We’re Thinking About Constitutional Crises All Wrong

Trump can eviscerate democracy without defying a court order. It happened 90 years ago. And how we stop him.

You’ve heard it on CNN, MSNBC, NPR, in The New York Times, The Washington Post, and on every political podcast:

The host asks a legal expert: “[A]re we on the brink of a constitutional crisis?

The expert responds: “I think we could very well be there…If the Trump Administration decides to run the gauntlet and openly defy a judicial order…then I think we’re there.”

This exchange came from a New Yorker interview with Anthony Romero (head of the ACLU), a legal expert if there ever was one. If we are to be rescued from Trumpian destruction, Romero could be shortlisted for a Nobel Peace Prize. But on this day, he regurgitated a dangerously moot point.

Focusing on - and waiting for - Trump to defy a court order misreads how much catastrophic damage he and Musk can do without crossing the “Rubicon” of court defiance. But pundits training themselves on provocative flashpoints like this is normal.

Humans angle toward major, time-related thresholds - an economic crash, a military invasion, a fiscal year, a presidential election - because they’re simple ways of understanding the changes happening around us. This tendency resembles endpoint bias, the default belief that our current era will continue only until a titanic event thrusts us into a new one.

Politics are never that simple, especially the modern kind where departments, agencies, parties, industries, NGOs, the media, and ego-maniacal individuals - with way too much money - crash and tumble over each other like the inside of an offroading clown car.

One modern leader of a Western democracy managed to pull his nation’s car over, toss out the clowns, and grab sole control of the wheel.

When we hear “Adolf Hitler,” our brains jolt to death camps and world war. But these overshadow the methodical process Hitler used to pick apart the Weimar Republic like a Lego set - legally - in less than two months.

The actions he took - before the gas chambers, the labor camps, and the aerial bombings - were what allowed Hitler to become Hitler, the greatest political monster in history. Any leader can replay his sequence without tripping constitutional tripwires and then can use their nation’s awesome resources to become whatever political colossus they desire, inevitably at the awful expense of everyone else.

In January, historian Dr. Timothy Ryback published an article in The Atlantic titled, “How Hitler Dismantled Democracy in 53 Days.” Its final paragraph features a quote from Joseph Goebbels - Hitler’s minister of propaganda - marveling at how the Nazis disassembled a constitutional republic “entirely through constitutional means.”

“The big joke of democracy is that it gives its mortal enemies the means to its own destruction.”

To observers of Donald Trump, Hitler’s march to dictatorial power will sound grimly familiar:

1. Before power, Hitler was a once-in-a-generation political organizer. He crisscrossed Germany by air promising to drain the “parliamentarian swamp,” increase foreign tariffs, and enact mass deportations. He grew Nazi control in Parliament from 6.6% in 1924 to 37.3% in 1932.

2. With the most seats, he won the constitutional power to appoint the German Speaker of the House. His choice, Hermann Göring, immediately began decrying government abuses against Nazis.

3. Hitler lost the 1932 presidential election to Paul von Hindenburg, but wealthy industrialists came to his aid. The “Keppler Circle” saw Hitler as their best chance to defeat labor unions and told Hindenburg to appoint Hitler chancellor. Hindenburg hated Hitler but did it anyway, as was his constitutional right.

4. Finally in power, Hitler argued to an American reporter that, “37 percent represents 75 percent of 51 percent,” rationalizing that his tiny Parliamentary majority gives him absolute power. He riffed to ministers, without evidence, that millions of Germans had welcomed his chancellorship with “jubilation.”

5. He gave ferocious speeches criticizing the previous administration and outlining his plan to restore economic stability and national dignity.

6. He used his power as chancellor to pardon all imprisoned Nazis, including those sentenced to death for murder.

7. He used his executive power to send Nazis to state government offices and evict bureaucrats.

8. He threatened left-wing media and opposition parties, attacked due process and the electoral system, and announced his cabinet would present a plan to dissolve the government “in accordance with the Constitution.”

9. Hitler's final move: He set the Parliament building on fire, declared a state of emergency, and convinced Congress to pass a law giving him temporary “emergency” powers to rule without Congress and irrespective of the Constitution. The amount of time Hilter requested was four years.

10. With his new, consolidated, constitutionally approved power, he banned left-wing media, arrested journalists, banned opposition parties, suspended civil liberties, and curbed states’ rights. He purged the police, instituted his own, and issued a “shooting decree” for them to fire on anyone without prosecution. Then came the first concentration camp and plans for a European takeover. The courts initially pushed back, but state-sponsored intimidation swelled to the point that judges eventually backed down.

Glancing at our political scorecards at home, we remember that Trump has 1) flooded national media with propaganda promoting tariffs, swamp draining, and mass deportations; 2) appointed Mike Johnson, a lackey, as speaker of the House; 3) collected millions from wealthy CEOs; 4) claimed absolute power; 5) slandered the Biden administration in front of the Biden administration and promised to bring down “the price of everything”; 6) pardoned 1,500 Jan 6 rioters, including those convicted of assault and seditious conspiracy; 7) dispatched Elon Musk to purge 10,000 bureaucrats; 8) sued ABC, CBS, CNN, the Des Moines Register, The New York Times, and the Washington Post, and opened investigations into PBS and NPR.

Trump has yet to justify assuming emergency powers but has long discussed invoking the Insurrection Act and then using the Military to punish critics and shoot protesters “in the legs.”

