Category Archives: authoritarian threats in US

My Contribution to NYU’s Democracy Project: “Making Civil Society Great Again to Protect the 2026 Elections”

authoritarian threats in US, election subversion risk

A snippet:

What can be done? As I explained more fully in an August guest commentary in the New York Times, states, the courts, and ultimately the American people must serve as the bulwarks against election subversion. In this follow-up post, I want to explore more deeply what the American people can do, and what it means when I wrote in the Times that to “keep us from sliding further into autocracy, it is civil society we must make great again.”

American elections are hyperdecentralized and fragmented. Federal law controls some things about how elections are run, but administration is mostly a local matter, with states designating counties or other smaller units to actually run elections. It falls to election administrators and local boards, some of whom are chosen on a partisan basis, to do things like assuring there are adequate procedures protecting the chain of custody of ballots, choosing the most suitable voting machines, and setting rules for resolving challenges to ballots or voters.

These local administrators and bodies are the front line of defense against efforts to subvert election results. Subversion can happen in a number of ways including by changing voting rules to disenfranchise classes of voters, accepting non-meritorious challenges to ballots in close elections, closing or moving polling places to make it harder for people to vote, allowing federal officials near or into polling locations in ways that can intimidate voters, and much more.

Election administrators are professionals, and most are imbued with a deep commitment to free and fair elections. Partisan boards can be more of a mix in terms of their commitments. But both administrators and boards might succumb to pressure to bend or break election rules if Trump himself directs or endorses such interference in the Orwellian name of protecting “election integrity.” 

The solution is to rely on civil society. Community leaders—including business people, religious leaders, and educators—need to clearly and repeatedly call for transparency and a commitment to free and fair elections. Everyday people should be aware of decisions being made by state and local election administrators and boards, attend public meetings of these bodies, submit public comments, observe election procedures, and let everyone in charge know that anything short of free and fair elections is unacceptable….

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11th Circuit Affirms District Court’s Dismissal of Trump’s Defamation Case Against CNN

authoritarian threats in US, First Amendment theory

In an unpublished per curiam opinion, the 11th Circuit affirmed the District Court’s dismissal with prejudice of Donald Trump’s defamation suit against Cable News Network, Inc. (CNN) based on the use of the phrase “Big Lie” to describe his claims about the 2020 elections. A few quick highlights:

“First, although he concedes that CNN’s use of the term “Big Lie” is, to some extent, ambiguous, he assumes that it is unambiguous enough to constitute a statement of fact. This assumption is untenable. Although we haven’t squarely addressed the point, case law from other circuits is persuasive. In Buckley v. Littell, the Second Circuit held that, by using the terms “fascist,” “fellow traveler,” and “radical right” to describe William F. Buckley, Jr., the defendant was not publishing “statements of fact.” Rather, the court ruled, the terms were “so debatable, loose and varying[] that they [we]re insusceptible to proof of truth or falsity.” Similarly, in Ollman v. Evans (1985), the D.C. Circuit held that when the defendant called the plaintiff “an outspoken proponent of political Marxism,” his statement was “obviously unverifiable.”

Trump argues that the term “Big Lie” is less ambiguous than the terms “fascist,” “fellow traveler,” “radical right,” and “outspoken proponent of political Marxism.” But he does not explain this assertion. If “fascist”—a term that is, by definition, political—is ambiguous, then it follows that “Big Lie”—a term that is facially apolitical—is at least as ambiguous.

. . . .

Trump also contends that a jury should decide whether
CNN’s publications are defamatory. We disagree. “Whether the statement is one of fact or opinion and whether a statement of fact is susceptible to defamatory interpretation are questions of law for the court.”

(internal citations omitted)

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Democratic backsliding is not just a matter of how the government treats citizens

authoritarian threats in US

We often work and think in silos. Law of democracy scholars assess the state of democracy by considering the fairness of our elections. Traditionally, our focus is on whether voting rules and representation are fair. Lately, the scope of questions has expanded to concerns about transitions of power, political violence, and politically motivated prosecutions. But this video profile of ICE detentions of three green card holders, entitled We Followed the Rules. Ice Jailed Us Anyway, is stark evidence that immigration scholars are right. How our government treats immigrants, like how it historically defined citizenship, reveals a great deal about the state of our liberal democracy. Every government makes mistakes. There is no indication, however, that these stories are examples of mistakes. No indication that government officials have apologized for them, for example. As we consider the signs and degree of democratic backsliding, scholars of democracy should not ignore how the government is treating non-citizens and what it reveals about the health of democracy and the rule of law in the United States today.

