All posts tagged "courts"

Donald Trump‘s Crusade against Kilmar Abrego Garcia is “on life support” as it may finally be dismissed this week or next by District Judge Waverly Crenshaw in Tennessee. But will that be the end of this father’s and husband’s ordeal?

This week, I told you about the historic pattern associated with countries moving from democracy to tyranny. First, they start breaking the law and ignoring the Constitution in small ways, and the more they get away with it — and buy off or threaten politicians who may otherwise stop it — the more they do it. We’ve been watching Trump do this almost from the first day of his second term in office.

Then I laid out the mechanism behind that, the way men like Trump who want to become dictators co-opt the law by threatening law firms and the media, ignoring judges, and legally, verbally, or physically attacking the press, politicians, and regular citizens who speak out. Trump has done all of these things already, too, just like Vladimir Putin and Viktor Orbán did when they were deconstructing the democracies in Russia and Hungary.

Today we look at how a country finally, fully crosses from being a self-correcting democracy into a rigid tyranny like those two countries, and how average people like us can identify that moment in time to do something about it before it is utterly too late.

Over the past few months, you may have noticed a rather strange rhythm in the news. A judge orders a man like Kilmar Abrego Garcia released and the Trump regime simply finds another way to hold or punish him. Another court blocks a deportation, and administration officials announce they’ll try again using a different legal strategy.

The result is that, as of last week, courts around the country have ruled more than 4,000 times that Trump’s ICE detentions were unlawful, and yet the detentions continue — more than 70,000 people so far, including families and children — while larger facilities are being built every day to hold still more people.

Nothing going on here in America resembles the movies we all watched as kids. Nobody announces the end of the Constitution and the rise of a new dictator or regime. The courts still appear to otherwise function, lawyers still argue their cases, and judges still write opinions explaining why the regime has overstepped its authority. Sometimes, like with the judge who just ordered Trump’s lickspittles to restore the history of George Washington’s slave-holding, their opinions are even blunt and scathing.

On paper the system appears intact, but in practice something subtler has been happening with greater and greater frequency, particularly since last summer: the rulings by the judges and the outcomes that seem to contradict them slowly drift apart. The legal system, in other words, is beginning to crack and fail under the strain of their constant “unitary executive” attacks that use the Project 2025 arguments that Trump is above the law.

This is how the end of democracy begins.

Most of us were taught a reassuring civics lesson when we were young. We were told that when our government acts illegally, we can simply go to court and the court would fix the situation. The lawsuit may take time, but once the judge decides, the matter is settled.

That belief is the quiet foundation beneath every other freedom enjoyed by the citizens of any functioning democracy. We rely on it when we speak, when we vote, and when we criticize or ridicule those in power. We assume that somewhere in the background, operating quietly but irresistibly, there exists a constitutional place where the arguments end and the court’s decisions hold those in power to account, restoring balance and maintaining our democracy.

But that’s a damn fragile assumption that hasn’t been tested in our lifetimes because we haven’t had a lawless president before, so we can easily fail to recognize it.

However, the men who wrote the Constitution — who’d actually lived under a very real tyranny — understood the fragility of that assumption through their own personal experience. They’d lived under a corrupt government that repeatedly insisted it was acting lawfully while colonists instead experienced exploitation, abuse, and brutality.

In the 1770s, history books tell us, British officials could always produce a justification for their actions. Doors were kicked in under broad and often specious warrants or no warrant at all, people were sent to prison in rigged trials, and the local judges who didn’t work for the King but stood for the rule of law were brushed aside because the King and his men said so.

Even though the British authorities always claimed a legal excuse for what they were doing, people still felt pushed around and powerless. The problem wasn’t that there were no laws, but that the regime could keep doing whatever it wanted while everyone argued about whether it was actually allowed. Just like Trump and his toadies are doing as you read these words.

Alexander Hamilton addressed this directly in Federalist 78 when he explained the peculiar weakness of courts in any republic. The judiciary, he wrote, “has no influence over either the sword or the purse… It may truly be said to have neither FORCE nor WILL, but merely judgment.” [emphasis Hamilton’s] Courts don’t command armies or control money; they issue their decisions and depend on the rest of government — and the approval of the public — to carry them out.

That arrangement only works so long as everyone agrees that a court’s judgment ends the matter. The moment officials discover they can treat a loss in court as a temporary inconvenience rather than a binding stop sign, the character of the entire system changes from democracy to something else altogether.

Nothing dramatic needs to occur for this transition to begin. Elections continue to happen, politicians and pundits offer complaints and justifications, and the legal briefs pile up in the courthouse files. But the practical effect of a ruling weakens, because the losing side — in this case, the Trump regime — simply continues under a new rationale so the argument starts all over again, while they keep doing what they were doing before they were challenged.

