Writing for The Atlantic this morning, Lawfare senior editor Quinta Jurecic warned that the reason the top secret files scandal is so dangerous is because it’s the most Trumpy of all his scandals. “The iron law of scandals involving Donald Trump,” he began, “is that they will always be stupid, and there will always be more of them. Trump scandals— the Russia investigation; Trump’s first impeachment, over his efforts to blackmail Ukrainian President Volodymyr Zelensky; the insurrection on January 6— have something else in common: All these catastrophes result from Trump’s refusal to divorce the office of the presidency and the good of the country from his personal desires. Now Trump’s apparent squirreling away of classified documents at Mar-a-Lago, and his outrage over the Justice Department’s investigation of that conduct, speaks once more to his vision of his own absolute authority— even after he has departed the presidency. It’s a vision that places Trump himself, rather than the Constitution and the rule of law, as the one true source of legitimate political power.”
Trump’s childlike logic behind his stealing the documents— “they’re mine, mine, mine”— reflects his “long-running inability to distinguish between the individual president and the institutional presidency, a structure that existed before him and that persists even after he unwillingly departed the White House,” wrote Jurecic. “In his view, he is the presidency (which … is not what legal scholars typically mean when they talk about the “unitary executive.”) The same logic surfaces in the bizarre arguments made by Trump’s defenders that Trump somehow declassified all the sensitive documents held at Mar-a-Lago before he left office. Under the Constitution, the president does have broad authority over the classification system. But as experts have noted, it makes little sense to imagine a president declassifying information without communicating that decision across the executive branch so that everyone else would know to treat the material in question as no longer classified— unless, that is, you understand presidential power not as an institution of government, but as the projection of a single person’s all-powerful consciousness onto the world. The approach of separating the presidency from the individual president evolved for a good reason: The vision of the man inextricable from the office he holds tips quickly into monarchy. Again and again during his presidency, Trump did his best to transform executive power into a resource from which to extract personal benefit. He likewise sought to use that power to extend his own time in office— either by seeking damaging information to harm the political chances of an opponent, as in the Ukraine scandal that led to his first impeachment, or by attempting to overturn an election outright on January 6. That tendency to collapse the institutional presidency into a reflection of his own desires often took the form of clashes between Trump and federal law enforcement, as officials tried with varying success to resist Trump’s efforts to turn the Justice Department and the FBI into a Praetorian Guard tasked with going after the president’s political enemies and protecting his friends.”
The idea that law enforcement cannot and should not be the tool of the leader’s individual whims is central to the divide between the president and the institutional presidency, and therefore to the idea of “rule of law.” The concept’s roots trace back to the origins of liberal political theory: As John Locke wrote, governmental power “ought to be exercised by established and promulgated laws, that both the people may know their duty, and be safe and secure within the limits of the law, and the rulers, too, kept within their due bounds.” Authority, in this view, stems not from the person of the ruler but from the broader structure of law and the consent of the people.
In his terse public comments about the Mar-a-Lago search, Attorney General Merrick Garland has emphasized this understanding of law and power, which runs so counter to Trump’s. “Faithful adherence to the rule of law is the bedrock principle of the Justice Department and of our democracy,” Garland said in his August 11 press conference announcing that the department would move to unseal the warrant for Trump’s estate. “Upholding the rule of law means applying the law evenly, without fear or favor.”
Trump, obviously, disagrees with this characterization. In posts on his social-media platform, Truth Social, he has returned to familiar tropes, calling the search warrant and related investigation a “hoax,” a “scam,” and a “witch hunt.” During his presidency, attacks such as these on the Russia investigation followed naturally from his own understanding of absolute presidential power. After all, if the president’s authority is total and unbound by law, then how can the DOJ investigate him? As Trump liked to say during his time in office, “I have an Article II, where I have the right to do whatever I want as president.”
