Category: Rule of Law

Posted on

Trump, the Supreme Court, and the Shadow Docket: Setting the Table

Something weird is going on at the Supreme Court. In my next post, I’m going to lay out a hypothesis about what that might be. Here, I need to lay the predicate for that discussion.

What is the Shadow Docket (Also Known as the Emergency Docket)?

The shadow docket consists of cases where the Supreme Court reviews lower court decisions that have either granted or denied temporary relief, pending a trial, a decision on the merits, and appeal of the decision in the ordinary course. 

In most of these cases, the lower courts have either granted a preliminary injunction or they have denied a preliminary injunction. 

What is a Preliminary Injunction?

Trials take a long time, appeals take even longer, and in the meantime you may suffer a lot of harm due to behavior that you say is illegal. Your uncle may be departed to El Salvador. Trump may have fired you from the Federal Trade Commission because you are a Democrat. Your business may be going bankrupt because of high tariffs that Trump has illegally imposed. 

A preliminary injunction is intended to preserve the status quo, preventing that injury, pending a final resolution of the dispute. 

When Should a Preliminary Injunction be Granted? When Should it be Denied?

When a party to a case wants a preliminary injunction, the court is supposed to ask four questions.

1. Considering the facts and the law, which party is more likely to win the case, down the road?

2. If the preliminary injunction is denied, how much harm will be caused, and is that harm irreparable? 

3. And what about the potential harm to the other side, if the preliminary injunction is granted?

4. Finally, in this private dispute between two parties, where does the public interest lie?

That’s the legal theory. In practice, the first factor—often called “likelihood of success on the merits”—tends to predominate. 

In other words, if a district judge grants a preliminary injunction, that often means that she thinks the defendant is behaving illegally. If she denies the request, that usually implies that, in her view, the plaintiff doesn’t have a good legal case. 

When She Rules on a P.I. Request, Is a District Judge Required to Explain Her Reasoning?

Yes. The Federal Rules of Civil Procedure provide that a federal district court is legally obligated to explain its reasoning in granting or denying a requested preliminary injunction. The main rationale for that rule is that, without a reasoned explanation, a court of appeals can’t make an informed decision about whether the district judge was right or wrong.

When the Supreme Court Rules on a P.I., Is it Legally Required to Explain its Reasoning?

No, it is not. However, before Trump, the Court normally did explain, at least briefly, how it thought likelihood of success on the merits and the other three factors applied to the case at hand. 

What’s Going on Now?

In a recent article, Erwin Chemerinsky, constitutional law expert and dean of the law school at U.C. Berkeley, explained, 

The Supreme Court always has had an emergency docket to hear requests such as those for last-minute stays of execution in death penalty cases. But it has grown greatly in recent years, and last year saw an exponential increase in orders from the shadow docket. In the October 2023 term, the court resolved 82 matters on its emergency docket. But in the October 2024 term, by June 27, 2025—the last day opinions were handed down—it had resolved 107 matters on its emergency docket. By the time the term officially ended when the new term began on Oct. 6, 2025, the court had decided 140 matters on its emergency docket.

Some of this increase is because of the many cases involving challenges to President Donald Trump’s administration’s initial actions that made it to the Supreme Court. But that does not explain all of the dramatic increase. I think that there is a simple explanation for why the shadow docket has grown: the court’s willingness to rule on matters on its emergency docket. The more the court is willing to give relief on an emergency basis, the more parties will go to the justices for stays of lower court decisions, such as of preliminary injunctions.

