Trump and his lawyers work to subvert the government’s efforts to obtain illegally-held documents

Bob Sheak, Sept. 6, 2022


This post focuses on the DOJ/FBI attempts over months to obtain documents that Trump kept at Mar-a-Lago, his residence and club in Florida. Trump and his lawyers have done their utmost to slow down the process, while at the same time criticizing the government for continuing to pursue the issue, contending (without evidence) that the whole process was partisan, unfair, and aimed at undermining Trump’s political ambitions.

The evidence assembled in this post indicates that Trump did violate federal laws about how former presidents should deal with presidential documents, which belong to the government, not to Trump. The protests and evasions from Trump and his supporters over the FBI search and ongoing analysis of the documents are based on lies and efforts to delay and ultimately end the investigation. Meanwhile, Trump has employed rhetoric based on conspiracy theories and designed to inflame his supporters.

The entire months-long episode is yet another example of Trump’s disregard of the law and his seeming desire to create a right-wing political force that will continue to do what they can to undue American democracy.  

A timeline on the DOJ/FBI attempts to get all of the government documents unlawfully located in Trump’s residence and club

Rosalind S. Helderman provides a timeline of the FBI’s attempts to obtain all the government documents in Trump’s possession and stored at Mar-a-Lago, some classified, how Trump and his lawyers repeatedly delayed, only partially responded, or ignored such lawful requests, and culminating in the August 8 FBI raid of Trump’s Florida club and residence ( Here are some of the highlights of Helderman’s timeline, including references to other sources.

Fifteen boxes with thousands of documents arrived at the archives, at the National Archives and Records Administration, on January 18. In opening these documents, archives officials find documents clearly marked classified, intermingled with printouts of news articles, mementos and items. They made a formal referral asking the Justice Department to investigate the possible mishandling of classified records.”

Legal expert Marjorie Cohn points out:

“A preliminary review of the 15 boxes by the FBI revealed that 14 of them had classification markings. They found 184 unique documents, including 67 marked CONFIDENTIAL, 92 marked SECRET and 25 marked TOP SECRET. Each of these markings respectively indicates an increased threat of harm to national security if the information is disclosed without authorization, according to the unnamed special agent of the FBI who signed the affidavit. Several documents contained what were apparently Trump’s handwritten notes” (

According to Cohn, “NARA [National Archives and Records Administration] agents found that the 15 boxes contained more than 100 documents with classification markings, comprising more than 700 pages. Some included the highest levels of classification, including Special Access Program information, which are highly classified data with safeguards and restrictions on access greater than those for ordinary classified information.”

Back to Helderman’s “timeline.”

On May 6, 2021, almost four months after initial inquiries and stonewalling by Trump, the National Archives and Records Administration contacted Trump’s team ‘to say some high-profile presidential documents appear to be missing. ‘We know things are very chaotic, as they always are in the course of a one-term transition,’ Gary Stern, the agency’s chief counsel writes to Trump lawyers. ‘But it is absolutely necessary that we obtain and account for all presidential records.’” Over the next several months, archives officials repeatedly ask for the missing records and Trump resists returning them.”

Then on May 16 to 18, the “FBI conducts a preliminary review of the material held at the archives, according to an affidavit that would be filed several weeks later in support of the request for a warrant to search Mar-a-Lago. Agents find 184 documents with classification markings: 67 marked confidential, 92 marked secret and 25 documents marked top secret. They include: HCS, FISA, ORCON, NOFORN, and SI — acronyms that refer to, among other things, the government systems used to protect intelligence gathered from secret human sources, the collection of information through the Foreign Intelligence Surveillance Act and intelligence that cannot be shared with foreign allies. Some documents contain what appear to be Trump’s handwritten notes.”

At the end of May, “members of Trump’s legal team conduct what they characterized as a thorough search of documents still held at Mar-a-Lago, attorney Christina Bobb would later say in interviews. ‘The legal team had done a very thorough search. We turned over everything that we found,’ Bobb told Fox News’s Laura Ingraham. ‘It’s my understanding based on very good belief, based on a thorough investigation, that there was nothing there.’” Bobb’s statements turned out to be false.

In the continuing pursuit of the documents not yet released by Trump to government officials, the FBI requested on August 5 that Magistrate Judge Bruce E. Reinhart approve the FBI’s request for a search warrant to examine the documents still held at Mar-a-Lago. Reinhart approved the request. On August 8, “FBI agents in casual clothes and without their guns spend nearly nine hours at Mar-a-Lago searching the club’s storage room, Trump’s residential suite and offices. According to a property receipt they leave behind, they collected more than two dozen boxes of documents, including 11 sets of documents with classification markings. A more detailed accounting in a later court filing indicates the FBI seized more than 100 documents marked classified, from the confidential to top secret level. Seventy-six were found in the storage room. Others were found in Trump’s office, including three documents found in the drawers of desks.”

