Jonathan P. Baird

I expect that many Americans remain uncomfortable with the notion that Donald Trump and his MAGA movement are fascist. The word “fascist” is a political football. Both sides of the political spectrum toss it around and use the term to describe their adversaries.

Given that reality, rather than arguing about the correctness of the term, it makes sense to look at what political developments are most worrisome to our democracy. One development is the number of voices on the political Right who are calling for a dictatorship because of their dark view of American society.

Maybe readers will remember two years back when on FOX Tucker Carlson was singing the praises of the Hungarian strongman Viktor Orban. Carlson spent a week in Hungary and he portrayed Hungary as a conservative paradise. Orban has turned Hungary into what he calls an “illiberal state”.

Moving to control much of the country’s media, Orban has followed a model often employed by authoritarians. Stocking the courts with loyalists, he gerrymandered the voting system to make it much harder for opposition parties to win. He floated apocalyptic conspiracy theories about dark forces undermining the will of the people, invoking a version of great replacement theory. He demonized George Soros and immigrants, promoting antisemitism and xenophobia. Orban wants to remain in power indefinitely.

Support for a strongman solution in the Orban tradition has been gaining ground on the American Right. Kevin Slack, a right wing author and intellectual from the ultraconservative Hillsdale College in Michigan has written that the “New Right now often discusses a Red Caesar, by which, it means a leader whose post-Constitutional rule will restore the strength of his people”.

In the Guardian, Jason Wilson writes that a theory called Caesarism as an authoritarian solution to the claimed collapse of the U.S. republic has been advocated in podcasts and house organs of the far right especially those associated with the Claremont Institute. Probably two of the most well-known individuals associated with Claremont are former Trump advisors John Eastman and Peter Anton.

The Claremont scholars who represent a variety of extreme conservative perspectives do generally see the U.S. as a decadent failed state. Anton has written the “U.S. peaked around 1965”. The Claremont scholars see the U.S. as dominated by the radical left. While that would no doubt come as a surprise to those on the left, the hard right sees a stew of woke ideology, transgenderism, anti-white racism, open borders and an overreaching federal government out to take guns away.

Part of the extreme right’s loss of faith in democracy has been their inability to win elections. They see no path to power through democratic elections. In particular, Donald Trump’s loss in 2020 has fueled feelings of desperation and radicalized some of his followers. The argument is that only a Red Caesar can cut through deep state dysfunction and constitutional gridlock to impose order.

Donald Trump is the putative Red Caesar. As the Republican frontrunner, he is seen by the extreme right as the potential strongman who can seize control to stop the great replacement and restore white and Christian supremacy. He will make the argument that he alone is capable of fixing the chaos.

There is a religious dimension to the Caesarism. A May 2022 University of Maryland poll found that 61% of Republicans favored “officially declaring the United States to be a Christian nation”. Christian evangelicals have been a critical part of the Trump base in 2016 and 2020. The Christian authoritarian trend has been reflected in retired general Michael Flynn’s Reawaken America Tour which has emphasized there is a spiritual and political war going on in America.

Trump’s erratic behavior of late is noteworthy. As the pressure has built on him because of his various criminal and civil prosecutions, his words have taken a noticeably violent turn. Trump said former Joint Chiefs of Staff Chairman Mark Milley committed
“treason” and suggested he be executed.. He said Jack Smith was “deranged and a psycho”. He has called on police to shoot shoplifters. He said immigrants are “poisoning the blood of our country”.

The historian Ruth Ben-Ghiat has said “violence is Trump’s brand”. She has written:

“Since the fascist years, authoritarians have used propaganda and their personality cults to change the perception of violence among their followers. The goal is to remove hesitation about tolerating or participating in violence against one’s compatriots by presenting that violence as necessary and even morally righteous.”

Democracy is a system where political parties must accept the decision of the voters. Trump is operating off a different paradigm. He says he will prosecute Joe Biden as well as judges and prosecutors who have held him accountable. He threatened MSNBC calling them “the enemy of the people”, intimating action against a free press. This Red Caesar is training his base away from democracy and towards normalizing political violence. He is training his followers to see violence in a positive light.

It is entirely predictable that Trump will be talking about how the 2024 election will be stolen from him. In fact, without any evidence, he already has been saying that. Any election he does not win is, by definition, rigged. If he does lose again, I am wondering about the next January 6. Oddsmakers would not be betting on a peaceful post-election period.

All who believe in democracy and the rule of law must take the Red Caesar threat seriously. Authoritarians do not see failure as an option. Authoritarians typically leave office involuntarily.

Trump’s difficult circumstances dictate that he is unlikely to exit without a bitter fight. When you are running to stay out of jail, you are not likely to play by the Marquess of Queensbury rules. The threat is real.

The stories about corruption at the U.S. Supreme Court keep mushrooming. We first heard about Justice Clarence Thomas accepting expensive gifts from billionaire Harlan Crow that Thomas never reported. After Thomas became a justice, Crow became his “friend”. Then we heard about Justice Samuel Alito and his unreported trip with billionaire, Paul Singer, an individual who has had business before the Court. Alito hasn’t recused himself.

I think the recent story about Justice Thomas and the Koch network gets closer to the deeper dimension of the corruption. In microcosm, it exposes the process of how right wing billionaires buy their brand of justice.

On January 25, 2018, the Koch brothers flew Thomas to their annual member donor summit on a Gulfstream G-200 jet. We still don’t know who paid for that trip.The event is a weekend of strategizing and high dollar fundraising.

The Kochs used Thomas as a fundraising draw. Donors were promised that if they paid one hundred thousand dollars or more, they will be able to attend an elite event where Thomas would speak. Thomas never reported the Koch event or the travel on his annual federal financial disclosure form.

Charles Koch (the remaining live Koch brother) is one of the 25 richest people in the world. He is worth an estimated $64 billion. His network has raised a fortune from other wealthy donors used to support a variety of ultra-conservative causes. The network raised over $700 million in 2021. More recent data is not yet available.

