December 29, 2020
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by Jonathan Wallace

I published the first issue of The Ethical Spectacle in January 1995, so next month will be the 26th anniversary. Reading back through old issues, I am (Bragging Alert) frequently impressed with my own prediction skills. In 1996, I published a piece on same sex marriage. More generally, in surveying American politics and culture, I made a series of quite accurate forecasts about the degradation of American political language that started with Newt Gingrich in the 1990's, and that led to the hyper-partisanship, demonization of Democrats, and political gridlock which provided the insanitary environment in which Donald Trump would thrive.

There is another kind of prediction, though, which is more specific and easier to miss. "Newt Gingrich will do harm to the English language as used in politics" is one thing, "Newt Gingrich will be president" (a prediction I did not make) another.

In November 2016, days after the shocking outcome of the election, I published a piece called Post-Cliff which purported to list some of the warning signs of American fascism in a Trump administration. I said that if two or more of the following happened we would be in deep shit. Almost none of these came to pass, and the list makes quaint reading now.

In rereading back issues, one of my self-criticisms is that I explain too much, go into unneeded details, generally talk too much (as I often do in person too). I feel the need now to mention that these weren't exactly predictions: they were things I thought might happen (and with just one exception) did not want them to. Their significance now is that I believed they were very likely, and this essay is an exercise in asking if they could have happened, and, in most cases, why they did not.

1. Bannon is in a secure place and apparently increasingly strong. Steve Bannon was soon after ejected from the administration. His star waned for years as he tried to be provide leadership, training and consistency to the European far right. Today, he is facing federal criminal fraud charges (and is likely to be the recipient of a Trump pardon) but is again prominently counseling the President in his attempts to overturn the election.

2. The trillion dollar infrastructure bill is making progress with little visible Republican opposition.. The bill went nowhere and in fact vanished from public discussion. This was a somewhat anomalous prediction; rather than being something I was frightened of, I would have supported something like it. I included it as evidence of Trump's total control over Republican minds, that a party that would never have considered this kind of spending would fall into line. Generally Trump's control over his party, which is certainly greater than any previous President in modern history, is limited to their fear he will punish them for verbal opposition. He had no particular control over legislation, likely because he did not understand the process and wasn't highly interested. Also, it was a fact of American politics long before Trump that people lose elections for something they said, not for how they voted on legislation the public also does not understand.

3. Hillary has been arrested. We never even got close to this. Trump's base continued chanting "Lock her up" at his campaign appearances for years. The Durham investigation seemed like an attempt to indict people who had been involved in the Russian influence investigation, but aside from charges against one CIA lawyer who forged a document, has resulted in complete silence from Durham.

4. Pressure is being put on Ruth Ginsburg to quit the court (based on allegations of senility) or impeachment proceedings are being planned. Again, not even close, though Ginsburg's death is already resulting in a huge change in America's legal landscape likely to last for decades to come.

5. There is an increasing or total abandonment of standards of civility and government rhetoric increasingly resembles 1984 or Stalin-era pronouncements. This emphatically happened, but is more in the nature of a general than a specific pronouncement.

6. Civil service is under attack and some form of Loyalty Review Board is firing Democrats/ anyone unwilling to play along. This is happening, but not exactly in the form I envisioned. Trump has weakened civil service via executive order, has fired workers at all levels for their independence, and has replaced them with loyalists and in many cases with quite extreme fringe figures. The sacking of Voice of America is a case study. Although Newt Gingrich is not that visible or influential, he did call at one point for the House Unamerican Activities Committee to be reinstated. Trump's style has not really been the creation of committees or commissions; you could argue that any group of people sitting at a table with him can transform into a "loyalty review board" instantaneously. I never thought of this before, but Mitch McConnell's personality from the beginning avoided theatrical gestures of the type we saw under Gingrich, like useless and unconstitutional culture-wars legislation; Gingrich, while trying also to position himself as a technocrat and sponsor of the Internet, led the passage of the Communications Decency Act, an over-the-top censorship law immediately invalidated by the Supreme Court. McConnell by contrast converted the Senate, even when Republicans also controlled the House, into a machine for confirming judges, and was not interested in anything else, including HUAC or other investigatory panels.

7. New investigative and police entities are being formed, for example, rabidly anti-Clinton FBI agents in NY office are broken out into an independent "Special Investigations Unit". There have been desultory small attempts to do something like this. The Durham investigation appeared to be one such politicized investigative unit, but produced no results. Trump had most success in utilizing Homeland Security cops to police demonstrations and, in one case which has received too little attention, apparently to act as a death squad, executing an unresisting suspect in the killing of a Trump supporter at a Black Lives Matter demonstration.

