American Dictatorship

In a “commentary” piece in Salon titled A candidate, not a president: Jack Smith crafts a simple solution to Supreme Court Jan. 6 roadblock, Norman Eisen and Joyce Vance wrote:

«The Supreme Court’s late-term decision recognizing a dangerously expansive immunity from criminal prosecution for former presidents effectively cut off any chance of the original indictment in the January 6 case against former President Donald J. Trump going forward.»

The article goes on to talk about what Jack Smith has done to salvage the case. Good for him. It shouldn't be necessary to work under the preposterous constraints recently imposed by the Supreme Court, but I'm glad he's up to the challenge. And that's the immediate concern, so it makes sense that Eisen and Vance would focus commentary on something so topical.

But I want to draw back and reshape this same set of observations to highlight a few other things that have been bugging me as the rest of this immediate drama runs its course.

Biden Explains the problem

After the immunity ruling, Biden made a bold statement:

“This nation was founded on the principle that there are no kings in America. Each — each of us is equal before the law. No one — no one is above the law, not even the president of the United States.

With today’s Supreme Court decision on presidential immunity, that fundamentally changed. For all — for all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a president can do.

This is a fundamentally new principle, and it’s a dangerous precedent because the power of the office will no longer be constrained by the law, even including the Supreme Court of the United States. The only limits will be self-imposed by the president alone.”

Wrapping our heads around the problem

Sometimes when there are big statements made (like that a President has “no limits” or is “above the law”), it's hard to see the practical reality that is lost inside. I notice this when trying to excite people about the urgency of Climate Change, as well. Sometimes, instead of saying the world might end, one needs to say that there will be no more Christmas vacations, orchids, poetry, or reruns of Groundhog Day. Something more personal. Because the vast scope of “anything” or “everything” is just too hard for the brain to wrap itself around.

I'll tie this all together in a moment, but first one more quote.

The aforementioned commentary by Norm Eisen and Joyce Vance also mentioned this:

«As a result, Trump’s attempts to weaponize the Department of Justice to his own private ends are no longer part of the case. Gone is the allegation that he pressured the Department to release a letter falsely claiming that the election was marred by outcome-determinative fraud. Gone is the allegation that he sought to use the Department to press state officials to certify his electors, rather than those of President Joe Biden. And gone is the allegation that he attempted to install his now-excised co-conspirator, Jeffery Clark, as the Acting Attorney General to implement his scheme when other officials resisted.»

So, yes, as Biden noted, Presidents will be above the law. But as the reduced indictment implies, included in the President's broad immunity, which SCOTUS has made up out of nowhere, are the following truths:

• It isn't a crime, just a routine day at work, when the President perpetrates a fraud on citizens of the US, or solicits those who work for him (including DOJ) to do so.
• It isn't a crime, just a routine day at work, when the President meddles in state or national elections.
• It isn't a crime, just a routine day at work, for the President to solicit state officials to do his bidding in ways that would be illegal for others.
• It isn't a crime, just a routine day at work, when the President organizes conspiracies against the United States government, in violation of his oath to protect and defend the Constitution.

Smith is doing what he must do in order to get this past a corrupt Supreme Court. But what they are asking him to accept as a premise is just utterly preposterous. The above examples are just the tip of the iceberg.

Forget the fact that we're talking about crimes that probably happened. Forget that it's Trump. Just ask yourself: If you were designing a nation, would these be intended consequences of your design? Can you even imagine our founders intended this? Keep in mind that these are the people that brought us the Declaration of Independence, which said, among other things:

“… The history of the present King … is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. …
He has refused his Assent to Laws, the most wholesome and necessary for the public good. …
He has made Judges dependent on his Will alone …
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation…”

Independent of the prosecution of Donald Trump, independent of the sweeping nature of presidential immunity, these specific truths that we already know from the mere fact that Jack Smith felt it necessary to remove them from the indictment, and which are only the tip of a very ugly iceberg, are not suggesting a positive direction for our nation's future. I would like to live in a country where Jack Smith did not have to fear prosecuting such things would be cruelly laughed out of Court.