Trump has, so far, sidestepped Congress as if trying to will their power out of existence by issuing his commandments through executive order, all but daring the judiciary to stop him. Many judges have pushed back and temporarily blocked his orders. Still, many cases are destined for the Trump-friendly Supreme Court, and - for those praying for a justice-led resistance - the Trump administration now claims to have the constitutional power to fire administrative judges at will.

The founding fathers got many things right but some crucial things wrong. They understood the psychology whereby an individual’s personal ambition could overwhelm their civic responsibility. Thus checks and balances were established to play ambitions in each branch of government against one another.

However, the founders did not account for the sociology of tribalism - in the modern form of stiff-necked political parties - that individuals would harness to pursue their ambitions. Tribal zeitgeist hands a leader default support from allies in other branches whose majority there drains checks and balances of its power to restrain. A tribal leader can then blame every bad thing on an “outgroup,” and government legally will grant him the near-absolute power to “quell the emergency” in any way he chooses.

In the United States as in Weimar Germany, there’s no need to snap the Constitution in half when a craven-enough president can bend and twist it into oblivion. Trump can avoid defying court orders by manipulating courts and judges to his will. He appears poised to begin firing judges like he’s firing bureaucrats. If that doesn’t work, he’ll slander them, threaten them, send federal troops to their homes, and post their kids’ school addresses online. It’s not Hitler’s brownshirts, the SS, or a Night of Long Knives, but Trump’s influence through social media, his gun-toting base, and all three branches of government amounts to a level of intimidation that can achieve the same end.

Trump has a specific defiance style, which is not Hitler-esque. He is less barbaric madman than skittishly deviant child. If his mother screamed, “Don’t touch the stove,” Donald would lunge directly at it, and when slapped away, would scamper behind a couch, but peer out to scope another way to victory. In late January, Trump issued a memo freezing federal loans and grants, but a nationwide outburst pushed him to rescind it. During his first term, Trump regularly obeyed court orders, and in his Oval Office news conference on Feb 12, he repeated, “We always abide by the courts,” and for good reason. Backing down helps create the impression that he follows the rules, a smokescreen of moral deception.

But like a child, he knows he does not have supreme power, at least not yet. But if we normies use 20% of our brains to calculate how to get what we want, Trump uses 120%. In his first term when Trump could not get his chosen department heads confirmed by Congress, he appointed “acting heads” who operated as freely as if they were confirmed. This was fully Constitutional. Trump 1, Constitution 0. This was just the first of many more to come.

If neither Congress nor the courts will save us, how can we fight back? Americans are not skilled at protesting and have less experience standing up to dictators than any people on Earth. Not since the 1780s have we been forced to apply our creativity and ingenuity to a revolutionary effort.

This year, there have been large, impassioned protests against Trump and Musk’s usurpation of government power, but they’ve had no effect because they’ve struggled to occupy national broadcasts. Newly pro-Trump media magnates suppress their coverage and balanced outlets are drowning in other Trump stories to cover. In their press conference, neither Trump nor Musk were asked how they felt about the protests, nor commented on them.

Americans, for once, must swallow our exceptionalist pride and look abroad. In Serbia, Srdja Popovic led the Otpor movement that took down Slobodan Milosovic in 2000. The group amassed popularity and media attention despite police repression and suppressive state media by being creatively provocative. In one instance detailed in his book, Blueprint for Revolution, they wrapped a paper likeness of the dictator around a barrel, left it and a baseball bat on a sidewalk next to a sign saying, “One dollar to whack Slobo.” Disgruntled citizens walked up, put a dollar in the jar, picked up the bat, walloped the barrel, and walked away laughing. When the police arrived, there was no one to arrest and were caught on video shoving a barrel into the back of a squad car.

Nelson Mandela had help from a worldwide Anti-Apartheid boycott movement that banned the purchase of South African goods. Beginning in London, the movement grew to where United Nations member states ceased trade and diplomacy with South Africa. Trump and Musk are joining a global kleptocracy - which includes Vladimir Putin, Xi Jinping, Nicholas Maduro, and Kim Jong Un - whose actions reflect a stronger desire for financial power than ideological world domination. Therefore “economic blackouts” - like those organized by The People’s Union USA against Trump-supportive companies (Amazon, Best Buy, Lowes, Nestle, Target, and Walmart), if sustained - can move elites away from Trump.

It is elites who need to be targeted most. Their support for Trump is a means to an end (money/power), not an end in itself. The unseating of almost every dictator in history has required elite cooperation.

American liberals have spent years sending half their money to Jeff Bezos to give us one-day shipping from Amazon, organic avocados from Whole Foods, and enlightened news and opinion from The Washington Post. Then the world spotted him squirming behind Trump at the last inauguration. The supplication of the powerful to the more powerful - even while using a democracy’s constitution to destroy both - is a feature of human nature we need to incorporate into any resolution we want to be successful.

Case in point, in 1933, President Hindenburg famously hated Hitler but remained silent as the chancellor’s thugs assaulted German Jews. He did not invoke his Constitutional powers from Article 53 to remove Hitler from power. Instead, he signed a decree permitting the swastika to be flown beside the national colors, and a week later, appeared next to Hilter at a ceremony in Potsdam wearing full military regalia. In front of the entire German public, two mortal enemies shook hands.