Subsequent reporting on August 22 by Maggie Haberman and her colleagues at the New York Times indicates that Trump had “more than 300 classified documents” ( They write:

“In total, the government has recovered more than 300 documents with classified markings from Mr. Trump since he left office, the people said: that first batch of documents returned in January, another set provided by Mr. Trump’s aides to the Justice Department in June and the material seized by the F.B.I. in the search this month.”

Probable federal crimes

Marjorie Cohn refers to Judge Reinhart’s view that Trump is probably involved in three federal crimes” in his handling of the documents ( The crimes: unauthorized possession, obstruction, and mutilation of government documents. Cohn continues:

“After considering the Department of Justice’s (DOJ) affidavit, U.S. District Judge Bruce E. Reinhart had found probable cause that a search of Mar-a-Lago would turn up evidence of three federal crimes: unauthorized possession, obstruction and mutilation of government documents. He issued a search warrant on August 5. When Reinhart unsealed the affidavit on which the warrant was based, half of the 38 pages were redacted, or blacked out.”

Cohn continues: “It is highly unusual to unseal a search warrant affidavit before criminal charges are filed. In fact, affidavits are generally unsealed only after the defendant makes a motion to suppress evidence seized in the search. Defendants often argue that the evidence should be excluded from their trial because the search violated their Fourth Amendment right to be free from unreasonable search and seizure. No charges have yet been filed in this case. But due to strong public interest in the search of Trump’s home and seizure of hundreds of classified documents, the judge unsealed the affidavit with extensive redactions. The redactions in the Affidavit were justified “because disclosure would reveal (1) the identities of witnesses, law enforcement agents, and uncharged parties, (2) the investigation’s strategy, direction, scope, sources, and methods, and (3) grand jury information protected by Federal Rule of Criminal Procedure 6(e).”

The disappearance of classified documents

“On September 2, 2022, the Department of Justice ‘released an inventory of items seized from former President Donald Trump’s Florida home last month, and one aspect of the newly disclosed document raised eyebrows and many questions: Namely, the listing of dozens of empty folders marked as ‘classified,’” as reported by Jake Johnson (

“‘Where did the classified content go?’ asked Rep. Ilhan Omar (D-Minn.), voicing a sentiment also expressed by reporters and watchdogs in response to the inventory, which indicates that the FBI retrieved from Mar-a-Lago 18 documents marked ‘top secret,’ 54 marked ‘secret,’ and 48 empty folders with ‘classified’ banners.”

“The inventory offers no specific details on what the empty folders were supposed to contain, leaving observers to speculate on the sensitivity of the documents and where they may have ended up as the DOJ continues to investigate the former president’s removal of classified documents from the White House.”

“The Justice Department said in a court filing Tuesday that it “developed evidence that government records were likely concealed and removed” from a Mar-a-Lago storage room as investigators attempted to retrieve them, possibly further implicating Trump’s team and the former president himself in a criminal scheme to obstruct justice.”

Despite Trump’s outcries, the majority of Americans approve of the government’s investigation

Chris Walker reports on an Economist/YouGov poll (

A recent Economist/YouGov poll surveyed Americans about the issue from August 13-16, after portions of the search warrant that was executed last week Monday were unsealed. According to the survey, the vast majority of Americans have heard about the Department of Justice (DOJ) investigation, with 50 percent saying they’ve heard a lot about it and 36 percent saying they’ve heard a little about the search of the Trump property. Just 14 percent said they haven’t heard anything about it.

“When survey participants were asked how they felt about the search, most said they approved of the DOJ’s actions, with 54 percent saying so. Only 36 percent said they disapproved. Similarly, only 30 percent of those surveyed said they approve of Trump having taken the records after leaving office, while 52 percent said they disapproved.

Negative feelings increased in regards to reports that Trump took classified documents, potentially illegally, related to nuclear weapons, which sources close to the investigation said he did.

“Among all survey respondents, 57 percent of Americans say they disapprove of Trump taking nuclear weapons-related documents to his Mar-a-Lago estate. Those who voted for Trump in the 2020 presidential election, however, were split on that question, with 35 percent saying they approved of him potentially taking such documents, and 36 percent saying they didn’t (19 percent were unsure how to feel about it).”

