US election
An autocrat in the White House

An autocrat in the White House

Trump will have unchecked power. Libertarians should be worried.

Apocalypse now? It has happened here. America’s frightened, failing democracy has elected an anti-democratic president, whose ignorance and infantilism are surpassed only by a delusional belief in his own unique greatness. ‘Only I can fix this’, the aspiring autocrat declared at the Republican convention last summer.

What precisely did this self-described saviour promise to fix? The ‘rigged system’ that he inherited from his father along with a sizeable fortune – the system of political connections that greased his entry into Manhattan real-estate development and the tax loopholes that enabled him to avoid paying federal income taxes for years, loopholes denied to middle- and working-class people whose taxes are automatically deducted from their paychecks. If the white, working-class voters who helped propel Trump’s campaign think he’s going to un-rig this system to their advantage and his detriment, I’ve got a ‘university’ to sell them.

Caveat emptor. Trump and his allegedly fraudulent Trump University face a class-action lawsuit, one of several pending suits involving the president-elect. The case against his ‘university’, a real-estate programme of sorts, is scheduled to resume in federal court at the end of November, when Trump is due to testify in defence of his alleged con targeting the economically stressed people he promises to champion. He’ll appear before Judge Gonzalo Curiel, who Trump has attacked as a Mexican, biased and presumably unfit to decide his case. (Judge Curiel, of Mexican descent, was born in Indiana.)

Trump, a master of identity politics, needn’t worry: he’ll soon have power to appoint his own judges to lower federal courts as well as the Supreme Court. Regardless of the identity groups or ancestries he favours, the new president will likely choose judges who share his biases and, I fear, his disrespect for law. Trump has habitually abused the law, as evidenced by his reputed libel bullying, his legally questionable, self-aggrandising foundation, his numerous bankruptcies, alleged employment of undocumented immigrants, as well as his boasts about molesting women. ‘Donald Trump has never seen the law as anything beyond another system for self-enrichment’, Slate’s Dahlia Lithwick laments. ‘Judges are tools. Laws are malleable. True justice flows in a singular direction: toward him.’

Trump will likely enjoy unmitigated power to appoint his judicial tools, since Republicans maintained control of the Senate and the prerogative to confirm or reject federal judicial appointments. They have quickly fallen in line behind their president-elect and now constitute a nativist, right-wing Christian party. (Democrats could block Supreme Court nominees, but probably not for four years and not at all if the Republican majority eliminates the Supreme Court filibuster.) Filling judicial vacancies, Trump and his minions will play to the base, appointing young judges who could preside for decades, reinterpreting the Constitution and the balance of rights and power between individuals and the state. Rights of speech, assembly, privacy, due process, religious freedom for non-Christians and reproductive choice are all greatly at risk.

Empowered and unchecked, President Trump, who fashioned himself as a law-and-order candidate, may effectively dismantle the rule of law. He has unapologetically advocated torture, mass deportations and religious discrimination – ‘extreme vetting’ of, if not a categorical ban on, Muslim immigrants. He has denied and dismissed the brutal, often racist failings of the criminal-justice system, as the case of the Central Park Five demonstrated. When five black and Latino teenagers were arrested for a vicious gang rape in the park years ago, Trump paid for four full-page ads in the New York papers demanding a return of the death penalty for ‘muggers and murderers’. The five men, wrongly convicted by coerced confessions, were eventually exonerated after serving lengthy sentences. Despite persuasive evidence of their innocence (the belated confession of the actual rapist and DNA evidence), Trump railed against their release. Due process he’ll reserve for himself and people with whom he sympathises. The first promise Trump will break after assuming office will be his oath to protect and defend the Constitution (which I doubt he’s read or respects).

Is Trump a bigot? I’m not sure it matters. He has aroused, exploited, normalised and introduced into the mainstream expressions of tribal hatreds once limited to the fringes and shadows of political life. Trump is malware that has infected the political system with a viral strain of white supremacy. He rejected the support of a Ku Klux Klan newspaper, but the Klan had good reason to offer it. Throughout his campaign he relied on undisguised appeals to bigotry, notably but not exclusively against Muslims and Mexicans. He treated women with contempt and suggested they be punished for obtaining abortions. He mocked disabled people and promoted anti-Semitic and racist tropes. The testimony of journalists subjected to death threats and racist, anti-Semitic rants for opposing Trump is chilling. Read conservative columnist David French’s account of the price he and his family paid for his principled stand against Trump. Consider the demonisation of reporters exhibited and encouraged at Trump rallies, sometimes by the candidate, as well as his attacks on media organisations that cover him critically.

This hostility to investigative journalism is unsurprising. Trump, the self-proclaimed billionaire, got away with not releasing his tax returns; he has many secrets to protect. His income, debts, foreign entanglements and tax schemes remain unknown to us, but it’s safe to assume he’ll enter office with myriad conflicts of interest. It may not, however, be safe to investigate them. Unfriendly journalists may take some comfort in Trump’s assurance that he won’t have them killed, but they can expect to be sued for criticising him (Trump wants to ease libel lawsuits), and it’s not hard to imagine his Justice Department prosecuting investigative journalists for Espionage Act violations, or other trumped-up felonies. As Harvey Silverglate has written, the federal criminal code is sufficiently vast and elastic to enable prosecutors to charge any one of us with ‘three felonies a day’.

