Accelerating Toward Autocracy

Sean Hannity posed a rather surprising question to the President in his interview on July 10. Hannity asked, “[O]ne of the reasons Seattle finally acted [on cracking down on the city’s “autonomous zone”] is that they were given notice that if they didn’t act, that you were going to. Is that correct?” The President responded, “A hundred percent, We were going in, we were going in very soon. We let them know that. And they, all of a sudden, they didn’t want that so they went in before we got there”. Trump had tweeted a similar threat earlier, declaring “Domestic Terrorists have taken over Seattle”.

Now, everything Trump ever says must always be taken with a grain of salt. But his response to Hannity at least implied that there was an actionable administration plan to send federal law enforcement into a major American city without the approval of local or state authorities. It seems that plan has now been put into action in Portland instead of Seattle. Unidentified federal agents in camouflage, body armor, and paramilitary gear are literally kidnapping random protestors off the street, throwing them into unmarked cars, and taking them to federal courthouses where they are read they rights, searched, and then released. The protestors are never informed why they have been detained and are never provided any documentation about their arrest. At least one of the protestors claims he was essentially blindfolded when put into the unmarked car and then driven randomly around Portland before finally being delivered to the federal courthouse. At present, the government is refusing to admit this protestor was even arrested or provide any legal justification for such an arrest. In addition, one peaceful protestor was seriously wounded by these same unidentified federal agents shooting supposedly “non-lethal” munitions. The protestor suffered multiple facial fractures and need reconstructive surgery.

State and local authorities have not asked the federal government for help with the protests in Portland, so it is unclear under what, if any, legal authority these unidentified federal enforcement officers are operating.  In fact, the governor asked the acting head of DHS to remove these enforcement officers and he simply refused. These agents are clearly not operating under the limited authority that Oregon gives federal officers to enforce state laws. The acting head of DHS has tried to insinuate that the agents, now possibly identified as part of the Border Patrol, were merely protecting federal property but many of the kidnappings occurred blocks away from any federal site. In addition, he has tried to imply that all the protestors are “violent anarchists”, documenting a whole litany of incidents that are not even violent, much less federal, crimes and predominantly involve graffiti.

What’s happening in Portland is replay of what happened earlier in Washington DC, where Attorney General Barr deployed secret police composed of unidentified federal law enforcement agents to “flood the zone” in response to massive protests in support of Black Live Matter. There, too, local DC officials had not asked for federal assistance yet Barr’s secret police set up checkpoints well beyond the normal federal security area.

Having secret federal police kidnap peaceful protestors and then refuse to acknowledge those detentions is simply the definition autocracy. And another favorite tactic of autocracies is to simply muzzle information that might be detrimental to the regime. That is exactly what has happened with the states’ hospitalization and ICU data that used to get reported to the CDC and then provided to the public. The Trump administration ordered hospitals to report that data directly to HHS instead of the CDC and now that information has gone into a black hole. Some states do not have access to the new HHS data and are now flying blind as to their hospital and ICU capacity. This new policy is just a continuation of the Trump administration’s freezing the CDC out of its pandemic response decisions simply because the science the agency puts forward contradicts the President’s message.

Similarly, just hours before Roger Stone’s prison sentence was commuted, Michael Cohen was forced to return to prison. Cohen had violated the terms of his release by going out to a restaurant but what actually prompted his return to prison was his refusal to sign a document that he would not speak to reporters or write a book while he served the remainder of his term at home. Cohen had hoped to release a book about his work with Trump before the election this fall and believed that signing this document would violate his First Amendment rights. According to Cohen’s lawyer, when federal marshals actually took him back into custody, “Mr. Cohen relented and agreed to sign the document to avoid returning to jail. The marshals continued to take him into custody anyway…with one of them saying, ‘It’s out of our hands.'”

