On Friday, September 5, Trump lawyer Cleta Mitchell told Southern Baptist pastor and Newsmax host Tony Perkins that Trump may try to declare that “there is a threat to the national sovereignty of the United States" in order to claim “emergency powers to protect the federal elections going forward,” overriding the Constitution’s clear designation that states alone have control over elections. Mitchell has long called for voting restrictions and was on the infamous January 2021 phone call Trump made to Georgia secretary of state Brad Raffensperger in which Trump pressed Raffensperger to “find 11,780 votes” that would give the state’s electoral votes to him rather than the victorious Democratic candidate, Joe Biden.
Democracy Docket, the media organization founded and run by voting rights and election lawyer Marc Elias, has been tracking the administration’s assault on democracy and has repeatedly called out both such language and Trump’s attempts to monkey with the machinery of our democracy through gerrymandering, voter suppression, and now the use of the military in Democratic-led cities.
In August, Jim Saksa of Democracy Docket explained that through intimidation, harassment, and delays, troops could keep large numbers of voters from casting ballots. The administration might even claim fraud to seize voting machines, as Trump contemplated doing in 2020. Today in Mother Jones, Ari Berman noted the administration has dismantled efforts to promote election security and is working to stack state elections boards with loyalists.
MAGA loyalist Steve Bannon recently said: “They’re petrified over at MSNBC and CNN that, hey, since we’re taking control of the cities, there’s going to be ICE officers near polling places. You’re damn right.” Illinois governor J.B. Pritzker, speaking of Trump’s threatened military incursion into Chicago, observed: “This is not about fighting crime. This is about the President and his complicit lackey, Stephen Miller, searching for ways to lay the groundwork to circumvent our democracy, militarize our cities, and end elections.”
Yesterday the administration announced a surge of Immigration and Customs Enforcement (ICE) agents into Boston, and today it announced a surge into Chicago. Although Trump has been threatening to send in federalized National Guard troops, at least so far the announcement appears to be limited to ICE agents, who are part of the country’s regular law enforcement systems. Pritzker noted that the administration had made no effort to reach out to state officials as it would have if it actually wanted to combat crime. Instead, Pritzker said, “we are learning of their operations through their social media as they attempt to produce a reality television show.”
The apparent plan of the Trump administration reflects the strategy of Nazi political theorist Carl Schmitt, whose writings seem lately to have captivated leaders on the American right, including billionaire Peter Thiel and the man who influenced him, Curtis Yarvin. Schmitt opposed liberal democracy, in which the state enables individuals to determine their own fate. Instead, he argued that true democracy erases individual self-determination by making the mass of people one with the state and exercising their will through state power. That uniformity requires getting rid of opposition. Schmitt theorized that politics is simply about dividing people into friends and enemies and using the power of the state to crush enemies. As J.D. Vance described Schmitt’s ideas in 2024: “There’s no law, there's just power.”
Much of Schmitt’s philosophy centered around the idea that the power of a nation that is based in a constitution and the rule of law belongs to the man who can exploit emergencies that create exceptions to the constitutional order, enabling him to exercise power without regard to the law. Trump—who almost certainly has not read Schmitt himself—asserted this view on August 26: “I have the right to do anything I want to do. I’m the president of the United States. If I think our country’s in danger—and it is in danger in the cities—I can do it.”
Although the Republicans have control of both the House of Representatives and the Senate, meaning Trump should be able to get his agenda passed according to the normal constitutional order, since taking office he has operated under emergency powers. On August 22, Karen Yourish and Charlie Smart noted in the New York Times that since he took office, Trump has declared nine national emergencies and one “crime emergency” in Washington, D.C. The journalists report that since 1981, presidents have declared on average about seven national emergencies per four-year term. Trump declared that many in his first month back in office, although experts say no such emergencies exist.
Under normal constitutional provisions and laws, Trump’s actions would have required congressional approval or long regulatory review, the journalists note. Instead, he has enacted sweeping immigration measures, deregulated energy, launched a tariff war that is crushing the U.S. economy, and now put troops in U.S. cities, all on his own hook.
Even when Trump didn’t announce a new emergency, he has cited crises to justify new extreme actions, as when he (or someone; he told reporters he did not sign the order) invoked the 1798 Alien Enemies Act to justify rendering undocumented Venezuelan immigrants to the notorious terrorist prison CECOT in El Salvador and when he justified the cuts billionaire Elon Musk’s “Department of Government Efficiency” made to congressionally-approved funding because such cuts addressed “waste, fraud, and abuse.”
Although the administration continues to insist voters wanted what Trump is doing, his poor job approval rating and the popular dislike of his policies across the board say the opposite. Perhaps more to the point was this weekend’s social media post from J.D. Vance, who pushed back on widespread concern that the administration’s strike against a boat in international waters last week was illegal. The administration claims that the 11 men in the boat were gang members smuggling drugs, but even if it offered evidence for such an assertion, which it has not done, the U.S. cannot legally kill civilians of a nation with whom we are not at war.
