Taken together, Trump’s approach to the judicial system and its verdicts builds on an intellectual tradition rooted in extreme authoritarianism.
Indeed, historically fascist leaders depended on destroying legal traditions — while retaining the appearance of a functioning legal system — to create a new dictatorship that eliminated the distinction between the state and civil society. The result? The leader decided right and wrong in the name of the people, ultimately eliminating the role of a free press that could investigate the leader or an independent judiciary that checked and balanced his power. Trump’s numerous efforts to disparage the media, signal support for people convicted of political crimes but who show him loyalty and force personal loyalty from the courts bring him closer to the dangerous intellectual territory of fascism.
In fascism, the dictator’s discretionary power overrides the rule of law. In Nazi Germany, Adolf Hitler famously represented himself as “the supreme judge of the Nation.” The most important Nazi legal theorist, Carl Schmitt, claimed in 1934 that the Fuhrer was the embodiment of the “most authentic jurisdiction.” Schmitt had careerist and ideological intentions. He wanted to become the “crown jurist” of the Third Reich, and he was willing to go beyond his previous conservative positions and collaborations with earlier German administrations.
Schmitt ultimately violated his own ideas to accede to Hitler’s. Schmitt ended up becoming a full-fledged Nazi, accepting Hitler’s cultlike leadership, legitimizing the Fuhrer with his legal persona and ultimately giving legal cover to the fascist idea that the leader is always right. As Hitler’s legal expert, Schmitt fully understood that the destruction of legality as it had previously existed was at the center of Nazism’s political project: the elimination of democracy and the creation and perpetuation of dictatorship.
Like Schmitt, most jurists, prosecutors, judges and civil servants acquiesced to Hitler’s transformation of the legal system such that his became the final word. In 1933, after all Jewish, Social Democratic and other “politically unreliable” judges, prosecutors and district attorneys were permanently removed, the chairman of the German Federation of Judges, Karl Linz, said after meeting Hitler: “We have placed everything in his hands with complete confidence.”
Penal law changes in 1935 extended the criminalization of “homosexual acts” and other behaviors considered deviant by Hitler.
Jurists also turned a blind eye to extralegal acts. As the famous anti-fascist legal jurist Ernst Fraenkel observed, the Nazis eventually created a dual state, which operated inside and outside the law. These two systems worked in tandem. An ad hoc people’s court was created where due process was totally absent and the German Supreme Court legitimated Nazism’s bending of all rules. For example, the courts did not contest what’s known as the enabling act of March 1933, which allowed the Nazi government to enact its own laws, including ones contrary to the constitution. They also rendered parliament useless and paved the way for subsequent rules that allowed them to denationalize German Jewish citizens and outlaw political parties.
Either because of ideology, ambition, careerism or cowardice, judges and prosecutors essentially contributed to Nazi rule. This ultimately allowed Nazis to see Hitler as an incarnation of the highest form of justice because he owned the truth.
Their dubious logic was that Hitler was the ultimate interpreter of justice and the source of law precisely because he exclusively represented the interests of the German people and nation. In Nazi Germany, Hitler was the leader, the supreme judge, and, as Nazi Minister of Justice Hans Frank affirmed, the only legislator. His word, or whatever he said, was more important than the written law, and the latter was reinterpreted according to his will — he was the recipient and also the creator of the legal order.
According to the anti-fascist thinker Antonio Gramsci, the Nazis radically questioned the notion of an abstract universal justice. And so, the will of Hitler was formulated as German public law. The racist Nuremberg Laws of 1935 that denationalized German Jewish citizens are the most famous example of this. Nazis felt that as long as laws were inspired by Hitler’s orders and will, they were legitimate. The law provided cover for violations of justice. As Frank put it, “the categorical imperative of the Third Reich[:] … Act in such a way that the Führer, if he knew your action, would approve it.”
This is why, as philosopher Hannah Arendt pointed out, another Nazi perpetrator, Adolf Eichmann, could make the argument that Nazi crimes such as the Holocaust had a legal basis. These acts emanated from Hitler’s unrestricted power. In short, Nazi genocidal actions were “legalized by the state." Thus, for the Nazis, the leader became the law because he represented ideological truth. His “words had the force of law,” Eichmann is quoted as saying.
During Nazism, democratic judges and prosecutors were purged and those who remained or were appointed understood their job as translating the leader’s will into law. Avoiding that, or even the appearance of it, is critical to protecting the rule of law. Recently, Sotomayor warned that the Supreme Court appears to be bending the rules for Trump. The president’s response — demanding that she and Ginsburg recuse themselves from cases pertaining to him and his administration — recalls these dangerous legal ideas from Nazi Germany.
And it’s not the first time the Trump administration has done this.
A few weeks ago one of Trump’s lawyers, Alan Dershowitz, suggested during the impeachment trial that the national common good as expressed by the leader of the people is ultimately more important than illegality and the abuse of power. Trump’s acquittal seems to have emboldened him to see himself as not just above the law but as the ultimate interpreter of the rule of law.
But there is hope. While there are many disturbing analogies to the fascist past, the Trump administration has not yet destroyed the rule of law. This gives citizens time to express their rejection of these attacks by defending the independence of the judiciary in the November presidential elections. The future of democracy, and the rule of law on which it is based, is at stake.