We must drive stakes in the ground to keep the Overton window from moving.

Dictatorship vs democracy

Democracies have a lot of problems. The back and forth of democratic decision-making can be messy, processes run slowly, and outcomes are not always pretty. Democracies are said to offer the best of worst case outcomes, not the best of the best. For example, they are supposed to resist capture by a single individual. They are supposed to have checks against becoming dictatorships.

And, let's be honest, a benevolent dictatorship might sound better. Someone who knows good things need to be done and can do them efficiently. But the problem is that there is no such realizable system as a reliably benevolent dictatorship. Even if it started out that way, it would risk in every moment becoming malevolent. And if that happened, and it would, there would be no protection.

So, as Churchill is often quoted as saying, “Democracy is the worst form of government, except for all the others.”

But at the same time, Jefferson wasn't wrong in saying, “Eternal vigilance is the price of liberty.”

We've been too trusting in the US for too long and have allowed, little by little, for various changes that have weakened our democracy's safeguards. We have seen them burrowing in at democracy's weakest points, and instead of responding aggressively by filling observed gaps, we have let them drive a wedge.

So, at this point we find ourselves preparing for an election that many have described as having placed democracy itself on the ballot, because Donald Trump has promised that if elected, he will be a dictator. Just for a day, he says, but not everyone is Joe Biden. The history of power is that people do not step back from it easily. If Trump achieves any approximation of dictatorship, expect him to decide he likes it and wants to keep it that way. And the Supreme Court seems poised to back that.

After all, he seems to think he can be a dictator on day one if he wants. But the Supreme Court has not said anything that distinguishes any day from any other. If he has the power to be a dictator by his own choice on day 1, he has the power to be dictator by his own choice on any day. The Supreme Court seems to have made that pretty clear. That he's hinting only about a single day has no predictive value. His promises are worth nothing. He changes like the wind. The only consistency he has is his narcissism.

Meta-dictatorship

But, wait a minute, why does the Supreme Court get to decide these things?

Well, that's just their role and always has been. They are charged with making decisions that are true to the Constitution, but who polices that? They do. Or they don't. But, either way, no one else can tell them they're wrong.

Pardon the use of technically precise language here, but they just say shit, and it becomes true, stink and all.

They don't exactly make law, but they tell lawmakers what laws are OK to make. They don't exactly enforce law, but they tell enforcers which laws may be enforced. That's a lot of power. Too much.

They are, effectively, a team of meta-dictators. That's kind of always been there, just waiting to rear its ugly head.

A President is suddenly a king. How? That wasn't previously true. The Supreme Court says so. So we believe it. They claim the power to say that someone is a dictator, above the law and immune to question. How do you do that if you're not already a dictator yourself?

So why are we talking about a future world that only might have a dictator after the election. The problem is real, and here, and now. We have a team of dictators already—a weirdly constituted team that has a minority voice that's like an ignored conscience, unable to have an effect but still able to speak out, alerting us to danger. In spite of that, collectively, they are dictators.

Nothing has recently changed about the power of the Supreme Court other than its composition. It has been a potential dictatorial mob for a while, just awaiting two things to align:

• the right composition, to take advantage of the power that was there.
• the death of shame, so they won't be embarrassed doing it.

Now that those conditions are met, the Supreme Court's danger, a danger that has been there all along, is starkly visible.

In a sense, the story of the US Supreme Court is the story of a dictatorship that started out benevolent and decayed before our eyes, just as I was saying one should expect from any such attempt. As soon as we get the chance, we need to correct its structure so that it has much stronger protections. In the past, our various Congresses and Presidents have seen the Supreme Court's design as something sacred, that works well, not realizing they were simply relying on luck. Democracy must be built upon firmer stuff. It needs solid checks against corruption. Nothing less will suffice.

Leave it to the United States of Capitalism to bring on dictatorship fashioned in its own image, as a board of directors, not quite dictating directly, but freely controlling who is allowed to be the country's CEO and under what parameters they are permitted to operate. It's a bad look. But it's what money has bought.

