{I hate writing about current American politics, but there will be a debate tonight between the two presidential candidates, one of whom (a former President) should never have been allowed to hold elected office of any kind in the first place. Given the stakes, and for whatever it’s worth, I thought I would put in my two cents. Considering the length of this post, however, it’s more like twenty cents.}
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“A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.” (Thomas Jefferson, 1803)
"I'm the decider, and I decide what's best.” (President George W. Bush)
Is there a katechon in the house? That is, is there some person or some institution capable of preserving order in the face of imminent political, legal, and civil chaos?
The question would be merely academic if it weren’t for the non-zero possibility of Donald Trump returning to the White House. In theory, a President Trump’s authoritarian instincts could be checked by surrounding him with a protective circle of “adults in the room”—advisors aware of (among other things) constitutional checks on presidential authority, the rule of law, and other such antiquated concepts. But the coterie of advisors which has formed around Trump—right-wing wonks from the Heritage Foundation, MAGA cultists from The Federalist, die-hards from the first Trump presidency, policy nerds involved with “Project 2025,” and lunatic creatures of the conservative swamp like Steve Bannon and Peter Navarro—has no intention of curbing Trump’s worst instincts; instead, they are crafting rationales for why Trump should be allowed to do, as he might put it, whatever the hell he wants.
As Jonathan Chait observes, MAGA supporters believe that when the going gets tough, the gloves must come off: “A conservative who ‘knows what time it is’ recognizes that the left is poised to permanently seize power, and that the old rules of politics (following the traditional norms of liberal democracy) no longer apply in the face of this emergency.” Apparently, knowing ‘what time it is’ is now the right-wing equivalent of being ‘woke’. Michael Anton’s 2016 call (‘The Flight 93 Election’) to rush the cockpit and to crash the plane (America, that is) if necessary to avoid such diabolical Leftist schemes as, say, ‘Drag queen story hour’ or ‘Pride Month,’ has become the Right’s standard operating procedure. When Western civilization itself is at stake, you can throw out the Geneva Conventions and the Marquis of Queensbury’s rules.
Someone named T.J. Harker, writing at The American Mind, says the quiet part out loud: “Not only is our legal system fragile, weak, and on the verge of collapse, but it is also increasingly obvious that the American constitutional order has been overthrown.” We don’t even have a federal government anymore, Harker informs us; we have a ‘regime’. “Regime elites simply implement their will through the exercise of unrestrained power. The regime’s lawlessness reaches far, far beyond Trump. It reaches to the core of our civilization. The regime has deformed our constitutional order almost beyond recognition, and it will not be set right through one electoral victory.” Heads must roll if wrongs are to be avenged; “If Trump wins, we should expect that some of the worst perpetrators of the regime’s lawlessness will be held to account. An example will be made. Unpleasant things will have to be done to hold people to account—people who attacked our constitutional republic by refusing to recognize limits on their exercise of power over us.” The ‘unpleasant things’ are not detailed by Harker, whose thirst for vengeance is echoed by Kevin Roberts, President of the Heritage Foundation; Roberts calls on people “to be part of what I call the second American Revolution, hopefully bloodless or no more blood than has been spilled by the left.” Since the American Left is routinely accused of emulating Mao’s ‘Cultural Revolution,’ we can assume that it must have spilled copious amounts of blood; it should therefore expect the same in return. ‘Tit for Tat’ could be the Right’s 2024 campaign slogan.
Trump’s calls for retribution, and his supporters’ obvious impatience to take matters into their own hands, recall German political theorist Carl Schmitt’s ‘state of exception,’ by which he meant emergency circumstances under which the normal procedural rules of a liberal democratic state must be suspended if the state is to be preserved against its enemies. While Schmitt’s willing participation in Hitler’s Nazi government tends to put his theory in a bad light, it should be remembered that Abraham Lincoln, faced with a civil war brought on by a rebellious South, took numerous actions that were constitutionally questionable (and questioned at the time). Lincoln’s defenders say he was responding to an emergency which constituted a ‘state of exception’; the usual procedures were insufficient for the occasion. For that matter, our recent COVID restrictions, imposed by authorities at federal, state, and local levels, were justified on the same grounds, as were changes to voting laws in the 2020 presidential election.