There is much to be concerned about in the growth of the shadow docket. Matters are decided without full briefing and without any oral argument. Yet in 2025, the Supreme Court indicated that lower courts were obligated to follow its shadow docket rulings. In several important cases, the court handed down orders without any written opinion, giving no guidance to the lower courts and making the decisions seem an arbitrary exercise of power since no reasons were given for the conclusions. In some cases, the court appeared to disregard detailed factual findings by lower courts and abandon the usual standard for emergency relief: the need for a showing of irreparable injury. …

There have been dozens of rulings by the court on its emergency docket concerning lower-court preliminary injunctions against Trump administration actions. In almost every case, the Supreme Court—virtually always in a 6-3 ruling—has stayed the preliminary injunction and ruled in favor of President Trump. These decisions have included the Supreme Court staying lower court orders stopping the firing of agency officials, ordering the reinstatement of terminated federal grants, forbidding deportations to South Sudan of individuals with no contact with that country, preventing U.S. Immigration and Customs Enforcement agents from stopping people without reasonable suspicion, and keeping the State Department from requiring that passports list a person’s birth sex rather than gender identity. …

In a ruling on the emergency docket, in United States v. Shilling, the court, once more 6-3, stayed a district court’s preliminary injunction and allowed President Trump to bar transgender individuals from serving in the military. Neither the majority nor the dissenting justices wrote an opinion.

Posted on

Facing the New Year. Facing MAGA. David Brooks is Good. Michelle Goldberg is Better.

Michelle Goldberg (N.Y. Times), Trump Is Getting Weaker, and the Resistance Is Getting Stronger:

It has been a gruesome year for those who see Donald Trump’s kakistocracy clearly. He returned to office newly emboldened, surrounded by obsequious tech barons, seemingly in command of not just the country but also the zeitgeist. Since then, it’s been a parade of nightmares — armed men in balaclavas on the streets, migrants sent to a torture prison in El Salvador, corruption on a scale undreamed of by even the gaudiest third-world dictators and the shocking capitulation by many leaders in business, law, media and academia. Trying to wrap one’s mind around the scale of civic destruction wrought in just 11 months stretches the limits of the imagination, like conceptualizing light-years or black holes.

And yet, as 2025 limps toward its end, there are reasons to be hopeful.

That’s because of millions of people throughout the country who have refused to surrender to this administration’s bullying. When Trump began his second term, conventional wisdom held that the resistance was moribund. If that was ever true, it’s certainly not anymore. This year has seen some of the largest street protests in American history. Amanda Litman, a founder of Run for Something, a group that trains young progressives to seek local office, told me that since the 2024 election, it has seen more sign-ups than in all of Trump’s first four years. Just this month, the Republican-dominated legislature in Indiana, urged on by voters, rebelled against MAGA efforts to intimidate them and refused to redraw their congressional maps to eliminate Democratic-leaning districts.

While Trump “has been able to do extraordinary damage that will have generational effects, he has not successfully consolidated power,” said Leah Greenberg, a founder of the resistance group Indivisible. “That has been staved off, and it has been staved off not, frankly, due to the efforts of pretty much anyone in elite institutions or political leadership but due to the efforts of regular people declining to go along with fascism.”

In retrospect, it’s possible to see several pivot points. One of the first was a Wisconsin Supreme Court race in April. Elon Musk, then still running rampant at the so-called Department of Government Efficiency, declared the contest critical and poured more than $20 million into the race. Voters turned out in droves, and the Musk-backed conservative candidate lost by more than 10 points. Humiliated, Musk began to withdraw from electoral politics, at one point breaking with Trump. The tight bond between the world’s richest man and the most powerful one was eroded.

In June, Trump’s military parade, meant as a display of dominance, was a flop, and simultaneous No Kings protests all over the country were huge and energetic. A few months later, Charlie Kirk was assassinated, a tragedy that the administration sought to exploit to silence its opponents. When the late-night comedian Jimmy Kimmel made a distasteful comment on ABC that seemed to blame the right for Kirk’s killing, Disney, the network’s parent company, gave in to pressure to take Kimmel off the air. It was a perilous moment for free speech; suddenly America was becoming the kind of country in which regime critics are forced off television. But then came a wave of cancellations of Disney+ and the Disney-owned Hulu service, as well as a celebrity boycott, and Disney gave Kimmel his show back.

