S E E D E D   C O N T E N T

A crisis moment in the defining debate of our time.

Trench Lawfare

by Andrew Egger

The most important battle in America right now isn't taking place between Donald Trump and the Democrats in Washington, or between the administration's military police and protesters in cities like Portland, Oregon. It's the battle between two visions of what justifies state violence: between the rule of Trump and the rule of law.

The rule of law starts with the acknowledgment that both the armed agents of the state and the people they engage with are human beings. The agents themselves are humans, vulnerable to all the vices and temptations that beset those who wield power. And the people they come in contact with—criminals and noncriminals alike—are humans too, with rights they must respect. What differentiates the two is the laws that govern both: laws that permit certain specified persons to wield force on behalf of the state, but only in specified circumstances against persons engaged in specified behaviors. These laws authorize state violence, but they also restrain it.

The rule of Trump starts from a different place. Under this rule, the conflict between armed men of the state and the people they are deployed against is a conflict between angels and demons. Trump's military police are heroic patriots by virtue of being in his military police. And the law need concern itself only with getting out of their way as they do what must be done. Meanwhile, the people who object to his will—whenever, wherever—are dangerous insurgents who must be rooted out.

Under the rule of law, the best-case scenario is one in which everyone follows the law and violent clashes between the state and its citizens are not necessary. Under the rule of Trump, the best-case scenario is darker and more nebulous. Ostensibly, it is state-enforced calm. But the absence of conflict is also inherently suspect: The Deep State is still plotting, the demons are still out there, the criminals are still getting away with it.

So Trump goes out of his way to start conflicts. He wildly exaggerates the horrors of daily life in blue cities. He sends the National Guard in a shock-and-awe show of force into those same places. In the protests and clashes that result, he tells them the only way they can err is by pulling their punches. You've got to teach these criminals, he says, the only way they understand. They spit, you hit.

And "criminals" are whoever Trump says they are. A left-wing activist brings an American flag to a protest and lights it on fire; a MAGA content creator snatches it away, and a scuffle breaks out. Under the law, it's the latter who has erred—burning a flag you own is protected speech, and you can't take someone else's flag just because you think they're mistreating it. But under the rule of Trump, it's another matter. The content creator's arrest for disorderly conduct sparks the immediate announcement of a civil rights investigation from Trump's Justice Department, while the content creator jeers that Portland police "made a big freaking mistake." That night, Trump reminds his troops to remember who the bad guys are and what punishment he believes they should receive: "To ICE, Border Patrol, Law Enforcement and all U.S. Military," he writes on Truth Social. "Please be advised that, from this point forward, anybody burning the American Flag will be subject to one year in prison. You will be immediately arrested. Thank you for your attention to this matter!"

Trump can't actually order flag-burners to prison, of course. But his real message doesn't have anything to do with what happens after the arrest. It's about signaling to cops which people they should consider acceptable targets as they dispense the on-the-ground violence of the state.

Right now, America is a country governed partially by the rule of law and partially by the rule of Trump. The two are in increasingly open conflict. This weekend, a judge issued a ruling blocking Trump from sending the Oregon National Guard into Portland, ruling there was no statutory justification to deploy federalized troops in the city. So Trump turned around and ordered the California National Guard in instead, prompting a hasty overnight action from the same judge—Karin Immergut, a Trump appointee—to block that, too. At the second hearing, Immergut's anger with Justice Department lawyers was apparent: "My order was based on conditions in Portland, that there was no legal basis to bring [the] National Guard into Oregon," she said. "You're an officer of the court. Do you believe this is an appropriate way to deal with my order?"

Meanwhile, plans were being set in motion in other places to order red-state guardsmen from Texas into blue cities like Chicago—a development Illinois Gov. JB Pritzker denounced last night as "Trump's invasion."

