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The 2020 Election and Rule of Law

November 20, 2020

As I am writing this, Donald Trump has still not acknowledged the Joe Biden won the 2020 election. He is concocting all kinds of ridiculous legal challenges, nearly all of which have been thrown out by the courts. He is pulling other anti-democracy and illegal stunts but what I want to focus on here is the judiciary. Fortunately, it is still holding despite the Republican Party’s and Trump’s attempts to pack the courts with compliant prosecutors who are willing to do Trump’s bidding. So Rule of Law is still with us. But can we count on it to last?

An event that occurred early as the Nazis were consolidating power provides a lesson as to how fragile Rule of Law is when people at the top levels in government refuse to enforce the law. This is the story of Joseph Hartinger, the Deputy State Prosecutor in Munich who tried to prosecute the SS for murder. At the time it was still illegal to summarily execute prisoners under German law.

In early 1933, the Nazis were able to remove all opposition parties from the parliament, mainly social democrats, communists and trade union representatives, using the Reichstag fire as an excuse. Himmler, who had by then taken over most of the police forces in Germany, decided that all members of opposition parties should be sent to prison. In order to accommodate the increase in prisoners, he opened the camp at Dachau, calling it a “reeducation” camp.

In May 1933, four prisoners were allegedly shot and killed while trying to escape. Joseph Hartinger set out to investigate. On his first visit to Dachau, accompanied by Moritz Flamm who was later murdered by the Nazis, he noticed several things seemed wrong at Dachau.  Oddly, there were no Bavarian police on the premises. The SS has supposedly been assigned to work with the police not supplant them. Where were they?

Hartinger’s investigation of the shootings proved that the four men were not shot while trying to escape—they were shot in the back of the head at point-blank range. There were other suspicious deaths around the same time. A man was beaten to death and then his body was hanged. The commandant claimed it was a suicide. Later another man was shot at point-blank range. All of the murdered prisoners were Jews.

Hartinger gathered meticulous evidence to charge the SS with murder. He carefully documented the evidence and took the file to his boss, the Bavarian State Prosecutor. His boss told Hartinger he would not sign the documents; he would not sign anything. The State Prosecutor had already fallen under Himmler’s spell.

Hartinger’s next move was to file a public lawsuit against the SS charging them with murder. He took his file all the way to Berlin, to the Minister of Justice. For two months afterwards, the killings at Dachau stopped. Hartinger thought he had won that battle and that Dachau would be shut down under German law. But this momentary reprieve was only done to buy time for Himmler to make his next move. Himmler was worried about the bad press that would come from the lawsuit so he created a fake video showing the Dachau prisoners walking in formation, exercising, all of them looking fit and fed. The video convinced the German people that the political prisoners at Dachau were being treated according to German law.

Once he had the German people on his side, Himmler approached Hitler. He knew that Hitler disliked the judiciary, legal norms and values, and legal constraints on his power. Sound familiar?  So Himmler persuaded Hitler to decree that no SS man would be arrested no matter what crimes were committed.

Hartinger had exhausted all possibilities to bring charges against the SS. His evidence was in the hands of the Nazis. It ended up with the head Nazi in Bavaria, who locked the file in a desk drawer. German law had become meaningless.

I learned the story of Joseph Hartinger from Part Two of the PBS series, The Rise of the Nazis. Dr. Timothy Ryback, historian and director of the Institute for Historical Justice and Reconciliation in The Hague narrated the part about Hartinger. He made a point that is acutely important when thinking about the situation in the United States today. Oskar Schindler is famous for saving 1000 lives. If there had been 1000 more people like Schindler, there would not have been a holocaust.  More important: in the early days of the Nazis, if there had been only 100 people like Joseph Hartinger, there would not only have been no holocaust, but there would have been no Third Reich. But there was only one honest prosecutor.

This story brings into sharp focus the importance of an independent judiciary that takes its duty to uphold the rule  of law seriously. If the United States loses that, the Constitution and rule of law could be tossed out as easily as it was tossed out by the Nazis. Dictators don’t like laws or any constraints on their power. Democracy is fragile and we could end up with a dictator here.

The United States judiciary is huge, with hundreds of state and federal prosecutors, state attorneys general, district circuit judges, and the Supreme Court. I have no idea the minimum number of honest prosecutors and judges it would take to maintain Rule of Law—or how many bent ones it would take to destroy it. The courts are dismissing Trump’s frivolous but dangerous lawsuits, so we still have enough judges and prosecutors who believe in our laws and institutions and are willing to uphold them. But if Trump somehow prevails, or if another autocrat is elected in 2024, the United States could go the way of the Nazis. And given that 72 million Americans voted, wittingly or not, to undermine democracy, the Constitution, and Rule of Law, to keep Donald Trump in power, this dreadful scenario is a real possibility.

The election of Joe Biden will give our nation a reprieve from the constant assault on democracy and Rule of Law under the Trump administration. Those of us who believe in our system of government will have to work hard to support and consolidate any gains that President Biden can make to protect our democracy.

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Inspirations

The theme of Shallow State—authoritarianism and its roots have been brilliantly portrayed in several recent non-fiction books: Madeline Albright’s Fascism: A Warning; Steven Levitsky and Daniel Ziblatt’s How Democracies Die; Nancy MacLean’s Democracy in Chains; and Jane Mayer’s Dark Money. Timothy Snyder in On Tyranny presents short histories from the twentieth century as fascism took root in Europe and was gaining popularity in the United States. He then relates these lessons to what is happening today and shows how we, as citizens of democratic countries, can spot these trends and arm ourselves against them.

The May/June 2018 issue of Foreign Affairs featured several articles about fascism and the entire October  2018 issue of The Atlantic was devoted to articles about the demise of democracy.

