When I asked Alan Grayson the question about the Florida senator he's running to replace, he didn't need to hesitate before responding: "If push came to shove, Rubio would be on the side of the fascists. Last year, when Trump supporters surrounded a Biden campaign bus on the highway and tried to run it off the road, Rubio said 'we love what they did.' That’s fascism."
Everyone I know is fuming that the Justice Department hasn't taken any moves-- at least not any that anyone has seen-- towards prosecuting Trump. In his interview with Laurence Tribe for Salon that was published this morning, Chauncey DeVega noted that Tribe is worried about the survival of the rule of law itself if the Justice Department keeps pretending Trump is, for any reason, unprosecutable. In his intro, DeVega quotes a tweet by academic David Rothkopf: "The Taliban, all of them together, plus every Al Qaeda fighter in the world, do not pose the threat to the United States that Trump or Trumpist extremists do." He also pointed to a recent OpEd by Tribe in the Boston Globe, Merrick Garland must investigate Donald Trump’s attempted coup-- not for retribution but for deterrence, in which Tribe wrote "We need to begin with the fundamental precept that not all crimes are created equal. Those crimes-- regardless of who allegedly commits them-- whose very aim is to overturn a fair election whereby our tradition of peaceful, lawful succession from one administration to the next takes place-- a tradition begun by George Washington, continued by John Adams, and preserved by every president since except Donald Trump-- are impossible to tolerate if we are to survive as a constitutional republic… Trump's relentlessness has laid bare the defects in many of those accountability mechanisms. Now Garland stands as the final line of defense for our constitutional democracy. No prior attorney general has confronted so daunting a challenge. For what might be the first time in his life and what will surely be the last, Garland could hold the future of the last best hope on earth in his hands."
DeVega: How do you make sense of all these events, from Jan. 6 to the continuing attacks on democracy, the upsurge of right-wing terrorism and this overall democracy crisis? And of course, all this is happening in the midst of the COVID-19 pandemic. It is a never-ending tsunami of events. How do you try to make it legible for yourself and the public?
Tribe: [W]hen I look at how Republicans are organizing the suppression of votes-- more specifically, the deliberate miscalculation of votes-- and pushing this theme of "independent" state legislatures and their ability to just pick a president, even if the person that they're picking lost that state's popular majority, it is very depressing. I do not see even a little bit of a silver lining amongst the clouds. So I tell myself, just put one step ahead of the other. I just take on one battle at a time and try to do the best to win it. Whether it's a battle over the massive eviction of people during the pandemic, or a battle over not adequately investigating people who were involved in the coup. If I can make even a slight difference on those few things, while other people try to do the best they can, I am hoping that the pendulum will at some point swing back and that we are not doomed to lose our democracy.
DeVega: How do we help the public to maintain a balance between staying focused while also seeing the big picture?
Tribe: Many people are overwhelmed and/or beaten down into indifference. I believe that many Americans are coping with this by withdrawing into their personal lives, the core self. They can take care of the parts of their lives they have control over, and try to forget about the threats to democracy. That is what fascists and authoritarians count on-- indifference by everybody except those that they have successfully riled up and fomented into violence and anger. We cannot afford to withdraw from these events. I believe that many people are basically giving up on politics and on making any difference.
The only way to overcome this is by making a convincing case that there have been so many times in history where one person has made a difference. There are times in our own experience where perseverance matters. Somebody might have said during World War II, when it looked like Hitler was going to take over completely, that we were lost. And yet somehow we mobilized and came back.
DeVega: What is the role of the rule of law in stopping fascism and authoritarianism in the United States?
Tribe: It is the only alternative to anarchy and chaos and violence. That is the rule of law. If it's more than just a slogan, the rule of law is a set of binding precepts that are enforced by independent judges to make sure that no one is capable of getting away with unbelievably destructive behavior without being held to account. The rule of law also requires making sure that there are deterrents in place so that the worst instincts of people-- especially those of profoundly bad character-- are held in check.
Thus, the rule of law serves to provide a potentially stable platform on which people can plan their lives and not be subject to the whims and will of those who happen to have the greatest amount of power. That version of the rule of law is in great danger now. This is not only because some people appear to have gotten away with extraordinary acts of subversion and insurrection, but because corrupt corporations get away with minimal accountability as well. Money influences politics and the law in America to an alarming degree.
People with power can find their way around the rules, and because they make the rules there are loopholes and pathways that allow them to basically get away with murder. In that way, the rule of law depends on the substantive justice of the rules themselves. It's not enough just to have formal procedures and regulations. The law has to be just.
DeVega: Why have Donald Trump and other members of his regime not been prosecuted for their many obvious crimes? Where is the accountability? To me it appears that some type of decision has been made at the highest levels of government not to prosecute Trump and his allies in order to "protect" the country.
Tribe: There are very accomplished, serious people who have written op-eds saying not to worry and that it is important that Attorney General Merrick Garland builds his case slowly.
These same people have also counseled that the American people should not assume that because we know nothing about investigations into the role of Mo Brooks and Rudy Giuliani and Donald Trump himself in fomenting the insurrection that there is not in fact a grand jury looking into those matters.
I hope that is the case. But if you are correct and there's been some kind of decision at a high level that we shouldn't rock the boat, that we should look forward, not backward, that we should let bygones be bygones, that we should not descend into what some people will call an endless spiral of vengeance and retribution, that we had better not go after people like Trump, then the country is in really desperate trouble.