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“The Unraveling of the Justice Department”

authoritarian threats in US, ,

From the N.Y. Times Magazine, a long profile of the internal workings of the Justice Department and the complete abandonment of basic rule of law norms, based on interviews with 60 former DOJ attorneys. The interviews include lawyers from the voting rights division as well as information about the Department’s handling of pardons for the January 6th riots, Eric Adams’ prosecution, and much more, directly related to the interests of blog readers.

“Beginning with Trump’s first day in office, the lawyers narrated the events that most alarmed them over the next 10 months. They described being asked to drop cases for political reasons, to find evidence for flimsy investigations and to take positions in court they thought had no legitimate basis. They also talked about the work they and their colleagues were told to abandon — investigations of terrorist plots, corruption and white-collar fraud.

Some spoke on the condition of anonymity because they feared retaliation against them or their new employers. We corroborated their accounts with multiple sources, interviewing their colleagues to confirm the details of what they described and reviewing court documents and contemporaneous notes. “

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“Indiana lawmaker who opposed Trump’s redistricting push is victim of a swatting”

authoritarian threats in US, redistricting

AP News reports that one of the two Indiana lawmakers, who resisted the White House’s redistricting push to have Republicans redraw the state’s congressional boundaries, was the victim of a swatting call Sunday that brought sheriff’s deputies to his home.

“Earlier Sunday, Trump criticized Goode and Indiana Senate President Pro Tem Rodric Bray for opposing a redistricting plan for Indiana. Republicans already hold a 7-2 advantage in the state’s congressional delegation.

‘Because of these two politically correct type “gentlemen,’” and a few others, they could be depriving Republicans of a Majority in the House, a VERY BIG DEAL!’ Trump wrote on his social media platform.”

The White House is concerned that Democrats only need to secure three seats to retake the House. They have instituted mid-decade redistricting processes in Texas, Missouri, North Carolina, and Ohio to entrench their power. California and Virginia are poised to engage in countermeasures. None of this is auspicious for the state of democracy.

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“Trump Pardons Giuliani and Others Involved in Effort to Overturn 2020 Election”

authoritarian threats in US, election subversion risk

NYT:

President Trump has granted pardons to his former lawyer Rudolph W. Giuliani and a wide array of other people accused of trying to overturn the results of the 2020 presidential election, according to the Justice Department’s pardon attorney.

The pardon attorney, Ed Martin, a lawyer who has long supported the rioters who were themselves granted clemency by Mr. Trump for attacking the Capitol on Jan. 6, 2021, posted a copy of the pardon proclamation on social media early Monday morning with a list of those who were covered by it.

Aside from Mr. Giuliani, the list included John Eastman, a conservative lawyer who advised Mr. Trump’s 2020 campaign; Mark Meadows, the former White House chief of staff; Boris Epshteyn, a top presidential adviser; and Sidney Powell, another lawyer who led one of the most far-fetched efforts to use the courts to reverse Mr. Trump’s electoral defeat.

The pardons, which only apply to federal crimes, are primarily symbolic. None of those named on the list are currently facing federal charges, and the pardons cannot shield them from continuing state-level prosecutions.

Even though the pardons will have little practical effect, they stand as a reminder that Mr. Trump has often used his expansive powers to reward and protect his allies, even as his Justice Department has shattered traditional norms of independence from the White House by following his orders to pursue criminal cases against those he perceives to be his enemies….

Screenshots of the names. Trump excluded himself.

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“Federal Judge, Warning of ‘Existential Threat’ to Democracy, Resigns”

authoritarian threats in US

NYT:

A federal judge warned of an “existential threat to democracy” in a searing first-person essay published on Sunday, saying he had stepped down from the bench to speak out against President Trump. He accused Mr. Trump of “using the law for partisan purposes, targeting his adversaries while sparing his friends and donors from investigation, prosecution, and possible punishment.”

