Republished with permission from Thom Hartmann.
Americans need to seriously consider, right now, what life and government in America would look like if a MAGA Republican became president.
The lead story across much of the media last night was that Donald Trump might bring Jeffrey Clark—the crackpot lawyer who hatched the phony electors scheme—into the Department of Justice as Attorney General, should he get reelected in 2024.
That would be bad, but it’s not where people need to be looking for the most severe danger in a second Trump presidency.
The last time Donald Trump was president, he brought in Bill Barr to corrupt the Department of Justice, thinking—correctly—that between Barr and Chris Wray at FBI he could prevent for years any serious investigations of his ties to Russia and his many financial and political crimes.
And, it increasingly appears, Wray and Barr holdovers at DOJ and the FBI may well have played a major role in the those agencies’ unwillingness and inability to investigate Trump for trying to overthrow our government in the first two years after January 6, 2021.
But that didn’t keep him in power after he lost the election of 2020, and Trump now realizes why. He thus has a new strategy, should he win in 2024.
Trump now knows that the DOJ shouldn’t have been his starting point to corrupt government to the point where he could proclaim himself America’s first dictator: instead, it should have been the Pentagon.
Which is why if Trump gets hold of the Department of Defense again, it will almost certainly spell the end of the American experiment. This is where we should all be looking right now, and where Congress should be acting to protect us from him or any other future wannabee dictator.
First the backstory, then what Trump or a fascist like him will do and the steps Congress must take now to prevent it from happening.
The Founders and Framers knew about this threat of a politicized military—they’d seen it played out as military coups across Europe numerous times over the centuries—and put what they thought would be ironclad protections against it in our Constitution.
For example, the House is back in session today after their July 4th recess, and between now and the end of the US government’s fiscal year (end of September) there will only be 24 total working days to get things done; there are only 12 legislative days before the monthlong August recess.
At the top of their agenda is the “must-pass” National Defense Authorization Act or NDAA. It’s “must-pass” because it’s the product of one of the Constitution’s Framers’ efforts to prevent a military coup or dictatorship from emerging in America.
Probably the single hottest debate (after slavery) in that era of America was about how to prevent our country’s military from assuming so much power it could threaten the new nation’s democratic systems.
This is why the entire military power of the nation is put in a civilian’s hands. Article II of the Constitution says that only the president is the:
“Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…”
It’s also why the NDAA is so critical. Many of the Framers didn’t want a standing army during time of peace to even exist, preferring instead that each state have a militia and that militia be called up into a national army should the country be invaded or otherwise attacked.
This, they believed, would limit the chances of a military coup with the Army overthrowing our civilian government during times of peace. Therefore, the only limit on Congress’ ability to spend money has do to with the military, which, under the Constitution, can only exist and be funded in 2-year bites.
Nowhere else is Congress limited in how long it can fund anything else. But, when it comes to the military, Article I, Section 8 says:
“Congress shall have the power … To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years…”
If Congress doesn’t act every two years, the Army ceases to be funded and would soon cease to exist. Which explains the annual panic around the NDAA, which is that funding source.
It’s also why they wrote the 2nd Amendment, which authorized the states to have and arm statewide militias that could be called up by the federal government and led by the president (per both Article I and Article II) should the country be attacked.
Jefferson was so enthusiastic about this that when he became president in 1801, he cut the nation’s standing army left over from the Revolutionary War from hundreds of thousands down to a few thousand men. That choice led to the US Capitol being burned in the War of 1812; after that talk about ending standing armies and relying on Swiss-style state militias pretty much vanished to this day.
Building on this theme of wariness of an out-of-control military, in 1878, after the failure of Reconstruction, Congress—at the urging of the newly-admitted, newly-empowered Southern states—passed the Posse Comitatus Act, which forbids the military from intervening in any way in the lives of civilians.
When you watch old westerns and see the sheriff “round up a posse” that’s a posse comitatus. The entire law (later amended to include the Air Force) deals with the military, though, instead of local sheriffs, and is only one sentence long:
“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
It was designed to keep the Army out of the Southern states after it had been withdrawn at the end of Reconstruction, but in the years since has become a bedrock part of American law designed to protect us from misuse or abuse by the military’s awesome power.
In the years since, a separate law (10 U.S. Code § 275 – Restriction on direct participation by military personnel) has come into being that includes the Navy and Marine Corps, but it’s essentially just an extension of the Posse Comitatus Act.
Which brings us to Trump or a MAGA Republican taking the White House in 2024.
We know from Trump’s efforts and his December 16, 2020 draft Executive Order (he apparently couldn’t get General Mark Milley and others in the White House to go along) that he’s perfectly willing to use the military against civilians and our civilian government.
That draft order would have had the Army seize voting machines in swing states, effectively suspending the election process and outcome, a direct insertion of the military into domestic politics in violation of Posse Comitatus.
Trump also used the military during his presidency in ways that only barely skirted Posse Comitatus. As Senator Tom Udall and Rep. Jim McGovern wrote for NBC News in August of 2020 (five months before January 6):
“President Donald Trump recently took the drastic step of sending thousands of National Guard troops to Washington, D.C. They were not sent to repel a foreign attack on the nation’s capital but to mobilize against American citizens peacefully protesting the senseless killing of George Floyd. The Trump administration then deployed scores of unidentified federal law enforcement officers, many of them from the Department of Homeland Security, to Portland, Oregon, resulting in increased mayhem and injuries to nonviolent protesters.
“This move resembles what we might expect to see from authoritarians abroad rather than a president of the United States.”