Like journalists, political protesters will face increased risks. Trump is absurdly thin-skinned and despite his professed opposition to political correctness, despite the vicious insults he gleefully hurls at others, he has no apparent tolerance for insults directed at him, or for the rights of his detractors. Activists eager to resist the Trump regime should expect to be surveilled, arrested and prosecuted for daring to dissent. If President Trump armed with the nuclear codes is the first and foremost danger we now face, President Trump armed with the security/ surveillance state apparatus is the second. For many women, elimination of abortion rights and access to contraception, even the federal criminalisation of abortion, may be the third.

Does this sound melodramatic? Sometimes politics takes dark and melodramatic turns, as history confirms. A move by the Trump administration to intern Muslim Americans, as Japanese Americans were interned during the Second World War, is no more unimaginable today than a Trump administration was a year ago.

Liberal, progressive and civil-libertarian advocacy groups are now staring into this abyss, sending email blasts, grieving and vowing to regroup, re-strategise, and resist. I have never felt so hopeless about the prospects for dissent. In a fearful, violent time, the country is under rigid, one-party rule. Anti-libertarian, right-wing Republicans control the White House and Congress and will shape the federal courts for a generation. They also control a majority of state legislatures and governorships, giving them power over electoral rules and processes, as well as control of the re-districting that will follow the 2020 census and help determine the make-up of the House of Representatives for a decade.

Ignore Pollyannish assurances that Congress will act as an institutional check on President Trump, who is rumoured to be considering crackpot cabinet appointees, like Sarah Palin at the Interior Department, former congressman Newt Gingrich for secretary of state, and former New York mayor Rudy Giuliani, who appears increasingly deranged, as attorney general. Key appointments like these will be confirmed. Trump will demand obeisance and get it. Republicans who were too craven to oppose his candidacy, for fear of alienating his voters and endangering their re-elections, will not oppose him when he wields the power of the presidency.

Why did he win? What’s behind this victory celebrated by Russian leaders and Islamic extremists? The political triumph of Trumpism is said to represent the revenge of white, working-class people who felt patronised and abandoned by America’s elites. Perhaps; economic angst was clearly, partly at play. But, interestingly, Clinton supporters were more concerned about the gap between rich and poor than Trump supporters, according to the Pew Research Center; and the anti-elitist narrative, promoted by the Trump campaign and adopted by the media, is a bit reductionist. A political earthquake results from a complex confluence of forces.

Fear of terror has shaped our culture and politics since 9/11, and exit polls show that the tough-talking Trump was the choice of a majority of people who cited terrorism as a major concern. According to Pew, ‘Nearly three-quarters of Trump supporters (74 per cent) saw terrorism as a very big problem, compared with 42 per cent of Clinton supporters’. The much hyped Clinton email scandal intensified in the final week, when FBI director James Comey dropped a controversial letter to Congress revealing the possible existence of new Clinton emails. He issued a ‘never mind’ a week later, the day before the election, but in the interim people were early voting. Trump’s margins of victory in swing states were relatively small. We’ll never know if absent Comey’s letter, Clinton could have reversed them. Social issues were also at play, notably the rise of a transgender rights movement. The Obama administration blundered politically (policy questions aside) when it entered the transgender bathroom debate in the year before the election. Finally, the drive to abolish abortion rights fuelled conservative Christian support for the adulterous, twice-divorced, thrice-married Trump. Progressives dissatisfied with Hillary Clinton paid relatively little attention to the effect of a Trump Supreme Court on reproductive choice, among other progressive causes, but for conservatives the court was a rallying cry.

Trump may well disappoint some of his voters. He will not bring back the steel industry or restore many lost manufacturing jobs. He may instead reside over another recession. He will not build a southern border wall financed by Mexico, and he will not end domestic and foreign terror attacks. He will, no doubt, sign a Republican bill repealing Obamacare, but he could come to regret any repeal that costs millions of people their healthcare. If a majority of voters eventually lose faith in Trump and his Congressional appeasers, will they be empowered to throw the bums out? Maybe, and maybe not, depending on voting rights in various states.

Trump wasn’t actually elected by a majority of voters. Clinton won the popular vote, irrelevantly. You don’t win the presidency in America by garnering the most votes nationally; you win it by garnering the most votes in a handful of key states, as George W Bush won it in 2000, after losing the popular vote. Trump won the electoral-college vote by narrowly winning several formerly Democratic states. Having won, he did not contest the election results, as he’d threatened to do if he lost. Clinton conceded quickly and graciously. If Trump had won the popular vote and lost the presidency, he would not have done the same.

Having eked out his victory, from a mix of voters, including former Obama supporters, who backed him with a mix of enthusiasms, Trump has no clear mandate, but he doesn’t really need one. He has virtually unchecked power instead, and the authoritarian impulse to abuse it. This is a catastrophe, for liberty and security, in America and the world.

Wendy Kaminer is a lawyer and writer, and a former national board member of the American Civil Liberties Union. She is the author of several books, including: A Fearful Freedom: Women’s Flight from Equality (1990); I’m Dysfunctional, You’re Dysfunctional (1992); and Worst Instincts: Cowardice, Conformity and the ACLU (2009).

Picture by: Getty Images.

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