Here At Home, The Rule of Law Asserts Itself

While the world was transfixed, with good reason, on the horrific invasion of Ukraine by the Russians, two events occurred here at home last Wednesday that were truly momentous if you hate fascism and believe in the rule of law.

The first was when Joshua James, a leader of the fascist Oath Keepers organization, pleaded GUILTY to sedition. James had been charged with multiple felonies of obstructing the formal count of the electoral college, assaulting a police officer inside the Capitol, and attempting to destroy records of his communication with other Oath Keepers. As part of his guilty plea, charges other than seditious conspiracy and obstruction were dropped.

James is admitting that he helped lead two tactically equipped teams that were sent into the Capitol on January 6, 2021 and organize the stockpiling of a cache of weapons in a hotel just outside of Washington, D.C. He also pleaded guilty to one count of obstructing an official proceeding, a felony that many of the January 6th insurrectionists have been charged with. Perhaps even more importantly, James agreed to cooperate with Federal investigators, who have charged ten others, including Oath Keepers founder and leader Stewart Rhodes, with sedition.

James’ guilty plea is the first successful prosecution of sedition in twenty years. Seditious conspiracy is defined in Federal law as when two or more people “conspire to overthrow, put down, or to destroy by force the Government of the United States,” or act “by force to prevent, hinder, or delay the execution of any law of the United States.” James’ indictment reveals that the Oath Keepers began planning for a “civil war” two days after the 2020 election. In the plea agreement, James agreed that Rhodes “instructed [him] and others to be prepared and called upon to … use lethal force if necessary” to keep Trump in office.

James’ guilty plea and Rhodes’ upcoming trial are just the start of an effort to destroy a leading fascist group allied with the White Supremacist QAnon Trump party.

The other event on Wednesday was a filing made by the House committee investigating the January 6th insurrection in response to a legal attempt by Trump campaign lawyer John Eastman to avoid turning over 10,000 emails to the committee. This is a civil case, but if you ever wanted to know—and if you like anything like democracy and the rule of law, you should—whether the committee’s work will culminate in a criminal referral against Donald Trump to the Department of Justice, you got your answer on Wednesday.

According to the committee:

“The evidence detailed above provides, at minimum, a good-faith basis for concluding that President Trump has violated section 18 U.S.C. § 1512(c)(2). The elements of the offense under 1512(c)(2) are: (1) the defendant obstructed, influenced or impeded, or attempted to obstruct, influence or impede, (2) an official proceeding of the United States, and (3) that the defendant did so corruptly.”

“The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States in violation of 18 U.S.C. § 371. An individual “defrauds” the government for purposes of Section 371 if he “interfere[s] with or obstruct[s] one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.”

“There is also evidence to support a good-faith, reasonable belief that in camera review of the materials may reveal that the President and members of his Campaign engaged in common law fraud in connection with their efforts to overturn the 2020 election results. The District of Columbia, where these events occurred, defines common law fraud as: (1) a false representation; (2) in reference to material fact; (3) made with knowledge of its falsity; (4) with the intent to deceive; and (5) action is taken in reliance upon the representation.”

The filing is an amazing read. (You can see the full text here: gov.uscourts.cacd.841840.160.0.pdf (courtlistener.com).) It lays out in great detail the evidence of the conspiracy led by Trump and his allies in government to overturn a free and fair election by convincing his followers that that election was fraudulent and by relentlessly pressuring government officials to buy into narratives that Trump knew were false.

The filing shows beyond a doubt that Trump knew his claims of election fraud were, in Attorney General Bill Barr’s word, “bullshit” because his own team was telling him that, including Trump’s own lawyers, who NEVER claimed fraud in court, Vice President Mike Pence, Attorney General William Barr, Department of Homeland Security head Ken Cuccinelli, senior Trump campaign aide Jason Miller, Acting Attorney General Jeffrey Rosen, Acting Deputy Attorney General Richard Donoghue, White House Counsel Pat Cipollone, White House Chief of Staff Mark Meadows, and Georgia Secretary of State Brad Raffensberger. Outside Trump’s own circle, he heard from the sixty judges (some of whom he had appointed) who ruled that his election challenges were baseless, the New York state bar association, which yanked Rudy Guiliani’s law license because he made “false and misleading statements to courts, lawmakers, and the public” regarding the election, and the Michigan judge who sanctioned Trump attorneys Lin Wood, Sidney Powell and seven others for “deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated.”

The committee made it clear on Wednesday that it will send a criminal referral against Donald Trump, and many of his confederates, to the Justice Department before this fall’s elections.

The filing contains some remarkable windows into the chaos Trump created inside his administration as he insisted, without any proof, that the 2020 election was fraudulent, and about the actions of various governmental hacks and professional weasels who tried to grab power and influence in the middle of that chaos.

