White-Collar Crime

Trump And Tyranny

All those expansions of executive power could come back to haunt us...

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Donald Trump with FingersMany folks are saying that Donald Trump is a unique threat to American democracy. The Washington Post ran a unique editorial calling Donald Trump just that. As it summed up:

[Trump] doesn’t seem to care about [the Constitution’s] limitations on executive power. He has threatened that those who criticize him will suffer when he is president. He has vowed to torture suspected terrorists and bomb their innocent relatives, no matter the illegality of either act. He has vowed to constrict the independent press. He went after a judge whose rulings angered him, exacerbating his contempt for the independence of the judiciary by insisting that the judge should be disqualified because of his Mexican heritage. Mr. Trump has encouraged and celebrated violence at his rallies. The U.S. democratic system is strong and has proved resilient when it has been tested before. We have faith in it. But to elect Mr. Trump would be to knowingly subject it to threat.

Orin Kerr has a piece in the Post about what the Department of Justice would look like under Trump; it’s chilling. Here’s Kerr’s punchline:

What would a Trump Justice Department look like?

It would be pretty damn frightening, I think. Trump has two long-standing passions when it comes to law and law enforcement. His first passion is the suppression of protest and dissent. And his second passion is bringing lots of legal actions against his critics and threatening many more to get his way.

And, perhaps most dramatically, John Kasich — a man from Trump’s own party who is no longer running for President — released a new ad against Donald Trump, of a former POW basically calling Trump Hitler. Paraphrasing — and name checking — Martin Niemöller, the Kasich ad walks through each of the groups Trump has attacked, Mexicans, Muslims, black people, journalists, and ends by telling viewers that if Donald Trump comes after you, you’d better hope there’s someone left to defend you.

I’ve talked to at least one person — an educated person who generally believes in the rule of law — who wonders if maybe we’re in a version of that hypothetical about whether someone should kill Hitler if they time travel back to Germany in 1939.

Despite all of that, 538 currently says there is a 47.3% chance that Donald Trump will be our next President.

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Apparently Orin Kerr is not as influential as I had assumed.

The concerns about Trump are chilling; sure. But one can take some comfort that our American democracy is built on checks and balances; no executive has that much power. Trump could not be as bad as people say he’ll be — we wouldn’t let him.

A few years ago, the Atlantic had a piece that may undermine that confidence. The piece, titled “All the Infrastructure a Tyrant Would Need, Courtesy of Bush and Obama,” notes — “More and more, we’re counting on having angels in office and making ourselves vulnerable to devils.”

Here’s the key bit:

Behold the items on an aspiring tyrant’s checklist that [Bush and Obama] have provided their successors:

  • A precedent that allows the president to kill citizens in secret without prior judicial or legislative review
  • The power to detain prisoners indefinitely without charges or trial
  • Ongoing warrantless surveillance on millions of Americans accused of no wrongdoing, converted into a permanent database so that data of innocents spied upon in 2007 can be accessed in 2027
  • Using ethnic profiling to choose the targets of secret spying, as the NYPD did with John Brennan’s blessing
  • Normalizing situations in which the law itself is secret — and whatever mischief is hiding in those secret interpretations
  • The ability to collect DNA swabs of people who have been arrested even if they haven’t been convicted of anything
  • A torture program that could be restarted with an executive order

Even if you think Bush and Obama exercised those extraordinary powers responsibly, what makes you think every president would?

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This is, of course, exactly why government power should be restrained. The mantra of the government is “Trust us. We have the interests of the country at heart.” That may be right, today. But weakening the checks on government power to make one bad person — a terrorist, or a drug dealer, or a murderer — go to prison, makes tyranny easier when the next enemy of the state is just a Muslim, a Mexican, or a journalist.

But you shouldn’t create a system of laws for the best case scenario; you should create one to make sure the worst case scenario doesn’t happen.

And it looks like we may have put too much trust in the right people in office, just as exactly the wrong guy may be about to waltz in there.

Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is mkaiser@kaiserdillon.com He’d love to hear from you if you’re inclined to say something nice.

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