The response of Trump and his supporters

Amanda Marcotte, senior politics writer at Salon and the author of “Troll Nation,” reports on Trump and his allies “have been drastically “escalating rhetoric that unsubtly invites political violence in response to the FBI’s efforts to recover classified materials that Trump has been illegally holding on to ( She continues: “By blitzing out these conspiracy theories, he’s sending signals to the most unhinged people in his base. And they are most definitely hearing the signals he’s sending.”

Trump embraces violent right-wing conspiracy theories

Marcotte refers to an NBC News report, 

“Users of QAnon forums rejoiced at Trump’s apparent endorsement of the conspiracy theory and its mythology. The top response on the most visited QAnon forum to one of Trump’s posts about the conspiracy theory read simply, “Wipe them out sir.” Others pleaded with Trump to “nuke them from orbit” and to “sir, please finish them off,” referring to QAnon enemies such as Hillary Clinton and President Joe Biden.

Dana Milbank also reports on the influence of QAnon conspiracy theories on Trump (

The former president used his Truth Social site on Monday [Aug. 29] to demand that he be declared ‘the rightful winner of the 2020 election, and he followed that by posting and sharing on Tuesday a barrage of QAnon slogans and themes, doctored photos and false conspiracy notions, including a claim that the “FBI colluded with Antifa” in the Jan. 6 insurrection, and a forged tweet falsely purporting to be from Ivanka.”

“If it appears the volume of deception coming from MAGA Republicans is increasing, that’s because it is. Two academics from New York University set about documenting the proliferation of rubbish in a study they described this week for The Post’s Monkey Cage feature. They found that 36 percent of the news that Republican congressional candidates shared on social media came from unreliable sources on an average day from January to July, up from 8 percent for the same period in 2020. (The news shared by Democratic candidates from unreliable sources rose to 2 percent from 1 percent.)”

A financial boost

Milbank continues: “Trump, for his part, now appears to be hoping to monetize the QAnon conspiracy movement, whose sometimes violent followers hold that a network of pedophiles secretly controls the government. His Truth Social media venture has struggled — losing money, gaining few users, squabbling with a vendor and seeing its stock price fall nearly 75 percent since March.

“So, Truth Social is wooing the QAnon crowd, banished from more reputable sites.

“NewsGuard, which rates the reliability of media organizations, reported this week that Truth Social awarded its verification badges to 47 QAnon-promoting accounts, each with more than 10,000 followers. In all, it said, 88 QAnon-associated users (32 of them previously banned from Twitter) have more than 10,000 followers apiece on Truth Social. Trump and current and former Truth Social executives have shared QAnon graphics and messages and promoted the QAnon accounts. Trump had done so 65 times, the report said — and that was before his QAnon extravaganza Tuesday.”

Trump encourages his base to embrace violence

In another article, Amanda Marcotti delves further into Trump’s reactions to the FBI’s search of Mar-a-Lago ( She reports: “After FBI agents searched Trump’s Palm Beach resort, Mar-a-Lago, for classified documents, Trump has been using every avenue possible to send a message to the Department of Justice: Stop the investigation or my supporters could become even more dangerous.” She gives the following examples.

“On Saturday [Aug 13], the New York Times reported that Trump ‘reached out to a Justice Department official to pass along a message’ to Attorney General Merrick Garland. “The message Mr. Trump wanted conveyed, according to a person familiar with the exchange, was: ‘The country is on fire. What can I do to reduce the heat?'”

“The message is disguised as helpful, but it’s obviously meant to be threatening. It’s a variation on the cliched mobster threat: ‘Nice place you’ve got there. Shame if something happened to it.” Both Trump and the intended target understand that Trump is the one who lit the fire with his repeated claims of being ‘persecuted’ and the flat-out lies he uses to bolster those claims. So, his ‘question’ is really more a form of blackmail. He’s not actually offering assistance, so much as trying to remind Garland of his continued power over his followers. 

Trump’s base responds with financial support for him

Trump rakes in millions off FBI search at Mar-a-Lago

Josh Dawsey and Isaac Arnsdorf report that Trump raked in millions off the FBI search of Mar-a-Lago (

“The former president’s political fundraising surged to over $1 million a day last week after sagging earlier this year.

“Former president Donald Trump bombarded his supporters with more than 100 emails asking for money based on the FBI’s search of the Mar-a-Lago Club for classified materials last week. They paid off.

“Contributions to Trump’s political action committee topped $1 million on at least two days after the Aug. 8 search of his Palm Beach, Fla., estate, according to two people familiar with the figures. The daily hauls jumped from a level of $200,000 to $300,000 that had been typical in recent months, according to the people, who spoke on the condition of anonymity to discuss nonpublic information.”