Take Jeffrey Clark. Clark is a Harvard grad who served as Assistant Attorney General for the Environment and Natural Resources Division of George Bush’s Justice Department and was later appointed to that same position by Donald Trump. His long-time associate, Assistant Attorney General Jeffrey Rosen, helped get Clark appointed to the Justice Department's Civil Division. After the 2020 election, Clark was the only senior official in the Department of Justice who backed Trump’s claims of fraud. Then Bill Barr resigned as Attorney General. The standard procedure was for Rosen, Barr’s top deputy, to become Acting Attorney General. Imagine Rosen’s surprise, then, when Clark invited him and Acting Assistant Attorney General Richard Donoghue to a meeting and informed them that he had been to the White House to report on “his own investigation” into the election and that Trump was about to announce that he, Clark, would be named Acting Attorney General.

Clark hadn’t counted on the threat of a full-scale mutiny.

Things came to a head in a meeting that Trump called on January 3 in the Oval Office to decide Rosen’s fate. In attendance were Trump, White House counsel Pat Cippolone, Clark, and Justice Department leaders Pat Philbin, Jeffrey Rosen, Steve Engel, and Richard Donoghue. Donoghue, a no-nonsense Brooklyn native and Army veteran who had spent weeks investigating specific conspiracy theories about the election and trying to convince Trump that they were totally unfounded, took the lead in drawing a line in the sand against Clark’s bizarre self-promotion.

As Donoghue relates in his deposition for the January 6th committee, “Jeff Clark certainly was advocating for change in leadership that would put him at the top of the Department, and everyone else in the room was advocating against that and talking about what a disaster this would be.”

“He repeatedly said to the President that, if he was put in the seat, he would conduct real investigations that would, in his view, uncover widespread fraud; he would send out the letter that he had drafted; and that this was a last opportunity to sort of set things straight with this defective election, and that he could do it, and he had the intelligence and the will and the desire to pursue these matters in the way that the President thought most appropriate.”

“I made the point that Jeff Clark is not even competent to serve as the Attorney General. He's never been a criminal attorney. He's never conducted a criminal investigation in his life. He's never been in front of a grand jury, much less a trial jury. And he kind of retorted by saying, ‘Well, I've done a lot of very complicated appeals and civil litigation, environmental litigation, and things like that.’ And I said, ‘That's right. You're an environmental lawyer. How about you go back to your office, and we'll call you when there's an oil spill.”

“I remember saying at some point that, you know, Jeff wouldn't even know how to find his way to Chris Wray's office, much less march in there and direct the FBI what to do, and that, ‘If you walked into Chris Wray's office, he wouldn't even know who you are. So we had these conversations that went around and around and were very blunt and direct.”

When asked by Trump how they would react if he installed Clark, each of the attorneys threatened to resign. Donoghue told Trump that “I wouldn’t serve one minute this guy.”

Trump then turned to Steve Engel, and asked him, “Steve, you wouldn’t resign, would you?”

“Steve Engel— I remember this because it was very vivid — said, ‘No, Mr. President,” Donoghue told the committee. “’If you replace Jeff Rosen with Jeff Clark and send this letter, I would have no choice. I would have to resign.’”

In a stunning comment considering that he was proposing to cause the resignations of the entire leadership of the Justice Department and his own White House counsel, Trump asked, “What have I got to lose I do this?”

Donoghue responded by saying “Mr. President, these aren't bureaucratic leftovers from another administration. You picked them. This is your leadership team. You sent every one of them to the Senate; you got them confirmed. What is that going to say about you, when we all walk out at the same time? ... And what happens if, within 48 hours, we have hundreds of resignations from your Justice Department because of your actions? What does that say about your leadership?”

Again, from Donoghue’s testimony: “He [Trump] did say several times, ‘You two,’ pointing at Mr. Rosen and me, ‘You two 24 haven't done anything. You two don't care. You haven't taken appropriate actions. Everyone tells me I should fire you," and things of that nature.”

At the end of the three-hour meeting, Trump reversed himself and decided not to replace Rosen. Pointing to Rosen, the President said, “I know that these two here, they're not going to do anything. They're not going to fix this. But that's the way it is, and I'm going to let it go anyway.”

It was the Justice Department lawyers who, with the exception of the ambitious Jeffrey Clark, against Trump’s claims of election fraud. If Trump ends up going on trial for his post-election crimes, it will be the Justice Department lawyers who send him there.

Is Trump a Fascist? Is That Even Important?

What is Trumpism?

We’re obsessed with Donald Trump, and for good reason. He is a clear and present danger who must be removed from power as soon as possible.  

Trump’s cult of personality is so overpowering and relentless that we forget that there is such a thing as Trumpism. 

