in America

Kimberly Wehle, a University of Baltimore law professor and a former assistant U.S. attorney, has become one of the go-to people for legal analysis from a Never Trump perspective. Wehle has had a lot to say about MAGA Republican attacks on voting rights and Trumpian efforts to overturn the 2020 presidential election results, and in an article published by the conservative website The Bulwark on November 16, she lays out some troubling reasons why the "prognosis for democracy is bleak" in the United States.

"Defenders of democracy scored two significant points last week," Wehle explains. "First, a federal district judge rejected former President Donald Trump's assertion that his claim to executive privilege is stronger than President Joe Biden's. Then, the Department of Justice indicted Steve Bannon on two counts of contempt of Congress. Alas, for anyone hoping those developments mean we'll soon see a restoration of the rule of law and basic accountability, it's hardly time for optimism."

The law professor continues, "These legal losses are stealth wins for Trump insofar as they feed the right-wing narrative that he — not Biden — is the rightful president. The lawsuits elevate Trump's stature, giving the misimpression that the ex-president is sufficiently powerful to create constitutional clashes with the actual constitutional government. In effect, Team Trump is quietly fueling the Big Lie through the legal system. The prognosis for democracy is bleak."

Bannon has defied the subpoena he received from House Speaker Nancy Pelosi's select committee on the January 6 insurrection, claiming that because Donald Trump was still president on January 6 and enjoyed "executive privilege," he is under no obligation to testify. And Trump, in a lawsuit, is arguing that because of "executive privilege," the National Archives and Records Administration should not give the committee official White House records pertaining to January 6.

READ: A growing threat is emerging from the theocratic wing of the GOP — but many liberals are missing it

According to Wehle, false claims of executive privilege feed into the Big Lie and the false claim that Trump is really a president in exile.

Wehle writes, "Trump is shoring up the perception among his devotees that he is a sort of shadow president or president-in-waiting — or worse, for his most conspiracy-minded fans, that if there's only one president, it is Trump who has the real power…. Couple the NARA suit with Bannon's contempt indictment, and the continuing intransigence of the Big Lie becomes downright frightening."

The law professor adds that although Bannon's "executive privilege" claims are "extraordinarily weak as a matter of law," that doesn't mean that MAGA voters don't buy into them.

According to Wehle, "The political message Bannon is sending through his defiance is clear: Congress is not legitimate, Biden is not legitimate, and the legal process is not legitimate…. Our political-legal system has allowed the Big Lie to take hold to the point where the rule of law and the threat of criminal jailtime don't seem to matter to its carriers and their lawyers who take an oath to uphold the Constitution. If American democracy is to be saved, it might be time for Attorney General Merrick Garland and Democrats in Congress to stop playing by the old rules, which don't seem to apply anymore anyway."

READ: 'You're his lawyer': CNN host stumps Bannon lawyer by asking if client had 'foreknowledge' of Capitol riot