8. (Possibly won't be public but) CIA resumes major role spying on US citizens, as does Army etc. Trumnp's hatred of CIA and other intelligence agencies probably forestalled this. Since extremely creepy things which began with the Patriot Act in the Bush administration seemed to continue full force under Obama, and we no longer have Edward Snowden providing new snapshots of secret activity, it is hard to say exactly what has happened in the Trump era. My fear that people like me-- civil liberties attorneys and peaceful activists-- would increasingly be targeted for obvious surveillance and harassment (as we have been at various junctures in U.S. history, including during World War I, in the McCarthy era, and during the Vietnam war) has not happened. It would not surprise me to know I am being spied on, but if so it has been really unobtrusive. Civil liberties attorneys are "coal mine canaries" in a sense; after the first Smith Act trial of Communists in the 1940's, a New York federal judge jailed many of the defense attorneys for contempt, as did the judge during the Chicago 8 trial in 1968. Nothing like that has happened in the Trump era.

9. Increasing use of the military in a policing role. Trump tried to do this, talking about using the military to police large Democratic cities where demonstrations were taking place. His one attempt to do so, in Portland in 2020, was resisted by various people he listens to, and he quit after a few weeks. Generally, one of the prerequisites of the victory of fascism anywhere is support of a strong-man figure by the military. The surprisingly apolitical and democratic nature of the American armed forces did not lose much coherence in the Trump era. It helped the cause that he alienated them the same way he insulted and manipulated the other agencies and experts he needed.

10. Declarations of martial law in specific regions or nationwide. Trump has talked about doing this nonstop, but has never actually tried it. One of the lessons of the last few years is that Trump aspires to carry out most of the actions we would classically associate with a fascist capture of a democracy, but is not brutal, intelligent or consistent enough, does not have the organizational support, and is much too sensitive to public opinion.

11. Surprising domestic uses of military commissions to try people. We never even got close to this one.

12. Republicans who previously resisted Trump are falling into line without explanation. This has happened with a vengeance. It wasn't that much of a prediction, as it was already clearly occurring after Trump got the nomination. Nonetheless, one of the most surprising take-aways of the past few years has been how far people like Ted Cruz, Lindsey Graham and Rand Paul could slide into sycophancy. Cruz in particular as he continually sucks up to Trump must have some interesting moments talking alone with the wife whom Trump called ugly and crazy during the campaign. A paradox is that all three men likely have Presidential aspirations, but their sycophancy has established them (as it has Mike Pence) as completely unpresidential.

13. McCarthyesque investigations are mounted by multiple congressional committees. This overlaps two of the items above, and hasn't quite happened. There have been some attempts at Congressional investigations of the Russia probe, of Hunter Biden, and most recently and infuriatingly, Senator Ron Johnson has held hearings attacking pandemic science, claiming a conspiracy to suppress a discredited drug, hydroxychloroquine (someday, someone will write, and I will eagerly read, a 300 page sociological work on the phenomenon of right wing politicians chasing miracle cures). None of these efforts have been systematic, nor have they inspired the same fear or caused the same social consequences as McCarthy-era panels. As an afterthought (I am writing this about half an hour after completing the first draft of this essay) in a society at epistemic low tide, HUAC style investigations may not be needed when mere rhetoric is often sufficient to achieve disruptive goals. In the McCarthy era, people were called up before Congress to answer whether an inlaw or college roommate had been a Socialist, or whether the interviewee had ever joined ACLU or National Lawyers' Guild, deemed to be front organizations. Today, simply calling someone a socialist does all that work and more--despite the fact that the word has become an empty sign which almost no one understands. The ultimate irony is when people susceptible to Russian influence have in recent years accused people who aren't susceptible of being "Socialists". Generaly, this world is a whole lot more fucked up than I ever dreamed it could be in my optimistic twenties (speaking of predictions).

14. Congress is impeaching independent judges or recalcitrant employees of executive branch. The only impeachment which occurred was, of course, of the President himself, by the Democratic house, with no useful results, an effort which should have been skipped. One sidelight it is important to mention is that some of the tactics I list as harbingers of fascism have been used at times by Democrats. The looming attack on the Electoral College votes in Congress in January was used by Democrats against George Bush in 2004 and Donald Trump in 2016. These are not proud memories. Mitch McConnell, as I have already said, was not interested in these theatrics; neither were they needed. Trump simply filled judicial vacancies, and fired recalcitrant employees himself. No assist from Congress was needed, except for confirming his appointments.