 

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Author's Notes:

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For the flag logo, I tried to generate an image at Abacus.ai using various models and Dall-E or Flux.1, but all of them made a complete mess of simple instructions, so finally I asked just "make a simple black and white logo in the style of a clenched fist. make sure the fist has 4 fingers and a thumb" (because many times it gives too few fingers), and I had to edit it onto the flag myself, using a public domain image of a flag downloaded from publicdomainpictures.net.

Edit: The penultimate paragraph in the main article above, beginning “In a sense, the story of the US Supreme Court…” had been intended originally but ended up lost due to editing. It was added back the day after initial publication when its absence was noted.

Supreme Challenge

Just days ago, the United States Supreme Court said that Presidents are Kings, that their actions are largely immune to prosecution for things that would be crimes if done by others.

This is an amazing amount of power, as we are on track to learn once Biden finishes wasting this power doing nothing and leaves us with Trump as his successor.

“This nation was founded on the principle that there are no kings in America. … Each of us is equal before the law. … No one is above the law, not even the President of the United States. With today’s Supreme Court decision on Presidential immunity, that fundamentally changed. … For all practical purposes, today’s decision almost certainly means that there are virtually no limits on what a President can do. This is a fundamentally new principle and it’s a dangerous precedent because the power of the office will no longer be constrained by the Law, even including the Supreme Court of the United States. The only limits will be self-imposed by the President alone.”

—US President Biden
in a July 1, 2024 address

Trump is not just Biden’s adversary, but he is the adversary of free society. He has said so. He has promised to be a dictator on day one, and he means it. He will not waste this newly conjured kingly power doing nothing, but rather undoing what Biden has done for gun safety, gender equality, environment, etc. Alongside all that, he will proceed immediately to do rampant evil, as laid out in detailed published plans that his ultra-conservative allies are calling “Project 2025.”

But Trump does not yet have this superpower—not until we elect him in the fall, if we are foolish enough to do that. And the polls say we are on track to being just that irredeemably foolish.

For a few months, though, such extraordinary power resides in Biden. And what will he do with this power? He rushes to promise us that he will not use it, not even for good, not even to assure that we do not end up with Trump as dictator. Nor to assure that these ridiculous changes by the Court are rolled back.

Note also that We The People are helpless here, glued to our TVs and phones, sifting news and social media for clues about what will happen to us. Give any one of us the power that the Supreme Court gave Biden, and we could do a lot of good, fix a lot of problems, and make the US safer for democracy than Biden is promising to do. We know that because Biden is promising to do nothing with this extraordinary power. That’s a pretty low bar for any one of us to exceed.

Failing to Protect Us

Biden wants to do things in the same old tired way. He wants to use his centrist tools of inaction, treating any real opportunity to make a difference as something not to do. Something too radical. Not his preferred way.

He’d rather labor slowly, expecting consensus with the MAGA crowd when there is none to be had, and he would rather not use the new tool, a tool that Trump and the MAGA-majority Supreme Court are counting on him not to use. They have given him a loaded weapon and are counting on him to deliver it, still loaded, still unused, to his successor, who will not leave it unused, who will in all likelihood use that weapon to assure he does not ever have a successor, that he just stays in power for life.

“At the outset of our nation, it was the character of George Washington, our first President, that defined the Presidency. He believed power was limited, not absolute, and that power always resides with The People. Always. Now, over 200 years later, with today’s Supreme Court decision, once again it will depend on the character of the men and women who hold that Presidency that are going to define the limits of the power of the Presidency because the Law will no longer do it. I know I will respect the limits of the Presidential powers that I have for three and a half years. But any President, including Donald Trump, will now be free to ignore the Law. I concur with Justice Sotomayor’s dissent today. … She said, ‘In every use of official power, the President is now a King above the law. With fear for our democracy, I dissent.’ So should the American people dissent. I dissent. ”

—US President Biden
in a July 1, 2024 address

We are in danger. Biden sees the danger, but does not see that he is part of the planned delivery mechanism for that danger, and that he is willingly and complacently accepting that role.