Trump has thoroughly corrupted the Justice Department, but its selective prosecutions of his foes have been thwarted by judges and, more strikingly, by grand juries. Two grand juries refused to indict Letitia James, New York’s attorney general, whom the administration has accused of mortgage fraud, with no credible evidence. After Sean Dunn, a Justice Department paralegal, tossed a sandwich at a Customs and Border Protection officer during a protest in Washington, the administration sent a team of agents in riot gear to arrest him. But grand jurors refused to indict him on a felony charge. Dunn was eventually charged with a misdemeanor, only to be acquitted by a jury. Jeanine Pirro, the former Fox News personality whom Trump made U.S. attorney in Washington, tried three times to secure a federal indictment for assault against a protester who struggled while being pushed against a wall by an immigration agent. Three times, grand juries refused.

Granted, all these grand juries were in liberal jurisdictions, but their rejections of prosecutors’ claims are still striking, since indictments are usually notoriously easy to secure. “I think you’re seeing reinvigorated grand jury processes,” said Ian Bassin, a founder of the legal and advocacy group Protect Democracy. “Nobody actually knows what’s going on in those grand juries, but the outcome of them seems to suggest that people are actually holding the government’s feet to the fire and being unwilling to simply be a rubber stamp.”

Trump ends the year weak and unpopular, his coalition dispirited and riven by infighting. Democrats dominated in the November elections. During Joe Biden’s administration, far-right victories in school board races were an early indication of the cultural backlash that would carry Trump to office. Now, however, Democrats are flipping school board seats nationwide.

Much of the credit for the reinvigoration of the resistance belongs to Trump himself. Had he focused his deportation campaign on criminals or refrained from injuring the economy with haphazard tariffs while mocking concerns about affordability, he would probably have remained a more formidable figure. He’s still a supremely dangerous one, especially as he comes to feel increasingly cornered and aggrieved. After all, by the time you read this, we could well be at war with Venezuela, though no one in the administration has bothered to articulate a plausible rationale for the escalating conflict.

But it’s become, over the past year, easier to imagine the moment when his mystique finally evaporates, when few want to defend him anymore or admit that they ever did. “I think it’s going to be a rocky period, but I no longer think that Trump is going to pull an Orban and fundamentally consolidate authoritarian control of this country the way that it looked like he was going to do in March or April,” said Bassin, referring to Prime Minister Viktor Orban of Hungary. If Bassin is right, it will be because a critical mass of Americans refused to be either cowed or complicit.

Posted on

The Trump Justice Department Can’t Even Indict a Ham Sandwich

Insanity is Doing the Same Thing Over and Over Again and Expecting Different Results

The Guardian, Grand jury again declines to indict Letitia James on mortgage fraud charges: New York attorney general dodges indictment for second time in a week as Trump justice department seeks retribution:

A federal grand jury has declined to indict Letitia James, the New York attorney general, on mortgage fraud charges for the second time in a week, according to a person familiar with the matter, in an embarrassing blow to the Trump justice department as the president has sought retribution against one of his political rivals.

The department has attempted to twice file new charges against James after a judge dismissed an indictment against her after determining the prosecutor handling the case had not been properly appointed.

A decision [not to indict] by a federal grand jury is extremely rare. Only prosecutors appear before a grand jury and defendants do not to offer evidence in their support of their case. There is a legal axiom that “any good prosecutor can get a grand jury to indict a ham sandwich”, underscoring the power prosecutors have over grand juries.

The justice department declined to comment.

“For the second time in seven days, the Department of Justice has failed in its clear attempt to fulfill President Trump’s political vendetta against Attorney General James. This unprecedented rejection makes even clearer that this case should never have seen the light of day,” said Abbe Lowell, a lawyer representing James. “This case already has been a stain on this Department’s reputation and raises troubling questions about its integrity. Any further attempt to revive these discredited charges would be a mockery of our system of justice.”

James was charged with one count of bank fraud and one count of making a false statement in connection with a home in Norfolk, Virginia in 2020. Prosecutors say James committed a crime because she indicated on mortgage paperwork that the purchase would serve as her second home, but then rented it out. James denies wrongdoing and experts have said the allegations are thin. The New York Times reported James’ niece lives in the home.

