July 1, 2024 and America's 'Enabling Act'
The parallels with Germany's transition to Nazi power are chilling
It’s struck me, in reading Ruth Ben-Ghiat’s Strongmen, that dictators find a way to get themselves elevated and then make sure no one can tear them down. Among them, both Mussolini and Hitler were installed in their offices of leadership, the first by a monarch (Victor Emmanuel, saying he was trying to prevent a civil war) and the second by the president who had defeated him in 1932’s election (Paul von Hindenburg, to secure a coalition in the Reichstag, by which he thought to control Hitler).
Once in power, these dictators had a free hand to shape events, electorates, judicial decrees, and journalism to suit their aims, without meaningful opposition.
In Germany the Enabling Act of March 1933 followed Hitler’s January appointment as Chancellor. In the United States, the Enabling Act has taken the form of Monday’s Supreme Court ruling on Trump’s claim of absolute presidential immunity. CNN summarizes this way:
Chief Justice John Roberts wrote in Monday’s opinion, “We conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.”
“The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law,” Roberts also wrote.
The chief justice said the trial court will have to assess what of Trump’s alleged conduct is immunized under the new test handed down by the high court, and the opinion said that additional briefing will be needed for the trial court to do so.
“We accordingly remand to the District Court to determine in the first instance — with the benefit of briefing we lack — whether Trump’s conduct in this area qualifies as official or unofficial,” wrote Roberts, who said there was a lack of “factual analysis” in the previous lower court opinions rejecting Trump’s immunity. […]
Perhaps even more important, the majority made clear that official acts cannot be considered at all as evidence in a potential trial, which could make it much harder for Smith to demonstrate Trump’s motive and other aspects of Smith’s case against Trump. Roberts wrote that the lower courts may not look into a former president’s motive.
“Certain allegations – such as those involving Trump’s discussions with the Acting Attorney General – are readily categorized in light of the nature of the president’s official relationship to the office held by that individual,” Roberts wrote.
“Other allegations – such as those involving Trump’s interactions with the vice president, state officials, and certain private parties, and his comments to the general public – present more difficult questions,” Roberts wrote.
It has become abundantly clear in the last 24 hours that a president contacting his attorney general constitutes an official act, due to their working relationship, and both the motive and the content of such contacts are shielded from any accountability beyond electoral defeat in a subsequent election.
The Daily Cartoonist (soon to be banned, I expect) helpfully elucidates. First, Senate Minority Leader McConnell:
SCOTUS has issued its ruling stating that the President is immune from prosecution for anything he does in his official capacity and for much of what he does in his unofficial capacity as long as he’s doing it as President.
It will be up to the lower courts to decide which is which and then up to the Supreme Court to tell them if they guessed right.
Deb Milbrath explains [in this cartoon] how that can work to the benefit, for example, of Mitch McConnell, who originally said that attempting to overthrow the government by force and violence was a bad thing but then began to doubt his judgment.
Now, thanks to the Court, he realizes that, yes, he was mistaken.
The Court explained, in its 6-3 decision, that, for instance, if the President suggested to the Acting Attorney General that he should institute a fraudulent vote count in place of the real one, he was protected by virtue of the fact that talking to the AG is an official act of a President.
Others have noted that this apparently means the President could also talk to his staff about blackmailing certain politicians, breaking and entering into opposition headquarters, burglarizing a psychiatrist’s office and paying off criminal associates and even if the conversations had been caught on tape, he would be protected because he was talking to his official White House staff.
And if a previous Supreme Court disagreed unanimously, they were simply wrong.
That “previous Supreme Court” decision is, of course United States v. Nixon (1974).
Surely no one needs to point out that if the only check on the actions of a United States chief executive is the honorable character of that person, we must choose very carefully anyone who occupies that office.
All this for me conjures images of a slippery slope or of a vehicle careening hellbent toward the rim of a cliff. Perhaps we need a new metaphor, as suggested by failed launches this week in both China and Russia:
If a scoundrel like Donald Trump can be not just elected president but, after his spectacularly destructive and mendacious administration, re-elected, enabled by loyalists only and armed with a Project 2025 agenda, with no legal check on his powers—then, perhaps the best analogy with the rise and decline of this nation is a disastrous failure to launch successfully in the attempt to keep human nature from expressing itself through tyranny.
After a slew of decisions overturning precedents and enacting reforms and clarifications, from Citizens United in 2010 through the 1965 Voting Rights Act (2013), Dobbs (2022) and Chevron (last Friday), right down to yesterday, to cite only a few—it is clear that the Enabling Actors (sorry, but I have to call them the Republican-appointed supermajority on the Supreme Court) are in on the sweeping power grab of a strong unitary executive. Of this no doubt can possibly remain. They will be scorned by history as perhaps worse than the courts deciding Dred Scott and Plessy v. Ferguson. (These are easy to look these up if needed.)
Only an honorable person can be allowed to ascend to the presidency. It is up to us all to make sure of that outcome, this November and always.
Music next time, and soon, because we all need it.