Endangering the lives of FBI agents

The search warrant

A search warrant is an order signed by a judge that authorizes government authorities to search for specific objects or materials at a definite location.

Marcotti: “The threatening nature of this rhetoric was underscored by Trump’s game-playing with the warrant release. First, he pretended not to have the warrant and demanded that it be released, even though he did have a copy and could release it whenever he wished. Then his team released the warrant to Breitbart before the DOJ had a chance to release it. By doing so, Trump made sure the version of the warrant that spread most rapidly was one featuring the unredacted names of the individual FBI agents involved in the search, putting them and their families in danger.” 

The Affidavit

Marcotti: “In case there was any doubt that this was intentional, Trump is playing the same game with the affidavit that led to the warrant.

“Trump has been using every avenue possible to send a message to the Department of Justice: Stop the investigation or my supporters could become even more dangerous. 

“The DOJ is resisting the public release of the affidavit underlying the search warrant, which has much more detailed information about what crimes Trump is suspected of and the evidence the FBI has to support their suspicions. Its release would not only be highly unusual, but it would also “likely chill future cooperation by witnesses,” authorities argued. Trump responded with a rant on Truth Social, his far-right alternative to Twitter, in which he demanded ‘the immediate release of the completely Unredacted Affidavit.’ As with the warrant release, the only purpose of releasing an unredacted affidavit would be to expose the identities of people who have provided evidence against Trump. 

Trump pushes his vitriolic message on Fox News

Marcotti: “Monday morning [Aug 15], Trump made his veiled threats to Garland public, going to Fox News to engage in faux-handwringing over how the ‘country is in a very dangerous position,’ as if he weren’t the person who made it that way. 

“There is tremendous anger, like I’ve never seen before, over all of the scams, and this new one—years of scams and witch hunts, and now this,” he said. ‘If there is anything we can do to help, I, and my people, would certainly be willing to do that.’

As Eric Kleefeld of Media Matters reported Monday, Fox News has been heavily hyping ‘Trump’s veiled threats that his supporters will carry out more political violence against federal law enforcement.’ As Kleefeld notes, Trump is using the passive language of faux ‘predictions’ to package his threat, by saying things like, ‘the temperature has to be brought down in the country. If it isn’t, terrible things are going to happen.’ But, of course, he and his targets both know things aren’t just ‘happening.’ They are being provoked by Trump’s hyperbolic language and hint-dropping to his followers. 

Attempts to delay and subvert the investigation

In an article published on Sept. 3, 2022, Marjorie Cohn considers Trump’s request for a “special master,” so that any investigation into the criminal and national security implications of Trump’s actions may be put aside ( Cohn suggests that they are making the request to “delay the investigation beyond the midterms.”

Trump and his supporters hope that the Republicans will take control of the House and the Senate in the upcoming 2022 midterm elections. If they take even just the House, they will be in a position to direct attention away from the investigation by the Department of Justice. Some have warned that House Republicans would then move to impeach President Biden. In such a context, the government’s investigation into Trump’s mishandling of documents could be sidelined and Biden’s policy agenda could be subverted. Here’s some of Cohn’s analysis.

“On August 22, Trump filed a motion in the U.S. District Court for the Southern District of Florida requesting the appointment of a ‘special master’ to review the documents seized at Mar-a-Lago. Although the Department of Justice (DOJ)’s Filter Team had already segregated documents that might be protected by the attorney-client privilege or executive privilege, Trump wants a special master (usually a retired judge) to inspect them for privileged or potentially privileged material.

“Trump’s motion is pending before Judge Aileen Cannon, a Trump appointee. Judge Cannon indicated she is inclined to agree with Trump and appoint a special master. She held a hearing on September 1, but has not yet issued a ruling. A special master could substantially delay the DOJ’s criminal investigation of Trump and his associates.”

Cohn elaborates this point. “Appointing a special master is unnecessary, the DOJ maintains in its filing. It ‘would impede the government’s ongoing criminal investigation’ and the ‘Intelligence Community from conducting its ongoing review of the national security risk that improper storage of these highly sensitive materials may have caused’ and ‘identifying measures to rectify or mitigate any damage.’”

“Moreover, the DOJ argues, Trump lacks ‘standing’ to seek a special master or the return of the documents since he does not own them. The Presidential Records Act says that presidential records are the property of the government.”

“During the nearly two-hour hearing on September 1, Judge Cannon signaled that she might appoint a special master but she did not order the FBI to halt its review of the files. On September 2, she unsealed a more detailed list of documents the FBI seized during its August 8 search.