The additional twist of the Mar-a-Lago scandal, though, is that Trump is now implicitly claiming that total authority even out of office. If, before, Trump was furious that Special Counsel Robert Mueller could investigate him even when he was the president, now he is outraged that the DOJ would investigate him even though he is Trump. Supporters of Trump incensed by the search of Mar-a-Lago, Adam Serwer writes, “simply believe that Trump should not be subject to the law at all.”
Following the Mar-a-Lago search, Trump’s Republican supporters in Congress have called to “defund the FBI.” Meanwhile, the former president’s aggressive denunciation of the agency and the Justice Department has coincided with a flood of threats against law enforcement, including the magistrate judge who approved the Mar-a-Lago warrant. A bulletin from the FBI and the Department of Homeland Security announced that, following the Mar-a-Lago search, the agencies “have observed an increase in violent threats posted on social media against federal officials and facilities.” Last week, a man attacked the FBI field office in Cincinnati; recent posts on Truth Social under the name of the attacker, Ricky Shiffer, had called for people to “get whatever you need to be ready for combat” following the FBI’s arrival at Mar-a-Lago. On Monday, prosecutors brought a case against another man, Adam Bies, who had posted threats against federal agents days after the search of Trump’s estate.
Such threats reveal the disturbing logic behind the GOP calls to defund the agency. The goal is not to critique law-enforcement overreach, but rather, as Zeeshan Aleem argues in MSNBC, to make the bureau “completely subordinate to the authoritarian political project.” And this project is authoritarian, because it locates total power in one person— even, it seems, when he has been voted out of office. This vision of Trump’s authority sets up a parallel structure of political legitimacy that competes with the Constitution.
This is the logic of insurrection. “HEY FEDS,” Bies apparently wrote on the social-media platform Gab two days after the Mar-a-Lago search. “We the people cannot WAIT to water the trees of liberty with your blood.” Meanwhile, Representative Bennie Thompson— the chair of the House committee investigating the insurrection— warned that such apocalyptic comments “are frighteningly similar to those we saw in the run-up to the January 6th attack on the U.S. Capitol.”
After all, if power flows not from structures of law and consent but from the will of a single person, then the measure of whether violence is justified and legitimate no longer turns on whether force is channeled through the proper processes of state authority. Rather, it boils down to a single question: Is that violence wielded on behalf of Trump? Or against him?
Yesterday the Washington Post published a piece, Trump’s Personality Cult And The Erosion Of U.S. Democracy by Ishaan Tharoor a reporter from their foreign desk. He noted that Trump’s “viselike grip over the GOP” means that “No allegation of impropriety or illegality, no concern over stoking extremism and violence, no documented trammeling of the rule of law can cut away at his seeming dominance over the American right.”
During America’s war for independence, progressives did the fighting or were at least sympathetic with the cause (about a third of the residents of the colonies). Another third didn’t want to be involved one way or the other. And the final third— the conservatives— were on the British side. Conservatives have always been against America— and still are. When it came out that the FBI is investigating Trump for stealing top-secret documents, some involving nuclear secrets the reaction by the far right was to actually boost “Trump’s stock, driving millions of dollars in donations to his political action committee, and fueling right-wing outrage over the supposed overreach of the state.”
Trump’s hold over the Republican Party has led to the rise of a new crop of potential Republican lawmakers who parrot the former president’s 2020 election lies. That has profound implications for the country’s electoral processes: According to an analysis published by my colleagues this week, nearly two-thirds of GOP nominations for state and federal offices with authority over future elections involve candidates who embraced falsehoods and conspiracy theories about the previous one and deny its legitimacy.
In the time since Trump left office, his sway over Republicans has arguably grown. A straw poll of attendees at the right-wing Conservative Political Action Conference earlier this month saw enthusiasm for Trump as high as ever. If he chooses to launch a 2024 presidential campaign, the bulk of the Republican establishment is set to meekly line up behind him. “If you look at a political analysis, there’s no way this party is going to stay together without President Trump and his supporters,” Sen. Lindsey Graham (R-SC) told my colleagues last year. “There is no construct where the party can be successful without him.”