You might call this money the Billionaire Defense Fund. Clearly some of the money has been directed at Thomas and winning him over as Thomas has a weakness for the luxury lifestyle. This is the pay to play, purchasing Justice Thomas. The gifts are not a straight-up bribe but they are influencing.

Koch met Thomas at Bohemian Grove, a secretive annual all-men’s retreat held in Northern California. Thomas has been a frequent attendee and he met Koch there. Bohemian Grove is like a fraternity party for super-rich and powerful people. Over the last two decades, Thomas often stayed with the Kochs and Harlan Crow.

There are at least three ways Thomas violated the law and has been compromised ethically. As explained by law professor Richard Painter, Thomas violated financial disclosure rules; he violated laws prohibiting judges from participating in partisan fundraising; and he hasn’t recused from cases where he should have. Chief Justice Roberts has been looking the other way but these violations are so egregious that Roberts should at least demand Thomas recuse himself from the upcoming case, Loper Bright v Raimondo.

The case raises the matter of Chevron deference. Without getting too into the legal weeds, the 1984 Chevron v NRDC case gave wide deference to federal administrative agencies in how agencies’ laws, rules and regulations are interpreted. Thomas himself was a very strong supporter of Chevron deference, writing an opinion in 2005 defending the power of administrative agencies.

Very strangely for someone who is almost always ideologically unmovable, Thomas’s view has now flipped. After hanging out with the Kochs who see Chevron deference as an abomination, Thomas completely reversed course. He is now on record opposing deference to administrative agencies just like his corporate benefactors. Koch network staff attorneys are asking the Court to reverse this almost 40 year old precedent.

A major part of the Koch agenda is what is often called “deconstructing the administrative state”. The Koch network has been dedicated to reining in and limiting the power of federal agencies to issue regulations in many areas of the law.

Whether it is the environment, worker rights, consumer rights or worker health and safety, the Koch network wants to obliterate federal regulation. They want no entity to interfere with their corporate profit-making agenda, their prerogative to pollute, exploit workers or push out green house gases as much as they like.

Based on his behavior, Thomas’s impartiality is in serious question. And Loper Bright is not the only case where a justice should be recusing. Similar questions are raised for Justice Alito in a tax case where one of the lawyers involved, David Rivkin, had interviewed him for a Wall Street Journal opinion piece. Rivkin and Alito are pals. Rivkin is also counsel to Leonard Leo of Federalist Society fame on the matter of Leo’s role in facilitating gifts of free transportation and lodging Alito accepted from Paul Singer.

Leonard Leo is the man behind the curtain in understanding what has happened to the Supreme Court. As the key Federalist Society operative, he greased the relationship between Thomas, the Kochs and Crow. Leo, who is close to Thomas, actually arranged Thomas’s appearances at the Koch donor events.

The deeper dimension in this story is how it illustrates the scheme by right wing billionaires to capture the Supreme Court. No one has spoken about this more forcefully than Rhode Island Senator Sheldon Whitehouse. Because the radical right could not achieve their goals openly, they resort to unlimited dark money donations, phony front groups, and a veil of secrecy to hide how the Court has been captured.

Their agenda is climate denialist, pro-elite, deregulatory and anti-democracy.

On the positive, the Senate Judiciary Committee is now investigating the allegations that Supreme Court justices accepted and failed to disclose lavish gifts received from their billionaire benefactors. The Senate Finance Committee is also investigating Federal tax compliance with the undisclosed gifts.

There are also increasing calls for justices with conflicts of interest to recuse themselves from cases where justices have ties to billionaires with business before the Court. More than 40 U.S. watchdog groups have called on Chief Justice Roberts to force Thomas and Alito to recuse where they are conflicted. 50 House Democrats wrote Justice Thomas an open letter asking him to recuse from Loper Bright.

It would appear that Thomas and Alito are immune to shame. They have moved beyond the appearance of impropriety to something worse. The Court’s legitimacy problem is anything but over.

Lately I have been reading Naomi Klein’s brilliant new book, Doppelgänger. It offers some acute analysis about the increasing role of conspiracy theories in our lives, especially since the COVID-19 pandemic. Without question, more people have been falling down all kinds of rabbit holes.

Conspiracy theories around Jews are nothing new but I have found it impossible to ignore recent words from two prominent individuals, Elon Musk and Donald Trump. Probably like many Jewish people I try to ignore the poison. One long-standing tendency in the Jewish world is thinking that it will be worse to call more attention to hateful comments. I am of a different mind. I worry more about allowing antisemitic trash to go unchallenged.

So often conspiracy theories end up with Jewish villains. Invariably, Jews get pegged as the cause of the world’s evils. Compared to the years when I was growing up, I have been genuinely surprised by the rejuvenation of antisemitic ideas and the number of antisemites now coming out of the woodwork.

Musk, the richest capitalist in the world, has been on an antisemitic tear, tweeting and accusing Jews of controlling mass media and financial markets. Not surprisingly, he has posted a series of tweets attacking the Jewish billionaire philanthropist, George Soros, who he compared to Jewish X-men supervillain, Magneto. Musk has claimed Soros wanted to “erode the very fabric of civilization” and that he “hates humanity”. Why Musk has chosen to focus on Soros is a good question.

Soros has been a favorite target of neo-nazis and white supremacists who see him as behind the great replacement. He is the modern-day equivalent of the Rothschilds, extraordinarily rich Jews who can be scapegoated. Musk is indulging a hateful stereotype about ultra-wealthy Jews who can allegedly control events and buy inordinate political power. His comments follow the example of Hungary’s leader Viktor Orban.

Musk went on to attack the Anti-Defamation League or ADL which, by any measure, has been an important voice opposing antisemitism and racism since it was founded in 1913. On September 4, without any proof, he blamed the ADL for a 60% loss in advertising revenue. ADL has opposed Musk’s decision to allow hate speech and white supremacist accounts on the website. They and eight other groups, the Stop Hate for Profit coalition, had called for an advertising boycott of Twitter/X.

