Saturday, December 9

The Trumpian right keeps pushing the rule of law to the brim. But the law is winning | Norman L Eisen and Dennis Aftergut

This week has seen developments in two important legal battles. At stake is whether we are a society ruled by law or not. Without law, we face not survival of the fittest but survival of the fiercest – those most willing to use intimidation, force and violence to get their way.

First, a New York judge held Donald Trump in contemplate for stiffing a subpoena from the state attorney general, Letitia James, for documents relating to her civil investigation of the Trump Organization. She is investigating Trump’s businesses for allegedly inflating financial statements to lenders.

Judges do not hold parties in contempt lightly. There needs to be an act so egregiously contemptuous of the law’s authority that a court cannot ignore it.

In this case, the New York state court team found Trump’s efforts to locate documents in response to the New York attorney general’s subpoena “woefully insufficient” and showing complete disdain for the legal process. Trump was fined $10,000 for every day he continues in noncompliance.

That court stood up for the rules that make our society work.

Second, and on the same day, we saw evidence of attempts to destroy those rules that put allegiance to Trump above allegiance to country. New text messages – uncovered by the House committee investigating the January 6 siege of the Capitol, and disclosed by CNN – revealed the extent of rightwing Republicans’ attacks on the US constitution.

The most striking text was an exchange from Marjorie Taylor Greene, the Republican congresswoman from Georgia. On 17 January, 11 days after the violent Capitol insurrection and three days before the scheduled transition of power to Joe Biden, she wrote: “In our private chat with only [House] Members several are saying the only way to save our Republic is for Trump to call Marshall [sic] law.”

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She wasn’t referring to Thurgood Marshall. Nor was she referencing the former secretary of state George Marshall. Rather, she was referring to “martial law”, the use of the military to control all features of American life and to shut down our constitutional system of government. Greene was telling the then White House chief of staff, Mark Meadows, that some Republican members of Congress were allegedly advocating to end the 225-year tradition of power transferring peacefully after elections and instead using force to keep the loser in office. By passing the idea along, she suggests she is willing to entertain it herself.

Stop and think about that for a moment. Multiple elected federal officials sworn to uphold the constitution were contemplating abandoning it for the law of the jungle. We should not be so inured to extremism from the Republican right that such a text message fails to shock us.

These texts take on an even more ominous cast when read together with emails disclosed by the January 6 committee’s recent legal file in a civil suit Meadows brought to block the committee’s subpoenas. His meritless effort to rehash legal arguments already rejected by other courts is nothing more than a ploy to run out the clock, and the damaging evidence filed by the committee makes clear why.

To pick but one example from almost 200 pages of exhibits, there is testimony that the secret service warned Meadows and others of the risk of January 6 violence, and they proceeded to discuss sending marchers to the Capitol. The evidence of efforts to overturn the election includes step-by-step plans which, taken together with yesterday’s texts, read like a recipe book for a coup, including all the ingredients and even the cooking instructions.

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For those on the American right who profess to believe in liberty, imposing martial law to put a strongman atop American government a la Putin should be unthinkable.

But do not hold your breath waiting for outrage from the right over texts such as the one Greene was just revealed to have sent Meadows. Greene is a charter member of the anything-goes-for-Trump club. For its members, the end justifies any means.

From ancient Greek democracy to the Roman republic to the French Revolution, history tells us again and again that gravitating to autocracy comes back to haunt a nation. As John Adams, signer of the declaration of independence and second president of the United States, wrote in 1775 to his wife, Abigail, “[A] Constitution of Government once changed from Freedom, can never be restored. Liberty eleven lost is lost forever.”

This week, we were reminded again how close we came to a coup here in the US. Fortunately, a New York judge also showed us that the institutions of law remain strong and the impulse to autocracy is being held at bay.

  • Norman L Eisen served as President Barack Obama’s ethics czar, was special impeachment counsel to the House judiciary committee in 2019–20 and is a senior fellow at the Brookings Institution. His latest book of him is Overcoming Trumpery

  • Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy

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