Politico is reporting that the White House’s personnel office is now conducting a sweeping program of  loyalty tests across the entire administration. According to the report, “The White House’s presidential personnel office is conducting one-on-one interviews with health officials and hundreds of other political appointees across federal agencies, an exercise some of the subjects have called ‘loyalty tests’ to root out threats of leaks and other potentially subversive acts just months before the presidential election…The interviews are being arranged with officials across a wide range of departments including Health and Human Services, Defense, Treasury, Labor and Commerce and include the top tier of Trump aides: Senate-confirmed appointees.” The program is being led by Trump’s former bodyguard, 30 year old Johnny McEntee, who was recently installed as head of the Presidential Personnel Office (PPO) despite having no personnel experience and being unable to receive a security clearance because of gambling and tax issues. As one unnamed administration official dryly noted, McEntee “does not have the relevant experience to do this job, unless the job is to purge Never Trumpers and reward loyalists.”

Almost all modern autocracies have created legal justifications for their crimes as well as providing some sort of electoral procedure designed to virtually guarantee their victory, creating a mere veneer of democracy. Both of those tactics usually rely on compliant courts, which Trump and the GOP have now obtained through their years-long efforts. Late last year, Trump was finally able to flip the 11th Circuit Court of Appeals to majority conservative by appointing his fifth judge to that eleven member panel.  In 2018, Florida had overwhelmingly passed a ballot measure allowing ex-felons to vote, a measure that would have potentially made an additional 10% of the total electorate and 20% of black voters in that state eligible to vote. Republicans could not let that stand and accordingly the legislature passed a law requiring felons to have paid all their fines and restitution before being allowed to vote. Florida, however, was unwilling or unable to inform ex-felons about the amount of their unpaid fines, thus making it impossible for them to fulfill the requirements to vote. That law, essentially a poll tax, was ruled unconstitutional by a lower court over a year ago, thereby allowing ex-felons to register to vote. In February, a three judge panel from the 11th Circuit refused the state’s request to block that lower court ruling, reiterating that the law was unconstitutional.

Now, just days away from the deadline to register to vote in the state’s August primary, the newly-flipped full 11th Circuit reversed its own three judge panel and granted the state’s request to block that lower court decision, effectively barring hundreds of thousands of Floridians from voting and, worse, putting those ex-felons who had already registered at risk of another new felony for voting illegally if they do vote and still had outstanding fines. And just days after that 11th Circuit decision, the Supreme Court, with the conservatives making up the majority in a 5-4 vote, also refused to intervene.

The Roberts Court has spent most of last decade disenfranchising primarily Democratic voters, often overturning or staying lower court decisions that ruled GOP voting restrictions unconstitutional. The Court usually cites the Purcell decision that mandates courts should not change the rules for voting close to an election. This is the law the conservative majority cited in blocking the extension for absentee ballots in Wisconsin which forced thousands to risk their lives to vote and created a new spike in COVID-19 infections. Now, in Florida, with the lower court ruling having stood for almost a year, the Court changes the rules literally hours before the registration deadline, ignoring the Purcell precedent and again disenfranchising primarily Democratic voters. As Justice Sotomayor wrote in her stinging dissent, “This Court’s inaction continues a trend of condoning disfranchisement. Ironically, this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety related changes supposedly came too close to election day. Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement—a situation that Purcell sought to avoid—the Court balks. I respectfully dissent.”

This, of course, is the same Supreme Court that preened about ensuring that no man is above the law while, at the same time, endowing the President with special rights to resist valid congressional subpoenas of third party documents that no other citizen enjoys and again allowing him to hide his taxes from the American people for a second consecutive election. In addition, the US Treasury is refusing to provide Congress with Trump’s taxes, despite clear statutory language that it is required to do so. That case has been languishing in a lower federal court for over a year. Meanwhile, the President is refusing to produce his required annual financial disclosure forms even as it emerges that his business is receiving hundreds of thousands of dollars from donors in what look remarkably like structured payments to avoid money-laundering laws.

