Law Versus Power

There’s a tendency to confuse the rule of law with obedience to the rules of a regime.

Within that confusion lies one of the multiple, dangerous threats posed by our current administration–a threat that became manifestly clear when Trump pardoned the January 6th insurrectionists. Autocrats can devise rules; the rule of law, however, is defined as a durable system characterized by four universal principles: accountability, just law, open government, and accessible and impartial justice.

Those elements are entirely foreign to MAGA and Trump. (Let’s face it–Trump wouldn’t even be able to define those terms…)

The chaos of the Trump administration, and the breadth of its attacks on democratic governance, have operated to distract public attention from its ongoing assault on the rule of law, and its persistent substitution of rules benefitting plutocrats and autocrats for laws benefiting society.

A recent issue of the American Prospect addressed that under-appreciated assault.

A functioning economy depends on a basic principle: cheaters shouldn’t win. But Donald Trump has tossed aside that principle, and that has real consequences. When the rules disappear, the worst actors thrive and everyone else pays the price.

In our new print issue, we examine how the collapse of financial enforcement and consumer protection is opening the floodgates to a golden age of scams. Under Trump, the referees have left the field. Civil penalties go unenforced. White-collar fraudsters are rewarded with pardons. Entire arms of the government designed to prevent theft, abuse, and discrimination are being dismantled.

It’s an intentional choice to let exploitation run wild. If there’s a way to game the system, someone’s doing it—and now they’re doing it with the government’s blessing.

The issue documented a variety of scams that have gained new security against government enforcement. One article reported on the multiple ways in which the gutting of the CFPB–the Consumer Financial Protection Bureau–has facilitated a wide variety of rackets and frauds. Another article delved into the failures of the Department of Education under Trump to protect student loan recipients from predatory lenders.

An article titled “Three Coin Monte” described what the magazine calls “the greatest and most brazen tale of corruption in history”– Trump’s crypto project. That article outlined “how Trump is using his ‘shitcoin’ to monetize the presidency and create new avenues for influence peddling.”

There’s also an explanation of a scam involving merchant cash advances. These are transactions in which tycoons sell what are effectively payday loans to small businesses and ruin their livelihoods. (We are told that one of those “tycoons” was on Trump’s pardon list in 2020; he’s back in jail, for now.)

These investigative articles are just a few examples of what happens when government fails in what has always been considered a foundational task: to prevent some citizens from taking advantage of others, to prevent the strong (or unscrupulous) from harming the weak and/or naive.

Donald Trump’s government has corrupted the very concept of law. The evidence is overwhelming: the gutting of the Department of Justice, the indiscriminate labeling of immigrants as “criminals” as justification for masked ICE agents’ thuggish behaviors, the appalling arrests of elected lawmakers on transparently false premises, orders from the administration to the EPA directing the agency not to enforce environmental rules against fossil fuel companies, the Trump family’s failure to even try to mask its monetization of the Presidency…the list goes on.

When the rule of law is replaced with rules favoring the predatory, when people in positions of authority sneer at the very notion of ethics and ethical behavior, when elected members of Congress fail to exercise their constitutional oversight responsibilities, ordinary citizens lose respect for the very concept of law. Corrupt regimes encourage lawbreaking by people who wouldn’t otherwise be scofflaws. Cynicism explodes. The trust on which societies rely evaporates.

The central goal of Project 2025 was to replace the rule of law with rules allowing selected people to exercise unrestrained and arbitrary power–power to give their sycophants and fellow-travelers free reign to plunder, but–more fundamentally– to facilitate the remaking of America into the Lily-White “Christian” nation of Project 2025’s fantasies.

In Henry VI, Shakespeare wrote “First you kill all the lawyers.” The authors of Project 2025 understood why that’s wrong. First you kill the rule of law.

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Why Government By Idiots Is A Bad Idea

Well, our Mad would-be King has bombed Iran and–by any definition–taken us to war. Another unconstitutional and profoundly dangerous act.

Charlie Sykes recently considered what was then an Israeli-Iran conflict, and enumerated “things that can all be true at the same time.”

