Category: Rule of Law

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On Fascism: Some Comments on MacWilliams and Goldberg

This follows up on the immediately preceding post. Some comments below.

1. What one key thing explains the rise of Trump? It’s a great question. I’ve been asking it for a decade, and so, very probably, have you. 

In my opinion, this onion has a whole lot of layers, but if you’re looking to identify the essence of the matter, I think MacWilliams—he’s a political scientist at the University of Massachusetts—has as good an insight as any: (a) Always and everywhere, there are a goodly number of people with authoritarian tendencies. (b) Trump found a way to trigger these folks’ natural inclination toward authoritarianism. (c) The triggering process was greatly facilitated by the rise of the internet and of social media. 

2. Some more layers to the onion, you said? Yes, I did say that. Here are some of them:

Point: with the rise of social media, a whole lot of our fellow citizens have detected a permission structure to joyfully embrace their inner asshole. One of these ways, but only one, is saying hello to the Nazi side of their personality.

Point: although I don’t believe either Goldberg or MacWilliams mentions racism by name, I think a large part of Trump’s attractiveness is the fact that he is both a stone cold racist and a wealthy celebrity. It gratifies his unwashed followers that a person of such wealth and celebrity will openly share their racism.

Point: I strongly suspect that, when a definitive history of our era is available, we’ll find it wasn’t just underlying racism, it wasn’t just the malign ability of one man to appear charismatic, and it wasn’t just the rise of social media as such. I think we’re going to find there was a whole lot of conscious, clever, compensated manipulation of social media by intelligent people in the pay of some of our economic overlords. 

3. Always look on the bright side of life. Trump is not Machiavelli. His fundamental problem is that he believes a lot of his own bullshit—not all of it, but a whole lot of it, and a lot of it that is relevant to pursuing his fascist agenda. In consequence, he is forever misunderstanding key facts about the politico-economic environment. He lacks, moreover, the ability to gather, evaluate, and apply important information. He regularly fails to predict how key actors will respond to his lies, his bluster, his threats, and his bullshit. And when people do not respond as he might wish, his severely limited skill set handicaps him in reacting to an unfavorable situation. He cannot, for example, construct a rational argument or distinguish between a plausible lie and an implausible lie. 

4. A lot of people think that things have changed in the past month. Are they right? Yes, I certainly think so. Michelle Goldberg identifies some key factors, and I agree with her. 

Trump dimly perceives (a) that L’Affaire Epstein is a serious challenge to his continued popularity among the one third of the country who are his core supporters, and (b) that his standing with his own people is further threatened by the economic chaos caused by his policies on tariffs and immigration. 

In response, Trump is trying both to appease and to distract the worst of his own supporters with military aggression, domestic and foreign. Because if the worst of the worst desert him, who will he have left?

5. What is the best advice for decent progressives? When your adversary is screwing himself, hold his beer, and let him get on with it. 

We must oppose fascist aggression. And we must be mindful that Trump’s gross incompetence is helping him to dig his own political grave.

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On Fascism

Michelle Goldberg (N.Y. Times), The Resistance Libs Were Right:

For the last decade there’s been a debate, among people who don’t like Donald Trump, about whether he’s a fascist.

The argument that he isn’t often hinges on two things. First, when Trump first came to power, he lacked a street-fighting force like Benito Mussolini’s Blackshirts, even if he was able to muster a violent rabble on Jan. 6. “Trump didn’t proceed to unleash an army of paramilitary supporters in an American Kristallnacht or take dramatic action to remake the American state in his image,” wrote the leftists Daniel Bessner and Ben Burgis in “Did It Happen Here?,” a 2024 anthology examining the fascism question.

Second, Trump didn’t pursue campaigns of imperial expansion, which some scholars view as intrinsic to fascism. “For all of Trump’s hostility towards countries he perceives as enemies of the U.S., notably Iran, there is no indication that he sought a war with any foreign power, still less that he has been consumed by a desire for foreign conquest and the creation of an American empire,” wrote Richard J. Evans in his 2021 essay “Why Trump Isn’t a Fascist.”

It’s striking how much the arguments that Trump is not a fascist have suffered in just the first few days of this year, in which we’ve plunged to new depths of national madness.

Now that America has plucked the dictator Nicolás Maduro from power in Venezuela and announced that it would help itself to the country’s oil, other nations are adjusting to a reality in which we’re more predator than ally. European countries are contemplating stepping up their military presence in Greenland to protect it from the United States. An Economist headline proclaims, “Canada’s Armed Forces Are Planning for Threats From America.”