In The Death of Truth, Michiko Kakutani explains how truth became an endangered species in contemporary America. In Shallow State, citizens are enslaved by lies, conspiracy theories, and attacks on the media by the regime in Washington.

Novelists in the past have warned how fascism could take root in America. Sinclair Lewis, in his 1935 novel It Can’t Happen Here, is a story about a populist who is elected president and immediately takes over the press and places his thuggish and unqualified supporters in positions of power. In 2004, Philip Roth wrote The Plot Against America, a counterfactual history in which Charles Lindbergh, the aviation hero and Nazi sympathizer, is elected President in 1940. Both novels point out that Americans can be susceptible to the cult of celebrity and a democratic election can lead to a tyranny of a majority when popular populist presidents take over the three branches of government.

The most dystopian of political novels don’t seem so farfetched today: Margaret Atwood’s The Handmaid’s Tale is a horror story about the takeover of the United States by radical fundamentalist Christians. And there is the terrifying dictatorship portrayed in George Orwell’s 1984 . Here is an excerpt from a conversation my characters have about how the political situation in Shallow State is beginning to resemble that in 1984:

Jared said, “Look at the preemptive arrests, the lies by the president and his government-controlled media, the torture of the Madison protestors, and the endless war on terrorism.”

“And Lipscomb’s hate rallies!” Joanne said. Joseph looked puzzled at this remark.

“Don’t you remember, Father?  One of the scariest moments in the movie 1984 is the portrayal of the hate week rallies. Similarly, Lipscomb gathers his supporters and gets them worked into a hate-filled frenzy against Delacroix and Democrats in general. They shout things like “lock them up” and “Democrats deserve to die”.”

“And we are bombarded with doublespeak,” said Jared. “In the novel, the government and their media told carefully constructed lies that flatly contradicted what people knew to be true. People were expected to hold simultaneously two contradictory opinions and believe in both of them. The government used logic against logic and committed acts that were completely immoral while laying claim to morality. Doesn’t that sound like Lipscomb’s administration?”

Joanne said, “We even have Big Brother-style surveillance. The government can monitor our phone calls, email, our movements, and which political candidates we support.”

“Hold on,” Joseph said. “It’s not that bad. We don’t have a television in this house that monitors everything we say and do. But…” He frowned and added, “If the authorities could overhear our conversation, would they arrest us?”

Jared said, “I don’t think so, not yet. What they would do is send thugs and goons to harass us, just like they did to Joanne at Clark High School.”

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The Midterm Elections – My Take

November 29, 2018

A vote badge hovers above the constitution as a symbol of an American citizen’s constitutional right to vote.

As an American who is concerned about the future of democracy in our country, I am relieved that the Democrats took control of the US House of Representatives and made significant gains at the state and local level.

Despite the progress it represents, this election does not mean democracy and rule of law are no longer in danger. The extremely close elections in Georgia and Florida do not bode well for democracy. Voter suppression efforts in these states disenfranchised certain classes of citizens and reduced turnout. But voter suppression worked in these states – the Republicans won by a small margin. But they must be running scared after such close calls, despite their best efforts to game the system. Watch out in 2020! We will likely see Republicans engage in even more extreme tactics to ensure they win. Voter suppression is only one way to undermine democracy. There are other, perhaps more insidious tactics, such as spreading disinformation and lies, scaring people into voting a certain way or not voting at all.

These tactics are nothing new. Karl Rove, President Bush’s political mastermind is famous for allegedly saying his dream was to create a permanent Republican majority in the United States. According to Paul Abrams in a 2007 Huffington Post article, his real ambitions might have been slightly more modest. “There are no permanent majorities in American politics,” he once told Tim Russert. “They last for about 20 or 30 or 40 or, in the case of the Roosevelt coalition, 50 or 60 years, and then they disappear.” But he certainly worked towards a durable conservative bloc that would dominate national elections decades into the future. He advocated tactics such as voter suppression amongst likely Democratic voters and scare tactics to rile up conservatives to make sure they voted.

Despite his aggressive tactics, I don’t think Karl Rove was out to destroy our democracy and the norms and laws that allow it to function. He just wanted to win and didn’t mind a little cheating to get there. I wish I could say that about the leaders of today’s Republican party. They aren’t just out to win, they are out to destroy the opposition. For example, blatant lies and conspiracies targeting Democrats promoted by Infowars, Breitbart, and Fox News are the main source of news for significant numbers of conservatives and these stories often sway others who feel victimized by minorities, immigrants and a “global elite”.

Perhaps more worrisome, they are making strides in taking over the judicial branch. In 2014 the conservative-majority Supreme Court overturned the 1965 voting rights act, which paved the way for eight of the fifteen states covered by the act to pass extreme measures to suppress the votes of citizens who were likely to vote for Democrats. Thanks to Mitch McConnel’s refusal to even allow a hearing for President Obama’s supreme court nominee, Donald Trump and the Republican senate were able to ramrod two supreme court justices, one of whom, Brett Kavanaugh, seems highly partisan and is widely mistrusted. This severely undermines the judicial branch and gives the president more control over it.

A long term one-party majority is never good for democracy, no matter which party.

With this last election, we may have gained a little breathing room, two years to strengthen our democratic processes before 2020. But ‘we the people’ will have to get past the noise, the disinformation, and concentrate on ensuring voter rights and convincing people their vote matters.

Democracy requires vigilance, citizen engagement, and belief in the process. In Shallow State, one of the reasons democracy and rule of law break down is that citizens are bombarded with so much disinformation and alternative facts, they no longer know who to trust. They lose faith in the very institutions that were established to protect their rights. We can and must do everything we can to prevent this from happening.

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