Career prosecutors did not think there was sufficient evidence to file charges against James and were subsequently fired. The initial case was personally presented by Lindsey Halligan, a Trump ally installed to be the acting US attorney for the eastern district of Virginia. In November, a federal judge dismissed the case after ruling that Halligan was improperly appointed to the post. The criminal case against James Comey, the former FBI director, was dismissed on similar grounds.

Nothing prevented the justice department from trying to refile the case and they did so last week before a federal grand jury in Norfolk. A career attorney brought in from Missouri to work on the case, Roger Keller, handled that presentation, which was rejected. The office could again seek to refile charges against James with a different grand jury.

So … What is Trump Thinking?

It’s an important question.

Some folks sanewash Trump by claiming that he’s retaliating against his enemies by forcing them to spend time and resources to establish their innocence.

I don’t think that’s a logical explanation of his thinking. Mainly because, by doing the same thing over and over, he his making himself and his team look like the idiots they are. 

No, I think it’s a lot worse than just an intention to misuse his office.

Trump does not understand that there are good legal arguments and bad legal arguments. To him, all legal analysis is a buzzing, booming confusion. Like some mad King Canute, he thinks he can bend reality with his magical bullshit. He does not understand that actions have consequences, and he is unwilling to accept advice from professionally competent individual who could correct his misunderstanding and help him to predict what the consequences of his actions will be. 

Posted on

High on My List of Thanksgiving Gratitude Items: The Trump Team’s Utter Incompetence

The Wall Street Journal has a few choice observations.

WSJ, The Gang That Couldn’t Indict Straight: Trump’s revenge lawfare on James Comey and Letitia James gets thrown out of court:

Under the law, when a U.S. Attorney’s office becomes vacant, a President may temporarily fill the job for 120 days, after which the district court is supposed to get the power to fill the role. Congress wrote the law that way to ensure the Justice Department wouldn’t be left short-handed, while also protecting the Senate’s advise-and-consent power over nominees. 

In January, after Mr. Trump’s inauguration, the Administration named Erik Siebert as interim prosecutor for Eastern Virginia. Once his three-month lease was set to expire, the judges of the district chose to retain him. But Mr. Siebert was reluctant to charge Mr. Comey and Ms. James, as Mr. Trump demanded, and he stepped down in September. Then the Administration purported to install Ms. Halligan, who had no experience as a prosecutor. 

In the White House’s view, Mr. Siebert’s exit gave Mr. Trump the opportunity to name another interim prosecutor for a new three-month term. But that isn’t what the law says, according to Monday’s analysis by Judge Cameron McGowan Currie. As he explains, that interpretation would let the President “evade the Senate confirmation process indefinitely by stacking successive 120-day appointments.”

The vacancy law is designed for a temporary fill-in, not Senate circumvention. Ms. Halligan “has been unlawfully serving,” the judge concludes, and her efforts on indicting Mr. Comey and Ms. James were “unlawful exercises of executive power.” This is what happens when officials don’t follow legal procedure. They lose cases. Mr. Trump was so eager to indict his enemies, and Attorney General Pam Bondi was so quick to go along, that it all unraveled at the pull of one legal thread.

The Trump Administration could refile the charges, though the statute of limitations may have expired in Mr. Comey’s case. If Mr. Trump tries again, he might end up with cases that are two-time legal losers.

Posted on

Illegal Orders and the Nuremberg Defense—Wargaming it out, So to Speak

The Democratic officials who put out the video on illegal orders were clearly implying that

  • Trump had already issued illegal orders or that he was about to issue illegal orders or that there was a clear risk that he would issue illegal orders, and that
  • anyone in the military or intelligence services who obeyed such illegal orders could suffer the same fate as the German officials who, famously and unsuccessfully, relied on the “Nuremberg defense”—“I was only following orders.”

