THERE IS MORE THAN ONE WAY TO DESTROY A DEMOCRACY

Let me count the ways:

One: Seize the government by force. A non–fictional example might be to cause a riotous invasion the Capitol building while its lawful occupants were engaged in the process of certifying the new democratically elected leadership of the nation.

Two: Seize control of one of the two non-executive branches of our government, the legislature or the judiciary. The advantages of these methods are they are non-violent, and they are, to some extent, co-reliant.

 

(a) One can gain control of the legislature in a republic by putting unprincipled partisans in charge of counting the ballots and certifying the result in each state, That way, one can reliably elect pre-chosen candidates, who can then elect pre-chosen Chief Executives, and confirm appropriately partisan judges.

(b) Even with legitimately-acquired control of the executive and the Senate, one can control the judiciary by appointing and confirming injudicious partisans who ignore the rule of law and support the politicians who appointed them. The entire process becomes a feedback loop. If the scheme is managed by officials who choose power over loyalty to Constitutional values, authoritarianism is the result and the great experiment fostered by the likes of Hamilton, Jefferson, and Madison crashes in ruins.

A scary and depressing symptom of the development of the foregoing scenario is the unspeakable decision by a Florida district judge in the matter of the federal investigation of Donald Trump's illegal possession of classified and non-classified government documents. In an unprecedented order, Florida District Judge Cannon, who was appointed by Donald Trump in the waning days of his administration, temporarily enjoined prosecutors from using in that investigation, the government-owned documents taken from Trump's home and office in the execution of a lawful search warrant. 

It is not my intention to detail here each of the legally defective and non-sensible conclusions contained in Judge Cannon's order. You can read the details anywhere in the responsible press. The almost universal judgment of the legal community is that her 24-page decision is "off-the-wall." I agree.

But the degree of permanent damage to the rule of law is in the offing. Given the just plain "wrongness" of Cannon's unprecedented order, one would expect that it would be the knee-jerk decision of the Department of Justice to go immediately to the Circuit Court of Appeals. There are any number of grounds for an instant stay and ultimate reversal. But now we come to the true test of whether the rule of law, so vital to our democracy, has survived the Trump presidency and the McConnell senate leadership.

The 11th circuit, which has exclusive jurisdiction over the Florida District Courts, consists of 11 judges, six of whom were appointed by Donald Trump. It is a sad day for our democracy that Merrick Garland and his team, in deciding whether or not to take an immediate appeal,  even need consider that fact, but that is our current reality. 

Woe is us.

Oh, on a less consequential matter, I gotta add this footnote. In a previous blog, I mentioned I had written an unpublished novel (VICE-POTUS, The Novel). I never thought it was prescient, but in one scene the vice president's lawyer makes a motion to enjoin a grand jury investigation of his client because of the government's alleged misconduct. The judge denies the motion to block the investigation with these words:

     "The motion is premature. The vice president has no standing to make this motion because he has not been injured. The grand jury has not indicted him, a jury has not convicted him, and the prospective damage he asserts is, at this time, entirely hypothetical."

It never occurred to me to send Judge Cannon a copy of my manuscript. 

A bientôt.

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