All of which is to say that partisans across the political spectrum acknowledge, albeit selectively, that procedural guidelines can never anticipate every possible circumstance; therefore, they must (or may) at times be ignored or suspended. Schmitt’s theories about “sovereignty” and states of emergency may be open to debate, but the realities to which they refer are hard to deny. The questions then become, (1) who decides that a state of emergency exists; (2) who decides what measures are permissible to deal with it; and (3) who decides when the state of emergency is resolved, and when a state of normalcy returns?
According to Tracy Strong, Schmitt believed that "It is the essence of sovereignty both to decide what is an exception and to make the decisions appropriate to that exception." The sovereign, in other words, is the decider, or, more precisely, he is the decider whose decisions are enforceable, preferably by law but ultimately, if necessary, by violence. As President Andrew Jackson once commented, after an adverse ruling by the Supreme Court, “Chief Justice John Marshall has made his decision. Now let him enforce it.” The real decider is the one who can call in the troops or call off the dogs.
Why, again, is any of this relevant? Because arguments for a 'state of exception' are being made by denizens of the MAGA-verse, and because Donald Trump has previously demonstrated his lack of respect for law, for custom, and for procedural proprieties. When challenged on abuses of power, he has claimed either that his actions were “perfect” or, memorably, that, as President, “I have the Article Two privilege to do whatever I want.” He publicly mused about having the 2020 elections postponed until after the pandemic (while simultaneously denouncing efforts to make voting safer); in 2022, still claiming the 2020 election had been stolen, he argued that “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” Even out of office, Trump has defied judicial gag orders, drawn fines for contempt of court, and made every effort to denigrate and to paint as corrupt the American system of justice—which has its flaws, to be sure, but ‘being too hard on Donald Trump’ is not one of them. My point is, Donald Trump is not someone we should want to be Decider-in-Chief.
Making a bad situation worse, Trump is surrounded by sycophants and wannabe petty tyrants—Stephen Miller comes to mind, who famously asserted in 2017 that “The powers of the President will not be questioned,” but there are plenty of others. The Heritage Foundation’s “Project 2025,” shaped almost entirely by Trump supporters, includes plans to bring federal agencies under Trump’s direct control, eliminating protections for career civil servants who would then be replaced by political appointees; to sidestep the need for Congressional approval of high-level appointees by designating their appointment as ‘temporary’; to allow Trump to ignore the Posse Comitatus Act and to deploy federal troops in domestic situations (riots, protests, immigration control); and more.
According to former Supreme Court Justice Robert Jackson (who also presided over the postwar Nuremberg trials), “The Constitution is not a suicide pact.” Voices on America’s political Right constantly (and loudly) insist that Democrats, Liberals, Progressives, and Leftists of any kind hate America and want to destroy it by any means necessary; therefore, to allow political power to fall into (or to remain in) their hands is nothing short of national (cultural, civilizational) suicide. If that prospect does not amount to a state of exception, then what would?
For the most part, such rhetoric is no more than a reflection of feverish fantasies induced by whatever fears (and they are legion) beset those on the Right. Such people (whom Jon Langford has called “the most frightened people on earth”) will believe anything: that Barack Obama was a gay Muslim imposter born in Kenya, that John Kerry’s wartime medals were unearned, and that Hillary Clinton drinks the blood of babies in the basement of a pizzeria in Washington, D.C. In the wake of the 2020 election, Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, eagerly sought confirmation of the rumor that President-elect Biden and other Democrats had been arrested and taken to a detention camp near Guantanamo; to be clear, Mrs. Thomas found that rumor plausible. Gullibility is not just a river in Egypt.
By the same token, right-wing fanatics will say anything: Mike Pence should be hanged, Anthony Fauci should be executed, Merrick Garland should be jailed, and Donald Trump, a man who managed to lose money running a casino in Atlantic City, is God’s anointed warrior sent to Make America Great Again.
Ordinarily, I would not take their threats to democracy too seriously. I believe that our system can withstand attacks from clowns like Steve Bannon, imbeciles like Peter Navarro, and lunatics like Sydney Powell—that is, so long as they are kept at a safe distance from the levers of power, by which I mean, so long as Donald Trump is kept out of the White House. Not to be an alarmist, but if that sociopathic narcissist very stable genius is re-elected, all bets are off.
Well, someone has to be...
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