It's like Biden sees someone coming at him with a club or a knife in a dark alley and decides to use debate to protect himself even as someone is trying to hand him a pistol. All well and good if he's by himself and can take full personal responsibility for that ridiculous choice, but he is charged here with protecting the Constitution and the nation.

We Need Real Action

Strong language, politely delivered, will not protect us here. An offer of centrist consensus-building with the MAGA right will not protect us either. Oh, sure, he can probably find something to collaborate with MAGA about, but it will amount to mere distraction, one of those inconsequential things that still loses us our democracy even as it adds to his list of accomplishments.

Part of the problem is that Biden thinks that the doing of everyday horse trading is his job. At this point, it is not. He doesn't need more legislative successes. If the successes he has are not impressing anyone, adding more will not fix that. He has a lot of experience as a Senator, but at this point, we need him to stop being some kind of Senator in Chief and just be the Commander in Chief.

He needs now to secure democracy. That is his job. And it cannot be done by compromising with the party that seeks to disassemble democracy. It must be done by actually confronting that party, using any and all tools at hand. He thinks he's doing all he can, and maybe he is doing all he can. But he is not doing all that could be done. Inaction at this point is dangerous.

The tool he's been given, this new superpower, may not be Biden's preferred tool, but it IS adequate to the task. He is just choosing not to use it because he doesn’t like the look of it. That alone is sufficient reason for We The People to want a different leader, both now while that power exists and in the next Presidential term if possible.

Coaxing the Genie back into the Bottle

It’s good that Biden knows this new Presidential immunity poses a danger to democracy, but it’s not enough to just know it. He needs to insist that the Court take back that power now, not taking “no” for an answer.

Inaction is insufficient. Fortunately, given this new superpower, better options are available. I’ll offer a hypothetical, just for conversation, but hopefully it will demonstrate that stronger and more effective action is possible, and that it is neither necessary nor advisable to wait until the election.

After all, the election could go very awry. It is reckless to wait and hope it will not. This new reality entitles him to not just suggest but insist it be dealt with now. He can insist that the Supreme Court create ethics rules, term limits, and accountability.

So here is my hypothetical scenario for discussion:

Biden could explain that, in order to preserve Democracy and hold Monarchy at bay, he is ordering poor old Seal Team Six to hunt down and execute all conservative justices on the Supreme Court so that he can install judges with better sense, but that he has stayed execution of that action—for which he has absolute immunity—by 3 weeks, just in case the Court can move (expeditiously, for once) to find a better way to protect the Constitution and the nation with less bloodshed, for example by vacating their recent extraordinarily ill-advised and outright reckless ruling, removing the power of Presidents to take such actions confident of their immunity.

I like to think that such an approach would end with better accountability for Presidents and no one injured. It might seem an extreme way to get there, but it absolutely pales by comparison to what we should expect if Trump is elected.

Supreme Blind Spot

An action with parameters such as I’ve described would also help SCOTUS see the very real danger they’ve created. Fixing the problem would allow a happier outcome for us all, even SCOTUS themselves. They may not realize it, but they are in danger due to their own ruling in ways that they’re not taking seriously enough. They blithely discuss a President authorizing SEAL Team Six to take out political rivals, yet fail to see that they themselves might be such rivals?

It leaves me questioning not just their lack of neutrality, but their competence. It is short-sighted and dangerous, and poor judgment to the point of recklessness. I expect more of Supreme Court Justices.

Biden Isn't The Leader We Need

This is no time for Biden to sit on his hands. It’s a time for bold actions proportional to the danger, actions suddenly well within the scope of Biden’s new powers, and capable of being done with noble purpose, not that the new Supreme Court ruling requires noble purpose for President acts any more. That's part of the problem.

The Court has given Biden this power, so they must intend him to use it, right? Or maybe they just intended the power for Trump and calculated that Biden was too wimpy to use it.

I'd concur with them on that calculation, by the way. He is too wimpy. He's confirmed that by prematurely promising not to use it. That's a self-inflicted wound. He didn't have to say that, for the same reason that Presidents don't say “we won't strike first with atomic weapons.” It's not that we plan to, but we don't want our adversaries relying on our self-restraint.