Here’s his list, with my commentary in italics:

  • America ought to stand with Israel, while recognizing that Benjamin Netanyahu (1) does not always deserve the benefit of the doubt, and (2) is an unreliable narrator. In this, Sykes echoes the opinion of a majority of American Jews. We support the right of Israel to exist, but we detest Netanyahu, who is a smarter version of Trump (granted, a low bar) and whose corrupt governance has done incalculable damage to Israel’s international support.
  • The world would be a vastly better and safer place if Iran does not have a nuclear weapon. Ditto for dismantling the terrorist regime. This week, the G7 nations reiterated that, “Iran is the principal source of regional instability and terror,” and “We have been consistently clear that Iran can never have a nuclear weapon.” Hard to argue with this.
  • Achieving these goals through war will not be easy or achieved without great cost.
    War with Iran could unleash chaos throughout the region. And what comes afterward could be worse.
    The most dangerous scenarios involve miscalculations, misjudgments, and misinterpretations. (See World War I.) The truth of this is what keeps rational people up at night, and what should have concerned the ignoramus in the Oval Office. Understanding the risks involved in any decisions made by those in a position to make those decisions should have been a critical element of America’s response to this very significant threat to world peace.
  •  Moments like these requires the highest degree of skill and prudence — the most sober, strategic, and sagacious diplomatic and military minds we can muster. Instead, we have a reality tv host and a dipsomaniacal chode in charge of the world’s greatest military on the brink of war. Ok, I had to look up “chode,” which evidently refers either to a male organ or a stupid or contemptible man. Either way, seems appropriate. At a time when the country needs thoughtful, informed and adult leadership, power is being exercised by a group of immature, self-important ignoramuses who haven’t a clue and who display no willingness to heed the advice of people who do.
  • Instead of assembling a “coalition of the willing,” Trump and Israel were intent on going it alone, isolated and without the active support of allies. See “chode.”
  • As has become its wont, Congress remains a potted plant throughout this whole crisis. This is perhaps the most frustrating aspect of all of the threats we face today. The Republicans who hold a majority in the House and Senate repeatedly block efforts to assert the constitutional duties of those bodies. In the House, they evidently feel protected by gerrymandering and fear only challenges from the Right; the Senate is home to morons like Indiana’s Christian Nationalist Jim Banks and cowards like Todd Young. The fault ultimately lies with We the People, who have elected these pathetic excuses for public servants.

Bottom line, as Sykes notes, is that there are no adults in the situation room.

Because nothing ever really disappears from the Internet, social media sites have been flooded with former tweets by our embarrassing excuse for a President, a child-man who evidently thinks that posting grammatically-incorrect vulgarities and threats in ALL CAPS, like a five-year-old, is leadership. In 2013, he posted “Be prepared. There is a chance that our horrendous leadership could unknowingly lead us into WWIII.” (This post, at least, was grammatical…and potentially, frighteningly accurate.) Pundits have also reminded readers of Trump’s statement–made when he was still a reality television personality– that “Obama will attack Iran because of his inability to negotiate properly—not skilled!”

“Not skilled” is an apt–albeit massively understated–description of the unserious, unqualified cranks and clowns that We the People have installed in positions of authority.

Those totally unqualified clowns and cranks may just have triggered WWIII. Even if the consequences aren’t that horrific, they are likely to be incredibly damaging, both to the stability of the  world at large and–thanks to the mentally-ill buffoon in the White House– to America’s rapidly-diminishing role in that world.

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Discarding Medical Ethics

There really is no way to ignore the White supremacist and patriarchal roots of MAGA and the Trump administration. The behavior of ICE in conflating Brown skin with “illegal” status is one aspect; the bigoted nature of so many Trump’s insane Executive Orders is another. A recent federal court decision–handed down by a judge appointed by Ronald Reagan–expressed astonishment at the obvious discriminatory motive behind the administration’s NIH cuts. Etc.

Now, the administration is encouraging the VA to be “selective” in providing medical care to veterans. According to a recent report from The Guardian,

Doctors at Department of Veterans Affairs (VA) hospitals nationwide could refuse to treat unmarried veterans and Democrats under new hospital guidelines imposed following an executive order by Donald Trump.

The new rules, obtained by the Guardian, also apply to psychologists, dentists and a host of other occupations. They have already gone into effect in at least some VA medical centers.

Medical staff are still required to treat veterans regardless of race, color, religion and sex, and all veterans remain entitled to treatment. But individual workers are now free to decline to care for patients based on personal characteristics not explicitly prohibited by federal law.

Language requiring healthcare professionals to care for veterans regardless of their politics and marital status has been explicitly eliminated.

I sent this article to my cousin, a long-time cardiologist whose medical knowledge I sometime share on this site; he responded that this “goes against all the rules that guide the medical profession, not to mention against the guiding principles of this entire nation! It’s simply additional confirmation of Trump’s insanity, not that we needed it! “

According to the report, this permission of discrimination isn’t limited to patient care. “Doctors and other medical staff can also be barred from working at VA hospitals based on their marital status, political party affiliation or union activity.” The changes even apply to chiropractors, nurse practitioners, optometrists, podiatrists, licensed clinical social workers and speech therapists.

The administration claims that these changes were intended to support the president’s executive order titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”. That executive order purported to eliminate existing government protections from transgender people, and since it was issued, the VA has stopped  providing most gender-affirming care.