But the officials did not explicitly say what orders they considered illegal—obviously a conscious and considered omission.

One could plausibly argue that this omission was cowardly. More to the point, one could plausibly argue that the failure to specify exactly what illegal orders they were talking about could create confusion in the minds of military personnel. Indeed, some have made plausible arguments along these lines, and the controversy will continue to grow. 

However, our President, Mango Mussolini

  • lacks the mental capacity to construct a plausible argument,
  • would not recognize the Nuremberg defense if it bit him in the ass, 
  • has no sense at all of the difference between a strong legal position and a weak legal position—he just thinks all legal argument is bullshit, and the winner is the guy who shouts his bullshit the loudest, and
  • literally does not know right from wrong.

Afflicted by these mental lacunae, Mango Mussolini cannont begin to devise a workable plan to make the Democratic officials pay for their failure to identify the illegal orders of which they spoke. Instead, he can only bluster and threaten—in this case, threaten to order his minions (1) to arrest the Democratic officials for the crime of referring to the Uniform Code of Military Justice and then (2) to procure their execution following trial in the federal criminal justice system. 

But Here’s the Thing About Threats

First of all, pretty much everyone who plays in the arena of politics or business knows that it’s a bad idea to take the hostage if you are not prepared to kill the hostage. That’s because your extreme threat, followed by supine inaction, makes you look like a blustering fool. 

And, by the way, the reason why you look like a blustering fool is that you are in fact a blustering fool.

On the other hand, what if the Justice Department does arrest Senator Slotkin, get Lindsey Halligan to indict her for treason, and put her on trial in a United States district court? Well, guess what? It isn’t illegal, let alone treasonous, for someone to make a general reference to a provision of law—here, the Uniform Code of Military Justice, Title 10 of the United States Code, Section 892, and the related case law. 

Conclusion? Either course of action—blustering followed by inaction, or blustering followed by a ridiculous prosecution in federal court—leads inexorably to failure by Trump.

The logical next step would be for Trump to tell the Proud Boys to get our their guns and go after Senator Slotkin and the rest of the crew. 

Posted on

Hang ‘Em High!

Washington Post, Trump: Democrats ‘traitors’ for telling military not to follow unlawful orders: The president said lawmakers who appeared in a video committed “seditious behavior” and should be arrested and put on trial for treason:

President Donald Trump accused a group of Democratic lawmakers on Thursday of “seditious behavior” and called for their arrest for appearing in a video in which they reminded members of the U.S. military and intelligence community that they are obligated to refuse illegal orders.

“It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL,” Trump wrote on Truth Social. “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand.”

The video released Tuesday features a group of six Democrats who served in the military and intelligence community. Addressing active service members, they caution active-duty military members that “threats to our Constitution aren’t just coming from abroad, but from right here at home.”

“Our laws are clear,” Sen. Mark Kelly (Arizona), a Navy veteran, says in the video. “You can refuse illegal orders.”

“You must refuse illegal orders,” adds Rep. Chris Deluzio (Pennsylvania), who also served in the Navy.

The video does not specify particular orders that might be unlawful. But some of the lawmakers have relayed this week that they are hearing concerns from service members about the legality of strikes that have targeted people the Trump administration alleges are trafficking narcotics by sea.

The Pentagon did not respond Thursday morning to questions about the Pentagon’s post. Traditionally, the U.S. military adheres to the Uniform Code of Military Justice, which holds that service members must obey lawful orders, whether they agree with them or not. They are obligated to not follow “manifestly unlawful orders,” but such situations are rare and legally fraught. Members of the military take an oath to the Constitution, not the president.

The video, organized by Sen. Elissa Slotkin (Michigan) — who previously worked as a CIA analyst, also features Reps. Maggie Goodlander (New Hampshire), a former Navy reservist; Chrissy Houlahan (Pennsylvania), a former Air Force officer; and Jason Crow (Colorado), a former Army Ranger.

