For some, the word for the day is, do unto them as they have done unto us. But such revenge, while it has visceral appeal, is entirely inappropriate to any hope of restoring American democracy to robustness. To simply reverse the weaponization of government to punish Trump, the officials of his administration, and the agents carrying out their orders would be to further corrode the principles and values of America’s constitutional democracy. As they have operated illegally and unconstitutionally, those of us who embrace democracy must operate legally and constitutionally to hold them accountable and appropriately punish convicted malefactors. The law rigorously applied as accountability for the lawless is the appropriate turn-about for fair play.
I am unable—probably no one is able—to provide even a comprehensive, as distinct from a current, complete account of Trump’s illegal or unconstitutional actions and those of his minions in various departments and agencies: DOJ, DHS, FBI, ICE, BP, and ATF, as well as federalized national guard and selected Marine units. These departments, agencies, and military units have lied to courts, disregarded court orders, secured perverse emergency [or “shadow”] docket decisions from the Supreme Court, attacked civilians, abused and abducted citizens as well as non-citizens, separated children from parents, deprived them of their rights, detained them in punitive conditions, and deported them to third countries. The list of their abuses is so long that I have probably omitted as many as I have included. If a future government ever recovers from their abuses, it should collect evidence of illegal acts, investigate those who committed them, and hold them accountable under the law.
The leaders of these government units are variously callous, corrupt, and criminal. The same and more may be said of Republicans in Congress. They are virtually unanimous in tolerating Trump’s violations of law and the Constitution out of fear of losing their seats, that is, their career, not chosen for public service, but for power and prestige. In their subservience to Trump, they give a patina of legitimacy to his authoritarian rule; in return, he lets them enjoy the personal advantages, privileges, and benefits of office. Their subservience to Trump means surrendering congressional authority and abandoning almost all traditional Republican positions except lower taxes for the rich: balanced budgets, small government, law-and-order, and international leadership of democratic countries. Ironically, they undermine their professed reasons to be in Congress. For supporting Trump’s rule, they must be held accountable by the public humiliation of election repudiation and by ostracism by their political associates.
Together, the legislative and executive branches of government have conspired to create a police state. Xenophobia. Islamophobia, and pseudo-antisemitism are the main levers intended to detach Americans from democratic principles and values, and constitutional rights. Thus, the “Big, Beautiful Bill” contains billions for facilities and personnel to incarcerate legal as well as illegal immigrants, most not illegal, all without due process. The long-term effects of billions for concentration camps and billions for ICE agents have not received much attention, but they should. Once built and once hired, then what? Political necessity or inertia ensures that they are likely to continue to be used and to be employed, respectively, even if all immigrants were deported. Since Congress will be reluctant to allow camps costing $45 billion dollars to deteriorate, or to spend billions more to dismantle them, future administrations will seek other uses for them. Trump-like Presidents might find their availability tempting to target and threaten dissenters, protesters, and politicians not to his or her liking. Trump-like administrations might target minority populations—African Americans, Muslims, Jews, Asian Americans, etc.—until only whites of European descent populate the country. Non-Trump-like presidents will not want to discharge thousands of ICE agents because they would constitute a virtually unemployable horde of violence-prone, reviled, and embittered individuals whose resentments might make them a continuing threat to the country and its political stability. So the tyrannical government which the Trump administration has begun to create and Congress has begun to fund will likely inaugurate a federal police force and a standing army, both of which will prove difficult to dismantle. Inured to police and military callousness toward citizens and non-citizens alike, and tolerant of legal and constitutional abuses, Senators and Representatives will likely maintain this gulag of concentration camps in a disfigured democracy. The only means of accountability for this national disgrace is their defeat at the polls.
The highest members of the third branch of government, the judiciary, are at least equally unworthy. The six conservative, Catholic, Republican partisans of the Supreme Court are especially deserving of the contempt of their colleagues in the legal profession and their fellow citizens. With the advantages of an excellent education and employment security in a position to enable public service, they have betrayed everything except wealth, class, and party. They have squandered their opportunities to serve the county; instead, they preferred to indulge their personal prejudices and grievances, and enjoy the munificence of their friends. The bankruptcy of their judicial practice is evident in their emergency, or “shadow,” docket decisions made in response to the Trump administration’s “emergency” requests. None of the requests address emergencies by any definition of the term. Most of their decisions, with little or no rationale, defy or distort applicable laws, reverse court precedents, or ignore constitutional provisions. Their cruelest and most despicable decisions do not stay, or suspend, the execution of perverse executive orders even while proceedings by plaintiffs against those orders continue. What is the messages to judges in District courts? Example: the Court permits deportations even while the cases brought by those deported continue; cruelty is inflicted, harm is done, and some of it is likely irreversible. The Court’s policy: shoot first; ask questions later.
In addition to these appalling emergency docket decisions is the far worse decision by which these six partisan hacks, robed as justices, opined that the President has absolute immunity for core constitutional acts, presumptive immunity for other official acts, but no immunity for unofficial acts. They exempt the President from criminal accountability for his “official” acts. A question worth asking since he or she swears to uphold the law and the Constitution: exactly what “official” acts might be illegal? They ignore the President’s unqualified power to pardon anyone, even malefactors in his administration and thus enable their abuses. The decision has been criticized for many reasons. The reason easiest for me to understand is its departure from the plain text and clear implications of Article I, Section 3: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” (emphasis added). The Constitution says nothing about a president’s liability or lack thereof for illegal acts under federal or state law if he or she is neither impeached by the House nor convicted by the Senate. Presumably, if no one is above the law, federal or state prosecutors can criminally charge the president for illegal acts, and injured third parties can civilly sue for damages. The Sycophantic Six have made up law without any textual basis for doing so—judicial activism at its worst. Where impeachment is clearly justified—Clarence Thomas and Samuel Alito and perhaps Brett Kavanaugh for bribery and discrediting the Court—, it should be pursued. But all seem liable to impeachment for decisions plainly contrary to law and the constitutional—the highest of crimes—, in violation of their oaths of office. At the very least, all six should be disbarred, banished by their professional peers from professional associations for their perversions of judicial practice, and ostracized by society.
The means of accountability which I have suggested permit punishment to fit the crime: the ordinary legal process through the court system or societal action through the court of public opinion. Unfortunately, the ordinary legal process can be obstructed by the president’s pardon power, which Trump can grant to officials and agents without hindrance at any stage in the legal process, before, during, or after it. However, some of those pardoned might be liable to charges under state law; if so, they should be so charged, and those who are lawyers should be disbarred. The conduct of elected politicians should be viewed from legal, political, and social perspectives. They should be held accountable for any and all violations of state laws; if their conduct is not prosecutable, they should be punished for what I call crimes against the state by defeat at the polls, disbarment, and professional and social ostracism. Lawyers and justices who aided and abetted Trump’s authoritarian conduct should be disbarred or impeached and disbarred. Justices in particular should be held to the severest standard and dealt with accordingly, in part to punish them, in part to deter others who might think themselves immune from prosecution and penalty. After accusing Republicans of cowardice to oppose Trump, Democrats must demonstrate their courage to undo what he has done and improve upon the status quo ante. Without taking the severest steps against those who have proven unfaithful to American democracy, America cannot return to a reformed democratic regime under the rule of law and the Constitution.
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