The Most Important Sentence Donald Trump Has Ever Said

The Three Phases of Constitutional Crisis, and How to Prepare for Them

Last week’s newsletter was about how humans often understand our world in terms of stories, rather than abstract concepts (even important ones) like “fascism” and “democracy.”

Well, this week’s newsletter for the rest of us: people who really care about those concepts, and what they represent. Because, to quote Bob Dylan, “It’s not dark yet… but it’s getting there.”

1.

We are currently in Phase One of a three-phase constitutional crisis: Trump and Musk are doing illegal stuff, and they’re getting sued. There are over fortyseventy lawsuits challenging Trump’s first month of actions, and so far, nearly all have succeeded in their initial stages, whether they’ve been in front of liberal and conservative judges. (The only one Trump has won is the case over Musk’s “fork in the road” buyout offer.)

That’s because none of this stuff is even close. The closure of federal agencies violates laws passed by Congress and the separation of powers as set forth in the Constitution. Birthright citizenship is guaranteed by the Fourteenth Amendment, and cannot be banned by executive order. Wrongful terminations, violations of security protocols… the list goes on.

Now, it takes time for this phase to unfold, and in the meantime, it can seem like total chaos. Many of my friends are screaming in their social media posts, demanding how any of this can happen. Well, it can happen in the short term because lawsuits take time. No president has ever had the antinomian boldness of Donald Trump, deliberately flouting laws and constitutional provisions. It will take a few more weeks, but Trump will lose.

To take one example, consider Musk’s desire to “delete entire agencies.” This is flatly, obviously unconstitutional. Congress has the “power of the purse”: Congress, not the president, decides how federal money is spent. Congress, not the president, establishes agencies like USAID, the Consumer Finance Protection Bureau, or the Department of Education. The laws that established them are laws, just like any other laws, and the president has to obey them.

Yes, the president can staff these agencies with idiots and ideologues, as he did in his first term and has done again now. He can direct his puppets to undermine the agencies’ own work, or to do macro-data refinement instead of prosecute bank scammers. But he does not have the authority to close them outright – or to fire people whose terms of employment are set by statute. The federal government is not a private corporation with at-will employees. It’s not Twitter. That is not how any of this works.

2.

So, we will soon enter Phase Two: courts decide these cases, Trump loses, and eventually this goes to the Supreme Court.

In the case of the mass firings and closures, far-right ideologues have, in the last few years, cooked up a make-believe theory of why such actions are lawful: the “unitary executive.” This theory, which is not based on anything other than whimsy, essentially argues that the government is like Twitter, and the president is the CEO. The entire executive branch is one “unitary” whole, and the president has absolute authority over all of it.

Phase Two will reach a climax when the “unitary executive” theory reaches the Supreme Court. (ACLU executive director Anthony Romero, in a must-read interview with The New Yorker’s David Remnick, thinks the birthright citizenship question may reach them first.) Even with this conservative Court, I think it will lose, if not 7-2 then at least 6-3. Why? Because “unitary executive” flies in the face of the constitution and 230 years of governmental practice. If the president is the CEO of America, then in what sense is Congress still passing laws? If the president can “impound” federal money instead of spend it, then in what sense is Congress still passing budgets?

Justices Thomas and Alito have demonstrated, time and again, that they are more loyal to right-wing nationalism than to American constitutionalism. But I cannot imagine Chief Justice Roberts, lifelong institutionalist and judicial conservative, going along with this shocking power grab. And it’s hard to see Justices Kavanaugh, Gorsuch, and Barrett all doing so as well. So I think Trump is going to lose, and will be ordered to stop the slash-and-burn madness.

Which brings us to Phase Three.

3.

Phase Three is when Trump tells the Supreme Court to go to hell — which he has essentially already done, quoting words attributed to Napoleon:

Maybe Trump is just trying to own the libs or dominate the news cycle here, and maybe he didn’t even write the tweet. (After all, is Donald Trump conversant with apocryphal Napoleonic quotations?) But if he’s serious, this is the essence of dictatorship: that the rule of law does not apply to the dictator, and every action the dictator takes is legal by definition.

