Time to speak and keep speaking

If not now, when?

To speak honestly about our politics is painful. Things are far worse than our relatively calm markets and streets would suggest. The newspapers and commentators have reported Donald Trump’s many illegal acts. The courts have ruled against him. And now we wait to see whether he will follow court rulings, as if we don’t already know what he thinks about the significance of judicial rulings. If it needs to be said: Trump will not listen to courts.

A constitutional crisis occurs when one branch exercises a power than belongs to another. Many have argued that a constitutional crisis has already arrived because Trump has claimed the power to make new laws and override existing ones—a power that belongs to Congress. The ongoing constitutional crisis will reach a point of no return when Trump fully and openly rejects judicial authority to say what the law is and ignores the rulings of federal courts. We are almost there.

When Trump disregards the judicial branch, there will be no legal recourse. Trump himself is immune from prosecution. A court could hold federal officers in contempt, but any referral for criminal contempt would go to the Trump-controlled Justice Department, which will not prosecute anyone who is carrying out Trump’s orders or policies. If a prosecution for contempt somehow began, Trump would pardon the defendant. With no enforceable consequence for violating judicial orders, Trump and his administration will be above the law.

The end of the rule of law, as least as applied to the President, might sound like an issue of primary interest to lawyers and political scientists. Even the phrase “constitutional crisis,” while containing the word “crisis,” sounds academic. Most people do not think much about the constitution or the separation of powers. Many others are thrilled to witness the demolition of our government. In this moment, identifying and naming a constitutional crisis is not enough. Some voters wanted a dictator to burn the government and its constitution to the ground.

Trump’s presidency is a crisis for everyone, however, and not only for defenders of institutions. The critical error that burn-it-all down voters made was in thinking that Trump could serve as a shock to the system, remake government, and then stop. That is wrong. A megalomaniac does not stop. Trump will not pardon insurrectionists, fire as many civil servants as possible, appoint loyalists, abolish entire agencies, and then simply … stop. There is always another fight to start. After all, Trump has claimed the right to take Gaza, Greenland, and the Panama Canal. Whether he is sincere in making these claims is irrelevant. In all aspects of his presidency, Trump is taking extreme positions to find out whether anyone will push back.

Because Trump will not stop, breaking and corrupting government is not the end point here, although that would be bad enough. Trump wants to influence what we are willing and able to say; punishing and controlling speech is an expression of his megalomania. Intimidation and retaliation are his tactics. Consider his lawsuit against the Des Moines Register and its pollster, Ann Selzer.¹ He sued them for publishing a poll that he did not like. While the lawsuit is frivolous and he will lose, winning is not the point. Harassing and intimidating journalists is the point.

Intimidation can work. To avoid harassment and retaliation, the owners of the Washington Post and LA Times vetoed editorial endorsements of Kamala Harris. Facebook changed its content policy immediately after the election to curry favor with Trump and gave him a million dollars.² The parade of surrendering billionaires shows that he is already influencing what companies and people do and say to avoid retaliation. The reason why he renames the Gulf of Mexico and bans diversity initiatives is to control what people say. It is easier to go along than to face retaliation. But this type of obedience does not bring about stable armistice; rather, it encourages more intimidation. Trump will not stop until some external force compels him to stop.

What might compel Trump to stop? At bottom, it seems to me that the only thing that matters is public opinion. In fact, this is exactly why Trump and his allies are working so hard to intimidate journalists, government employees, and business leaders. Public opinion has to be public; it cannot be quietly held and unexpressed. It cannot be acquiescence or anticipatory obedience. It cannot be nihilism or who cares or nothing matters. Giving up, playing it cool, or keeping one’s “head down” only emboldens those who want to control what is said and what must not be said. As has been said, “We must speak with all the humility that is appropriate to our limited vision, but we must speak.”³

Public opinion is what will give judges the courage to condemn Trump. And when he disregards their judicial orders, public outrage is the only thing that could, at long last, motivate Congress to uphold the Constitution, impeach and convict, and remove him from office.

1. Trump v. Selzer, S.D. Iowa Case No. 4:24-cv-00449-RGE-WPK.

2. Facebook was not alone; many major companies donated $1 million to Trump’s inauguration fund. https://www.foxbusiness.com/politics/trump-inaugural-companies-top-donations.

3. https://www.blackpast.org/african-american-history/speeches-african-american-history/1967-martin-luther-king-jr-beyond-vietnam-time-break-silence.