In the Midwest, Trump’s paramilitary forces killed a citizen in Minneapolis and now appear to be using her death to threaten other activists, barking at one observer, “You did not learn from what just happened?” Videos from the city show gun-toting men in masks and camouflage descending on people to demand proof of citizenship, pelting crowded streets with tear gas and sometimes attacking those who film them. Meanwhile, a new ICE recruiting ad declares, “We’ll Have Our Home Again,” which just happens to be part of the refrain of a white nationalist anthem.

Both ICE’s occupation of Minneapolis and Trump’s threatened seizure of Greenland are part of the same story: An increasingly unpopular regime is rapidly radicalizing and testing how far it can go down the road toward autocracy. If anyone had predicted back in 2024 precisely what Trump’s return to the White House was going to look like, I suspect they’d have been accused of suffering from Trump Derangement Syndrome. But the shrillest of Resistance libs have always understood Trump better than those who make a show of their dispassion. As the heterodox writer Leighton Woodhouse put it on X, “The hysterical pussy hats were right.”

Of course they were. From the moment he descended his golden escalator, Trump’s message, the emotional core of his movement, has been textbook fascism. In his 2004 book “The Anatomy of Fascism,” the eminent historian Robert O. Paxton described the “mobilizing passions” that form fascism’s foundation. Among them are a “sense of overwhelming crisis” that renders traditional solutions obsolete; a belief that one’s own group has been victimized, justifying almost any action in redress; “dread of the group’s decline under the corrosive effects of individualistic liberalism, class conflict and alien influences”; and the need for a strong male leader with instincts more powerful than mere “abstract and universal reason.”

The premonitions of our current regime in Paxton’s work don’t stop there. Fascism, in his telling, is marked by its contradictory attitude toward modernity: a hatred of atomized urban life combined with a fetish for technology. Fascist movements “exploited the protests of the victims of rapid industrialization and globalization,” he wrote, though in power, they doubled down on industrial concentration. And, of course, fascists “need a demonized enemy against which to mobilize followers.”

If Trump didn’t always act on his most fascistic predilections in his first term, it was because he was restrained by the establishment types around him. Mark Esper, Trump’s former defense secretary, said that Trump repeatedly broached the idea of bombing Mexico. In 2019, Trump canceled a meeting with Prime Minister Mette Frederiksen of Denmark after she refused to entertain the idea of selling him Greenland. His taste for violence against his political enemies has never been secret, and was made clearest on Jan. 6, the event that led a once-doubtful Paxton to conclude that the word “fascist” applied to Trump.

None of this means that America is destined to become a fully fascist country. For now, we are trapped in the space between the liberal democracy most Americans grew up in and the dark, belligerent authoritarian state that our government seeks to impose. The important thing isn’t really the name we give to this political development, but our ability to see what’s happening clearly and make sense of its likely trajectory.

On the last page of “The Anatomy of Fascism,” Paxton offers a warning. “We know from tracing its path that fascism does not require a spectacular ‘march’ on some capital to take root,” he writes. “Seemingly anodyne decisions to tolerate lawless treatment of national ‘enemies’ is enough.”

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Wise Words from Heather Cox Richardson

Dr. Richardson is a prominent historian and professor at Boston College.

I think the whole video is worth watching, even if you are generally aware of what’s going on in this country. Some of the relevant points:

First Minute: HCR puts some of Trump’s outrageousness in historical context, in light of a Republican intellectual triumphalism—“We’re right and, guess what, you’re wrong!” We saw a lot of that beginning with Reagan’s election. I remember it well. 

Third Minute: She doesn’t use the phrase, but others rightly call it “herrenvolk democracy”: any Democratic victory is inherently illegitimate.

Sixth Minute: A concerted effort to destroy rules-based order.

Eighth Minute: He thinks only people like himself should be in power. 

Ninth Minute: He’s no compos mentis. It appears they’re giving him psychiatric drugs. It’s a behind-the-scenes effort to control him.

Eleventh Minute: No, J.D. Vance would not be worse. 

Twelfth Minute: It’s extremely difficult to tell what’s happening in this Administration.

Fourteenth Minute: What appears to have just happened in Venezuela.

End of Seventeenth Minute: A work of genius by the Venezuelan regime and its allies.

As historians know, invasion of your country greatly helps to unify your people. 

