Just how dangerous is Trump right now?
An interview with legal scholar Lawrence Douglas about Trump's unprecedented authoritarian signaling.
In this week’s newsletter, I’ve got one item: a fascinating interview with Lawrence Douglas, professor of law, jurisprudence and social thought at Amherst College and the author of the new book, Will He Go: Trump and the Looming Election Meltdown in 2020. This conversation was at turns both terrifying and comforting, as I asked him to reflect on Trump’s recent authoritarian signaling both as a legal analyst and as a scholar of Nazi Germany.
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How dangerous is Trump?
In recent months, there has been growing concern about Trump’s overt challenges to some of America’s most fundamental democratic institutions. He’s used federal law enforcement to violently repress protestors; attacked both the mechanics and legitimacy of mail-in voting despite its historical reliability; declined to say that he will accept the results of Election Day; and floated the idea of delaying the election. This all comes after the Lafayette Square episode this spring when Trump invoked the prospect of using the Insurrection Act to deploy troops to American streets to put down protests.
An increasing number of Democratic lawmakers, political analysts, and progressive and left-wing activists have been sounding the alarms about Trump’s more boldly authoritarian signaling and maneuvering. The “fascist” descriptor appears to be gaining some more traction. Bipartisan expert panels are conducting war games to game out potential electoral catastrophes.
I called up Lawrence Douglas to discuss how concerned we should be about what we’re seeing, what we should be on the look out for as elections approach, and how he feels about using the term “fascism.” I learned a ton — and I was particularly intrigued and alarmed by potential scenarios where Democrats win the election but a perfect storm of electoral college complications, polarization and disinformation campaigns makes it startlingly difficult for them to actually take the White House.
The following transcript has been edited for clarity and brevity.
ZA: How concerned are you about the federal officers Trump has been deploying in Portland and elsewhere, in a legal and political sense?
LD: It would be hard to make the case that it's simply illegal, but it's extremely disturbing. It smacks of authoritarianism, and it also seems very characteristic of Trump's leadership style. And yet I think we should also emphasize that its a leadership style that's under particular stress, because I think he realizes he's a very vulnerable incumbent right now.
I really don't think Trump's interest was in quelling violence; he was probably more interested in triggering violence, which would then create a pretext for an even more heavy-handed federal response. We saw this going back to June 1st in Lafayette Square that he was even considering invoking the Insurrection act of 1807. But you could certainly imagine Trump as a kind of cornered creature this fall invoking the Insurrection Act basically as a way to present himself as the candidate of law-and-order, and all that is very troubling.
What's the difference between federal officers in Portland, how would that differ from the Insurrection Act?
One thing we saw in Portland, these federal agents, they look like federal troops, they're pretty armed to the teeth. I mean this is one of the consequences of our response to 9/11 — the militarization of police and the expansion of the federal police force. In the past we really didn't really have much of a federal police force, and we've seen that largely as a result of a reaction to the terror attacks of 9/11. The Insurrection Act would actually permit using federal troops themselves, so National Guard, federal troops, you could actually deploy them.
It would represent a a genuine escalation, but also represent a troubling symbolic escalation in that you're using federal troops against American citizens. We've seen people within the military leadership obviously not liking that idea whatsoever, so I think that's some hopeful pushback against the president. Though I can't imagine that the military would actually countermand an order coming from the commander-in-chief, and that creates its own host of problems; we don't necessarily want the military doing that.
In my book, I describe Trump as a weak authoritarian. I do so not because his instincts aren't authoritarian, because I think they really are. I say that because typically when you look at authoritarian leaders in the past, and present even, you see that they usually cultivate very strong ties with the nation's intelligence community and the nation's military elite. Trump really hasn't done that at all — he's completely alienated the intelligence agencies, and I would say much the same for the military leadership of the nation, and that's a pretty shocking situation. It's not your typical playbook for how authoritarians operate in office.