“The newly-released inventory includes 31 documents labeled CONFIDENTIAL, 54 labeled SECRET and 18 labeled TOP SECRET. It lists 48 empty folders labeled CLASSIFIED and 42 empty folders labeled for return to a military aide, with no indication of where the missing documents are located.

“This detailed inventory also contains more than 11,000 government documents and photographs without classification markings. Classified documents were commingled in boxes with documents that had no classification labels as well as personal items and media articles.”

Whether a criminal case against Trump and/or his attorneys is every advanced, “the evidence seized during the search of Mar-a-Lago strengthens the such a case against Trump and/or his attorneys and associates.”

Judge Cannon rules in support of a “special master”

Despite the evidence, Judge Cannon grants Trump request for special master to review Mar-A-Lago documents, as reported by Perry Stein (

“U.S. District Judge Aileen M. Cannon wrote in her decision that the Justice Department cannot continue reviewing the materials seized by the FBI at Mar-a-Lago on Aug. 8 or use them in its criminal investigation until the special master concludes his or her assessment.” A special master to sift through nearly 13,000 documents and items seized by the FBI from Trump’s Florida residence will be appointed by a federal judge. Cannon “sided with Trump’s legal team and said that the former president does retain some executive privileges after leaving office — a stance that the Justice Department disagrees with.”

Meanwhile, Cannon ruled, “the Office of the Director of National Intelligence would be allowed to continue its ongoing assessment of the possible risk to national security posed by the removal from government custody of classified documents, some of them related to highly sensitive government and intelligence secrets.”

Some high-profile Republicans oppose the decision. Stein cites an interview that aired Friday [Sept 2], in which former Trump attorney general William P. Barr said there is no reason classified documents should have been at Mar-a-Lago after Trump was no longer president.

“‘People say this was unprecedented,’ Barr said in an interview with Fox News. ‘But it’s also unprecedented for a president to take all this classified information and put them in a country club, okay?’”

Cannon dismissed such views as well as the position of the Justice Department lawyers who told her “they had already sorted through the documents, using a ‘filter team’ to separate out more than 500 pages of potentially privileged documents. That arrangement was approved by a U.S. magistrate judge who authorized the Mar-a-Lago search warrant. Prosecutors said appointing a special master would be pointless, given the previous filter team review — but Cannon disagreed. They also said that there was no legal basis to appoint a special master in this case and that Trump had no rights to possess White House documents once he left office.”

Judge’s competence is questioned

Julia Conley reports on criticisms of Judge Cannon’s lack of competence ( As we know, Trump wants loyalty and compliance, not independence and competence. Conley writes:

“This judge is now an active participant in Trump’s crimes,” said one critic.

“Political observers on Monday said U.S. District Court Judge Aileen Cannon ‘engaged herself in obstruction of justice’ by ruling that the U.S. Department of Justice must halt its review of materials seized at former President Donald Trump’s Florida estate, Mar-a-Lago.

“Cannon, who was appointed by the former Republican president and confirmed after he lost the 2020 election, ruled that Trump ‘faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public’ if the review of the materials, which included documents marked ‘confidential’ and ‘top secret’ continues.

“Political scientist Norman Ornstein noted that lawyers for Trump hand-picked Cannon to oversee the case and, in a tweet, adding that her ruling is ‘a clear-cut impeachable offense.’

“Slate journalist Mark Joseph Stern said he had been assured that “no judge would take Trump’s absurd filing seriously” after the former president sued the DOJ over the FBI raid which was sparked by the department’s finding that Trump had taken classified documents from the White House when his term ended in January 2021.

“‘The problem, of course, is that Cannon is not a real judge, but a Trump judge, and one of the most corrupt of the bunch,” said Stern.”

“The Justice Department now has until September 9 to propose a list of special master candidates. It was unclear Monday whether the Biden administration would appeal Cannon’s ruling.”

Historian Heather Cox Richardson refers on her Sept. 15, 2022, post to some of the reactions against Cannon’s ruling ( She writes:

“Legal analysts appear to be appalled by the poor quality of the opinion. Former U.S. acting solicitor general Neal Katyal called it ‘so bad it’s hard to know where to begin.’ Law professor Stephen Vladeck told Charlie Savage of the New York Times that it was ‘an unprecedented intervention…into the middle of an ongoing federal criminal and national security investigation.’ Paul Rosenzweig, a prosecutor in the independent counsel investigation of Bill Clinton, told Savage it was ‘a genuinely unprecedented decision” and said stopping the criminal investigation was “simply untenable.’ Duke University law professor Samuel Buell added: ‘To any lawyer with serious federal criminal court experience…, this ruling is laughably bad…. Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he’s being persecuted, when he is being privileged.’”