The judge, Mark L. Wolf, wrote in The Atlantic magazine that Mr. Trump’s actions were “contrary to everything that I have stood for in my more than 50 years in the Department of Justice and on the bench.”

The publication of the essay by Judge Wolf, 78, came two days after an announcement by the Federal District Court for Massachusetts that he was leaving his post as a senior-status judge.

An appointee of President Ronald Reagan who also served in the Justice Department during the Ford administration, Judge Wolf offered one of the most explicit expressions of concern for the rule of law to come from a member of the federal judiciary amid Mr. Trump’s efforts to vastly expand the scope of presidential power.

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“Ford Foundation’s New Leader Vows to Protect Elections and the Rule of Law”

authoritarian threats in US, election law biz, election subversion risk

Adam Liptak profile for the NYT:

The Ford Foundation, the nearly 90-year-old international philanthropy, is now in the cross hairs of the Trump administration, which has called for scrutiny of the organization as part of a broad crackdown on the left.

In her first interview in her new role, the incoming Ford Foundation president, Heather K. Gerken, said Friday that the foundation, which has a long history of supporting social justice and civil rights initiatives, was undeterred.

Her central priority, she said, was “defending the rule of law and protecting our election system.”…

Vice President JD Vance, himself a Yale Law alumnus, has long been a harsh critic of philanthropies that he said support liberal causes, and of the Ford Foundation in particular.

“Why don’t we seize the assets of the Ford Foundation, tax their assets and give it to the people who’ve had their lives destroyed by their radical open-borders agenda?” he mused in 2021 as a Senate candidate.

He has not let up. In September, Mr. Vance denounced the foundation by name in the aftermath of the assassination of the conservative activist Charlie Kirk, suggesting the administration could go after its nonprofit tax status.

Asked about Mr. Vance’s comments, Ms. Gerken responded with a history lesson.

“When the Ford Foundation funded the civil rights movement, it was a source of controversy,” she said. “It was incredibly important that we were protected in doing that work. When the Ford Foundation stood up to protect free speech and dissent during the McCarthy era, it was incredibly important that we had the right to do that.”…

Ms. Gerken, for her part, insisted that protecting democracy is a nonpartisan goal.

“No one believes that an election system should not be free and fair,” she said. “No one believes that people should not have the right to speak. These are the bedrock commitments of any democracy, and it’s really important to hold fast to them.”

Asked for practical examples of what the foundation’s emphasis on protecting democracy would entail, Ms. Gerken pointed to securing the infrastructure of elections.

“We’re going to do everything we can,” she said, “to protect the ability of election administrators to carry out a free and fair elections, to make sure that every citizen has an opportunity to vote without fear or intimidation and that those votes are properly counted.”…

Ms. Gerken’s fellow election-law specialists said she faces a daunting task.

“The institutions of American democracy are being torched right now,” Professor Persily said. “The question for all of us working in the democracy space is to consider new institutions that might be built from the ashes.”

Pamela Karlan, another voting rights specialist at Stanford, said Ms. Gerken might set an example.

“The Ford Foundation could be a real leader in getting other parts of civil society to start speaking up and pushing back,” she said. “That’s already starting, but there isn’t a clear focal point and she might provide that.”

Ms. Gerken said she also took a long view.

“There isn’t just the work of now, of this moment, which is incredibly important,” she said. “We are also going to need to dream a new democracy into existence.”….

I’m so glad to see Heather in this role, and Ford’s commitment to helping safeguard American democracy. We in this struggle need all the help we can get.

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“Trump Suggests He Knows He Can’t Run Again: ‘It’s Too Bad’”

authoritarian threats in US

NYT:

President Trump seemed to concede on Wednesday that he was not eligible to serve a third term, lamenting that it was an unfortunate result of the constitutional prohibition that he has mused about violating for months.

Speaking to reporters aboard Air Force One en route to South Korea, the last leg of his three-country diplomatic tour across Asia, Mr. Trump said it was “too bad” that he couldn’t run in 2028.

“We have the greatest economy we’ve ever had, I have my highest poll numbers that I’ve ever had,” he boasted (his approval rating remains low, at 43 percent, according to a New York Times average). “And, you know, based on what I read, I guess I’m not allowed to run. So we’ll see what happens.”