Trumpism is the bigger and longer-term danger to America, and it will survive, in some form, Trump’s removal from the Oval Office.  

Defeating Trumpism is the challenge of our generation, just as destroying fascism was the challenge for Americans in the 1930s and ‘40s. To defeat Trumpism, we need to understand what it is, what it isn’t, and how it is distinct from Donald Trump the man. 

Is Trumpism a particularly virulent form of conservatism? Garden-variety authoritarianism? A religious movement? A harbinger of a military dictatorship? Full-blown fascism? 

Trumpism is not classic conservatism. Core conservative principles—a small federal government, fear of deficits, free trade, respect for the social hierarchy and social institutions—are not the driving forces behind Trumpism. 

Trumpism is not classic authoritarianism. Authoritarian regimes (e.g., Franco’s Spain) have historically accepted that much of society is controlled by semi-independent social entities like economic cartels, the military, the family, and the church. Trumpism does not. And authoritarian regimes want a passive, muted population, whereas Trumpism wants to constantly engage with and excite the public. 

Trumpism is not at its core an evangelical Christian movement. Despite its high level of support among white Christians, Trumpism doesn’t worship Jesus Christ or Christian teachings. It reveres the myth of a once-great, white America.  

Trumpism is not the early stage of a military dictatorship. The military is not calling the shots in Trumpworld. 

Which leads us to fascism, a subject I’ve been steeping myself in recently.  

What Is Fascism, Exactly? 

I grew up in the late 1950s and the ‘60s, when the “communist” epithet was being used recklessly and cluelessly by the right wing. I’ve publicly called Trump a “fascist,” but do I really understand what fascism is? How do I know that I am not acting like a McCarthyite when I throw that term around? 

I used many sources in boning up on fascism, but the most important were Robert O. Paxton’s “The Anatomy of Fascism” (an authoritative but accessible primer that was written in 2004, before the Trump era), which helped me understand what fascism is (and is not) and its history, and Occupy founder Mark Bray’s “Antifa: The Anti-Fascist Handbook,” which taught me about contemporary anti-fascist movements around the globe and how successful or unsuccessful they have been. 

Fascism first appeared in Europe after the World War I and was a response to that conflict, an armistice that was viewed by the losers as extremely punitive, the failures of capitalism, the rise of Russian Bolshevism, and a new era of mass politics.  

Mussolini’s original Fascists took over Italy in 1922, and Hitler led a fascist takeover of Germany a decade later. The success of Mussolini and Hitler inspired fascist movements in Great Britain (Oswald Mosley’s British Union of Fascists) and the United States (the Black Legion and the pro-Hitler German American Bund). 

It only took seventeen years from Mussolini’s ascent to power for the fascist regimes in Italy and Germany to precipitate World War II. The declaration of war against Germany by Great Britain and the entry of the United States into World War II effectively ended the fascist movements in those countries. The fascist governments in Italy and Germany were dismantled by the Allies in 1945. 

There are two fundamental aspects of fascism: 

• Fascism has only one core precept: that there is a chosen race that is locked in a Darwinian struggle for existence.  

• Fascism is a sensual experience, not a political program. Fascists can bask in the reflective warmth that comes with being a member of a special race with an historic destiny—being part of something big and historic that is based on a noble past. Fascism offers the thrill of being dominant. 

Fascism’s extreme emotionalism liberates the fascist from the frustrations of bourgeois standards. Fascism rejects—violently—social norms, dogma, and the very concept of “truth.” As one fascist leader put it, “We don’t think ideology is a problem that is resolved in such a way that truth is seated on a throne.” In his first public address as chancellor, Hitler ridiculed those who say “show us the details of your program. I have refused ever to step before the people and make cheap promises.”  

For fascists, the “truth” is whatever helps fulfill those special people to fulfill their natural destiny. In 1933 Thomas Mann saw the rise of fascism in supposedly bourgeois Germany as revolution “without underlying ideas, against ideas, against everything nobler, better, decent, against freedom, truth and justice.” Mann felt that the “common scum” had taken power. 

(The Stalinist definition of fascism—”Facisim is the open, terroristic dictatorship of the most reactionary, most chauvinist, and most imperialist elements of finance capital”—was orthodoxy for the left for fifty years. This definition, however, misses the mark in overlooking its most important and binding ingredient: an intensely emotional brand of nationalism.) 

Paxton defines fascism as “a form of political behavior marked by obsessive preoccupation with community decline, humiliation, or victimhood and by compensatory cults of unity, energy, and purity, in which a mass-based party of committed nationalist militants, working in uneasy but effective collaboration with traditional elites, abandons democratic liberties and pursues with redemptive violence and without legal or ethical restraints goals of internal cleansing and external expansion.” 