Musk has repeatedly threatened a defamation case against the ADL, saying that they had cut X’s value in half. He has said ADL was trying to kill the platform by “falsely accusing it and me of being antisemitic”.

Laying the blame on Jews for your own failure is hardly novel. He is playing on antisemitic mythology that powerful Jewish organizations are manipulating behind the scenes in unseen ways. To quote the writer, Mike Rothschild:

“I love the implication that the erratic management, mass layoffs, incoherent moderation, destruction of verification, decimated engineering staff, serial unbanning of racists and crumbling infrastructure had nothing to do with Twitter losing half its value. Nope, just Jews.”

Musk could not leave the ADL alone, advancing the notion that the ADL has fostered antisemitism by calling it out so aggressively. He, the free speech absolutist, posted the idea of a poll on whether to suspend ADL from X. He tweeted ADL has been “hijacked by the woke mind virus”.

White nationalists and other far-right extremists joined in online with a hashtag campaign #BanTheADL. This might have gone unnoticed but Musk “liked” a tweet by Keith Woods, an Irish white nationalist and self-described “raging antisemite” who was a leader of the campaign. Musk then engaged with Wood online. This opened the antisemitic floodgates. Many viciously antisemitic posts followed.

Twitter has been a cesspool of racism and antisemitism long before Musk took over and renamed it X. Under his leadership, the hate has moved to a whole new level. Research shows that since Musk took over in October 2022, the volume of English language antisemitic tweets has more than doubled.

In defending the ADL against Musk’s attacks, I would not give that organization a pass. Probably like many progressives, I am far more comfortable with its civil rights advocacy than its lobbying for Israel. The present Netanyahu government is the worst government in Israel’s history as it is based on an alliance with the most racist, sexist and backwards elements in Israeli society. A good part of Israel would agree with me as evidenced by the massive demonstrations that have been ongoing in Israel.

As for Donald Trump, he used the Jewish New Year, Rosh Hashanah, to blast “liberal Jews” who he said “had voted to destroy America and Israel”. So apparently there are good Jews who vote for him and bad Jews who don’t. Trump had said Jewish people who vote for Democrats are either “ignorant or disloyal”.

Jews must conform to this arbiter, someone who dines with Holocaust denier Nick Fuentes and “Death con 3 to the Jewish people” Kanye West. You never hear Trump criticize them.

For someone who says he is so pro-Israel, Trump has a peculiar habit of threatening American Jews. What does it mean when Trump says American Jews “have to get their act together before it is too late”. While Jews have generally voted more for Democrats since World War 2, there is a diversity of political opinion in the Jewish community. Why is Trump denying Jews the right to be diverse like every other community?

Trump is always conflating American Jews with Israelis, complaining that American Jews are ingrates, not appreciating all he has done. That conflation is antisemitic as it raises the spectre of dual loyalty. American Jews are not Israelis.

I would submit that Trump deliberately pushes the antisemitic rhetoric because he believes it is popular with his base. He and Musk are opening the door for the haters. They are like the 21st century equivalent of Henry Ford and Charles Lindbergh who were the antisemitic leaders of early 20th century America. They need to be called out and opposed.

There are periods in American history that don’t get much attention. One such period is the 1840’s-1850’s. Although it is not remembered now, there was an ongoing battle before the Civil War about the matter of fugitive slaves,

Enslaved black people risked their lives to flee their masters in the South. Slave catchers pursued the slaves-on-the-run across all state lines. Back then, fugitive slave laws were not on the side of the slaves.

The framers of the Constitution included a fugitive slave clause in the document in Article 4, Section 2, Clause 3. However, the framers tactfully and hypocritically left the word “slave” out of the Constitution. They wanted to avoid unsightly appearances. Also the South might not have joined the United States without the provision.

From the southern perspective, law-abiding citizens were obligated to return runaway slaves who were living in whatever state. Enforcement of the Clause was erratic and was left to the states. The federal government was too weak to intervene. Congress did pass a law in 1793, signed by President George Washington, designed to reinforce the rendition of fugitive slaves but it proved to be ineffective.

Some northern states passed “personal liberty” laws that created barriers to enforcement. They were not going along with any fugitive slave law. The historian Andrew Delbanco in his book The War Before the War has written that most runaways never made it out of the South. He explained that “chronic offenders were sometimes mutilated – tendons cut, faces branded – as warnings not to try again and to others not to try at all”.

In 1850, Congress weighed in with a compromise that sold out fugitive slaves. The United States was massively expanding west and questions arose about whether the westward expanse would include slavery. The North and South were deeply divided about slavery, fugitive slaves and whether slavery should be allowed to expand.

The Fugitive Slave Act of 1850 was a gift to white supremacy and made a mockery of judicial process. It denied habeas corpus, the right to challenge the legality of detention. Defendants were not allowed to testify in their own defense and jury trials were not allowed. The enslaved were not allowed to present exonerating evidence including evidence of beatings or rape.

If it was shown that defendants belonged to a slave owner according to the state fled, they were ordered back to slavery. Free black people were also terrified of the Act as they feared removal on the false pretext that they had belonged to a slave owner. The book and movie, Twelve Years a Slave, tells such a story where even free black people could be wrongfully shanghaied into servitude.

Stories about audacious slave escapes captivated 19th century America before the Civil War. There were anti-slavery speaking tours through the northern states by ex-slaves who had fled the South or border states. They acted as consciousness-raising events for the abolitionist movement and tremendously propelled the anti-slavery cause.

In her wonderful book Master Slave Husband Wife, the writer Ilyon Woo tells some of these escape-to-freedom stories that deserve to be far better-known. Her story about two Georgia slaves, William and Ellen Craft, who escaped slavery in 1848 is a centerpiece of her book but the book presents a much broader panorama of lesser-known leaders in the anti-slavery struggle.

