1-31-2020: The day the rule of law died in America

The U.S. Supreme Court has stated that “the basic purpose of the trial is the determination of the truth,” and in the American system of jurisprudence, “to seek justice.”

What we have borne witness to during the Senate impeachment trial of President Donald J. Trump is the rejection by craven Senate Republicans and the president’s legal team of these fundamental principles of American law.

On a vote of 51-49, with only Republican Senators Susan Collins and Mitt Romney joining with all of the Democrats, Republicans ruled “out of order” any debate over subpoenas for witness testimony and documents for a real trial. Republicans stood athwart 75% of public opinion to hear from witnesses and said “no.”

“Moscow Mitch” McConnell’s rules for a sham impeachment trial with a rigged jury will now move to acquit “Putin’s puppet” next week. This is a travesty of justice.

Republicans have rejected any constitutional constraints upon abuses of power by a Republican president — rest assured that had a Democratic president done exactly the same conduct as Donald Trump, i.e., Alan Dershowitz’s “shoe on the other foot” theorem — that Democratic president would have been impeached and removed from office today with every Republican voting for conviction and removal. This is an undeniable truth.

There is now a dual system of justice in America, one for Republicans (IOKIYAR), and one for everyone else. “Equal justice under law” and “no man is above the law” are now just quaint notions from a bygone era. We are now under authoritarian Republican Party autocracy.

Every senator solemnly swore “that in all things appertaining to the trial of the impeachment of Donald John Trump, president of the United States, now pending, I will do impartial justice according to the Constitution and laws, so help me God.” Republicans  openly flaunted and mocked this solemn oath. Even before taking the oath, Republicans publicly committed to acquittal before hearing any evidence. The evidence and the law simply did not matter to these lawless Republicans.

For the first time in American history, a Senate impeachment trial will not include any witnesses or relevant documents material to the determination of truth — known to exist and available to the Senate upon subpoena — only because Republicans did not want the full truth to become public knowledge.  Their only concern was a rush to a predetermined judgment of acquittal. Republicans were never interested in the “determination of the truth” or “to seek justice.”

In this regard, Republican Senators are accessories who aided and abetted the president’s “total obstruction” of Congress — Article II of the Articles of Impeachment — and are equally culpable at law. Republicans have abdicated the oversight functions of the Congress and established a dangerous precedent for this president, and all future presidents, to ignore the legitimate constitutional oversight functions of Congress.

Republicans have also effectively rendered the impeachment provisions of the Constitution a nullity. There is no longer any constraint on a president who would abuse his or her power. The American democratic principle of “checks and balances” has been rejected by Republicans in favor of an imperial presidency under an authoritarian Republican Party autocracy.

Republicans have also given this president license to seek foreign interference in our elections to benefit his reelection (and by extension benefit the GOP), as he did in 2016 — the fear of foreign interference in our elections was a driving issue in the conversations of the Founding Fathers in the Constitutional Convention in Philadelphia in the summer of 1787, Fear Of Foreign Interference In U.S. Elections Dates From Nation’s Founding — thereby encouraging to malign foreign influence in our elections. Trump just got permission to do literally anything to get reelected.

Republicans have now declared to the world that they are “open for business” to any foreign power peddling disinformation and propaganda that would benefit their ability to retain their hold on power. To be clear, this is profoundly un-American.

With an imperial president unbound and shielded by his Republican enablers in Congress from any checks and balances, the threat of impeachment, or even the rule of law as Republicans abdicate their Article I powers to an imperial president, what fresh hell will the malignant and malicious Donald Trump unleash on America as he seeks vindictive revenge against his political opponents and anyone else who would dare to criticize him?

Will Trump’s corrupt Attorney General William “Coverup” Barr use the Justice Department to pursue political prosecutions of the president’s political opponents? Will Republicans seek to redefine First Amendment “freedom of the press” to shut down what Trump calls the “fake media” and impose on America North Korean style state-sanctioned propaganda in praise of “Dear Leader,” as already exists to a disturbing extent in conservative media? Will Trump refuse to leave office in a peaceful transition of power should he lose the 2020 election, asserting that the election was rigged and is illegitimate, as he threatened to do in 2016? Will he incite violence from his MAGA personality cult followers to stay in power? Will there even be an election? These are the trademarks of every authoritarian autocrat who has ever risen to power throughout history.

There is a story, oft repeated, that upon exiting the Constitutional Convention Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates had created. His answer was: “A Republic, if you can keep it.”

Today we bear witness to the end of the American Republic. We now have an authoritarian Republican Party autocracy in league with malign foreign powers. It is the Founding Father’s worst fears realized.

Don McLean’s haunting lyrics have never been more prescient and painful than they are at this moment:

Oh and as I watched him on the stage
My hands were clenched in fists of rage
No angel born in Hell
Could break that Satan’s spell
And as the flames climbed high into the night
To light the sacrificial rite
I saw Satan laughing with delight
The day the music died
He was singin’
Bye, bye Miss American Pie

I have previously quoted Paul Savoy, a former prosecutor in the office of the Manhattan District Attorney, in an earlier post. ‘This is how autocracy comes to America’ … An unconstitutional verdict of acquittal by a roll-call vote in the Senate:

An unconstitutional verdict of acquittal would present Americans with something far worse than a constitutional crisis. The nation will have blundered its way into creating an accidental autocracy governed by a president who, even if not reelected, would remain in office until January 20, 2021, beyond the reach of the rule of law.