At first Trump rally since FBI search, the former president lashes out at the FBI, Biden, and other “enemies”

Katie Glueck and Michael C. Bender report on Trump’s blustering at a rally held in Wilkes-Barre Township, Pa., on Sept. 3, 2022 ( They write:

“In his first rally since his home was searched by the F.B.I. on Aug. 8, former President Donald J. Trump on Saturday lashed out at President Biden and federal agents, calling his Democratic rival ‘an enemy of the state’ and the F.B.I. and the Department of Justice ‘vicious monsters.’”

“In an aggrieved and combative speech in Pennsylvania, Mr. Trump stoked anger against law enforcement even as the F.B.I. and federal officials have faced an increase in threats following the search of Mr. Trump’s residence to retrieve classified documents.”

Trump’s tirade “came two days after Mr. Biden warned that democratic values were under assault by forces loyal to Mr. Trump. The former president described Mr. Biden’s address as ‘the most vicious, hateful, and divisive speech ever delivered by an American president.’”

Brett Wilkins reports on Trump’s crazed assertions in his speech


“What Trump did by calling Biden an ‘enemy of the state’ to his poorly educated crowd is literally threatening the president.”

Making his first public appearance since the FBI’s August 8 raid on his Florida resort home, Trump addressed supporters at a “Save America” rally in Wilkes-Barre, Pennsylvania, where he stumped for Republican gubernatorial candidate and “Big Lie” supporter Doug Mastriano and U.S. Senate hopeful and celebrity doctor Mehmet Oz.

During his speech, Trump called Biden’s Thursday evening address to the nation [Sept. 1] the “most vicious, hateful, and divisive speech ever delivered by a president,” namely that “Donald Trump and the MAGA Republicans represent extremism that threatens the very foundations of our republic.”

Wilkins quotes attorney and author Seth Abramson, who called Trump’s speech “fully unhinged.” Abramson wrote on Twitter that the speech “is quite simply, a speech intended to incite domestic terrorists to kill FBI agents and members of the Biden administration.’ ‘It is shocking that there are no legal consequences for incitement anymore.’” Everything he is saying, Abramson says, “bespeaks future violence.”

Are Trump and his right-wing supporters fascists?

Tom Nichols considers this question and thinks that the U.S. under Trump and the Republicans is in a “pre-fascist interlude” (( Here is some of what he writes.

“I’ve long resisted using the word fascism to describe Donald Trump and his Republican followers, but we have to overcome our reluctance to use strong language and admit that America is now beset by a dangerous antidemocratic movement masquerading as a party.”

“President Joe Biden has been getting a lot of static for referring to the ideology of Donald Trump and his followers as ‘semi-fascism.’ It isn’t surprising that right-wing pundits, such as the Fox News contributor Mollie Hemingway, are practically having to take out loans to buy extra strings of pearls to clutch. But even John Avlon at CNN and Matt Lewis at The Daily Beast are trying to warn Biden off from insulting millions of voters.” They are worried that it is unfair to some of Trump’s followers who may not accept everything Trump does or proposes.

Nichols continues: “We cannot, however, let our understandable fear of words such as fascism scare us out of talking about the reality staring us in the face. The GOP itself might not meet the full definition of a ‘fascist’ party—not yet, anyway—but it’s not a normal party, and its base is not an ordinary political movement. It is, instead, a melding of the remnants of a once-great party with an authoritarian, violent, seditionist personality cult bent on capturing and exercising power solely to benefit its own members and punish its imagined enemies among other Americans.

“Is that fascism? For most people, it’s close enough. A would-be strongman and a party of followers enveloped in racism, seized with nostalgia for an imagined glorious past, and drunk on mindless blood-and-soil nationalism all stinks of fascism.”

Nichols hesitancy about using the term is that the political conditions in the U.S. are not yet conducive for the full-blown emergence of a fascist party.

Fascism is more than a romance with a forceful right-wing leader. (And let’s remember: Trump is not a “strongman” in any way—he is one of the weakest and most cowardly men ever to serve as president.) A fascist takeover relies on a disciplined and organized mass party led by dedicated people who, once they gain the levers of government, will zero in on destroying the mechanisms—laws, courts, competing parties—that could dislodge them from power.”