Many of the names are unknown but they were famous long ago. Why some stories survive and others disappear is a good question and a mystery.

The Crafts’ escape from slavery was highly inventive, carefully planned and brilliantly executed. Most slave escapes were from border states like Maryland, Virginia or Kentucky. Among the unusual things about the Crafts is that they had a 1000 mile journey north to Philadelphia from Georgia. They had to take trains and a steamboat. Their escape held the long distance record.

Being light-skinned, Ellen disguised herself as a high-class wealthy white man with a disability. Her husband William pretended to be her slave. As slaves, Ellen and William needed written passes just to move anywhere. Because they planned the escape around Christmas they were both able to get their owners to go along with a pass. This allowed them a short window to get away before their owners realized their absence. They faced some scary and unexpected contingencies on the trip.

Once they made it north to Pennsylvania, the Crafts connected with William Wells Brown, a leading light of the Massachusetts Anti-Slavery Society. He also had escaped slavery and was noted to be a superb story teller. They joined forces and spoke publicly together. Abolitionist newspapers like William Lloyd Garrison’s The Liberator carried word about the Crafts’ escape.

The Crafts and Brown spoke in Boston at Fanueil Hall and electrified the audience. They proved to be a powerful draw. They toured the north but by no means were they out of danger. Slave catchers were on their trail. They had close calls and decided they had to leave America. First sailing to Canada, they eventually made their way to England, Again they connected with William Wells Brown who also had moved to England and they continued their public speaking.

Along with Frederick Douglass, William Wells Brown stood out for his brilliance. He published his life story which repeatedly sold out publication. He spoke passionately to audiences of thousands.

The Crafts were ultimately able to meet goals they had set. Besides freedom, they achieved literacy and they were able to have a family of their own something they had been afraid to do in America. Ellen was able to see her mother again after the Civil War. The Crafts wrote a book in 1860 Running A Thousand Miles for Freedom. The book never sold that well probably because it was overshadowed by the Civil War.

Woo also tells the story of Henry “Box” Brown, He was called “Box” because he made his way to freedom after being mailed north in a box. He spent 27 hours in that box which was three feet long, two feet wide and two and a half feet high. He also made it to Philadelphia. “Box” Brown joined William Wells Brown, the Crafts and Douglass speaking out against slavery.

We are now 175 years since the Crafts’ escape. Too many Americans want to ban any truthful telling of Black history. The narrative of American history should include these heroes who inspired hundreds of thousands, if not millions of people.

Many commentators have remarked upon the multitude of lawyers intertwined inside the political and business dealings of Donald Trump. When Jack Smith indicted Trump in Washington D.C., at least five of his six co-conspirators were lawyers. These include John Eastman, Jeffrey Clark, Sidney Powell, Ken Chesebro and Rudy Giuliani. There are many others in the Trump orbit waiting in the wings who have also serviced the former president. It is an ever-expanding circle.

These lawyers were so enamored of Trump that they were willing to break the law on his behalf. They produced false documents, made unsubstantiated public claims, and had no hesitation in filing meritless litigation. If Trump could be kept in power, anything was justified.

The range of horrible behavior went from the truly unhinged to the creatively bonkers.

On the deranged scale I would place Sidney Powell at the extreme end with her talk of Hugo Chavez fixing voting machines. John Eastman is the less deranged opposite end of the spectrum with his theories about how others besides the voters can decide elections although his ideas are just as undemocratic.

Jeffrey Clark, the assistant former Attorney General and Trump’s rumored pick to become AG if Trump wins in 2024, was ready to invoke the Insurrection Act and use the military against American citizens who opposed Trump’s coup. Rudy Giuliani had no problem repeatedly defaming two innocent Black election workers who were on Trump’s radar.

Many Trump lawyers signed bogus complaints legitimizing false electors. You have to ask: why would so many lawyers conspire to strip millions of their right to have their votes counted? What has happened to a profession that will countenance this blatant misconduct?

It speaks to a sickness in the legal profession. Where are the lawyers and judges speaking up about the danger of fascism and authoritarianism represented by the MAGA movement? Maybe I have missed it but I have heard little from the American Bar Association or any judges. They are apparently making believe Trump’s coup attempt was normal and was business as usual.

Dahlia Lithwick and Mark Joseph Stern describe “an obsession with pretending that evil deeds are not evil when done in the service of a paying customer”. They argue that “the right flank of the legal profession has adamantly refused to police itself and the legal profession as a whole has hardly raced to hold its most destructive and dangerous members to account”.

Where is the public condemnation from right wing lawyers like the Federalist Society for the insurrection and the attempt to interfere with the peaceful transfer of power? There is some but precious little. If Trump’s coup had been successful and democracy had been overthrown, these folks would have been lining up for jobs with the new Trump Administration. Amorality in the service of career advancement would have been the order of the day.

Law must be a check on authoritarian power. History shows the danger when lawyers and judges fail to respond to emerging fascism. In the 1930’s, German lawyers and judges might have opposed Hitler’s authority and the consolidation of fascism. They failed to do so. Even worse they collaborated and interpreted the law in a way that facilitated the Nazis’ ability to carry out their agenda.

There was a massive failure of professional ethics. In April 1933 when the German state ministry of justice suspended all Jewish judges, public prosecutors, district attorneys and law professors, there was no protest. The legal profession accommodated the Nazis.

Lawyers and judges were key collaborators with the fascist regime and provided a patina of legitimacy. The Nazis craved the appearance of legality. Admittedly opposition carried big risks but even from early on, the German legal profession made peace with the Nazis.

Fascism worships power above all and fascists want to use the machinery of democracy to subvert it. They believe in the power of the leader rather than the rule of law.

Ingo Muller, the author of Hitler’s Justice, says Hitler “detested lawyers as pen-pushers who filled whole volumes with tangled commands and prohibitions and always had their noses buried in ridiculous tomes”. He had no use for constitutions or statutes or anything that interfered with his complete freedom of action.