“Wherever law ends, tyranny begins,” John Locke cautioned in his Two Treatises of Government. This is how autocracy comes to America: not with a declaration of martial law and tanks in the street, but by a roll-call vote in the Senate whipped by the leader of the Senate in violation of the Constitution.

If on the day the Senate returns its verdict, history records the failure to convict the president following a trial without witnesses, that will be the day the rule of law dies in America. The courts will remain open for business. Congress will be in session. Citizens will still be able to vote. And a free press will continue to launch withering attacks on President Trump. But the American people will no longer be living in a constitutional democracy.

“The day the rule of law dies in America” is today.

Frank Rich last year in a long historical analytical piece asked What will happen to Trump’s Republican collaborators? (excerpts; you should read the entire piece):

Trump’s collaborators will one day be viewed through the long lens of history like Nixon’s collaborators before them and the various fools, opportunists, and cowards who tried to appease Hitler in America, England, and France before that. Once Trump has vacated the Oval Office, and possibly for decades thereafter, his government, like any other deposed strongman’s, will be subjected to a forensic colonoscopy to root out buried crimes, whether against humanity or the rule of law or both. With time, everything will come out — it always does.

[A]nd Trump’s collaborators, our Vichy Republicans, will own all of it — whether they were active participants in the wrongdoing like Jared Kushner, Stephen Miller, Kirstjen Nielsen, Mike Pompeo, and William Barr, or the so-called adults in the room who stood idly by rather than sound public alarms for the good of the Republic (e.g., Gary Cohn, John Kelly, Rex Tillerson), or those elite allies beyond the White House gates who pretended not to notice administration criminality and moral atrocities in exchange for favors like tax cuts and judicial appointments (from Mitch McConnell and Paul Ryan to Franklin Graham and Jerry Falwell Jr.).

Such Trump collaborators are kidding themselves if they think that post-Trump image-laundering through “good works” or sheer historical amnesia will cleanse their names of the Trump taint as easily as his residential complexes in Manhattan have shed their Trump signage. A century of history — and not just American history — says otherwise.

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Nor can Trump’s enablers escape the stain of his alliances with murderous neo-Hitlers and neo-Stalins in Russia, Syria, Turkey, Hungary, Brazil, and North Korea. Whatever else is to be said about Nixon, not for a second would he have favored the worldview and national interests of a strongman like Putin over that of America and its allies, or taken Putin’s word as a former KGB agent over that of America’s own intelligence agencies. It’s this aspect of Trumpian rule that sinks to depths previously unfathomable for an American president and makes Trump’s collaborators look less like the corrupt government bureaucrats and hacks of All the President’s Men and more like the traitorous elites who wittingly or idiotically enabled Hitler in the 1930s.

The notion of Vichy Republicans is hardly hyperbole. Christopher R. Browning, an American historian of the Holocaust and World War II–era Europe, wrote in the New York Review of Books in 2018 that those who rationalized their original support for Trump on the grounds of “Better Trump than Hillary” — and are now reupping for 2020 — are channeling those on the right who proclaimed “Better Hitler than Blum” in France in the 1930s. Such Frenchmen, Browning writes, went so far as to empower their country’s “traditional national enemy across the Rhine” and its Nazi dictator rather than reelect the sitting prime minister, Léon Blum, a Jewish socialist who would have preserved French democracy. (In defeat, Blum would become an opponent of Vichy and end up in Buchenwald.)

Make no mistake: The current “Better Trump than Warren” (or Sanders) crowd is repeating this history. Their credo might as well be “Better Putin, Erdogan, and Assad than Warren,” for Trump is serving as an unabashed proxy for our present-day mini-Hitlers while simultaneously trying to transform American democracy into an Ultimate Fighting Championship ring of chaos, corruption, and dysfunction. Prominent Trump supporters like Sen. Kennedy, of course, fiercely deny that they are pro-Putin (even though the president himself never has), but that doesn’t vitiate the real-world consequence that by standing with Trump, they are advancing the interests of Russia even as it conducts cyberwar against their own country and threatens some of the same American allies Hitler did.

You don’t have to be a card-carrying fascist to collaborate with fascists and help them seize power; you just have to be morally bankrupt and self-serving. As the authoritative American historian of Vichy France, Robert O. Paxton, has pointed out, it was only “a rather small minority” of France’s wartime collaborators who were motivated by an actual “ideological sympathy with Nazism and Fascism” to go along with the Nazi puppet regime fronted by Marshal Philippe Pétain in Vichy. A more widespread incentive was “personal gain.” Others rationalized their complicity by persuading themselves they were acting in the “national interest.” It would be no surprise if that distribution of motivations persists among Trump collaborators today.

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Those who continue with Trump on this path, if they have any shred of conscience or patriotism left, would be advised to look at their historical predecessors of the appeasement era, not the more forgiving template of Watergate, if they wish to game out their future and that of family members who bear their names.

“It is too late for [Trump’s enablers] to save their reputations. We must hope that it is not too late to save the country they have betrayed.”

It is the duty of every true American patriot to resist Trumpism, the new American fascism.  To honor the members of my family and the millions of Americans who fought a World War to rid the world of fascism, and the millions who died in that conflict, I will not go quietly into this dark night. I will defend the Constitution and the restoration of American democracy and the rule of law once these “Vichy Republicans” have been defeated and consigned to the ash heap of history. Vive la résistance!