It’s a state of affairs more familiar in other parts of the world than in the United States. The wholesale capture of a wing of American politics by what is, as Cheney put it, a “cult of personality” surrounding one demagogic leader has limited precedent in U.S. history. But we can see current variations of the theme in, among other places, Hungary under its illiberal nationalist Prime Minister Viktor Orban, Turkey under long-ruling President Recep Tayyip Erdogan and India under Hindu nationalist Prime Minister Narendra Modi.
In all three countries, the ruling faction in a parliamentary democracy has become a vehicle for consolidating the power of the figure at the top. They are in different stages of their evolution: Erdogan’s grip may be loosening with former allies defecting and forming new parties, while Modi and Orban are more comfortably in control. The leaders’ majoritarian demagoguery has led to the erosion of their democracies, which critics argue have become to varying degrees quasi-autocracies where media is cowed, ethnic or religious minorities are bullied, and the opposition marginalized.
This phenomenon is on show in other democracies dominated by illiberal factions, as political polarization only deepens the incentives to retain power and punish one’s opponents. “The Republican Party’s zealous devotion to getting rid of anyone who challenges Trumpian dogma feels entirely too familiar,” wrote academic Brian Klaas in a Washington Post column last year that noted how Republican fealty to Trump was mirrored by politicians in Poland’s ruling party who have weaponized conspiracy theories about the media and liberal establishment.
“It’s a litmus test. Are you a true believer, willing to repeat the theory even if you don’t believe it yourself?” Klaas wrote. “If you are, the party accepts you. This sort of corrosive loyalty test has caused tremendous damage to Poland’s democratic institutions.”
For the United States, there’s a long runway for further democratic backsliding. Some analysts believe it’s necessary for the full weight of the judicial system to be brought to bear against Trump, even while others warn of the dangerous precedent it may set. A considerable minority of Americans buy into Trump’s narrative of victimhood and persecution by the Democratic establishment.
“Trump’s whole presidency was unprecedented,” countered Ruth Ben-Ghiat, a historian at New York University and scholar of 20th century authoritarian politics. “He differed from past heads of state of either party in having zero interest in public welfare or consensus politics. His goals were autocratic: amassing power, domesticating the GOP, and having his financial and other personal interests prevail over national ones in shaping domestic and foreign policy.”
Trump’s Republican critics have been demoralized by the extent to which the party’s base has abandoned them and flocked to the Trumpist banner. “Maybe there wasn’t going to be a tidal wave of people to come over, but I certainly didn’t think I’d be alone,” Rep. Adam Kinzinger (R-IL) said to reporters last week. Along with Cheney, Kinzinger served on the House select committee investigating the Jan. 6 riot; he is not seeking reelection in November.
Now, Trump may see a path to override the institutional checks and the instruments of accountability set against him. Sean Illing, co-author of the new book The Paradox of Democracy that traces the long history of democracies growing susceptible to would-be authoritarians, warned that the United States’ existing democratic guardrails may not hold if large numbers of Republicans vote for people who explicitly “promise to subvert the rule of law.”
“The only response is to persuade more people to resist it,” Illing told Post columnist Greg Sargent. “The history of democratic decline is a history of demagogues and autocrats exploiting the openness of democratic cultures to mobilize people against the very institutions that sustain democracy itself.”
This Tuesday, primary voters in New York and Florida can resist it, not in Republican primaries— that train has left the station— but by voting for strong, competent men and women running for Congress. Let me suggest the ones most likely to effectively stand up for democracy:
NY-03- Melanie D’Arrigo
NY-10- Yuh-Line Niou or Mondaire Jones
NY-11-Brittany Ramos DeBarros
NY-12- Jerry Nadler
NY-16- Jamaal Bowman
NY-17- Alessandra Biaggi
NY-21- Matt Putorti
NY-22- Sarah Klee Hood
NY-24- Steve Holden
FL-10- Alan Grayson
FL-15- Eddie Geller
FL-19- Cindy Banyai
FL-26- Christine Olivo
FL-27- Annette Taddeo