Still, there exists a large and powerful right-wing movement threatening the democratic political system. Nichols puts it this way:

“But something has changed in American life. Trumpism, which has captured the base of the Republican Party, is authoritarian, antidemocratic, anti-constitutional, and anti-American. For now, Trump and the GOP activists are capable only of igniting scramble-brained jacqueries. But Trump’s most faithful followers are headed for fascism, and they will use the GOP as the vehicle to get there unless the rest of us remain true to a pro-democracy coalition.” Trump “has paved the way for them by corroding the guardrails of the American system, normalizing the kinds of rhetoric and attacks on opponents used by actual fascists, and convincing ordinary American voters that mass violence is an alternative to the ballot box.”

What would a Trump second term look like?

Jonathan Rauch considers this question — Rauch is a contributing writer at The Atlantic and a senior fellow at the Brookings Institution. He is the author of The Constitution of Knowledge: A Defense of Truth.

“Ever since the U.S. Senate failed to convict Donald Trump for his role in the January 6 insurrection and disqualify him from running for president again, a lot of people, myself included, have been warning that a second Trump term could bring about the extinction of American democracy. Essential features of the system, including the rule of law, honest vote tallies, and orderly succession, would be at risk.

“Today, however, we can do more than just speculate about how a second Trump term would unfold, because the MAGA movement has been telegraphing its plans in some detail. In a host of ways—including the overt embrace of illiberal foreign leaders; the ruthless behavior of Republican elected officials since the 2020 election; Trump’s allies’ elaborate scheming, as uncovered by the House’s January 6 committee, to prevent the peaceful transition of power; and Trump’s own actions in the waning weeks of his presidency and now as ex-president—the former president and his allies have laid out their model and their methods.”

Their playbook:

“First, install toadies in key positions. Upon regaining the White House, the president systematically and unabashedly nominates personal loyalists, with or without qualifications, to Senate-confirmed jobs. Assisted by the likes of Johnny McEntee, a White House aide during his first term, and Kash Patel, a Pentagon staffer, he appoints officials willing to purge conscientious civil servants, neutralize or fire inspectors general, and ignore or overturn inconvenient rules.

“A model for this type of appointee is Jeffrey Clark. A little-known lawyer who led the Justice Department’s environmental division, he secretly plotted with Trump and the White House after the 2020 election to replace the acting attorney general and then use the Justice Department’s powers to pressure officials in Georgia and other states to overturn Joe Biden’s victory. Only the threat of mass resignations at the Justice Department derailed the scheme.

“Trump has plenty of Jeffrey Clarks to choose from, and a Republican-controlled Senate would confirm most or all of them. But no matter if the Senate balks or if Democrats control it. Trump will simply do more, much more, of what he raised to an art in his first term: appointing “acting” officials to circumvent Senate confirmation—a practice that, the Associated Press reports, “prompted muttering, but no more than that, from Republican senators whose job description includes confirming top administration aides.”

Second,intimidate the career bureaucracy. On day one of his second term, Trump signs an executive order reinstating an innovation he calls Schedule F federal employment. This designation would effectively turn tens of thousands of civil servants who have a hand in shaping policy into at-will employees. He approved Schedule F in October of his final year in office, but he ran out of time to implement it and President Biden rescinded it.

“Career civil servants have always been supervised by political appointees, and, within the boundaries of law and regulation, so they should be. Schedule F, however, gives Trump a new way to threaten bureaucrats with retaliation and termination if they resist or question him. The result is to weaken an important institutional safeguard against Trump’s demands to do everything from harass his enemies to alter weather forecasts.

Third, co-opt the armed forces. Having identified the military as a locus of resistance in his first term, Trump sets about cashiering senior military leaders. In their place, he promotes and installs officers who will raise no objection to stunts such as sending troops to round up undocumented immigrants or intimidate protesters (or shoot them). Within a couple of years, the military will grow used to acting as a political instrument for the White House.

Fourth,bring law enforcement to heel. Even more intimidating to the president’s opponents than a complaisant military is his securing full control, at long last, over the Justice Department.

“….Trump immediately installs political operatives to lead DOJ, the FBI, and the intelligence and security agencies. Citing as precedent the Biden Justice Department’s investigations of the January 6 events, the White House orchestrates criminal investigations of dozens of Trump’s political enemies, starting with critics such as the ousted Representative Liz Cheney and whistleblowers such as the former White House aide Cassidy Hutchinson. With or without winning convictions, multipronged investigations and prosecutions bankrupt their targets financially and reputationally, menacing anyone who opposes the White House.”