I would submit that the roots of corrosion in America’s legal profession run deep. It begins in law school. The extreme cost of school pushes many onto a corporate or big law firm trajectory. Law school is so unaffordable that it is hard to survive the debt without landing some kind of high-paying job. Student loan payments are too much. Jobs like Legal Aid or Public Defender are very hard to swing without a significant other to foot bills.

Powerful law firms are often closely aligned with serving the rich. They are the high-paying clients. Law ends up serving the needs of the 1% which is warping. The needs of the 1% are vastly different than the broader needs of society. Lawyers end up doing nothing about climate change, economic inequality, racism or sexism. They mostly are about making rich people richer.

Of course there are many lawyers who are on more independent tracks and who do wonderful things representing their clients. There are solo practitioners, public interest, pro bono, and many small firms who zealously represent their clients.. The profession is diverse but the power of corporate America dominates the marketplace.

Money dictates why so many cannot retain lawyers. Overwhelmingly, people cannot afford that expense. What does it say about a profession that is out of reach for most people? I would note that over the last decade, to its discredit, the legal profession has become less welcoming to people of color.

Over the last 40 years, we have seen the emergence of the Federalist Society and law firms funded lavishly by right wing billionaires. They have created many opportunities for law students and lawyers who are in tune with the right wing agenda. Those willing to play ball can reap extravagant rewards.

Ideological loyalty has become a credential, not a liability. Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are all exemplars of the Federalist Society pipeline. The Federalist Society serves as a gravy train for those aligned with that ideological project. Judge positions, clerkships and job opportunities all follow for those who will serve their 1% masters. The idea of equal justice under law has been shelved and gets lip service only.

Cardozo Law Professor Deborah Pearlstein writes that the Office of Professional Responsibility, part of the U.S. Department of Justice, makes far fewer ethics investigations than it did in the 1990’s. By all appearances, ethical violations have been downgraded in the profession. Certainly the behavior of the Supreme Court reflects the decline of professional ethics as the Court enforces no standards. Professor Pearlstein argues:

“The Trump case shows lawyers not only failing to make sure their government clients operate within the bounds of our democratic system but stretching to help those clients craft ways to subvert it.”

Very few Trump lawyers have faced any consequences for their misconduct. Linn Wood has had his law license “retired”. Rudy Giuliani and John Eastman are facing possible disbarment. Jenna Ellis received a public censure in Colorado for making misrepresentations on national TV and on Twitter. So far many other Trump lawyers have escaped any discipline. They have apparently concluded that making arguments that subvert democracy carries minimal risk.

The record of the profession policing itself is terrible. The problem with lawyers is not just greed or classism. It is their willingness to do the wrong thing, thinking there will be no consequences and that is too often the case.

September 11 marks the 50th anniversary of the military coup that overthrew Chile’s democratically-elected government led by Salvador Allende. It is the lesser known 9/11 but one that also had huge consequences. The coup, unleashed by Gen. Augusto Pinochet and the Chilean military, resulted in a bloodbath of murders, torture and disappearances.

Disappearances of those perceived as political opponents became the signature action of the military dictatorship. For many many years, family members could not find out if their missing relatives were alive or dead. Terror defined the Pinochet regime.

Chile’s present government just announced a national search for over 1000 people who went missing during the Pinochet years. In 1978, after some remains were discovered, Pinochet ordered the military to exhume hundreds of victims buried secretly around the country so they could be disposed of permanently. He ordered corpses to be incinerated or to be dumped in the ocean or volcanoes. Pinochet tried to remove all scraps of evidence.

In complete contrast, Allende’s election to the Chilean presidency in 1970 was a hopeful watershed moment. For new leftists of my generation, the Chilean revolution left an indelible mark.

Before that, the conventional wisdom had been that no socialist could be democratically elected president of a country. Cold War propaganda still held a powerful hold and right wing parties hammered that theme. Allende and his Popular Unity government overturned the mythology that it was impossible to build socialism through peaceful democratic means.

Allende had been a perennial candidate, running for the presidency four times. Before he won he used to joke that his epitaph would be “Here lies the next President of Chile”.

He became the first democratically elected socialist leader in Latin America. Since he was a young person, Allende had dedicated his life to serving those living in what he called “subhuman conditions”. He was a physician, focused on public health. Earlier in his life he played a key role in creating Chile’s social security and national health systems.

Because of the negative stereotypes about socialism it is important to acknowledge that under his presidency there were no human rights abuses. There was absolute freedom of assembly and the press.

Before 1970, Chile reflected the massive economic inequality that characterized so much of Latin America. A small number of the super wealthy owned everything. Two predatory U.S. corporations owned the huge copper mines. The majority of Chileans desperately wanted agricultural reform and favored nationalizing the mines.

Allende’s election in 1970 led to a significant redistribution of income and services to the poorest members of society. According to the writer Ariel Dorfman, Allende’s priorities included:

“..a half-liter of milk daily for every child; cabins erected by the ocean so workers could vacation with their families (most had never seen the Pacific before); the acknowledgment of indigenous identities and languages; the publication of millions of inexpensive books that were sold at newspaper kiosks; and major advances in health, affordable public housing, education and child care.”

The U.S. government feared Allende’s example of popular socialists winning a democratic election. To this day, the American role in the overthrow of the Allende government is poorly understood but because of the declassification of government documents much more is now known. President Nixon and his national security advisor Henry Kissinger were unalterably opposed to Allende.

When they were unable to secure electoral success for the candidates they lavishly funded, they opted to support a military coup. Kissinger famously said:

“I don’t see why we need to stand by and watch a country go communist due to the irresponsibility of its people. The issues are much too important for the Chilean voters to be left to decide for themselves.”