There seems to be a general belief, belied by history, that autocracies are these ruthlessly efficient machines and, therefore, Trump’s and his administration’s ineptness shows that he is really not an autocrat to be feared. Mussolini made the trains run on time, except he didn’t; in true Trumpian fashion, he just claimed he did. Stalin’s collectivization scheme created famines across Russia, not just in Ukraine. Autocracies are only ruthlessly efficient when it comes to responding to the whims and needs of the autocrat. Anything else can and actually must be ignored, even when it leads to chaos or mass death. In fact, chaos and death provide the vehicle for the autocrat to show that only his strong hand can deal with the problem.

This is where we are now with Trump. While the pundits wonder why he doesn’t realize that containing the virus will help him politically, Trump sees the pandemic as largely killing his Democratic opponents in the urban areas of swing and red states while also reducing turnout if it is still raging in the fall. In addition, by abdicating leadership now, Trump can claim the general chaos created by the pandemic is the fault of governors and allows Trump to declare the country needs his strong hand to control it. Trump’s need for that storyline is why Dr. Birx can wander around the White House spewing happy talk while Fauci is relegated to the hinterlands and attacked by the administration.

It’s also now clear that Barr’s secret police deployment in DC was merely a prelude to Portland. And the administration is also making it clear that it is planning to deploy federal stormtroopers to what Trump describes as the “war zones” in urban centers run by “liberal, left-wing primarily Democrats”. Trump has threatened to “take over cities”; the acting DHS deputy secretary has stated, “[T]his is a posture we intend to continue not just in Portland but in any of the facilities that we’re responsible for around the country”; and the White House chief of staff declared, “You’ll see something rolled out this week as we start to go in and make sure that the communities, whether it’s Chicago or Portland, or Milwaukee, or someplace across the heartland of the country, we need to make sure our communities are safe”.

Come election day, we could be seeing the pandemic raging as badly or even worse than it is now. As we saw in Wisconsin and Kentucky with limited in-person voting, one poll location could serve tens or hundreds of thousands voters, creating massively long waits to vote. At the same time, there could be federal forces in the streets of largely Democratic cities in key swing states, provoking violence, providing a level of voter intimidation not seen in decades, and potentially abetted by local police forces and right-wing paramilitaries. CBP already has jurisdiction over areas within 100 miles of a border, an area covering most of the major cities in this country. In addition, the Republican party has already committed $20 million to challenge ballot access and eligibility. The party, which has just been released from what became a 30 year injunction due voter intimidation, is hoping to recruit 50,000 people as “poll watchers”. Trump hopes that, with enough general chaos and suppression of Democratic votes, he can “win” the in-person vote and declare himself the “winner” on election night. Then he will contend that the mail-in votes are fraudulent and contest those votes, dragging those counts on as long as possible and hoping to get the courts to intervene. The entire project will not only have the full support of the majority of the Republican party but will also be backstopped by the coordinated efforts of the right-wing media, including Facebook.

Americans need to face the fact that we have already become an illiberal democracy. The state is literally kidnapping people off the streets; it is suppressing critical health information and replacing it with propaganda in the hopes of literally killing its political opponents in poor and minority communities; it frees its accomplices from jail and sends those who may expose it back to prison; it is conducting loyalty tests for government officials; and it has corrupted the courts to provide the legal basis for its criminal actions. Will Stancil summarizes, “Curious what parts of the US federal government could be considered a liberal democracy right now. The executive openly defies the law, he appoints whoever he wants to run his agencies, he pardons his accomplices, he has a paramilitary, the opposition tweets complaints about it. The Constitution envisions major checks on Trump’s authority, but our political class has abandoned all of them in favor of simply waiting for the quadrennial election. And Trump will contest the election if it’s close, so it’s less an election and more a test of his mandate.”

For Democrats, simply waiting to vote Trump out in November will not be enough. Trump and the GOP will try and make voting as difficult as possible, both in early voting and on election day. That means contesting voter suppression before, during, and after the election, despite the Supreme Court’s lack of interest in protecting democracy which has thankfully not permeated the entire federal court system. It also means fostering the will and commitment to vote despite those obstacles. And it may also mean getting out on the streets every day like those moms in Portland and protestors around this country.