Every month, week, and day of the Trump Administration has been shocking and disorienting. It has become a cliche to say that "this is a new low" and that maybe there is no bottom at all. Even in that context, I believe that June 2020 is one of the most consequential months in American history, for better and for worse -- but mostly for better.
My new two-part series of columns on Verdict reflects upon the better-and-worse aspect of this month. Part 1 was published yesterday: "Trump’s Upcoming Refusal to Leave Office: The Good News." Part 2 landed on the virtual newsstands today: "Trump’s Upcoming Refusal to Leave Office: The Very Bad News." Even though I note that the bad news is "very bad" but leave the good news unmodified, this has still been a good month overall, because until now there was almost no good news at all. Relatively speaking, things are a lot better.
The reason that I am suddenly less pessimistic -- and in less guarded moments actually somewhat optimistic -- is that there has been a sudden willingness on the part of the political and media classes to stop minimizing Donald Trump's danger to the republic and the rule of law. Even though Trump has been appropriately criticized and reviled throughout his presidency, people still acted as if the foundations of the country, including fair elections and the presumption that a losing incumbent would leave office peacefully, were not under sustained assault.
That has now changed. And even though it is frightening to look at the world clearly, at least people are now looking and increasingly being willing to admit what they are seeing.
What is frightening? Almost everything. Here, I discuss one of the most extreme dangers facing the country, which is the possibility that Trump will use military and paramilitary violence to stay in office. Yes, people are finally conceding that this is worth worrying about. Finally.
It is odd to be in a position where something is incredibly obvious, but seemingly no one is willing to see or acknowledge the clear realities. Donald Trump has made it abundantly clear that he sees threats of violence against his enemies as entirely appropriate, and he has spent his life fomenting hatred against those who oppose him. About at least that much, most people seem to agree, even some people who continue to support him. (That is what "He tells it like it is" attempts to obscure.)
But to be clear, when I claim to be unique in seeing these things clearly and to be befuddled by my apparent status as a lone voice, my surprise is based on humility rather than a presumption that I have some kind of superior ability to see things that others do not possess. I can credibly (if immodestly) claim expertise in tax policy and some other sub-areas of law as well as some topics in economics, but none of that training or knowledge is in play here.
That is why I have been so bewildered for the past several years. One need not be able to solve problems in multivariate calculus or linear algebra, or to trace the tax rules regarding like-kind exchanges or the exceptions to the rules on taxation of gains on the sale of a home, to see what Trump is up to. He is anything but subtle, but some very smart people have been saying that there is nothing fundamentally scary about this, for a variety of reasons including vague confidence in "our institutions."
As I have become increasingly terrified, I truly wanted to see what others were seeing. Were they engaged in strategic denial of reality? Were there facts of which I was unaware? Frequent readers of Dorf on Law and Verdict are all too aware that I have been wrestling with these questions for years, vacillating between wanting to wake everyone else up and wanting to find some reason to treat myself to a much-needed, blissful nap.
As much as I would have preferred the latter, June 2020 has thrown off the pretense that Trump is in any way under control or that the system can be trusted on its own to rein him in. People who talked about Trump as if he were a manageable irritant now see him for what he is. It turns out that I was neither less informed nor more insightful than everyone else. I simply had no reason to deny reality.
Again, however, this simply recognizes the terrible news. But as I noted in my Verdict series this week, it turns out that there have been people working on these questions for quite some time, including Amherst College professor Lawrence Douglas, whose new book Will He Go? Trump and the Looming Election Meltdown in 2020, analyzes the guardrails that exist -- and those that are missing -- to prevent Trump from refusing to leave the White House.
Similarly, a Dorf on Law reader pointed me to a roundtable discussion that was published on June 8, in which some prominent former military leaders discussed their efforts behind the scenes to try to prevent Trump from stealing the presidency (before and after election day). Col. Larry Wilkerson, formerly Colin Powell's chief of staff at the State Department, discusses the National Task Force on Election Crises and the Transition Integrity Project, both of which involve people whom Wilkerson describes as "trans-partisan" who are worried about Trump's potential abuses of power:
"The National Task Force has been meeting really since last year. Vigorously since January, and since the coronavirus came upon us, almost weekly, if not more frequently. The transition project has been meeting now for about two or three months and is involved now in doing some exercises to determine what the reactions might be to gain at least insights from these sort of political war games ... .""Political war games"? Let that settle in for a moment.