After Allende won the presidency in 1970, the U.S. operation was about discrediting Allende’s government through black propaganda. The CIA hoped to destabilize the Chilean government and they used an economic blockade to make the economy scream. They also tried to enlist leaders of the Chilean military to support a coup.

There had been a long tradition of the military being neutral and after Allende’s 1970 election, the army was not interested in overthrowing the government. The CIA sent machine guns and agents and helped to finance the assassination of Gen. Rene Schneider, the head of the army. Schneider was maintaining neutrality and the CIA saw people like that as obstacles who needed to be removed.

In spite of all the CIA efforts, Allende became more popular and his coalition received 45% of the vote in 1973 which was a 10% increase in his share of the vote since 1970. At that point, the Chilean military led by Pinochet turned against democracy. The military coup of September 11, 1973 led to a reign of terror that lasted 17 years. There were thousands of extrajudicial disappearances and executions. Pinochet’s military abolished all civil liberties, Congress and political parties.

Nixon and Kissinger had their fingerprints all over support for Pinochet. Even after Pinochet became a human rights pariah, Kissinger with his insidious realpolitik, backed the monster. He told the ambassador to Chile “Stop it with the human rights lectures”.

Those who are especially interested in the events around Chile’s coup might want to check out the great Costa-Gavras movie “Missing” made in 1982 starring Jack Lemmon and Sissy Spacek.

Pinochet went on to create what the historian Peter Kornbluh called a “Southern Cone Murder Inc”. He and other Latin American military dictators organized an international death squad operation called Operation Condor targeting enemies in Europe and around the world. The diplomat Orlando Letelier and his colleague Ronni Moffitt were two famous victims assassinated by car bomb in Washington D.C. in 1976.

The Chilean people ultimately voted Pinochet out of power in a plebiscite election on October 5, 1988. Pinochet was later arrested in 1998 and was held in Britain for 16 months for crimes against humanity. The British government ultimately released him on what it termed “humanitarian grounds”.

Back in the early 1970’s many Chileans believed democracy could never be destroyed. I think many Americans would now like to believe this as well about our democracy. The experience around the 2020 election and Trump’s insurrection show there is a continuing danger to our democracy. To quote Ariel Dorfman:

“The main lesson that the Chilean cataclysm bequeaths the U.S. is to never forget that the rights we take for granted are fragile and revocable, protected only by the unceasing, vigilant vigorous struggle of millions upon millions of ordinary citizens.”

If anything, American experience shows both the fragility and revocability of our rights that Dorfman describes.

We are well over a year out from the 2024 presidential contest in November 2024 and most political commentators are assuming the race will be between Joe Biden and Donald Trump. That is the conventional wisdom, but in this instance, the conventional wisdom may well be wrong.

Even though it will greatly disappoint many of his followers, under the Fourteenth Amendment, Donald Trump is likely disqualified from running for President in 2024. Section 3 of the Fourteenth Amendment excludes from future office and position of power in the U.S. government any person who took an oath to support and defend the Constitution but then engaged in and gave aid and comfort to an insurrection against it.

This provision of the Constitution, known as the Disqualification Clause, can only be overcome by a two-thirds vote of both Houses of Congress.

The Disqualification Clause has been overlooked even though it is still perfectly good law. It came about in the aftermath of the Civil War. The framers of the Reconstruction Amendments, including the Fourteenth, determined that public officials who try to overturn the government by force should be barred from leading it.

Sen. John Henderson of Missouri, a framer of Section 3, explained that the Disqualification Clause bars “from office the leaders of the past rebellion as well as the leaders of any insurrection or rebellion hereafter to come”. That fits Trump to a tee. The provision was not limited to past rebellions.

There are a number of constitutional limitations on who can serve as President. These include: being at least 35 years old, being a natural-born U.S. citizen, and being a U.S. resident for at least 14 years. Also presidents cannot be elected more than twice.

Two prominent conservative legal scholars, William Baude and Michael Stokes Paulsen, have persuasively made the case for Trump’s legal disqualification in their much-discussed upcoming law review article. They argue Section 3 “remains of direct and dramatic relevance today”.

They also argue Section 3 is “self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress”. By that they mean that no criminal charge or conviction is necessary for a person to be adjudged disqualified.

Of course, big questions abound around enforcement of the disqualification and undeniably legal challenges will ensue. The case will almost certainly end at the U.S. Supreme Court but it is clear that Section 3 of the 14th Amendment can be enforced against Trump through civil proceedings in state court. State officials can determine what names can appear on the ballot for presidential elections. They can conclude a candidate is constitutionally prohibited from assuming office.

In 2022 exactly this process occurred when a New Mexico County Commissioner and Cowboys for Trump founder, Couy Griffin, was removed from office for his role in the January 6 attack on Congress. The standard of proof required in a civil disqualification case is “preponderance of the evidence” which means more likely than not.

The evidence in Trump’s case is overwhelming. After taking the oath of office in 2017, Trump played a central role in causing an insurrection that nearly overthrew an election and almost shattered our democracy. The attack on the Capitol on January 6, 2021 was not a spontaneous event.

As the Citizens for Responsibility and Ethics on Washington (CREW) have written January 6 “was the culmination of a multi-part scheme by the former president and his allies to use lies, intimidation, coercion and ultimately violence to keep Trump in office and invalidate the votes of the more than 80 million Americans who cast ballots for Joseph R. Biden in the 2020 presidential election”.

Those who say that Trump didn’t engage in an insurrection against the Constitution have an extremely uphill argument. Trump spread false claims of a stolen election before and after he exhausted legal challenges. He promoted fake elector schemes and led efforts to coerce government officials, including his own Vice-President, to help overturn a lawful election.

He summoned a violent mob for a “wild” protest. On January 6, he incited the mob “to fight like hell” and he watched the attack on the Capitol for three hours and refused to call off the mob. For the first time in U.S. history, a mob, at the direction of the former president, disrupted the peaceful transfer of power.