Trump has floated the idea of delaying the election — does it worry you that he's saying that? How could Election Day be changed?
A lot of people focused on that tweet and it was much ado about nothing in a certain way. If there was something disturbing about the tweet it was the fact that the president appeared not to know that he has no power whatsoever for delaying the election. Election Day is established by federal law and any change would have to come through Congress.
If you look back at his tweets from that day, the tweet about delaying the election was not the most disturbing tweet. To my mind a much more disturbing one was one that he issued a little bit later that got very little attention, which said: "Must know election results on the night of the election, not days, months or even years later!" I think it tells us how he would go about trying to reject a defeat in November. I think it's all connected with these preemptive strikes that he's launched against mail-in ballots.
I think his best chance of arguing that he's won the election is to focus on the results of November 3rd itself. Because you're going to have an unprecedented number of Americans voting by mail-in ballot, and those mail-in ballots are not going to be counted until days or even weeks after the election. And another thing we know about those mail-in ballots is that, because of the threat involved with voting in person, people in cities are the ones who are going to be most heavily relying on mail-in ballots. They're the ones who run the greatest health risks of voting in person, particularly when lots of polling places will be closed. The other thing that we know is that people in cities vote overwhelmingly Democratic.
I think Trump is telling us in this very laconic, short tweet of his that his best strategy is to anticipate on November 3rd that he has a lead — and it might not even be that narrow in some states — but he has a lead because of all these mail-in ballots that are going to break Democratic haven't been counted, and he's going to insist, "I've been reelected, and we have to go with the November 3rd results. Why? because all the mail-in ballots are going to be infected by fraud, I've been saying that all along." And once the mail -in ballots start getting counted and you see his lead shrinking, and Biden taking the lead, particularly in these swing states, he'll say, 'That's what I predicted all along. Democrats are trying to steal the election." That I think is a really troubling scenario.
Mail-in ballots have historically have been reliable in every state, but Trump is claiming they'll be illegitimate, launching attacks on the functioning of the postal system, and even going so far as to say he might not accept the results — what is he trying to do here? Is this going to work out the way he wants it to?
One thing we should bear in mind is how disturbing it is to have a president of the United States insisting that our electoral system can't be trusted, and that the outcomes that are generated by this system aren't trustworthy. That's the basis of a constitutional democracy. If people don't believe that the electoral system has integrity, and that its results are trustworthy, then you're really not living in a democracy anymore. It's kind of unprecedented for a president to so recklessly attack the electoral system. What he's done is created a “heads I win, tails you lose” situation in which the only way that the system can demonstrate its legitimacy is if he wins, and if he loses that becomes de facto proof that the system is rigged.
I worry that the time from November 3rd until the time that these states can complete this full canvass of their votes will allow him to spin his conspiracy theories, and these conspiracy theories are going to find traction with his megaphones in the right-wing media. You could also have foreign adversaries like Russia bombarding our social media with stories about the miscounts and confusions in the counting of mail in ballots. And there is going to be confusion with counting of mail-ballots, there's no doubt about that. There's inevitably going to be litigation about whether the ballots were submitted in a timely fashion in various states. Election officials are going to be completely overworked, especially when they're trying to process these mail in-ballots while also practicing safe distancing. The best hope is to beat him so decisively that his loss is clear on November 3rd.
You've written a whole new book about a potential “meltdown” we could see this election. Are there other scenarios you're worried about?
The following scenario is not necessarily likely, but it's happened before in our history.
Some background: At some point after votes are submitted a state has to figure out who won the state. Whichever candidate wins the popular vote in the state then gets all of the state's electoral college votes (there are two anomalous states, Nebraska and Maine, but we can leave those aside). Once they figure that out they basically certify the slate of electors for whoever won, and that group of electors goes to the state capitol and they vote —this time it's going to be December 14th. Then their certificate awarding all their electoral votes to which ever candidate won gets sent on to Congress. When Congress counts the electoral college certificates submitted by the states and awards a winner, that person is now a president-elect. Normally that joint session of Congress — which will be on January 6, 2021 — usually takes about 20 minutes or 30 minutes, and is just a ceremonial thing.