Fifth,weaponize the pardon. In Trump’s first term, officials stood up to many of his illegal and unethical demands because they feared legal jeopardy. The president has a fix for that, too. He wasn’t joking when he mused about pardoning the January 6 rioters. In his first term, he pardoned some of his cronies and dangled pardons to discourage potential testimony against him, but that was a mere dry run.

Now, unrestrained by politics, he offers impunity to those who do his bidding. They may still face jeopardy under state law and from professional sanctions such as disbarment, but Trump’s promises to bestow pardons—and his threats to withhold them—open an unprecedented space for abuse and corruption.

Sixth, the final blow:defy court orders. Naturally, the president’s corrupt and lawless actions incite a blizzard of lawsuits. Members of Congress sue to block illegal appointments, interest groups sue to overturn corrupt rulemaking, targets of investigations sue to quash subpoenas, and so on. Trump meets these challenges with long-practiced aplomb. As he has always done, he uses every tactic in the book to contest, stonewall, tangle, and politicize litigation. He creates a perpetual-motion machine of appeals and delays while court after court rules against him.”

“Yet having been reinstated and never again to face voters, Trump now has no compunctions. The courts’ orders, he claims, are illegitimate machinations of Democrats and the “deep state.” Ordered to reinstate an illegally fired inspector general, the Justice Department nonetheless bars her from the premises. Ordered to rescind an improperly adopted regulation, the Department of Homeland Security continues to enforce it. Ordered to provide documents to Congress, the National Archives shrugs.

“At first, the president’s lawlessness seems shocking. Yet soon, as Republicans defend it, the public grows acclimated. To salvage what it can of its authority, the Supreme Court accommodates Trump more than the other way around. It becomes gun-shy about crossing him.

“And so we arrive: With the courts relegated to advisory status, the rule of law no longer obtains. In other words, America is no longer a liberal democracy, and by this point, there is not much anyone can do about it.

“Of course, there are congressional hearings, contempt-of-court orders, outraged New York Times editorials. Trump needn’t care. The MAGA base, conservative media, and plenty of Republicans in Congress defend their leader with whatever untruths, conspiracy theories, and what-abouts are needed. Fox News and other pro-Trump outlets play the role of state media, even if out of fear more than enthusiasm.

“Meanwhile, MAGA forces are busy installing loyalists as governors, election officials, district attorneys, and other crucial state and local positions. They do not succeed in every attempt, but over the course of four years, they gather enough corrupt officials to cast doubt on the legitimacy of any election they lose. They invent creative ways to obstruct anyone who challenges them politically. And they are not shy about encouraging thuggish supporters to harass and menace “traitors.”

“And so, after four years? America has crossed Freedom House’s line from ‘free’ to “partly free.” The president’s powers are determined by what he can get away with. His opponents are harried, chilled, demoralized. He is term-limited, but the MAGA movement has entrenched itself. And Trump has demonstrated in the United States what Orbán proved in Hungary: The public will accept authoritarianism, provided it is of the creeping variety.

“We should not be afraid to go against the spirit of the age and build an illiberal political and state system,” Orbán declared in 2014. Trump and his followers openly plan to emulate Orbán. We can’t say we weren’t warned.

Concluding thoughts

Despite Trump’s mishandling, most likely criminal mishandling, of government documents, Judge Cannon’s ruling to require a “special master” has the goal of stopping the DOJ/FBI investigation. The future of the investigation is thus jeopardized. The decision could be appealed, but this would take months and the government’s investigation could end up being shelved by House Republicans if they obtain a majority of seats in the 2022 midterm elections. Meanwhile, Trump and his allies at all levels of the political system will continue to spout lies about January 6 and about the FBI search and use their power to advance their extremist policies. Tens of millions of MAGA/Trump supporters will enthusiastically go along.

What will it take to protect US democracy from Trump and the right-wing fanatics and other Republicans who support the former president.

Dana Milbank identifies some of what must happened to prevent an anti-democratic Republican takeover of the federal government in his recently published book, The Destructivists: The Twenty-Five-Year Crack-Up of the Republican. He writes:

“There are any number of things we could do, as a country, to restore democratic institutions, and faith in them: restoring and protecting voter rights; cracking down on social media disinformation; reining in the corruption unleashed by Citizens United; reforming the Supreme Court; rebuilding civics education; rescuing local newspapers. But any of these remedies presupposed that both major American political parties are operating on the level. We don’t have that now. The Republican Party is not a good-faith actor in the democratic system. So there’s not much we can do but ride it out – and vote as if our way of life is at stake, for surely it is” (p. 308).

Indeed, such reforms are necessary. But it will take a broad, majoritarian, pro-democratic coalition to make these reforms and others politically feasible.

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