Nineteenth Minute: Trump’s oil fantasy.

Twenty-first Minute: Shrinkage from a global power to a regional power. Jettisoning the benefits of the rules-based international order.

Twenty-third Minute: Greenland.

Twenty-fourth Minute: A fundamental misunderstanding of the nature of American power.

Twenty-sixth Minute: Russia gets Ukraine, we get Venezuela. Sort of like the eve of World War I, but this time with nuclear weapons.

Twenty-seventh Minute: Oil is the technology of the past. The future lies in semi-conductors. We’re giving Xi permission to take over Taiwan—which makes 60% of the world’s semi-conductors. And Trump doesn’t understand this.

Twenty-eighth Minute: Destruction of the rules-based international order. A demented president, no longer operating in reality. Magical thinking is a hallmark of this moment.

Twenty-ninth Minute: Don’t follow grandpa down this road. Time to speak up. 

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Supreme Court Bites Man: Trump v. Illinois. In Response, Man TACOs.

I recently shared some observations about the Supreme Court’s shadow docket (here and here). In brief, the Supreme Court has been catching serious flack for

  • ducking hard questions in its many shadow docket decisions involving the Trump Administration, and, generally,
  • letting the Administration get away with murder pending some final resolution of the legality of Trump’s usurpations—a resolution that, it appears, might come around the Twelfth of Never. 

But in Trump v. Illinois, in a short, unsigned 6-to-3 decision, the Court majority ruled that, pending trial and appeal, Trump had to get the National Guard the hell out of Illinois, because Trump had identified no proper legal authority to send them there in the first place. 

For a few days, people wondered whether Trump and his merry band of legal geniuses would either (i) tell the Supreme Court to go stick it where the sun don’t shine or (ii) claim authority under the Insurrection Act, even though there was and is no insurrection. 

Trump did neither. Instead, he TACOed, surrendering in his legal attempts to keep federal troops in Los Angeles and announcing that he would withdraw the National Guard from Illinois, Los Angeles, and Portland. 

So … what does it all mean?

I don’t know, and I won’t pretend to pretend that I know.

And yes, very assuredly, one swallow does not a summer make. But it cannot be a bad thing that …

… faced with a clear loss in the Supreme Court on one of his several signature issues—sending federal troops into the big cities—Trump has unambiguously backed down,

… Trump has elected, at least on this one occasion, not to put to the test whether “his” troops would or would not obey illegal orders, and that …

… a six-person majority of the Supreme Court bit the bullet, dared Trump to defy them, and came away with a famous victory.

The bet paid off.

May that trend long continue.

And this final word of speculation: as Justice Holmes said so long ago, the Court reads the newspapers. I think Chief Justice Roberts, along with his sidekicks Justices Coney Barrett and Kavanaugh, probably read the newspapers, where they grasped, one, that Trump is circling the drain, and two, that people are getting sick and tired of the Supreme Court’s fecklessness. 

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The 5.2 Million Epstein Files and the 400 Lawyers

In recent days, widespread reports say the Justice Department has discovered more than five million new Epstein files—and that it has pressed 400 lawyers into service redacting the files.

If all of that is so, then there is a document that must exist—and therefore it does exist—namely, a written summary of criteria that the 400 lawyers are required to use when choosing that passages to redact. 

I want to see that set of redaction instructions.

And I will see it. And so will we all. Sooner than you may think.

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You Can Tell a Man who Abuses by the Company He Chooses

Among those who, the records show, often kept company with Jeffrey Epstein were (in alphabetical order) Woody Allen, Prince Andrew, Steve Bannon, Ehud Barak, Bill Clinton, Alan Dershowitz, Michael Jackson, Bill Richardson, Larry Sommers, and Donald Trump. 

Morality aside, these people knew or should have known that close association with Jeffrey Epstein involved a risk of grave reputational and/or legal harm.

The most logical reason that could explain why they would choose to run such a risk is that they were in the grip of a virtually irresistible impulse. 

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Trump, the Supreme Court, and the Shadow Docket: What’s Going On?

A Trigger Warning—and Some Disclaimers

The Trigger Warning: Some readers will be triggered by prose that, read superficially, might sound sympathetic to Chief Justice Roberts and to his sidekicks, Justices Coney Barret and Kavanaugh. Such readers may want to skip this post. In any event, they are requested not to throw food in my direction. Or, if they must, please pick the corn muffins we’re getting tonight, and take a pass on the bean soup and the pistachio pudding. 