This weekend, Vance posted on social media: “Killing cartel members who poison our fellow citizens is the highest and best use of our military.” Political commentator Brian Krassenstein replied: “Killing the citizens of another nation who are civilians without any due process is called a war crime.” Vance replied: “I don’t give a sh*t what you call it.”
The federal courts are working overtime to hold the administration to the rule of law. As Jay Kuo noted on September 3 in The Status Kuo, just last week saw courts invalidating most of Trump’s tariffs, stopping the administration from deporting unaccompanied children to Guatemala, and declaring his cuts to Harvard University’s funding, his use of troops in Los Angeles, and his invocation of the Alien Enemies Act illegal. Today an appeals court upheld the $83.3 million judgement a jury rendered last year against Trump in a defamation case brought by writer E. Jean Carroll.
But the Supreme Court has been overruling lower court decisions, deciding in favor of Trump’s expansion of power. Today it allowed Trump to ignore the decision of a lower court that he could not fire the last remaining Democratic member of the Federal Trade Commission, Rebecca Slaughter, while her case was in the courts. Since 1935, the court had said the president does not have the power to fire members of independent agencies created by Congress.
It also said today that the administration can use racial profiling, including personal appearance, language, or type of employment, to stop people in order to check their immigration status, even though that will necessarily mean that U.S. citizens and legal residents will be swept up. Essentially, Justice Sonia Sotomayor said, Latino Americans must now keep papers on them at all times to prove they are citizens or they can find themselves incarcerated.
The court decided these cases without hearings, briefs, or a written decision, under what is called the “shadow docket.” Traditionally, such unsigned, unexplained decisions are used for emergencies either to keep the status quo or to resolve a procedural issue, but under Trump the court’s use of them has exploded. The court, three of whose justices Trump appointed, has sided with him in shadow docket decisions more than 70% of the time.
On September 4, Lawrence Hurley of NBC News noted that this new practice of overturning lower court rulings with no explanation is undermining faith in the judiciary. It supports the administration’s narrative that the courts are trying to subvert Trump’s presidency. As the administration has attacked the courts, violent threats against judges have dramatically increased. Hurley notes that the lower courts painstakingly research the law to reach a decision, then administration officials criticize any that doesn’t support their actions, Then Trump appeals to the Supreme Court, which rejects the judges’ decisions with little or no explanation.
Under the control of Republicans, Congress has also declined to assert its constitutional power. Yesterday, Julian E. Barnes and Catie Edmondson of the New York Times reported how Republican leaders have accepted the administration’s unilateral cuts to programs Congress approved, launches of military strikes without informing Congress, and, last week, the Pentagon’s cancellation of a classified visit to the Virginia headquarters of the National Geospatial-Intelligence Agency by Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee. Far-right activist Laura Loomer had complained about the visit. The administration has already limited congressional oversight of immigrant detention centers; now the Pentagon says it is also imposing new limits to congressional oversight of intelligence facilities.
“Is congressional oversight dead?” Senator Warner asked. “Where does this end? If none of my Republican colleagues raises an issue, does this mean we are ceding all oversight?”
The administration appears to be in a rush to replace democracy with a dictatorship before the whole administration collapses. On Saturday, Elliott Morris of Strength in Numbers reported that 46% of Americans—almost half of them—“strongly disapprove” of the job Trump is doing as president while only 24% “strongly approve, a 22% enthusiasm gap.
That gap seems likely to grow. Tonight the Wall Street Journal published the 2003 birthday letter to convicted sex offender Jeffrey Epstein bearing Trump’s signature whose existence the paper revealed in July. The image in the article by Khadeeja Safdar and Joe Palazzolo was even worse than earlier reports of it: the image drawn over the words is not the outline of a woman, but of a girl. The text reads, in part, “Voice Over: There must be more to life than having everything. Donald: Yes there is, but I won’t tell you what it is.” Those words from “Donald” are outlined with pubescent breasts.
The words continue: “Jeffrey: Nor will I, since I also know what it is.
Donald: We have certain things in common, Jeffrey.
Jeffrey: Yes we do, come to think of it.
Donald: Enigmas never age, have you noticed that?
Jeffrey: As a matter of fact, it was clear to me the last time I saw you.
Donald: A pal is a wonderful thing. Happy Birthday—and may every day be another wonderful secret."
The signature, “Donald,” mimics human anatomy.
After the Wall Street Journal revealed the existence of the letter in July, Trump sued the reporters, the publisher, and the Journal’s parent company for ten billion dollars, saying the letter was “nonexistent.”
Today’s story also reported on another letter from the book that included a giant check made out for $22,500, mocked up to look like Trump wrote it to Epstein. A handwritten caption below it says: “Jeffrey showing early talents with money + women! Sells ‘fully depreciated’ [redacted] to Donald Trump for $22,500. Showed early ‘people skills’ too. Even though I handled the deal I didn’t get any of the money or the girl!”
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