I don't think Biden wargamed this. I think he just tied his own hands without thinking. Now, if he uses the power, even to help eliminate it, he'll have people fussing at him.

But so be it. I see it as dereliction of duty if he declines to use it. Letting his successor, probably Trump, be the first to explore this unlimited power is terrifying because it will be too late at that point for the public to react in any meaningful way to defend itself. It was reckless even just to say out loud that he wouldn't use the power.

I get why he wanted to. I get why it's uncomfortable. But right now he is the one we have elected to do the uncomfortable things. Better him than Trump. He, at least, is acting in the nation's best interests, not just his own.

Sadly, I’m pretty confident Biden isn't up to it. I think he'll disappoint us. Not just disappoint us, but outright fail us. He sees its use as lacking decorum, even as somehow he sees no lack of decorum in abrogating his responsibility to protect us and leaving us at material risk of a Trump presidency with unlimited power still in full effect.

He thinks by saying these are the stakes that surely no one will elect Trump. That's a dangerous game and one we're all too likely to lose.

Our Weakened Voting System

A partisan SCOTUS has weakened the Voting Rights Act enormously. States bent on voting rights abuse, bolstered by SCOTUS, have indulged gerrymandering and other actions that injure fair voter participation. Trump has raised baseless questions about election integrity. Republican media has echoed him to the point that Republican voters and lawmakers do, too. Fake electors were conjured using illegal schemes. Some have been brought up on charges or sent to jail, but Republican state lawmakers have worked to make it easier to do the same shady things legally this time around. Trump and GOP are mustering armies of lawyers to challenge elections this time around. Election 2024 will be about procedural tricks and challenges. That's a problem.

Telling us to go vote is just not adequate. Assuring us that we have the final say would be laughable if not so serious.

It will be great to rely on voting once a proper democracy is restored, but right now there is no guarantee of the vote’s outcome, or that the outcome won't be challenged, ultimately winding up in the Supreme Court to be overturned by the same folks that brought us the recent Presidential immunity ruling. They have meddled in elections before, and nothing stops them from doing it again, especially now that they have lost all shame.

Immediate action is needed to put things to right, while Biden has the power. He must use that power. Carefully. But he must use it. The safety of the Constitution and the nation demands it.

I doubt he is up to this most important of tasks. But I'll be happy to be surprised.

A Nation of Laws

Our nation needs to be a nation of laws. For everyone. No exceptions.

We already make exceptions for acts that are necessary. We have laws against murder, but we let people off if it’s self defense. We have laws about copyright violation, but we let people off for fair use. But we have not had laws that expressly said that people could walk free merely for who they are, only laws that insist they are doing things for good motive.

Will that scare some Presidents? It’s never scared them in the past. Or maybe the ones that it did scare didn't run for office. Good for them.

Presidents have always had to fear that breaking laws might get them in trouble and yet the nation has functioned well for two and a half centuries. Let Presidents continue to fear the Law. Let them continue to have to justify deviations.

If a President hesitates to start a war or authorize a covert action or explode a weapon of mass destruction, well, that’s good. Hesitation isn’t bad. I want a President to know that breaking the law cannot be a casual decision. It cannot be just another day on the job. They must be prepared to later justify questionable actions.

Having to account is part of the job. It is what makes us a democracy. The President is accountable to The People, not the other way around. Let Presidents assume that We The People understand these are hard decisions, and that we’ll make exceptions for technical breaches of law that are justly done in the best interest of the nation. But let them sweat a bit. That’s healthy.

By contrast, this newly conjured law, brought into existence out of nowhere Monday by a rogue Court, not Congress, that says Presidents must not be made to sweat, must not be asked to account, is not healthy.

Some have advanced the fairytale notion that voting is how Presidents should be called to account. But it is not a crazy hypothetical to think that a President might try to stay illegally in power. We’ve seen evidence that Trump might do this. He’s said aloud that it’s something he thought about.

And, anyway, there is a lot of damage that can be done in the four years between elections, if we're lucky enough to ever have them again after a President decides he wants to be a dictator. So elections are not an appropriate check. We need better.

Let Presidents sweat. We’ll be safer for it.

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