Trump got around Posse Comitatus by having his corrupt Attorney General, Bill Barr, issue a ruling that Posse Comitatus didn’t apply to “training exercises,” so having members of the US military kidnap, beat, and arrest protesters in DC and Portland was just, Trump and Barr proclaimed, “training.”
As Udall and McGovern wrote:
“Using the military to police Americans flies in the face of U.S. traditions and values—and violates a long-standing principle known as ‘posse comitatus.’ More than a century ago, Congress passed the Posse Comitatus Act to ban the use of federal troops for law enforcement purposes not expressly authorized by law.
“But Trump and Attorney General William Barr have found a way around the act. Congress must act quickly to close this loophole before more communities start looking like war zones.”
The loophole still exists, waiting for Trump’s return.
Which brings us to action. Trump’s first run at following in his mentor (and possibly owner) Vladmir Putin’s footsteps and becoming America’s first dictator involved corrupting the Department of Justice, gaining the loyalty of the nation’s oligarchs with a massive tax cut and numerous corrupt government no-bid contracts, and gutting federal regulatory agencies.
What he hadn’t counted on was that the military would stop him.
He succeeded in getting his “acting” defense secretary, Chris Miller, to turn down the acting Secretary of the Army’s (Ryan McCarthy) request for National Guard troops to protect the US Capitol against the violent mob McCarthy’s intelligence people saw forming on social media in the weeks between Trump’s December tweet and January 6.
At the possible request of the White House or his assistant, Kash Patel, Miller issued a memo explicitly saying the Guard, for January 5-6 only, was:
- Not authorized to be issued weapons, ammunition, bayonets, batons, or ballistic protection equipment such as helmets and body armor.
- Not to interact physically with protestors, except when necessary in self-defense or defense of others.
- Not to employ any riot control agents.
- Not to share equipment with law enforcement agencies.
- Not authorized to use Intelligence, Surveillance, and Reconnaissance (ISR) assets or to conduct ISR or Incident, Awareness, and Assessment activities in assistance to Capitol Police.
- Not allowed to employ helicopters or any other air assets.
- Not to conduct searches, seizures, arrests, or other similar direct law enforcement activity.
- Not authorized to seek support from any non-DC National Guard units.
As a result, Trump nearly succeeded in decapitating the federal government by having Vice President Pence and House Speaker Pelosi assassinated by his militia buddies. Combined with a proclamation of a state of emergency, allowing him to completely repudiate Posse Comitatus, Trump could have become America’s Putin in a matter of hours.
What prevented him was resistance from the military itself, which appears to be why Trump was trash-talking Joint Chiefs’ head General Milley when he was showing off top-secret Iran war plans to reporters at Bedminster. He knows how close he came to overthrowing our democracy, and is still bitter and angry that Milley refused to go along with him.
Next time he won’t make that mistake. His first step in office will be to replace the Joint Chiefs and secretaries of the military branches with “acting” (no Senate confirmation) men who will do his bidding, no questions asked.
He’s already telling us this: six months after he left office he was still calling for Milley’s head.
His second step will be to follow through on what General Michael Flynn was pretty much begging him to do on January 6: declare a national state of emergency, freeze government functions, and suspend elections.
Congress needs to act now to limit a future president’s power in this regard, particularly around states of emergency that don’t involve direct attacks by foreign states on the US. (Ironically, Republicans called for this after Pearl Harbor.)
Trump was also able to do much of the damage he did last time by abusing the Constitutional requirement that senior officials like the Secretary of Defense be vetted and approved by the Senate.
Senate confirmation, the Framers of the Constitution believed, was a vital guardrail to protect democracy.
He’d no doubt repeat ignoring that constitutional requirement, making men like Steve Bannon his “acting” Secretary of Defense and installing similarly obsequious leaders into each branch of the military, among other positions.
As Alexander Hamilton explained in Federalist 76:
“To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters…”
Instead, Trump called them “acting” officials or even left the top positions open with the senior-most non-Senate-confirmed official who’d do his bidding in charge of day-to-day functions.
For example, in August of 2020 the Government Accountability Office issued an opinion that “acting” head of the Department of Homeland Security, Chad Wolf, was serving illegally. Trump ignored them.
The Vacancies Act of 1998 gives the president 300 days to come up with senate-confirmation of new nominees and contains a massive loophole that allows, after those 300 days, “acting” people to fill roles on a limited basis.
The Act should be amended to a month or so and eliminate the “acting” provision except during time of war or an act-of-God emergency.
In addition, “training” provisions in the rules governing implementation of the Posse Comitatus Act must be struck and replaced by Congress with an actual law preventing a future president from doing what Trump did in Portland and DC—and was ready to do to the entire nation to stop the election from being certified.
Trump may or may not be the GOP’s nominee this time next year, but whoever it is now is the time to harden our democracy against a neofascist MAGA Republican rising to that office.
Ideally, Schumer and Jeffries can pull this off (it will require a few Republicans in the House who care about democracy) well before the 2024 election.
In the meantime, America needs to pull this fascist MAGA weed out of the garden of our democracy by the roots. And that means prosecuting those with power who were close to Trump and wanted to overturn the election.
Let’s hope Jack Smith has the guts to go after the people who were at the top of the Trump administration and the turncoat members of the House and Senate, because the next time they won’t be as restrained as Milley and the military forced them to be in 2020.
Thom Hartmann, one of America’s leading public intellectuals and the country’s #1 progressive talk show host, writes fresh content six days a week. The Monday-Friday “Daily Take” articles are free to all, while paid subscribers receive a Saturday summary of the week’s news and, on Sunday, a chapter excerpt from one of his books.