Trump, Hitler, and the politics of legality

Christopher Browning is a noted and respected historian of the Nazi period and the Holocaust (link). His October 2022 article in the Atlantic on "the politics of legality" during Hitler's march to power is an extremely serious warning to all of us who care about our democracy in the United States (link). It is a brilliant and sobering analysis -- all the way down to the role played in Hitler's rise by "The Big Lie". Highly relevant to the situation of far-right extremism and MAGA in the US today is this shift of Hitler's strategy described by Browning:

Hitler’s lesson from the failed putsch was that he needed to pursue revolution through “the politics of legality” rather than storm Munich City Hall. The Nazis would use the electoral process of democracy to destroy democracy. As Hitler’s associate Joseph Goebbels said, the Nazis would come to the Reichstag, or Parliament, as wolves to the sheep pen. By 1929, the press empire of Alfred Hugenberg had embraced and even financed Hitler as a right-wing spokesperson, giving him nationwide exposure and recognition.

Hitler's "legal" seizure of power began with the irregular appointment of Hitler as chancellor in 1933. This office (with the support of President von Hindenburg) gave Hitler the powers he needed to legally suppress (and ultimately to violently eliminate) all opposition. (The term "legal revolution" derives from Karl Dietrich Bracher's account of the period; link.)

In short order, the freedoms of speech, press, and assembly were suspended. An extrajudicial power to arrest and detain people without trial voided normal due process, and this provided a legal basis for the Nazi concentration-camp system. In addition, non-Nazi state governments were deposed, and full legislative powers were vested in the chancellor instead of the Reichstag—in effect allowing rule by fiat. That enabled Hitler to disband labor unions, purge the civil service, and outlaw, one by one, opposing political parties. Within five months, Germany was a one-party dictatorship and a police state.

Browning did not envision a Hitler-like seizure of power in the United States, even as recently as fall 2022. Rather, he suggested that an authoritarian future for the US might take the form of an "illiberal democracy" along the lines of Orbán's Hungary. But given the disclosures offered in the New York Times and the Washington Post this week, Browning's prognosis seems woefully optimistic. Real anti-democratic extremists seem to be in control of the MAGA agenda, including pro-authoritarian firebrands like Stephen Miller and Steve Bannon.

Consider the New York Times analysis of the plans Donald Trump and his supporters have made for a possible Trump victory in 2024. The key goals of this "putsch" faction are summarized in the opening paragraphs of the Times article by Jonathan Swan, Charlie Savage, and Maggie Haberman (link).

Donald J. Trump and his allies are planning a sweeping expansion of presidential power over the machinery of government if voters return him to the White House in 2025, reshaping the structure of the executive branch to concentrate far greater authority directly in his hands.

Their plans to centralize more power in the Oval Office stretch far beyond the former president’s recent remarks that he would order a criminal investigation into his political rival, President Biden, signaling his intent to end the post-Watergate norm of Justice Department independence from White House political control.

Mr. Trump and his associates have a broader goal: to alter the balance of power by increasing the president’s authority over every part of the federal government that now operates, by either law or tradition, with any measure of independence from political interference by the White House, according to a review of his campaign policy proposals and interviews with people close to him.

Mr. Trump intends to bring independent agencies — like the Federal Communications Commission, which makes and enforces rules for television and internet companies, and the Federal Trade Commission, which enforces various antitrust and other consumer protection rules against businesses — under direct presidential control.

This is a plan for MAGA dictatorship, sweeping aside all checks and balances within the Federal government. Given the rulings made in the recent past by Federal courts and the Supreme Court, citizens can have little confidence that the courts will intervene to preserve democracy. Like the extreme right in late-stage Weimar politics, MAGA activists and policy theorists work to demonize their opponents as socialists and enemies of the people. Here are Trump's words at a recent political rally in Michigan:

“We will demolish the deep state,” Mr. Trump said at the rally in Michigan. “We will expel the warmongers from our government. We will drive out the globalists. We will cast out the communists, Marxists and fascists. And we will throw off the sick political class that hates our country.”

This is fascist language.

The extremist policy advocates and MAGA think-tanks described in the Times article make their plans under an openly authoritarian legal theory: the unitary executive.

The legal theory rejects the idea that the government is composed of three separate branches with overlapping powers to check and balance each other. Instead, the theory’s adherents argue that Article 2 of the Constitution gives the president complete control of the executive branch, so Congress cannot empower agency heads to make decisions or restrict the president’s ability to fire them. Reagan administration lawyers developed the theory as they sought to advance a deregulatory agenda.

Such a theory would give the strong-man president -- a Trump or a DeSantis, for example -- unconstrained power to carry out his agenda.

In the Washington Post during the same week Philip Bump adds to the Times analysis by analyzing worrisome shifts in public opinion about the value and efficacy of democratic institutions (link). After analyzing recent public-opinion results conducted by Associated Press-NORC indicating that only about 50% of adults believe that "democracy is working somewhat or extremely well", Bump highlights the substantial differences that exist between Republicans and Democrats on this and related questions. The clear indication is that Republican voters are turning away from traditional commitments to democratic institutions -- including the idea that elected officials are only in office to serve as stewards for the interests of the whole of US society. Bump writes:

What Trump proposes, though, is a collapse of the idea of a democratic government with temporary stewards, an extension of his own misunderstanding of the position he once held to a wide array of federal departments. If polling is any indicator, much or most of his party wouldn’t object.

These signals need to be a source of real alarm for anyone who cares about our constitutional democracy. There is a powerful anti-democratic movement that is determined to fundamentally destroy our democratic institutions and traditions, and it is gaining wide support among its followers. The stakes in the 2024 presidential election could not be higher.