15. One or more congress folk, not necessarily democrats, are suddenly arrested for graft or child porn. Trump constantly teased, but never accomplished, the prosecution of his political adversaries. On his way out, however, he seems to be pardoning every Republican politician who ever was convicted for graft.

16. Increase in prosecutions of occupy, black lives matter etc etc. This has happened. Prosecutors have "upcharged" protestors nationwide, finding excuses to indict people for felonies when the facts only support misdemeanors, etc. This was a trend which preceded Trump and will outlast him. Attorney General Barr called for a return to sedition prosecutions, which themselves have been a warning signal of dangerous times in U.S. history (think the rivalry between John Adams and Thomas Jefferson, Lincoln's prosecution of individuals opposing the Civil War, the World War I cases against professors and intellectuals, the McCarthy era, and the charges against people like parenting expert Benjamin Spock in the 1960's).

17. Increase in material support prosecutions. I am not aware of any. "Material support" of terrorism was a Patriot Act doctrine which led to the prosecution of individuals who had done no more than quote terrorist figures on a web site. The Trump administration doesn't seem to have taken much of an interest in this tool-set.

18. Important highly visible roles for trump children...congressman resigns or is arrested, there is a by election and don Jr is in congress chairing a new huac....or Trump suspends nepotism laws and appoints Eric to chair Loyalty review Board. This was a really easy prediction, for which I can't take much credit. Ivanka's strange and intermittent posturing never resulted in any consistent public role in the White House, though there is word she is positioning herself now for a primary run against Marco Rubio. Don Jr. wants to be president one day.

19. Vigilantism against Trump opponents. The President has called for violence against people he doesn't like nonstop. People who support him have committed several murders of protestors, starting with Heather Heyer. The arrest of white supremacists plotting against Governor Whitmer of Michigan was a disturbing instance of something I feared would be common by now. But I am starting to think that "dog whistles" do not often turn into action. When Hitler came to power, he had an armed vigilante branch of the Nazi party, the SA, to whom he could and did give direct orders to beat and kill protestors. Trump doesn't. Also, going right up to the verge of rhetorical violence, he has always stopped short of asking the NRA constituency to come out and kill people.

20.American citizens sent to Guantanamo. Nope.

21. First use of a drone strike within US borders (to take out an alleged revolutionary encampment or dangerous radical driving on a rural highway). This hasn't happened but seems inevitable....Perhaps in a Biden administration?

More than anything, "Post-Cliff" seems like a snapshot of my own mind, and the fear I felt right after the election. I am not embarassed, though. Trump clearly would have happily carried out almost any item on this list, and teased many of them. In the end what has protected us more than anything else is his incompetence, lack of organizational and leadership skills, a failure to educate himself or trust experts, and weaknesses including a fear of public opinion. Trump aspired to be the Man on Horseback, but may simply have opened the door for the real one, who may be Don Jr. or more likely someone we haven't even heard of yet.

One moment I personally experienced stands as iconic of Trump's deficits. I was (proud to say) on a team of lawyers that filed two amicus briefs in one of Trump's post-election lawsuits in Pennsylvania. Attending a hearing by telephone, I heard Rudy Giuliani, in court for the first time since 1992, tell the judge, "I am not sure what you mean by strict scrutiny". The strict scrutiny standard courts apply in First Amendment cases (including election litigation) is one of of the basic ten things any attorney needs to understand before litigating any constitutional matter. All of the defaults in Trump's personality and skills were evoked in that moment when it became evident that the President of the United States, the "most powerful person in the world" as we never stop hearing, had sent to court, on this critically important and strategic case, a crazy showman who had no business being there.

Many of the things Trump attempted, which failed, were quite plausible and could work for someone else. I am writing somewhat prematurely--the January attack on the electoral college has not happened yet. A future stronger and better supported and organized would-be dictator might lose an election by a narrower margin, and, overwhelmingly controlling both houses, succeed in throwing out electoral college votes in the future.

So much of this kind of prognostication involves mere Ontologizing, trying to figure out which categories apply, which can degrade into a pointless exercise. Right after the Biden victory, I found myself thinking, briefly, that a miracle had happened: It was as if the German people had thoroughly kicked the Nazi Party out of government in the 1932 elections! That never happens! As the votes continued to be counted, and it became evident that the predicted "blue wave" was not a Thing, I began to see that the 2020 election might be, despite Biden's best efforts, similar to 1930, not 1932, in Germany-- the end hasn't come yet, but there is much to fear.