Again, I don’t ever want to take Trump at his word about anything, but it’s hard to overstate what a radical, anti-American statement this is. It could be said not just by Napoleon but by any tyrant or despot in history (yes, even You Know Who). After all, every authoritarian leader claims to be “saving his Country.” And it flies in the face of everything the Founding Fathers said about the rule of law, including that no one is above it. No president has said anything like this before — not Nixon, not FDR, not Andrew Jackson, no one.

So what happens if Trump puts this maxim into practice, and simply refuses to obey the Supreme Court’s decree?

At that point, we will have crossed the Rubicon (another recent Dylan song, in fact) into some new regime that is no longer democratic. Call it authoritarian, fascist, a dictatorship – whatever it is, it is no longer American democracy, based on the separation of powers set forth in the constitution.

We will then be in uncharted territory, and what happens next will mostly not be a function of the legal system. Within that system, advocates like the ACLU and others will go back to court, urging a judge to find President Trump in contempt of court and issue a warrant for his arrest. But what then? Will the US marshals carry out this arrest? Will the Secret Service let them? Will Trump call in the military? Will the generals obey his unlawful orders?

The answers to these questions are completely unknown, including by the people who would actually have to make the decisions.

And then there’s Congress. Will Congressional Republicans defect? Will Mike Johnson allow an impeachment motion to reach the floor of the House? Would there be enough Republican senators to convict?

Almost certainly not. Even if Johnson allows the motion, which he will not, I don’t think there are seventeen Republicans in the Senate who would risk their jobs, their safety, and possible civil war.

So then there’s “the people.” Who, despite progressives’ generalizations, are divided. There will certainly be massive marches and demonstrations against Trump. But pro-Trumpers also know how to demonstrate, and they have more guns. If the Left comes out in force, it’s hard to see how there will not be large-scale violence in response. And it’s not at all clear whose side the police and military will be on.

There are no precedents for this.

In 1832, President Andrew Jackson refused to enforce a Supreme Court ruling that the Cherokee Nation was an independent nation, and the state of Georgia could not pass laws regulating its territory. Apparently Jackson never said the words attributed to him: “John Marshall has made his decision; now lethim enforce it.” But he did decline to enforce the decision, thus rendering it toothless. But that was one isolated non-action, not a bevy of unconstitutional acts.

A closer precedent is when Southern states refused to implement Brown v. the Board of Education of Topeka, which banned school segregation, and the country came to the brink of armed conflict. During the “Little Rock Crisis” of 1957, there was a showdown between the Arkansas National Guard, ordered by the governor of Arkansas to enforce segregation, and the 101^st Airborne Division, ordered by President Eisenhower to escort nine black students into a formerly all-white school. (The ‘Little Rock Nine’ made it to school, where they endured vicious abuse at the hands of white students.) And there was the famous “stand in the schoolhouse door” in 1963, when segregationist governor George Wallace physically stood in the doorway to prevent black students from enrolling in the University of Alabama.

But the governors ultimately gave way — and they were governors, not presidents.

Phase Three is new territory. It’s when you tell your friends to break their news fast. It’s when hyperbole becomes reality.

4.

Here are three speculative predictions on what might happen:

1. Maybe, with the threat of US marshals arresting him, and, more importantly, the urging of his billionaire backers to avoid economic chaos, Trump backs down, even though he has never backed down before. There could be some kind of compromise: restoring shells of the closed agencies, for example, and still claiming victory. This would be, by far, the best possible result.

2. Or there could be significant violence, including on the part of militias and the Proud Boys, and military action against anti-Trump protesters. Progressives like to talk about “the people,” but remember, there are a lot of “people” on the other side too. In this scenario, Trump’s dictatorship becomes a quasi-military dictatorship. This would be devastating.