In a December 2022 post on Truth Social, Trump called for termination of the Constitution in order to restore himself to power. As CREW has written “he is the living embodiment of the threat that the Fourteenth Amendment’s framers sought to protect American democracy against when they banned constitutional oath-breakers from office”.

In making this argument, I don’t minimize barring someone from the ballot. Most of the arguments I have seen opposing the relevance of the Disqualification Clause focus on the momentous decision to exclude Trump from the ballot. Millions of Americans still want to vote for him.

The legal scholar Noah Feldman says state election officials who blocked Trump would face “an enormous amount of trepidation” making such “an epochal decision absent judicial guidance”. There is also worry about the precedent of striking contenders from the ballot as leading to future electoral trouble.

To avoid electoral problems since a case around these questions will end at the Supreme Court, the Court should fast track it once cases are filed in states. I do believe such cases will be filed. While the Supreme Court has repeatedly discredited itself, I would not predict how it would resolve the Section 3 questions but it could be done in a way that would not lead to election confusion.

As a political matter, refusing to hold Trump accountable will only embolden future authoritarians. It is dangerous not to invoke Section 3. The Constitution remains the supreme law of the land and the language of Section 3 is straightforward and clear.

Who thinks that if Trump is the Republican nominee in 2024 he will not make the exact same claims about a rigged and stolen election that he made in 2020? Given his legal desperation, you can bet on it. Also it is highly predictable if he is on the ballot and loses that Trump and his allies will again resort to extra-legal measures and violence. Learning from their failure on January 6, expect something worse from the Trump team.

Section 3 is the peoples’ constitutional protection against demagogues. History shows its necessity. Its invocation is critical to the continuation of our democracy.

In his book, How The Word Is Passed, the writer Clint Smith says that the history of the United States is the history of slavery. It was central to our American story. Of course, in my own educational experience, that was not the case.

Smith talks about gaps in how the slavery story has been told. I went to a very good school growing up in the Philadelphia area and from the curriculum, what we learned about slavery was minimal to nothing. The story wasn’t told.

I believe that bypass has been and remains the norm. With maybe the exception of Frederick Douglass’s autobiography, the voices of the enslaved are not heard. The transatlantic slave trade itself gets scant coverage. For generations, America has been unwilling to tell the story. Illiteracy about slavery is a common educational result. Students graduate with a very poor understanding of how slavery shaped America.

I couldn’t help but think about this when I saw the stories about Florida’s latest curriculum featuring a cartoon Christopher Columbus saying “being taken a slave is better than being killed”. Columbus tells the kids “slavery is no big deal”.

The Florida Department of Education has suggested some slaves benefited from skills they learned while enslaved. This is the type of statement you might expect from partisans of neo-Confederate Lost Cause ideology.

Florida actually has a pernicious and shameful racial history on a par with Alabama and Mississippi. It is no wonder the state would like to bury just how bad it was since it is so contrary to any sunshine state image designed to woo tourists.

Most of the articles I have seen about Florida’s new curriculum don’t get into Florida’s actual history. That submerged story is well told in Marvin Dunn’s book A History of Florida Through Black Eyes. It is like an underground history you never see told.

Going back to the 1500’s, Spanish colonists began trafficking Africans to Florida. Slaves helped establish outposts and built fortifications. French trafficking of Africans followed later. The colonists resorted to using Africans when they found Native Americans more challenging to control. Possibly Africans were more disoriented in America being separated from their homes, families and culture.

Slave labor was critical to the development of economic and agricultural infrastructure in Florida and throughout the South. Florida was a wilderness. It became an American territory in 1821 and an American state in 1845. The U.S. government built a number of forts to protect the white settlers. The land grab by white Americans created an opportunity to profit by seizing large parcels of land.

The white settlers brought ideas of racial superiority with them. Blacks had no status or protection from abuse by whites. Dunn wrote:

“Crimes against blacks were dismissed out of hand. Blacks could not serve on juries or testify in court against a white person. Often the press, police, judges, grand juries and elected officials were secretly, and sometimes openly, supportive of, if not involved in, the use of violence as a means of controlling blacks.”

Cotton plantations, especially around Tallahassee, sprang up in northern Florida. The white plantation owners worried about free blacks. They also worried about their ability to control the slave population. The example of the Haitian revolution and abolitionism spurred fear that association with free blacks might encourage their slaves to run away. Dunn says the loss of slaves meant a loss of wealth since the cost of slaves far exceeded the cost of land. Dunn elaborated:

“The incessant demand by slaveowners that the American government use military force to capture and return escaped slaves and to remove the Seminoles from Florida was the driving force that shaped the history of the peninsula for decades after the departure of the Spanish.”

New Orleans slave traders brought many slaves into Florida. St. Augustine was a slave trading hub. Many whites adhered to a might-makes-right mentality and the powers-that-be prevented and outlawed education for slaves. Mortality rates for slaves were much higher than that of the white population.

On January 10, 1861, Florida seceded from the Union. It was the third state to do so. When the Civil War picked up steam, the Union forces recruited blacks into the Union army, an act that didn’t sit well with many white Southerners. Black troops played an important role in battles that took place in Florida.

However, even after the Civil War was won, anti-black violence remained rampant. Hopes that were raised for black economic advancement during Reconstruction were dashed. Instead of land ownership to the former slaves, the white elites regained power and crushed black hopes for economic power. Dunn wrote “the economic fates of blacks for generations in the South was set in stone by this betrayal”. The dream of 40 acres and a mule never materialized.

Florida also made a concerted effort to repress Black voting, leading the way in implementing a poll tax in 1889. That theme of voter suppression remains consistent to this day.

What followed was an extremely dark period in Florida history. Among states, Florida was in the top tier for lynching. It had the highest number of lynchings per capita of all the former Confederate states in the period from 1880-1930, more than twice the rate of Georgia, Mississippi or Louisiana. Racist Florida governors like Sidney Catts explicitly opposed NAACP efforts to bring lynchers to justice.