On his social media platform Thursday, Trump echoed other Republicans who have called for the Democrats to be removed from office, dishonorably discharged from the military and charged with treason — a crime punishable by death.

The stark punishment was not lost on Trump, who wrote in another post on Thursday: “SEDITIOUS BEHAVIOR, punishable by DEATH!”

He also reposted a post from a Truth Social user proclaiming: “HANG THEM GEORGE WASHINGTON WOULD !!”

The White House declined to comment on the record.

Democrats sharply criticized Trump’s threats.

“The administration should never try to force our servicemembers to carry out an illegal order,” Sen. Chris Coons (D-Delaware) said on social media. “Calling for the execution of senators and Congressmembers for reminding our troops of that is chilling behavior. Every one of my Republican colleagues needs to swiftly condemn this.”

Trump has repeatedly accused different groups and individuals of treason going back to his first presidential term, but has never followed through with prosecution, lobbing attacks on Black Lives Matter, the news media, former FBI director James B. Comey and former president Barack Obama with the claim.

Trump campaigned on prosecuting his political opponents and dispensing with the 50-year custom of insulating federal law enforcement from political influence. This year he has grown increasingly explicit in demanding specific investigations against people who have criticized him, leading directly to action by his appointees at the Justice Department.

In September, Trump pushed out a federal prosecutor in Virginia who declined to bring charges against New York Attorney General Letitia James (D) and replaced him with his own personal lawyer, Lindsey Halligan. Halligan then indicted James as well as Comey, whom Trump fired in 2017. On Wednesday, prosecutors acknowledged in court that a grand jury did not review the final indictment, a defect that Comey’s lawyers argued should cause the judge to dismiss the case.

The U.S. attorney in Miami is pursuing a broad probe against Obama administration officials, including former CIA director John Brennan and former director of National Intelligence James R. Clapper Jr. related to the investigation of Russian interference in the 2016 election. Trump officials have also initiated investigations at the president’s urging against Rep. Adam Schiff (D-California), who led the first impeachment inquiry against Trump in 2019, and Lisa Cook, a Federal Reserve governor he has sought to remove.

And on Friday, Trump directed the Justice Department to investigate prominent Democrats’ ties to Jeffrey Epstein, the wealthy sex offender who killed himself in jail in 2019. Bondi said she would proceed with that case, four months after saying the department’s review of the case found no information to pursue additional charges.

The Justice Department, Pentagon and the offices for Democratic lawmakers in the video did not immediately respond to requests for comment.

Posted on

According to MAGA, Shakespeare Had a Great Idea About What to do with the Competent Lawyers

Washington Post, Justice Department struggles as thousands exit—and few are replaced

D. John Sauer, Esquire, pursued a double major, philosophy and electrical engineering, at Duke. After college, he was a Rhodes Scholar at Oxford, where he earned a degree in theology, followed by a masters in philosophy at Notre Dame. At that point, he felt a call to the bar, prompting him to go to Harvard Law School, where he “made Law Review” and earned a degree magna cum laude. After Harvard Law, Judge Luttig of the Fourth Circuit gladly offered him a position as clerk, and from there he went on to provide his considerable intellectual talents as clerk to Justice Scalia. 

No slouch is D. John Sauer, Esquire. As a consequence of his brilliance and prestigious education, Mr. Sauer knew exactly what to tell the judge who asked if it would be A-OK for a president to order Seal Team Six to assassinate a political enemy. “Yessiree bobtail,” readily responded D. John Sauer, Esquire, “that would be just hunky-dory.”

Having achieved victory in the presidential immunity case through the ministrations of D. John Sauer—electrical engineer, philosopher, theologian, and legal scholar—Mango Mussolini knew exactly whom to appoint as Solicitor General, the position Mr. Sauer currently graces. 

Clearly, Trump and his Attorney General, Ms. Bondi, would like to shitcan all the normal lawyers from the Justice Department and replace every mother’s son and daughter of them with clones of D. John Sauer, Esquire. 