As wrote in my Boston Globe op-ed, what I'm saying to Merrick Garland is: Wake up! You've got to do something to hold this man accountable.
Now somebody could say, well, what about the presumption of innocence? How do you know he's guilty? All I can say in response is that we've heard with our own ears, and Donald Trump has never denied, that he said to Georgia Secretary of State Brad Raffensperger, "Just find me 11,780 votes." To me that is compelling proof that Trump was essentially trying to erase his legitimate loss by creating votes that were not his. That is stealing the election.
Moreover, it's an attempted coup when Trump twists the arm of his acting attorney general and tells him, "Just say that the presidential election was corrupt, and I'll take care of the rest with my friends in Congress." On its face, that is proof of corrupt intent beyond reasonable doubt. It is also proof of a plan to take over the country without legitimately winning. That's a crime.
So the question is: Why is it taking so long? One possible answer is that it's not easy to get a conviction of a president. What appears compelling to a layperson is going to be difficult in practice. It will also be difficult to put down the riots that the very announcement of an indictment may bring. There may be a great deal of worry about fomenting civil war to no good end, because we will not succeed in holding the president accountable.
In the end, all I can do is make the counter-argument that if you're worried about the consequences of going ahead with this evidence against Trump and perhaps not convicting him, then you had better start worrying about the consequences of not going ahead with this evidence-- and telling presidents in the future, including this president, who undoubtedly is going to try to seize power again one way or another, that they can get away with this. If that is the message, then the rule of law has basically been thrown out the window.
DeVega: My other deep worry is that these so-called institutionalists are so afraid of how the American people and world would respond to the full truth about the Trump regime's crimes that they have decided the only way to protect the institution of the presidency is not to prosecute Trump and his confederates. Am I going too far?
Tribe: I desperately hope that is not a shared mindset because it would be delusional. If anyone worries about destroying the institution of the presidency, I would say that when the presidency has been transformed into an autocracy and a veritable dictatorship, it has already been destroyed. If anyone thinks that the presidency will be dangerously weakened by saying that a president who tries to bring down his own government and steal the next election should not be able to do that, then there's something wrong with them.
That is certainly not what the framers had in mind with the presidency. Their great fear was that the president would have more power even than a monarch, to use his command of the military, his role as commander-in-chief and his power as chief executive to end the process of peaceful transition to the next election. In the United States we established a tradition with Washington passing the baton to Adams and Adams to his great enemy Jefferson.
It was an unbroken tradition, but it was one that I think people who have been serious about preserving the country and the Constitution have realized was quite fragile and could be destroyed at any time.
With Donald Trump we have now seen someone who tried his damnedest to destroy that tradition. It almost succeeded. There is now a substantial cadre of an entire major political party, the Republicans, who are trying to whitewash the past, rewrite history and claim that they are the true patriots. They want to claim that theirs is the "real" Constitution, and those of us who believe that the American people should choose who leads them are misguided and crazy.
DeVega: How would the "originalists" and "strict constructionists" on the right, a group that wraps themselves in the American flag and the Constitution, have responded to Donald Trump if they truly believed in those principles and symbols?
Tribe: If they believed in either the letter of the Constitution or its structure or its history or its purpose, they would have responded by being aghast. Such people would say, "We didn't really know what monster we were we're putting in place. He's clearly a threat to the Constitution. If not literally a traitor, Trump is certainly treacherous and dangerous." They would have abandoned Trump in droves. They didn't, so it follows that they are hypocrites who do not really believe in any of the things you are describing.
DeVega: You are a doctor of democracy. Evaluating America as your patient, what is your prognosis? How is the patient doing?
Tribe: The patient is in a deep sleep and needs to be awakened immediately. If not, that deep sleep may become a coma that slips into death...
Steven Holden is the progressive House candidate running for the Central New York seat occupied by fake-"moderate" John Katko. "Katko spent his adult life as a federal prosecutor," Holden told me this afternoon. "If anyone should know about the importance of the rule of law, it should be him. People give him the benefit of the doubt because of his vote to impeach Trump the second time, but his actions before and after that vote show a different pattern of behavior. Before the events of January 6th, he voted with Trump 95% of the time, and he did not see evidence to impeach Trump the first time. Shortly before the 2020 presidential election, he endorsed Trump because he felt that the course the country was headed was better with Trump. Since January 6th, Katko has gone back into lockstep with Kevin McCarthy. He voted against the January 6th Commission, after he helped negotiate the first round of the commission. He then chose to oppose key voting rights provisions that secure the franchise. Why did he do this and not stand up for democracy? Because he is afraid of a primary from the right, or being challenged by a Conservative Party candidate, which would surely spell doom to his candidacy. He has, once again, chosen party over country.
Like Grayson, dedicated progressive Morgan Harper, is running for a U.S. Senate seat, hers an open seat in Ohio. She knows exactly which side her opponents will come come down on. "Republican candidates like Josh Mandel and JD Vance," she told me today, "have thrown their lot in with literal insurrectionists and represent real, existential threat to our democracy. It's not enough to keep doing what we've been doing-- we need to recognize how real the threat to democracy is and do everything we can to fight it. We need to expand our democracy by shoring up voting rights, eliminating the filibuster, granting DC statehood, and unrigging the Supreme Court. Democrats can't afford to keep playing by the same old playbook and hoping for a different result."
Notice who sounds like a fascist in this report?