But where things can go really south is if you have conflicting electoral certificates submitted by states, and with the outcome of the election hanging in the balance. And that actually has happened once in our history — it happened in 1876 in the Hayes-Tilden election, where three states sent in conflicting electoral certificates, and it almost tore the country apart. It was only resolved two days before Inauguration Day, and the compromise that resolved the crisis was an absolute disaster for Black Americans: it basically ended federal Reconstruction of the South, pulling all the federal troops out of the South.
Getting back to this fall, if you look at the swing states of Wisconsin, Michigan, Pennsylvania, and North Carolina, they all have the same political profile — they all have Republican-controlled legislatures and Democratic governors. The reason I think that makes for a potential really nightmarish situation is that even if Democrats win these states, if Trump is successful at claiming that the counting of mail-in-ballots is taking too long, and there are irregularities in the count, and his conspiracy theories get some traction, you could imagine the [Republican-controlled] state legislatures [in swing states] saying, “We agree with him, and we're going to award the state to him.” And you could imagine the Democratic governors of the same four states saying, “No no no what are you doing, we have to wait until the full count is completed, however many weeks it's going to take,” and you can imagine the governors recognizing Biden as having carried the state and his slate of electors.
In principle, according to the law, the governor is the one who is supposed to be certifying the results and sending them on to Congress. But if for some reason the count in the state is delayed, that creates an opportunity for the state legislature to step in. If Republican lawmakers recognize Trump as having carried the state based on November 3 results, and the Democratic governors are recognizing Biden as a result of the final canvass completed weeks later, you can imagine these conflicting certificates being submitted to Congress in January.
If Congress remains divided as it is now, then it's not clear how they could resolve that dispute. I should say it's not the present Congress that would be resolving the dispute, it's the new Congress that's also voted in this fall and that would be sworn in on January 3rd. The other thing to mention about that which just creates another layer of nasty complication — whatever controversies could surround the counting of mail-in ballots for the presidential election could also surround the counting of ballots for these down-ballot elections for the Senate and House. This is why I say there's the possibility of a true system meltdown.
You said it isn’t necessarily likely, but what’s your big picture thinking on the odds of this happening?
In order for a situation like that to happen, you'd need to have a bunch of things come together. The preconditions don’t guarantee its going to happen, but they’re necessary conditions.
You need to have a president who is willing to engage in constitutional brinkmanship and to contest electoral defeat. You need to have an election that perhaps is a little unusual such that we won't really know who has won, so that the president’s contestation is able to gain some kind of traction. Then what you really need is divided government on the state level — in the swing states of the election — and in Congress itself. So we have all those things.
A Democratic Senate seems increasingly likely — would that change the worst-case scenario?
If you have conflicting electoral certificates you need to have bicameral agreement [agreement between both chambers of Congress] as to which ones to accept. If Congress remains divided — if the Senate remains in Republican hands [and the House remains with Democrats], I don’t see a way out of that. I just don't see a way out.
There are two best cases for avoiding real trouble this fall. Beat Trump decisively. Or, if the Democrats capture the Senate, you'll basically have a bicameral resolution in favor of Biden. Of course you could imagine Trump encouraging all sorts of acts of resistance on the part of his diehard supporters, but at least the true constitutional crisis will be averted. If Congress remains divided, they have two weeks to figure it out. By the terms of the Constitution, Trump’s term ends on January 20th; that's a hard, fast date — it's not federal law, it's the Constitution itself. If they can't resolve it then Rep. Nancy Pelosi becomes acting president according to the Presidential Succession Act of 1947. But you could still imagine Trump all the while insisting that Pelosi and her gang are engaged in a coup.