The Multiple Disclaimers: In this post, I’m not in the moralizing business, I’m not in the mind reading business, and I’m not in the prediction business. Not that moralizing, mind reading, and prediction are unimportant. They’re just not what I’m trying to do here. Here, I’m in the hypothesizing business. I’m in the trying-to-understand business. 

The Three Court Factions

You can generally count on the three liberal justices to do the right thing. If you bet that Justices Thomas, Alito, and Gorsuch will do the wrong thing—and that Justice Gorsuch will camouflage the wrong thing with extensive verbiage made to superficially resemble legal scholarship—then you’re likely to win your bet. In the middle, that leaves the Chief Justice, along with Justices Coney Barrett and Kavanaugh. These three generally decide who’s going to win the case.

And, by the way, when I say “middle faction,” the word “middle” is not intended to be either favorable or pejorative. It just means they’re literally in the middle of the other two factions. 

The Supreme Court and Trump’s Multiple Power Grabs

It appears that the rubber will soon meet the road, and that the Supreme Court is going to make some definitive rulings on, among other things,

  • the proper construction of the emergency economic powers act that Trump has employed to justify his massive restructuring of American trade and world trade, 
  • Trump’s endeavor to rewrite the Constitution by fiat to eliminate birthright citizenship,
  • Trump’s many violations of statutory law and constitutional due process in connection with immigration roundups,
  • the Administration’s usurpation of the power of the purse, which, under the Constitution, belongs to Congress,
  • Trump’s attempt to destroy the United States Civil Service,
  • Trump’s attempts to use the National Guard and the military to take over big cities, and
  • Trump’s effort to do away with the independence of independent agencies like the Federal Trade Commission.

The Vexed Question of the Shadow Docket

In introduced this topic in the immediately preceding post, which you may wish to read now, before proceeding further. 

There are many reasons why it’s a vexed question. In the first place, the Court’s behavior contradicts what we learned in civics class—back when they taught civics in high school. We have checks and balances. When the president violates the law, the courts are supposed to check him. And indeed, lots of district courts and courts of appeal HAVE been checking Trump—but without a lot of support from the Supreme Court on its shadow docket.

Relatedly, the shadow docket is a vexed question from a technical legal standpoint. The Court is ruling on the validity of lower court decision on whether to grant a preliminary injunction pending trial and appeal, and that p.i. issue, in turn, is supposed to depend, in large measure, on “likelihood of success on the merits.” If the district court grants a p.i. against some Trump outrage, and if the court of appeals affirms, and if the Supreme Court majority then reverses the ruling, so that Trump can go on engaging in whatever horseshit he wants, pending trial, does that mean that the Supreme Court thinks Trump is right on the law and all the lower court judges are wrong?

Does it mean that the Supreme Court majority doesn’t give a tinker’s damn about checks and balances?

Does it mean that the majority wants to live in a country governed like Russia and Hungary?

Well, maybe it does mean some or all of those things. 

Or—Possibly—Something Else is Going On

I continue to focus here on the middle faction of the Supreme Court—Justices Roberts, Coney Barrett, and Kavanaugh—not on the three wingnuts, and not on the three liberals. An alternative hypothesis to explain the middle faction’s strange behavior would go something like this.

The middle faction would prefer to live in a constitutional republic governed under law, not in Hungary or Russia, but they are mindful that, to achieve that end, they have to preserve a certain level of public deference to court decisions. And, as Justice Oliver Wendell Holmes, Jr. (pictured above) said a century ago, the Court reads the newspapers. 

Having read the newspapers, the middle faction knew that a reelected, pumped up Trump was going to try to grab power in all sorts of ways. They knew that if the Supreme Court intervened immediately and forcefully, there would likely follow an immediate and grave constitutional crisis. 

The hypothesis continues: The middle faction reasoned that, instead of an immediate constitutional crisis, it would be better to wait a season; let the whole country, including the MAGA base, get a full taste of Trump’s policies; and let Trump’s political support dissipate. 

2026, not 2025, would be right year for strong action to preserve the rule of law. Or so they thought, in the hypothesis presented here.

Remember, Y’all, It’s a Hypothesis

Remember, y’all, it’s a hypothesis. There’s no mind reading, there’s no moralizing, and there’s no prediction about how the Court will actually decide all those issues I mentioned above. 

As far as predictions go, to quote the sage observation of President Eisenhower, “The future lies ahead.”