The remarks came after House Speaker Mike Johnson said on Tuesday there was no path around the Constitution’s two-term limit.

“I don’t see a way to amend the Constitution — I don’t see the path for that,” Mr. Johnson said — but not before complimenting the “Trump 2028” cap that the president likes to wear and display in the Oval Office, and noting that it was still fun to entertain the idea.

Mr. Trump, asked about Mr. Johnson’s conclusion, which the speaker said he had discussed with the president, said he didn’t “want to talk about it” before listing accomplishments, such as resolving several conflicts and rising stock prices, that he said made him the ideal candidate….

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“Trump says he’d ‘love to’ run in 2028; U.S. president also floats JD Vance and Marco Rubio as top alternate contenders, given the constitution bars him from running for a third term.”

authoritarian threats in US, campaigns

Politico:

U.S. President Donald Trump weighed in Monday on who might lead the Republican Party after he leaves office, naming Secretary of State Marco Rubio and Vice President JD Vance as top contenders for the 2028 presidential nomination.

But he kept the door open to … himself.

Speaking with reporters aboard Air Force One en route to Japan, Trump responded to suggestions that he should seek an unconstitutional third term, an idea recently floated by former White House strategist Steve Bannon.

“I would love to do it — I have the best numbers ever,” Trump said when asked about Bannon’s comments.

Trump, however, went on to add that he “hasn’t really thought about” running again. “We have some really good people,” he said.

When pressed to name names, Trump gestured toward Rubio, who had walked back to the press cabin to speak with reporters. “We have great people — I don’t need to get into that. One of them is standing right here,” Trump said.

He went on to praise his vice president, Vance, who has taken a prominent role in the administration on a range of domestic and national security issues.

“Obviously JD is great. The vice president is great,” Trump said. “I’m not sure anyone would run against those two.”…

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“How Right-Wing Influencers Are Shaping the Guard Fight in Portland”

authoritarian threats in US, cheap speech, chicanery

NYT:

In the fight over deploying National Guard troops to Portland, Ore., Democratic leaders in the city and state have pleaded with President Trump and the courts to trust law enforcement records, both local and federal, that describe the demonstrations as small and comparatively calm.

But in the bifurcated media world of 2025, one side’s comparative calm is the other’s “hellscape” — as the White House described Portland on Wednesday — and the narrative that the Trump administration has wanted has been supplied by a coterie of right-wing influencers elevated by Mr. Trump himself.

On Thursday, the repercussions of those dueling versions of reality became clear as judges on the U.S. Court of Appeals for the Ninth Circuit questioned a district court’s finding that the protests in Portland were likely too minor to justify the National Guard deployment. The appeals court judges instead cited federal reports of demonstrators spitting on federal officers and shining flashlights in their eyes, behavior that has been captured, amplified and sometimes even prompted by pro-Trump personalities eager to counter local police.

“The Portland Police Chief did an interview today attacking independent journalists for exposing the violent terrorists that he allows to run the city,” Benny Johnson, a popular pro-Trump podcaster, wrote Tuesday on social media after accompanying Kristi Noem, the homeland security secretary, in Oregon. “He’s humiliated and knows Portland is under siege.”

To some extent, the right’s assertions of chaos in Oregon have been self-fulfilling. The administration’s close ties to a small but well-followed group of influencers and conspiracy theorists has amplified their voices, and they in turn have encouraged administration efforts to crack down on demonstrators. The portrayals of a city on fire have angered protesters.

And sometimes, left-wing activists have risen to the bait, leading to scuffles and injuries conservative streamers then promote on the internet. One right-wing commentator, Katie Daviscourt, said she received a black eye when a demonstrator hit her with a flag pole.

“Certainly over the last 10 days, the energy level has gone up, the amount of conflicting points of view have increased greatly,” Chief Bob Day of the Portland Police Bureau said at a news media briefing Tuesday. “And this has created an environment that’s equally, if not more, challenging for us.”

Pro-Trump provocateurs have gotten more open about their efforts as the stakes in the battle over how to police protests grow. Ms. Noem has threatened to quadruple the number of federal law enforcement agents in Portland if she is not satisfied with the city’s crowd-control efforts. Troops from the Oregon and California National Guards are awaiting deployment. Another group of guardsmen from Texas could be summoned at the president’s request….

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