Sadly, however, as the Washington Post reports today, the American bar is not populated by lots of Harvard trained Nazis, eager to replace the thousands of lawyers who have been fired or who have left the Justice Department. Nor are the law schools at Columbia and Harvard and Georgetown filled with eager young Fascist whipper-snappers, read to pour their hearts and souls into the struggle to establish authoritarianism. WaPo writes,

Current Justice Department prospective hires are more likely to have political backgrounds than have been typical in the past, coming from Republican congressional offices and advocacy groups, the people familiar with the hiring process said. Others are young attorneys with little relevant experience or mid- to late-career attorneys who have no background in prosecutions.

Posted on

Are We Drifting into Authoritarianism—Or Maybe Drifting into Chaos?

When I was three years old, I had to learn by experience what are the consequences of sticking the table knife into the electric socket. Apparently, large numbers of our fellow citizens need to learn from experience that it is unwise to pick as your airline pilot someone suffering from severe mental illness, who lacks common sense, and who is quickly becoming senile and demented. Such a pilot is likely to fly the plane into the ground. It’s a shame the passenegers didn’t know that before the picked him. 

The Markers of Authoritarianism

I think the New York Times did a good job laying out twelve markers of authoritarianism. (See the immediately preceding post.) That said, I also think some context is badly needed.

What Trump Doesn’t Know

Trump doesn’t know how to do second-order thinking. He cannot accurately grasp the consequences of his actions, or the consequences of the actions of others.

Trump doesn’t know how to think long term. Witness, for example, his thoughts on the filibuster.

Trump doesn’t know how to use any tools to achieve his goals, apart from bribery and threats, including threats of violence. 

It is a constant surprise to Trump that, while some people will succumb to bribery and some will succumb to threats, others will not. In fact, for many, the threats will, from Trump’s perspective, be entirely counterproductive. 

As a sociopath lacking all empathy, Trump is unable to appeal to others’ empathy, because he does not know that most people are empathetic, at least to some degree. 

Trump doesn’t know how to construct a plausible argument. Thus, on the rare occasions when his positions have some merit, he cannot make a logical argument. 

In fact, Trump is unaware that some arguments are backed by facts and logic, and some are just bullshit. To him, legal disputes are just a matter of which side screams the loudest. Because he is unaware that some legal positions are well founded and others are not, and because he cannot accurately predict the consequences of his actions, and because he is incapable of second order thinking, he has ordered the prosecution of Letitia James and James Comey even though the prosecutions will fail, and he and his legal team will be revealed as the idiots they are. 

By contrast, a rational proto-fascist would have known that ordinary prosecutions of his enemies would fail, and he would do better to encourage violent action against them, outside the formal legal structure. 

But Trump is the President

So, he can do a lot of mischief and cause a lot of chaos. 

Trump’s Popularity is Headed South

From The Economist this morning:

Inflation and Criminal Immigrants

Trump’s slender margin of victory in 2024 was based on inflation and fears of criminal immigrants. 

A rational proto-fascist would have kept his promise to try to lower inflation. A rational wannabe dictator would have realized that policies that tend to promote inflation will in fact increase inflation. Someone capable of second order thinking would have realized that higher inflation would decrease his popularity and make it harder for him to achieve his authoritarian dreams. Someone not blinded by grandiosity would recognize his loss of popularity when he sees it.

A rational nascent Nazi would recognize that if he has made inroads into the Latino community by promising to round up criminal immigrants, then he should round up criminal immigrants, not terrorize the whole Latino population. 

And What About the Supreme Court?

The Supreme Court is slow walking Trump’s emergency application to invade Illinois. On Wednesday of this week, they’ll hear oral argument on Trump’s tariff power grab. Other issues will follow in due course. 

They game of Trump v. Justice is under way, but there are more innings to play. In the last game of the World Series, the Blue Jays were ahead at the end of eighth inning, but the Dodgers won the contest. Let’s let this game play out.  

Yeah, But What if Trump Just Defies the Courts?