The administration has also forbidden a long list of words, including “gender affirming” and “transgender”, from clinical settings.

The article quoted a former VA administrator who said the changes would allow doctors to refuse to treat veterans based on the reason they were seeking care, including allegations of rape and sexual assault. Refusal could also be based upon current or past political party affiliation or political activity, and on personal behaviors like alcohol or marijuana use.

Most Americans fail to recognize just how extensive the VA is. The Department of Veterans Affairs operates the nation’s largest integrated hospital system; it has more than 170 hospitals and more than 1,000 clinics, employs 26,000 doctors and serves 9 million patients annually. It is hardly an exaggeration to say that rule changes of this sort are likely to have profound consequences.

In an emailed response to questions, the VA press secretary, Peter Kasperowicz, did not dispute that the new rules allowed doctors to refuse to treat veteran patients based on their beliefs or that physicians could be dismissed based on their marital status or political affiliation.

Dr. Arthur Caplan, a prominent medical ethics expert, called the new rules “extremely disturbing and unethical.”

The changes are part of a larger attack on the independence of medicine and science by the Trump administration, Caplan said, which has included restrictions and cuts at the National Institutes of Health and the Centers for Disease Control and Prevention, where the secretary of the Department of Health and Human Services, Robert F Kennedy Jr, last week fired every member of a key panel that advises the government on vaccines. The Guardian has earlier reported on a VA edict forbidding agency researchers from publishing in scientific journals without clearance from the agency’s political appointees.

Just one more drop in the ocean of ignorance and “othering” that characterizes MAGA and Trumpism. From the “very fine” people Trump insisted were among the bigoted rioters at Charlottesville, to his description of (majority Black) “shithole countries,” to his efforts to bar entry into America from Muslim countries, to his constant manifestations of racism, misogyny, and anti-Semitism, Trump has represented and ingratiated himself with the White “Christian” supremacists who form the base of his support.

America’s divisions aren’t political. They’re moral and ethical. And MAGA is on the wrong side of that divide.

 
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The Power Of Image

In the wake of No Kings Day, we’ve seen a number of columns and news reports estimating turnout (current count: five million nationally) and comparing the enthusiasm of the protests with Trump’s lackluster and sparsely-attended parade in Washington. Many of those articles were interesting and even illuminating; one of the best–as usual–came from Paul Krugman, who took time off from his usual economic analyses to reflect upon the impact of such mass peaceful protests.

Krugman began with an important–and mostly ignored–observation: America is currently experiencing what scholars call “competitive authoritarianism.” Competitive authoritarian regimes are those in which formal democratic institutions are retained–elections continue to be held, for example, and other “democratic rules” are given lip service–but Incumbents violate the rules so often and to such an extent that the regime fails to meet the minimum standards for democracy.

Krugman says we’re not there yet, but that we are “teetering on the edge.” He also claims that “one of the most important ways we can step back from that edge is for ordinary Americans to engage in mass protests.”

Why should that matter? Why does the contrast between the poor turnout for Trump’s underwhelming exercise (what Krugman labeled as a “box office bust”) and the  enormous, enthusiastic participation in the No Kings protests matter?

It matters, as he explains, “because competitive authoritarianism rests largely on self-fulfilling expectations.”

While there is a cadre of Trumpist true believers who will obey the Leader under any circumstances, most of those doing the dirty work of undermining democracy and the rule of law are cowards and opportunists. They’re willing to participate in the destruction of America as we know it because they believe that many others will do the same. As a result, they believe that they are unlikely to face any personal consequences for their actions and may even be rewarded for their lawbreaking.

And what of those who oppose Trumpism? While there are heroes willing to take a stand against tyranny whatever the personal cost, most anti-Trumpists are reluctant to stick their necks out unless they believe that they are part of a widespread resistance that will grant them some measure of safety in numbers.

In other words, the victory or defeat of competitive authoritarianism will depend to a large extent on which side ordinary people believe will win. If Trump looks unstoppable, resistance will wither away and democracy will be lost. On the other hand, if he appears weak and stymied, resistance will grow and — just maybe — American democracy will survive.

Those of us who have been politically active will recognize the parallel to election campaigns, where momentum or an aura of inevitability sways less-informed voters to the probable winner’s side. (This is a truism that annoys the hell out of those of us who would love to believe that citizens vote after careful consideration of the policy positions of the contending candidates; unfortunately, in the real world, the desire to back a probable winner vastly exceeds such idealized behavior…)

So what we saw on Saturday was more than just the juxtaposition of a poorly attended parade that was supposed to glorify the Leader against massive, enthusiastic protests. We also saw a body blow to Trump’s image of invincibility and a demonstration that millions of Americans are willing to stand up for democracy.

