Donald Trump and his henchmen have set out to break the legs of American democracy by making it difficult for people he hates to hire an attorney to defend themselves or sue the Trump administration. He and Musk are also, with their public statements, apparently trying to terrify federal and state judges into submission with threats that their followers will employ violence.
This could very well herald the end of our republic, transforming America into something that more closely resembles Russia or 1930s Germany than anything Hamilton or Franklin would have endorsed.
First, some background.
The Founders of our nation and the Framers of our Constitution thought they had it all figured out. For thousands of years, Europe had been ruled by warlords, popes, kings, and the morbidly rich. But now, for the first time since the failed Greek experiment three thousand years earlier, a democratic “rule by the people” might actually work.
As I detail at length in The Hidden History of American Democracy: Rediscovering Humanity’s Ancient Way of Living, Native American tribes had developed multiple variations on egalitarian, democratic forms of government through the course of more than twenty thousand years of political evolution.
The diaries of mostly French priests who accompanied explorers and traders were sweeping Europe in the mid-1700s, major best sellers, telling the stories of these “noble savages” who ruled themselves without kings, popes, or even prisons.
The fabled Montesquieu, having studied the Iroquois Confederacy (among others) pronounced the importance of three branches of government with checks-and-balances to prevent the rise of a dictator in his famous 1748 The Spirit of the Laws:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.”
Similarly, the United States Congress adopted a resolution recognizing the importance of the political system we largely copied from the Iroquois, writing:
“Whereas the original framers of the Constitution... are known to have greatly admired the concepts of the Six Nations of the Iroquois Confederacy... and... the confederation of the original Thirteen Colonies into one republic was influenced by the political system developed by the Iroquois Confederacy...”
The key to the whole thing was decentralizing power in the government. Congress could act, but the president could refuse to sign or could even veto their laws. The courts could act, but they could be overruled by Congress changing the law or amending the Constitution. And the president could act, but his actions were subject to oversight by the Supreme Court.
As “Father of the Constitution” James Madison wrote in Federalist 47:
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands... may justly be pronounced the very definition of tyranny.”
Trump clearly doesn’t understand any of this, or, if he does, considers it quaint and useless. He’s taking an axe to the entire edifice of democracy that was so carefully constructed by our Founders and so passionately protected by generations of Americans willing to fight and die for our form of government.
The ground was prepared by Trump’s billionaire friends corrupting a handful of Supreme Court justices, so that body would declare in their 2010 Citizens United decision that money was the same thing as free speech, which is protected by the First Amendment. They added that “corporations are persons,” too, so big companies and even entire industries could also spend unlimited amounts of money to purchase elections for their favored politicians.
Then, Trump’s billionaire buddies (most notably, but not exclusively, Elon Musk) poured billions of dollars into elections across the country, so profoundly cowing Republican politicians afraid of suffering the same fate as Adam Kinzinger or Liz Cheney that they’d go along with — and, with heads bowed, publicly justify — even the most absurd of Trump’s ideas and pronouncements.
With Congress intimidated into submission, Trump put into positions of power across his administration the same types of fascist bootlickers Stalin and Hitler hired, all to make sure he’d never again have a Mark Milley or Jeff Sessions who’d tell him, “No.”
But the coup de grâce is happening right now, as Trump has signed a series of Executive Orders (EOs) forbidding lawyers from several of the nation’s largest and most prestigious Democratic-aligned law firms from entering federal buildings or having access to classified information.
It started with a February EO stripping the security clearance from a lawyer at Covington & Burling, whose attorney Peter Koski had provided legal help to former special counsel Jack Smith.
Then he went after the firm Perkins, Coie, which had once employed an attorney (Mark Elias) who worked for Hillary Clinton’s campaign, forbidding their attorneys from entering federal buildings or accessing classified materials.
Both firms immediately saw a number of high-profile Democratic-aligned clients leave for other practices; this was a direct assault on law firms with hundreds of attorneys specializing in federal litigation who were essentially forbidden from doing the work they’d attended law school and been hired to do.
Last Friday, he signed another EO similarly kneecapping Paul Weiss, a massive firm that had formerly employed Mark Pomerantz, who played a large role in Trump’s criminal prosecution for fraud in New York. And now he’s threatening to similarly go after any law firm that dares to sue him, his administration, or to defend the firms he’s suing right now.
To say there is panic among the largest law firms in the country would be a massive understatement.
Many of them are having trouble finding other firms that will risk Trump’s wrath by defending their colleagues. A couple of lawyers from the firms Trump has blackballed, along with 580 attorneys (so far) from across the country, have put together a letterbegging their firms to fight back and fight back hard.
As they note, this isn’t just about the survival of a handful of white-shoe law firms; it’s about the continuing viability of democracy in America itself:
“Our politics and feelings about the industry and its path forward are varied. But we are united in our condemnation of the administration’s intimidation tactics, viewpoint discrimination, and attempts to weaponize the Executive against the rule of law. It is not lost on us that it targets professions and groups whose existence and independence is vital to any semblance of American democracy.
“When we are united, we cannot be intimidated. These tactics only work if the majority does not speak up. Our hope was that our employers, some of the most profitable law firms in the world, would lead the way. That has not yet been the case, but it still very much can be.
“It is easy to be afraid of being the first to speak. We are removing that barrier; we are speaking. Now it is our employers’ turn.” (emphasis added)
America is today confronted with the possible end of a wonderful (and sometimes difficult) experiment with democracy. Trump has paralyzed Congress, castrated the remnants of the conservative movement, and sued into submission much of the media. Now he’s going after the last remaining obstacle to his seizing absolute power: the courts.
If he succeeds, he will be the single most powerful president in the history of America, wielding the authority to do whatever he likes, to whomever he dislikes, whenever he wants — just like his role model Vladimir Putin. It will, quite literally, be the end of the vision handed us by the Iroquois 300 years ago that has burned brightly as a beacon for the world all these years.
Will darkness descend on America? Much of the answer to that will depend on a handful of attorneys and judges who, as you are reading these words, are being forced to decide whether to fight back or “to go along to get along.”
Will they stand up to this wannabe tyrant?
Stay tuned…
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