Part of it comes down to exhorting civil servants to be brave
stretch across a wide swathe of the political spectrum.
One striking sign of this was an opinion piece published in the New York
Times last November by three leading conservative lawyers, George Conway, J Michael Luttig and Barbara Comstock, which lambasted the “growing crowd of grifters, frauds and con men” among conservative Republican lawyers who, they charged, were “willing to subvert the Constitution”. They announced the creation of a new Society for the Rule of Law. This is part of a movement that aims to build “a large body of scholarship to counteract the new orthodoxy of anticonstitutional and anti-democratic law being churned out by the fever swamps.” Luttig is a former court of appeal judge, and has denounced one of his former clerks, John Eastman—another Trump ally among those indicted in Georgia on charges of racketeering linked to the 2020 election. (Eastman pleaded not guilty.)
This bid to build wide alliances extends beyond the legal sphere. Aisha Woodward of Protect Democracy, for example, says her organisation “has structured itself in a very specific crosspartisan way, where we have people who worked for Ted Cruz, and people who worked for Elizabeth Warren, all working together not because we agree on climate change or marginal tax rates, but because we are committed to the principle that elections need to be free and fair, that there needs to be a peaceful transfer of power, and that the tools of government should not be weaponised against political opponents or marginalised communities.” More of this is afoot than is publicly visible, as trust is slowly, carefully built between already bruised anti-Trump Republicans and people with whom they disagree on everything, except saving democracy.
But how could those Trumpian plans to concentrate power in the presidency be countered? For Skye Perryman, CEO of Democracy Forward, “It’s important to use every tool in the toolbox that democracy provides.” In an attempt to forestall purges, the Biden administration has begun a new rulemaking proceeding which aims, as Sozan puts it, “to put a huge speed bump in front of Schedule F.”
A speed bump, rather than a roadblock, because the new rule can be undone. Joe Gaeta of Democracy Forward argues that federal agency relocations designed to purge staff would run afoul of best practices outlined by the Government Accountability Office, which conducts investigations for Congress. In a petition that Democracy Forward filed with the Office of Personnel Management, the organisation highlights additional protections for career staff that could be put in place.
If Trump wins, congressional appropriations committees may have a particular interest in reviewing rushed relocation plans that are intended to hollow out, rather than improve, a given agency. And there is a specific Supreme Court ruling that could be used to try to block, or slow, a purge of the CIA.
All this raises an ironic possibility: that the long ascendancy of conservative legal orthodoxy might actually end up providing ways to stymie Trump’s more autocratic plans. The judiciary has been abandoning its deference to federal agencies. This scepticism, one Capitol Hill veteran observes, “might actually be a good thing”, in that, in some circumstances, “when you’ve got an authoritarian coming in and wanting to disregard any checks, the judiciary is a check on that.” Like the emergence of the Society for the Rule of Law, this points to a fissure between small-state conservatives and Trumpist authoritarians which may itself become an obstacle to the concentration of power.
Meanwhile, however, many individual civil servants may be exposed to severe pressures to act against what they see as the public interest. So the means to bolster resistance at this level may be less philosophical. Protect Democracy is recommending that they “evaluate security at the community, household, and personal level”, including “training for the unexpected” and planning in advance to help those who may need it. The Brennan Center for Justice, based at New York University School of Law, advocates measures such as “bystander intervention training” to try to ensure that officials subjected to hostility and abuse are supported.
Part of this comes down to exhorting civil servants to be brave. At a McCain Institute event in Arizona, the conservative Republican Liz Cheney, who lost her seat in Congress over her refusal to toe the Trump line, made a point of praising individuals for their courage in defending their institutions in January 2021. As one person at a pro-democracy group told me:
Some of it is just helping civil servants understand that if the worst-case scenario happens, they’re not going to be alone. There are organisations out there that are preparing for this… and these public servants are going to have resources to turn to, that can help them navigate this uncharted territory. That there are people out there that have their back and are going to be willing not only to defend the principle of a nonpartisan civil service but also to defend individuals who are put in really difficult circumstances.
Conversely, campaigners are preparing to put moral counterpressure on Department of Justice officials who are told to participate in the weaponising of pardons and investigations. As Woodward puts it: “It’s important that the people who are in these positions of power and public trust have a good understanding of what their rights and obligations are, and the potential professional consequences that might exist for them down the line, depending upon the actions they take.” She points out that “former Trump administration lawyers have been barred from practising law or have received sanctions from state bar associations. Those potential reallife consequences could have an impact on the calculus around decisions future officials make.”
Legal scholars are being asked to probe how unconstrained the presidential pardon power really is. And as Aziz
Huq notes, “There is case law about the illegality of politically motivated prosecutions.” Likewise, Sozan says that “the first time that a Trump Department of Homeland Security starts to do indiscriminate roundups of people that they suspect are undocumented immigrants”, there will need to be lawyers who have already done the necessary drafting, and “are ready to go at a moment’s notice”. Huq reports that the Brennan Center, for one, is developing arguments to challenge uses of the Alien Enemies Act.
As for the prospect of Trump invoking the Insurrection Act, Richard Blumenthal, a Democratic senator for Connecticut, is working with the Brennan Center to develop legislation that would clarify what counted as “insurrection”, tightening the basis on which the president could order the use of force. But this is a very long shot. Whether or not the military is deployed against protesters may well come down to how individual soldiers respond to an order to suppress dissent. As the constitutional law scholar Amanda Hollis-Brusky told Slate’s Amicus podcast recently, “the only thing we can do is… call it out and hope that good people are willing to disobey. That is the scariest place I can imagine us being.” Campaigners are planning to make sure military personnel understand both their rights and their obligation to resist illegal orders, with all that that implies.
The simplest way of avoiding any of this, of course, is if Trump loses. Groups such as Protect Democracy and Democracy Forward are among those trying to bring the fearful scenarios outlined here to public attention before November. But for Whitney Phillips, who researches right-wing media cultures at the University of Oregon, this is not straightforward, partly because many conservatives see their liberal opponents as evil, believing it is they who are trying to destroy democracy. Communicating effectively requires a much more fundamental examination of who delivers messages, and how they are likely to be received. Warning that Trump is going to usher in tyranny risks simply triggering counteraccusation. Witness Fox News last June labelling Biden a “wannabe dictator” for “having his political rival arrested”, and Trump himself declaring in March that the president is a “danger to democracy”, on the basis that his handling of illegal immigration from Mexico is “a conspiracy to overthrow the United States of America”.
Even if Trump is defeated, the underlying issues will remain. The hard problem is that not all Americans see the death of democracy as a disaster. Some seem actively ready for authoritarianism or, as Phillips suggests, for a kind of apocalyptic showdown—even believing liberals are the apocalypse. And as some liberal pro-democracy activists observe bleakly, plenty of Americans are so disillusioned with what democratic politics has to offer, it’s hard to get them to care.
Addressing that may involve both systemic reform to make government better reflect the will of the majority, and showing that politics really can improve not just the electoral college, but people’s actual lives. The question is whether the US is now so polarised that any of that can happen without a brutal confrontation coming first—on a scale that would make a fundamental rethink unavoidable.