It isn’t just the optics of five million plus citizens turning out in protest; as Krugman reminds readers, the resistance is gathering steam. He cites the “remarkable comeuppance” of the major law firms that bent their knee to Trump’s threats and are now seeing partners and major clients depart for firms that refused to be cowed, and the growing resistance to ICE’s lawless roundups of immigrants (including people who “look like” immigrants).

This isn’t the end of the assault on American democracy. It isn’t even the beginning of the end. But it may well be the end of the beginning. Trump spent his first 6 months in office trying to steamroller over all opposition, creating the impression that resistance is futile. Clearly, he hasn’t succeeded. On the contrary, resistance is stiffening, and those who preemptively capitulated seem to be paying a higher price than those who showed some backbone.

Although the tide may be turning, MAGA isn’t simply going to roll over and slink away. On the contrary, the administration’s power grabs will become even more aggressive and desperate, with growing efforts to intimidate, prosecute and even physically harm political opponents, as well as widespread efforts to suppress dissent with force.

Nonetheless, despite the difficult times ahead, America has just passed an important test. May freedom ring.

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Words Of Wisdom

One of my “go to” sources for political news and thoughtful analysis is Talking Points Memo. I nearly always find myself in agreement with its editor, Josh Marshall–and especially in his “cut to the chase” commentaries on our current political situation.

Recently, Marshall considered the navel-gazing of the “usual subjects.” He began by citing two recent Bulwark essays. One, by Matt Yglesias, engaged in the sort of “analysis” that drives me up the wall–Yglesias criticised the Democratic Party for clinging to positions that he believed imposed “a decisive disadvantage when it comes to winning the Senate in 2026 and in a challenging position when it comes to the Electoral College.” He argued for a “major repositioning on issues like guns and fossil fuels (among other issues) to make Democrats more competitive in states like Iowa or Texas.

Jonathan Last made a very different argument–and like Marshall, I found it far more persuasive.

The argument was that Democrats are the opposition and that the role of the opposition, especially in such a binary, Manichean moment, is to systematically disqualify the party in power. Any naval-gazing or attempted rebrands are somewhere between irrelevant and counterproductive.

Amen.

Marshall argues that pundits’ emphasis on policy prescriptions misreads the situation in which we find ourselves–that it is a bias held by people who think and write– and that ignores reality. “Opposition parties win when they manage in whole or in part to discredit the party in power — almost always with a ton of help from the party in power itself.”

I spent 21 years teaching law and public policy. I absolutely believe in the importance of policy prescriptions, in the need to consider what the evidence teaches us about policy decisions and mistakes. But if there is one thing I am absolutely convinced of, it is that elections aren’t won or lost by adjusting the nuances of this or that policy.

As Marshall notes,

Democrats who are currently focused on repositioning the party away from being “woke” sound like they’re in a time warp. People are scared about losing their jobs. They’re upset about authoritarian attacks on the rule of law. There’s deepening pessimism about a looming recession. A big focus on “wokism” seems mostly like someone speaking from the past. It’s just not what people are thinking about right now. They’re worried about Trump and the climate of chaos and uncertainty.

Again: politics is all about salience. That’s why people so frequently get themselves mixed up with polls. Maybe your issue has 80-20 support. But if it’s not what voters are voting on, it’s irrelevant. Americans overwhelmingly oppose Trump White House cuts to medical research. But it’s not getting a lot of traction at the moment. Because most people don’t know about it. It’s not a driving focus of the news. It’s salience is low. So it makes sense for Democrats to do everything they can to focus more attention on it.

There’s a mountain of evidence to the effect that people who are against something are more likely to cast ballots. I am confident that every person who participated in the No Kings Day protests will get to the polls.

As Marshall says, the salient issue right now is Trump and the damage he is doing to America. It isn’t only Democrats who are appalled by the assaults on reason and competence and liberty. As one of my favorite protest signs has it, IKEA has better cabinets, and a majority of Americans recognizes the damage that is being done by these clowns and ideologues–to the economy, to health care, to America’s global role, to constitutional governance.

For that matter, every Republican I worked with “back in the day” when I was a Republican and the GOP was a political party rather than a fascist cult is horrified by Trump and terrified by the direction he is taking the country.

Marshall is absolutely right that Democratic success depends upon opposition to Trump and MAGA, not to the fine-tuning of  a positive vision. As he points out, “the positive vision emerges from the outlines of what you oppose. But fundamentally the job of an opposition is to oppose. Don’t overcomplicate it. It’s not simply that you gain more ground from opposing than from grand-strategizing. You learn more from it too.”

America has a lot of long-term systemic flaws, and we need to pay attention to them and fix them. But right now, we need to rid America of today’s Confederates, the MAGA White Nationalists who are trying to remake us into a very different country.

You don’t debate the best way to make the plane safer while it’s going down.

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