And this may be just the first stage of it. Over the weekend, the Minnesota Star Tribune reported on leaked texts between top aides to Secretary of Defense Pete Hegseth and Stephen Miller discussing the possibility of sending the Army's 82nd airborne division to Portland, which Trump apparently wanted, but which Hegseth was skittish about. "Between you and I, I think Pete just wants the top cover from the boss in case anything goes sideways with the troops there," the Hegseth aide wrote. "82nd is like our top tier [quick reaction force] for abroad. So it will cause a lot of headlines." The Hegseth aide made it clear Hegseth wasn't opposed to the deployment—he just wanted Trump to order it publicly first. Meanwhile, if you take even a cursory glance at Miller's Twitter feed, you can see him practically salivating over the prospects of this.

So what to make of this moment? It is foreboding, of course. And yet, Trump's defiance of the spirit—but not the letter—of Judge Immergut's order is a small consolation, evidence that while the rule of law may be under siege, it has not been defeated. The White House has already backed away from flirting with open defiance of the courts once this term, binning its plans to render migrants by the truckload to foreign prisons without due process when the political blowback became too great. That the same thing happens here is crucial. If Americans shrug at this latest defiance of the courts, they'll conclude that the rule of Trump trumps the rule of law. We've all got to teach these criminals the only way they understand.

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No Kings

by William Kristol

The Democrats are so far doing better than expected—probably better than they themselves expected—in the battle over the government shutdown. Their members are sticking together. They're making their argument about health care pretty effectively. They seem to be winning the battle for public opinion.

So shouldn't they just keep doing what they're doing?

No.

Politics as usual may be working well enough for the Democrats in the moment. But politics as usual is no longer enough. We're in a new situation, and Democratic leaders have to adjust accordingly. As Lincoln famously put it, "As our case is new, so we must think anew, and act anew."

The character of the new situation we face is obvious. As Andrew suggests above, and as the legal scholar Ryan Goodman explained here yesterday, the Trump administration has taken its lawlessness and authoritarianism to a new level.

Its September 25 National Security Presidential Memorandum claimed national security justification for unleashing the federal government against "domestic terrorism," defined to include dissent and opposition to the administration and its policies. President Trump's remarks to senior military officers last Tuesday on September 30, promising to use the military against "the enemy from within," further upped the ante. And then the administration's actions over the last few days in Chicago and Portland, along with its attempts to override not just historical practices but court orders to deploy federal troops to Illinois and Oregon, made the administration's agenda even clearer. Add in the continued use of the military against unarmed boats in the Caribbean without congressional authorization and without regard to U.S. law or the laws of war, and the Trump administration has crossed the Rubicon toward Caesarism.

We no longer face an administration whose primary sin is pursuing unwise and damaging healthcare policies. We are facing a clear and present authoritarian danger.

In these circumstances, can Democrats in Congress continue to take the position that their demand from the Trump administration is simply to restore health care funding?

I don't think so.

Don't Democrats need to say, in light of new circumstances, that they will not vote to fund an administration that's trying to impose martial law at home and to start unauthorized and unjustified wars abroad? Don't Democrats need to demand that provisions curbing the administration's authoritarian moves—or at least provisions guaranteeing Congress votes on various aspects of the use of military force at home and abroad—need to be attached to legislation funding the government?

The Democratic party—or other groups, if the party isn't up to it—should organize daily hearings and forums on the Trump administration's attempted authoritarian takeover. They could start tomorrow with a forum (it can be virtual, we're in the modern age) for governors Newsom, Pritzker, and Kotek to explain what's happening. Then, each day, the party or associated groups can provide occasions for current officials, former judges, ex-senior Justice Department personnel and retired military and defense officials, to explain to the country the dangers of what Trump is doing. These forums should be bipartisan, including retired judges appointed by Republican presidents and officials from previous GOP administrations—and, for that matter, from Trump's first term.

This effort could build to a crescendo by October 18, when national No Kings protests are planned. By then, members of Congress, governors and state officials, and former officials from both parties and a range of civic leaders could join millions of citizens to present a united front against the attempted usurpations of the Trump administration.

It's fine for Democrats to continue to make the case for our health care. But they need also now to make the case for our Constitution, and for our republic, and our country.