Florida also featured what is today known as ethnic cleansing: mobs of rampaging white men terrorizing black communities and forcing people to flee for their lives. The Klan was active all over the state especially in the 1920’s. Lynchings and ethnic cleansing were about creating an atmosphere of terror to keep black people down, in their place.

Florida’s efforts to minimize the effects of slavery reflect a white supremacist perspective. It is the story Florida’s leaders still want to tell in their PragerU videos.

Winston Churchill once said, “History will be kind to me because I intend to write it”. So it has been in American history with those who came out on top telling the story. Instead of Florida’s whitewash, healing requires public acknowledgement of the real history.

While I am not an election predictor, I did notice the recent New York Times/Siena College poll taken before Donald Trump’s latest criminal indictment that indicated that he and President Biden are in a tight race for the presidency. Even if you are, like me, highly skeptical about early polls, the poll reinforced the seriousness of Trump’s candidacy. He appears to be, far and away, the leading Republican contender. Given that, it is important to step back and think about what a Trump second term might look like.

I see it as the consolidation of an American style of fascism and very likely the end of our democracy. My view does not come from liberal or left sources. It comes from listening to what Trump’s team is saying they plan to do if they again achieve power.

Trump plans a sweeping expansion of executive power which would concentrate far greater power in his own hands. He intends to bring powerful government agencies like the Department of Justice (DOJ), the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) under presidential control.

The Trump team has said that they will scour the federal government, including intelligence agencies, the State Department and the Defense Department to remove all officials they consider “disloyal” to Trump.To quote Russell Voight, Trump’s former head of OMB, “What we’re trying to do is identify the pockets of independence and seize them”.

This does not reflect the historic relationship between DOJ and the White House. Historically the DOJ has been independent of White House control. A Trump-controlled DOJ would be used to punish those considered MAGA enemies. It is predictable Trump would direct the IRS into action against those on his enemies’ list.

The Trump team wants to strip employment protection from tens of thousands of federal civil service employees. He would do this by reimposing his Schedule F executive order. Anyone deemed an obstacle to the Trump team will be removed and would be replaced by Trump sycophants. No doubt there would be legal challenges but this is how he would go after what he calls the “deep state”.

Conservatives going back to Reagan and Dick Cheney have touted a theory known as the unitary executive where the president is seen as essentially an elected king. To quote Trump from 2019, “I have an Article II where I have the right to do whatever I want as President”. Trump wants to revive the practice of “impounding” funds. That is, he wants to be able to refuse to spend money Congress has appropriated for programs he doesn’t like.

Dissent would likely become an endangered species as the risk of speaking out would be too great. The Trump view that the press and media are the enemy hasn’t changed. The FCC might be used to silence critics and to end investigative journalism.

Trump is a climate change denier and his first term was a giant step backward on climate but a second term would likely be far worse. The world is running out of time to take action but the conservative brain trust around Trump wants to reverse all federal government efforts to counter climate change.

The conservatives have devised a plan called Project 2025 that would block expansion of the electrical grid for wind and solar energy, would cut funding for EPA’s environmental justice offices and would forbid states from adopting standards like California’s car pollution rules.

Project 2025 is not just anti-science – it is an absolutely sinister effort at the behest of fossil fuel companies to gut environmental regulation at a time when the dangers of global warming have never been more apparent.

For women, I think a Trump second term would be an opportunity to live out The Handmaid’s Tale. Expect an effort for a national ban on abortion with no exception for rape or incest. Imagine the FDA looking to end access to birth control as well as abortion medication. Trump would embolden Christian nationalist lawyers and judges to revive the mummified Comstock Act.

Minorities would face a landscape of intensified voter suppression and gerrymandering. The historian Carol Anderson has pointed out that underlying Trump’s Big Lie was the big lie of voter fraud.

Trump continuously railed about voter fraud in cities with large African-American and minority populations like Detroit, Philadelphia and Atlanta. He and Giuliani mercilessly and falsely slandered election workers Ruby Freeman and Shaye Moss. Guiliani has now admitted he lied about Freeman and Moss but Trump can be expected to continue slanders of this nature. He linked black election workers with drug dealers and called Freeman and Moss “hustlers”. Vicious racism is his game and it will continue.

In a twisted reversal, alleged discrimination against white men and Christians would be highlighted. Using the excuse of critical race theory, “patriotic” education which hides the truth about racism would be promoted. As happened in Trump’s first term, hate crimes would spike against people of color and Jews.

The wild card would be where the pent-up hate and rage of MAGA would lead. Would it be directed against trans people, LGBTQ people generally, immigrants, Muslims, Jews or leftists? Would bolstered white supremacists and antisemites take their hate to the next level? Would Proud Boys, Patriot Front, militias and neo-nazis decide it was time to start the civil war?

Trump would likely pardon all January 6 insurrectionists who were convicted of federal crimes who were still incarcerated. He says he will prosecute “the Biden crime family”.

We might see Trump and his sadist allies like Stephen Miller restore family separation and put children in cages again. They talk about outlawing birthright citizenship, a right embedded in the Fourteenth Amendment. Also there is talk about moving to kick undocumented children out of public school, contrary to the Supreme Court precedent in Plyler v Doe.

As many have remarked, Trump is running to stay out of prison as victory offers his best protection but I think the deeper plan is to destroy democracy so he can make himself president for life. That way there is no chance he ever goes to jail. If he wins re-election, he will move to pardon himself as well as his co-conspirators and other MAGA allies who were convicted of crimes. It is highly doubtful there would ever be any more free or fair elections.

The real American carnage is what Trump would unleash in a second term. I would call it fascism. Others might call it “illiberal democracy” like in Victor Orban’s Hungary. It would be the rejection of democracy and the rule of law in favor of rule by a strongman.

Trump is not fighting for anyone else besides himself but the amazing thing is the level of buy-in by so many whom he would never give the time of day. It really is the ultimate con.