3. Then again, maybe the country will simply put up with tyranny. At least a third of the country supports it, after all, along with nearly the entire Republican party apparatus. And for most of us, life might go on mostly as normal. On a podcast recently, I had a long chat with an old friend and teacher of mine who lives in Budapest, and I asked him how Orbanism looks in real life. Mostly, he said, life is pretty normal. Orban has devastated independent media, academia, and institutions of culture, much as Trump has begun to do. But the simulacra of democracy are still in place. Courts still rule, legislators still legislate, and people still go to stores and movies and restaurants. Many corporations do just fine, and so they fall in line with the dictator. We think fascism has to look like Nazi Germany, but it often doesn’t. It can actually look pretty normal.

To be honest, I think this is the most likely result. But let’s be clear that this won’t be a two- or four-year period that we’re looking at anymore. If Trump can disobey court orders, he can cancel elections, or “reform” them to “prevent fraud” that makes them meaningless, like those in Hungary, Belarus, or Russia. It could be long, long time before there’s a free national election in America again. The damage will be generational, exactly like the populists, theocrats, nationalists, and oligarchs intend it to be.

5.

So, what can be done?

First, progressives, moderates, and real patriots need to recognize that Phase Three is going to happen. Trump has already said as much. Elon Musk has been spreading Great Replacement conspiracy theories, lying about social security, and mucking about with private financial information. And maybe most disappointing, congressional Republicans and Republican state media have already begun parroting the Trump line that he’s being attacked by activist judges. All the scaffolding is in place for this constitutional crisis to unfold.

And so we need to start preparing.

Remember, it won’t be easy for a tyrant to govern America. This is a big country, with lots of state and local governments who will not comply with Trump’s unlawful orders. And as I wrote about last week, Trump/Musk are overreaching, alienating many of his own supporters by ruining their businesses and deporting their relatives. There are devastating stories to tell. For example, here’s a great thread by Senator Cory Booker doing exactly what I was hoping Democrats would do: telling the stories of people harmed by this irresponsible, arrogant, and just plain stupid “move fast and break things” tantrum led by Elon Musk:

Meanwhile, I know a lot of people are simply tuned out, but it may be time to invite them to tune back in. In particular, a lot may depend on moderates and the remaining principled conservatives building a broad coalition to defend democracy. Remember, Republicans have a very thin majority in Congress. Just a few votes peeled away in each house, and they lose it outright. I’m not saying most Republicans will put principle above party — but we only need half a dozen.

Meanwhile, politicians, celebrities, journalists, corporate leaders, and influencers need to draw the red line in advance of it being crossed. Progressives need to stop crying fascist-wolf every time Elon Musk does something stupid, in order to focus on the actual fascist wolf, which is when a president puts himself above the law, not just in a tweet, but in practice. Moderates, big business, civic organizations, and religious leaders need to be clear that when a president defies a court order, that is a violation of the Founding Fathers’ design for this country. We need to use appropriate patriotic and religious rhetoric to describe this profound transgression of American values.

All this needs to happen before Trump does it. We cannot be caught by surprise.

I don’t know if this kind of mobilization can discourage Trump from crossing the red line into authoritarianism. But we have to draw it before he does.

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Here’s that New Yorker Interview again.

Here’s pretty shocking coverage of a conference in London that you probably haven’t heard about bringing together Jordan Peterson, Mike Johnson and other Republican leaders, fossil fuel execs, and leaders of Europe’s far-right parties to “re-lay the foundations of civilizations.”

I almost don’t care about the corruption at this point, but

Robert Reich

’s analysis of Trump’s crypto-media-finance scam is pretty amazing.

Thanks for your support. I’ve been making these last few newsletters free, and they have been shared widely, so I’m going to keep doing that. If you have the financial wherewithal to support this work, I’d be very appreciative.