We see this with ICE routinely violating the Fourth and Fifth Amendments, as I detailed yesterday. With Trump defying the law and withholding monies appropriated by Congress. With Whiskey Pete Hegseth murdering people on the open seas day after day in defiance of both American and international law. With “Blankie” Kristi Noem refusing to hand evidence in the Good and Pretti murders over to local authorities, and “Have You Looked At The Dow?!?” Pam Bondi refusing to hand evidence of Trump-aligned billionaires’ participation in Epstein’s gruesome crimes over to Congress.

And it usually begins with the emerging dictatorship going after the weakest groups among the population.

Hitler’s first victims — in his first weeks in office — were trans people, the same group Republicans whipped up hate against to seize office last year. Putin went after “outsider” Chechens, who weren’t ethnically, linguistically, or culturally Russian. Orbán campaigned and won election on a slogan of “build the wall” along Hungary’s southern border to keep out brown-skinned Syrian refugees (and he then built the wall when in office).

History tells us that tyranny invariably begins with attacks on those easiest to ignore, the marginal, the disliked, the politically powerless, like the “Mexican murderers and rapists” Trump turned into electoral gold in 2016. Most citizens simply shrug when they hear about it, because they don’t imagine themselves ending up in the same position.

But once emboldened with their early successes, within short order tyrants and their toadies always move on from the weakest to arresting and punishing those who might restrain them through legal or public pressure: lawyers, entertainers, reporters, pundits, students, professors, universities, nonprofits, media outlets, and eventually opposition politicians.

Over time, a dictatorial regime’s habit forms: act first, deal with the consequences later. Kill a few people in the streets. Jail a couple of judges and politicians. Prosecute a smattering of reporters. Defund democratic institutions like NPR, VOA, and USAID. Gut the social safety net to throw the working class into crisis so they’re otherwise occupied.

And through it all, keep ignoring the court orders and relentlessly move forward in the project of deconstructing the democracy that was carefully built and nurtured for centuries before.

Losing in court or even at the ballot box becomes mere delay instead of defeat, until eventually the public grows accustomed to seeing courts disagree with the government while the government just plows ahead anyway.

When that happens, the line between democracy and tyranny has first, quietly, been crossed. If not stopped right away, it’s all downhill from there.

Before that line is hit, elections actually change the direction of public policy because politicians and bureaucrats are committed to listening to public opinion, following the law, and obeying the courts.

After that line’s been crossed, elections merely alter political theater, as the machinery of tyranny continues grinding forward. The forms of democracy remain, but their corrective power fades, not because judges stopped ruling, but because rulings stopped controlling events.

Just ask any modern Russian or Hungarian. Or read the history of Europe in the early 20th century.

As a German professor told reporter Milton Mayer in the early 1950s of his experience living through the rise of Hitler:

“And one day, too late, your principles, if you were ever sensible of them, all rush in upon you. The burden of self-deception has grown too heavy, and some minor incident, in my case my little boy, hardly more than a baby, saying ‘Jew swine,’ collapses it all at once, and you see that everything, everything, has changed and changed completely under your nose.

“The world you live in — your nation, your people — is not the world you were in at all. The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays.

“But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves; when everyone is transformed, no one is transformed. Now you live in a system which rules without responsibility even to God.”

None of this means a democratic country suddenly flips into tyranny on some particular, identifiable day, whether proclaimed or not. It means that freedom depends on whether citizens, officials, and institutions stand up to the wannabe tyrant and demand that legal decisions have real-world consequences.

In other words, public opinion is the last wall a tyrant must shatter. It’s where, when it prevails, tyranny is finally stopped. And that is you and me.

The founders’ ultimate safeguard of our democracy was neither heroism nor violence (Second Amendment nuts notwithstanding), but the shared expectation that the law binds the leader even when he protests. When that expectation falls apart, when the judiciary’s orders are routinely ignored, Hamilton’s warning becomes more than a theory and the nation’s democracy only survives if the public loudly demands its judgments be honored.

Understanding this tells us what we must do now and next.

• We must pay attention when courts order the government to change course, and raise hell when the Trump regime ignores those orders.
• We must regularly call our elected officials and demand that they require legal rulings be followed, particularly if they’re Republicans and such a position may be politically costly to them.
• We must support local and national leaders who defend our court’s decisions instead of treating them as optional obstacles.
• And we must participate in the civic pressure between elections that keeps the constitutional machinery honest, because voting alone can’t overcome a regime that’s learned it can disregard the referee whenever it wants.

A free republic doesn’t depend on its leaders never overreaching; it depends on overreaches producing immediate and painful consequences. The danger moment arrives quietly, however, when a nation gets comfortable with the idea that the leader and his sycophants can keep breaking the law even after courts and public opinion told them they must stop.

Hamilton warned us the courts possess judgment but neither sword nor purse, and Jefferson told us our government exists solely by “the consent of the governed.”

Whether those judgments still govern events in America has always been up to us.

• Thom Hartmann is a New York Times best-selling author and SiriusXM talk show host. His Substack can be found here.