Expert war games suggest that civil unrest and street violence are highly likely if Trump refuses to concede a loss. It seems we potentially have Trump encouraging millions of people that feel they are fighting for freedom against a coup.
We already saw that in order to extract political points against Democratic governors he tweeted out “Liberate your state!” targeting Michigan and Wisconsin in the early days of the pandemic — and we saw that kind of message resonates with his base. We saw these disturbing images of people with automatic weapons protesting not just outstate state capitols, but inside of state capitols themselves. And this kind of dog whistle politics is very, very dangerous. If you convince your supporters that the electoral system is corrupt, then your act of electoral defiance can be packaged as an attempt to protect democracy not usurp it.
Some Democratic lawmakers and progressive and left-wing activists having increasingly started describing Trump as a fascist. What’s your reaction to that?
I guess I'm more comfortable with calling him an authoritarian. I usually think of fascism — I mean, certainly you could describe a person as fascist— but I usually think of a system as being more fascist, and I don’t think the United States has a fascist system. He has been an incredible stress test to our institutions, and some of those institutions seem to have responded pretty well, some of them have been put under tremendous amounts of stress. If you think about the Department of Justice, Attorney General Bill Barr basically operates as Trump's sword and shield, but at the same time … you have thousands of incredibly talented lawyers there who not just personally dislike the president but really think of him as unfit for office.
Many would counter that we're seeing a rapid degradation of institutional norms in government — what's keeping your faith in the resilience of the system?
One thing that's helpful is that it seems a pretty healthy majority of Americans want this guy out of office and hopefully that democratic result is going to manifest itself. If we didn't have this anachronistic and dysfunctional system of electing the president through the electoral college, which is this byzantine vestige of a late 18th century concoction by the framers of the Constitution, we probably wouldn't be worrying about this stuff. He's going to be beaten soundly in the popular vote.
It's harder to convince 50 percent of the population to embrace a politics of hate and division than it is, let's say, 40 percent; if he wins it's because the electoral college skews this 40 percent into a victory. But I think a pretty healthy majority of Americans oppose this guy. And a lot of people in, for better or worse, elite positions in the US also vehemently oppose him.
I know that this comparison or analogy can sometimes be vulgar, but you’ve conducted a great deal of scholarship on Nazi Germany, and I’m curious what percentage of public was open to Nazi activity at the time that Hitler was rising to power?
They certainly came to power through democratic means, through electoral means, they had roughly Trumpian numbers — around 40 percent [representation in parliament]. I think in one election the most they were able to get — and this is when they had already begun a campaign of terror and intimidation against other political parties — they got 44 percent, but they always hovered around high 30s, 40.
Isn't that number not comforting if they’re Trumpian numbers?
Certainly you could have someone in that position very aggressively take that 40 percent and mobilize the police force of the state to really introduce a genuinely authoritarian system. Forty percent provides you with a large enough beachhead to launch a full-blown attack on the democracy that maybe first brought you into power, I think that's true.
But I think that certainly Weimar Germany was much more vulnerable to that kind of thing than the United States of today. There was constitutional weaknesses within Weimar Germany; they had the famous Article 48 which basically permitted a declaration of state of emergency and kind of a dictatorial rule. And you certainly you didn't have the strength of American institutions. So I have a little more faith in the resilience of our system. But again, history has too many examples of systems that seem to work for a while and then they don't anymore. So this is concerning no doubt about it.
Let's say we’ve avoided the worst-case electoral and legal meltdown you discussed, but Trump refuses to concede a loss and maybe 30 percent of the country believes him. What goes down on January 20th?
I don't really imagine him as barricading himself in the Oval Office, surrounding himself with these rogue secret service agents, refusing to go and ultimately having to be frog-marched out by members of the military. I think he'll go. But he'll go with tens of millions of people believing that he's been ousted, that his victory has be stolen from him, and he could be a force of chaos for years to come, even as a civilian.
The author’s earnings for Will He Go will be donated to the Hunger Project.
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