What Trump’s Lawyer Was Really Advocating – OpEd

Trump’s lawyer, John Sauer, argued on Tuesday (before the Court of Appeals for the D.C. Circuit) that a precondition for a president to face criminal trial is impeachment by Congress. 

As Doug Gilbert noted in the comments to yesterday’s substack letter, a rogue president could avoid impeachment by simply imprisoning members of Congress who’d otherwise vote to impeach him. 

In effect, John Sauer was arguing for the equivalent of the 1933 Enabling Law in Germany.

Ever since 2016, when Trump ran for president, I’ve been reading up on the history of the Weimar Republic and Hitler’s rise. (I list at the end of today’s letter the best books I’ve read on the subject.) 

It’s become an ever-more terrifying story because of what Trump put us through in his one term as president and where he has already said he wants to take us if he gets a second term. 

Don’t get me wrong. The United States is not the Weimar Republic on the eve of 1933. American democracy is far stronger. Our economy is much stronger. We have not been through a grueling and destructive world war. We are polarized, to be sure, but we are not on the verge of civil war. 

And Donald Trump is no Adolf Hitler. Trump may be a sociopath but he is not as cruelly and cleverly demented as was Hitler. 

But the parallels need to be understood. 

Hitler’s success in moving Germany from democracy to fascism was not the result of a coup. Hitler used the democratic process to gain and then consolidate power. Once he had the power, he destroyed what remained of Germany’s democracy — and did it with remarkable speed. 

This is why John Sauer’s argument on Tuesday before the D.C. Court of appeals is so chilling. 

On March 23, 1933, the German Parliament — fearing more violence and civil war between communists and Nazis — voted by a large majority for the Enabling Act. It gave Hitler, who by then had been appointed chancellor by President von Hindenburg, the authority to enact new laws without interference from either the president or the Reichstag (the German Parliament) for four years. 

Over the next four months, Hitler and his Nazi henchmen swept away most of the guarantees of freedom and the rule of law in the German constitution. They did this remarkably quickly by destroying every countervailing center of power. 

They took over the governments of the individual states so that no possible opposition could come from places like perennially contrary Bavaria.

They took over radio stations and newspapers, under the direction of Joseph Goebbels’s new Ministry of Public Enlightenment and Propaganda.

They took over the civil service. The Law for the Restoration of the Professional Civil Service allowed Hitler’s regime to dismiss from public service anyone whose political record did not “offer sufficient guarantee” that they would “at all times wholeheartedly stand up for the national state” or who were “non-Aryan.” University professors and private lawyers fell under its terms.

They outlawed other political parties. Hitler’s government issued a decree declaring the Nazis the sole political party in Germany.

They targeted Jews. A week after passage of the Enabling Act, Hitler’s government declared a boycott of Jewish businesses and professional offices.

They rounded up political opponents. Hitler said he planned to bring “ruthlessly to account” his political opponents and “the whole clique around this vermin.”

In March, the Nazis declared with great fanfare the creation of their first concentration camp, at Dachau, near Munich. The first wave of victims were Hitler’s political opponents — liberal, left-wing, or pacifist politicians, activists, journalists, writers, and lawyers. In nearly all cases, the prisoners were tortured and beaten. Many were murdered. 

They took over the judiciary. After the German Supreme Court acquitted four communists against whom evidence was either nonexistent or fabricated, Hitler ordered the creation of a new court, the People’s Supreme Court, especially for political offenses. Judges were subject to dismissal for verdicts that displeased the Führer.

They took over the military and all civilian militia. Hitler put Hermann Göring in charge of the Prussian police. As early as February 17, Göring ordered all Prussian police officers to use their firearms against “enemies of the state.” On February 22, a further decree allowed members of the so-called “Patriotic Associations” — militia such as the SA, SS, and Steel Helmet — to become auxiliary police officers. 

All democracies are fragile. They depend on political leaders who believe in them and put the constitution and rule of law over their personal ambitions. They depend on media that tell the truth. They depend on citizens who are intent on retaining their rights and freedoms, who feel deep allegiance to democratic norms, and who refuse to follow demagogues. 

We are not the Weimar Republic in early 1933, but there is cause for concern nonetheless. 

***

Sources: 

William L. Shirer, The Rise and Fall of the Third Reich.

Alan Bullock, Hitler: A Study in Tyranny.

Benjamin Carter Hett, The Death of Democracy: Hitler’s Rise to Power and the Downfall of the Weimar Republic.

Daniel Jonah Goldhagen, Hitler’s Willing Executioners: Ordinary Germans and the Holocaust.

Peter Ross Range, The Unfathomable Ascent: How Hitler Came to Power.

Peter Fritzsche, Hitler’s First Hundred Days.

This article was published at Robert Reich’s Substack