According to Paxton, these are the key aspects of fascism: 

• A sense of overwhelming crisis beyond the reach of any traditional solutions. 

• The primacy of the group, toward which one has duties superior to every right, whether individual or universal, and the subordination of the individual to it. 

• The belief that one’s group is a victim, a sentiment that justifies any action, without legal or moral limits, against its enemies, both internal and external. 

• Dread of the group’s decline under the corrosive effects of individualistic liberalism, class conflict, and alien influences. 

• The need for closer integration of a purer community, by consent if possible, or by exclusionary violence if necessary. 

• The need for authority by natural chiefs (always male), culminating in a national chieftain who alone is capable of incarnating the group’s historical destiny. 

• The superiority of the leader’s instincts over abstract and universal reason. 

• The beauty of violence and the efficacy of will, when they are devoted to the group’s success. 

• The right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group’s prowess within a Darwinian struggle. 

Every single one of these attributes is shared by Trumpism. Trumpism is, without a doubt, a Yankee-Doodle brand of fascism and its chosen people are white Americans. 

Understanding Fascism Is the Key to Fighting Trumpism 

Millions of Americans don’t understand the threat that Trump poses or how to counter that threat, because—like Thomas Mann—we viewed him as a politician.  

When Trump announced his candidacy, we felt that professional politician Jeb Bush would make short work of him.  

When Trump won the nomination, we were confident that his lies, his behavior, and his racist message would eventually bring him down. 

When Trump was elected, we hoped that the realities of the office and our system of government would quickly change him. 

Even now, having seen that Trump is immune to the threats faced by politicians, we continue to focus our fight on Trump personally. We spend enormous time and resources on fact-checking the endless torrent of blatant lies (the Washington Post employs people who painstakingly document a running total of Trump’s falsehoods), contradictory statements, disgraceful behavior, corruption, and collusion. We marvel at the infuriating ignorance of Trump’s followers, and look to Robert Mueller to bring Trump to justice. Most delusional of all, we console ourselves with the notion that the national nightmare will end once Trump is out of office. 

The all-powerful dictator is the image of fascism (Mussolini liked to declare that he himself was the definition of fascism), and this has also helped to create the false impression that we can understand Trumpism by focusing on Donald Trump, and that we can destroy it by destroying him.  Our relentless focus on his bizarre personality and actions diverts our attention from the actions of the persons, groups, and institutions who have helped him, who work for him, and who will survive him.  

Trumpism is much more than Trump. It is the American fascist genie that has been unleashed from its bottle and that won’t easily be put back inside it.  

Only two generations after 400,000 Americans died to kill fascism overseas, fascist Trumpists occupy the White House. They run the Departments of Justice, State, Treasury. Commerce, Interior, Homeland Security, Energy, Education, Labor, Transportation, Veterans Affairs, and Health and Human Services. They direct the Environmental Protection Agency. They have made the Republican Party and its apparatus completely subservient to them. 

Because the basis of their fascist movement is emotional and because the truth is so problematic for their narrative, the Trumpists are bent on demolishing our most fundamental truisms by: 

• Systematically destroying longstanding data-collection and analytical practices within all government agencies in order to make it impossible to even determine what impact their fascist policies are having compared to historical efforts. 

• Rendering the 16 U.S. intelligence agencies, which we fund to the tune of $60 billion a year, utterly powerless in terms of helping shape our identification of, and response to, real threats. The intelligence community is constantly ridiculed. Intelligence briefings have become rare and their content is ignored—which the people who mean to do us harm understand all too well.  

• Systematically destroying the American system of justice by completely politicizing the Department of Justice, the FBI, and the courts. 

• Declaring war on the media by explicitly branding them “the enemy of the people,” insisting that critical reporting is “fake,” encouraging violence against reporters, and partnering with Fox News to complete its transformation into a fascist propaganda network. 

• Adopting an isolationist, nationalist view of the role of the United States in the world and claiming that longstanding, successful alliances (e.g., NATO) are no longer relevant. 

The fascist evil that our grandparents fought and died to keep from our shores is no longer outside. He’s watching television for six hours a day in the White House residence. He’s running the show. He has enormous powers. He may be our first fascist President, but our challenge is to make him our last one, and to do that we need to understand the non-rational core of Trumpist fascism.

The most important—and the most terrifying—lesson we must take from a study of history is the one pointed to by the German philosopher Walter Benjamin in 1936, even before the calamities unleased by Mussolini and Hitler. The ultimate fascist aesthetic experience, the place where fascist Trumpism will take us unless it is stopped, is war. 

In a later post I'll look at whether the study of the history of fascism and of recent anti-fascist movements can point to successful models for resistance that we can apply to the fascist movement that is currently in control of our country.