As I surmised, these efforts have only recently begun. Still, better late than never, especially because so much needs to be thought through in advance. These two groups are, Wilkerson says, "looking at all manner of scenarios. And some of them involve the misuse, I will characterize it, of the U.S. military."
It is worth taking a moment to consider the enormity of this comment. Military leaders outside of government are looking in horror at what is happening and wondering whether the President of the United States will "misuse" the military to hold office. No one wants to believe that this could happen, and it never made sense to worry about that, even when Dick Cheney was the de facto president. Now, however, it is a cause for serious concern.
Trump had already abused his authority and deployed the military for political purposes by sending troops to the southern border to stop the scary caravans that were supposedly threatening America immediately before the 2018 midterm elections. And more than a year ago, he said: "I can tell you I have the support of the police, the support of the military, the support of the Bikers for Trump – I have the tough people, but they don't play it tough — until they go to a certain point, and then it would be very bad, very bad."
Still, the rules of polite conversation prevented even most anti-Trump commentators from saying that we need to worry about a Trump coup. As I note in Part 1 of this week's Verdict series, Trump has been preempting the word "coup" by claiming that his opponents' use of legitimate constitutional constraints and reliance on the separation of powers have amounted to coup attempts, making that word lose some of its strength when accurately applied to him. Even without calling what Trump seems intent on doing a coup, however, the bottom line is that people are now willing to admit that this could become very unstable and dangerous.
Here is a longer extract from Wilkerson's remarks:
Those are stunning words. "I can't tell you what the military would do"? That should not even be in question, but it is. "But we're talking about either near revolution or revolution there in some respects." Yes, precisely."I was recently in a senator's office. My political party, I'm a Republican, and a senator dismissed people from his office, asked me to dismiss my people, who were escorting me. And he asked me a question. And the question was, What did I think the military would do if Trump lost decisively in November and departed the White House in a huff? And in that huff announced that he would like his base to come to the street with their guns?"I looked at the senator and I said, Senator, you just posed one of the most serious questions you possibly could about the status of this republic. I can't tell you what the military would do. I can tell you that a lot of the military voted for President Trump, especially in the ranks. I can tell you that maybe the leadership is not so inclined to be pro-Trump, but I can't tell you exactly what would happen. I can tell you what I wish would happen, that the military would, in a phrase, stay in barracks. That is to say, it would not do anything. Unless Trump were successful in getting lots of his militia, so to speak, into the street with their guns."And by the way, the FBI will tell you that the base that belongs to Trump, if you will, probably own somewhere between 60% and 70% of the 300 to 400 million guns in America. If that were to happen, and serious results came about, then I would hope that the military would act in consonance with its constitutional responsibility and would wind up being the force that opposed that group. But we're talking about either near revolution or revolution there in some respects. So I'd rather not go that far. But I certainly am thinking in those ways because we've got to be ready. We've got to know what we're going to do, or at least have some estimation of what we're going to do beforehand, in case the worst happens."
What makes June 2020 unique is that the people who oppose Trump finally woke up. The triggering event was the murder of George Floyd, but clearly there had been countless reasons for people to take to the streets in peaceful protest. Pro-Trump militia groups had in recent months been flying confederate flags while carrying semi-automatic weapons to threaten Democratic governors. Public health officials have received death threats from deranged conspiracy theorists. Normal people have had enough.
June 2020 was when Trump overplayed his hand. He used the military in a grotesque suppression of domestic dissent, which led even the silent former Trump Secretary or Defense James Mattis to say that all Americans "must reject and hold accountable those in office who would make a mockery of our Constitution." There are no more surprises about Trump's willingness to abuse his power, only questions about which tactics he might come up with and how to stop him.
At long last, the public discussions have become reality-based, and it is no longer possible to pretend that Trump's rantings about, say, mail-in voting are merely words. We do not know what will happen, but we are finally in the process of understanding that a sane outcome is not guaranteed and must be zealously safeguarded. When we need to wonder whether the military will defy the Commander in Chief and "stay in barracks" against his orders -- and hope that they will do so -- we know that things have been getting out of hand for a very long time.