Well, as someone once said, aye, there’s the rub.

Let’s say Trump doesn’t want to obey a Supreme Court order and directs [insert name of police unit, National Guard, Army battalion, etc. etc.] to act in contravention of the Court’s decision, will the people making up that official body obey Trump or will they obey the Supreme Court or will law and order just break down?

I put it to you that it’s hardly a foregone conclusion that the … police, National Guard, Army, etc. … will just jerk their knees and do exactly what Trump tells them to do. 

But Because I Can Do Second Order Thinking, I Post the Next Question

If the official organs of state power refuse to obey illegal orders, will Trump just call out the Proud Boys and the other hooligans?

Answer: I don’t know, but he has done it before. 

Posted on

Twelve Markers of Authoritarianism

N.Y. Times Editorial Board, Are We Losing Our Democracy?

The Times identifies twelve “markers of democratic erosion,” briefly discusses each one, and gives a “bottom line” view of where we are on the downward curve. This post cites each “marker” and reproduces the Times Editorial Board’s “bottom line”:

1. An authoritarian stifles dissent and speech. Bottom Line: Many forms of speech and dissent remain vibrant in the United States. But the president has tried to dull them. His evident goal is to cause Americans to fear they will pay a price for criticizing him, his allies or his agenda.

2. An authoritarian persecutes political opponents. Bottom line: True authoritarians go much further than Mr. Trump has, but he has already targeted his opponents with legal persecution in shocking ways.

3. An authoritarian bypasses the legislature. Bottom line: Mr. Trump has defied the Constitution by trampling on Congress’s power of the purse. In full autocracies, legislatures often formally transfer some of their authority to the executive, and some congressional Republicans have proposed such changes.

4. An authoritarian uses the military for domestic control. Bottom line: Mr. Trump’s use of the military for domestic control has been limited. But his willingness to use it as he has — and his threats to expand that use, through the invocation of the Insurrection Act and with troops beyond the National Guard — is extremely worrisome.

5. An authoritarian defies the courts. Bottom line: It is a hopeful sign that he has not ignored the Supreme Court, and the court may yet block his most blatant power grabs. Still, the court’s reluctance to restrain himappears to have emboldened him to sidestep lower court orders he does not like.

6. An authoritarian declares national emergencies on false pretenses. Bottom line: Mr. Trump’s willingness to kill people without due process, through the blowing up of boats that American officials could instead stop and search, represents one of his most extreme abuses of power. It raises the prospect that he may expand the use of emergency power to other areas, including domestic law enforcement.

7. An authoritarian vilifies marginalized groups. Bottom line: Mr. Trump is borrowing from the autocrats’ playbook by suggesting that some citizens are legitimate and others are second-class.

8. An authoritarian controls information and the news media. Bottom line: In place of an independent and free press, Mr. Trump evidently hopes to create a shadow ecosystem willing to promote his interests and talking points.

9. An authoritarian tries to take over universities. Bottom line: Because the federal government finances so much academic research, it has considerable power over universities. Initially, some universities seemed as if they might simply submit to Mr. Trump’s demands. More recently, several showed more willingness to resist, rejecting a proposal that would have rewarded them financially for adopting Trump-friendly policies.

10. An authoritarian creates a cult of personality. Bottom line: The Trump cult of personality plays into his claims — common among autocrats — that he possesses a unique ability to solve the country’s problems. As he put it, “I alone can fix it.” He seeks to equate himself with the federal government, as if it does not exist without him.

11. An authoritarian uses power for personal profit. Bottom line: The Trump cult of personality plays into his claims — common among autocrats — that he possesses a unique ability to solve the country’s problems. As he put it, “I alone can fix it.” He seeks to equate himself with the federal government, as if it does not exist without him.

12. An authoritarian manipulates the law to stay in power. Bottom line: Even if he backs away from any scheme to serve more than two presidential terms, Mr. Trump’s attempts to tilt the electoral field in favor of Republicans is anti-democratic and could pervert American elections for years.