Moving The Window

Tonight’s piece runs longer than I like to, especially on a Saturday night, but the issues are serious, and incumbent upon us all to stay caught up. Thanks for being here and for reading Civil Discourse. If it helps you understand these issues better, I hope you’ll share it with friends and consider subscribing if you don’t already.

The Overton Window is a model that describes the range of policies considered acceptable at a given time by the public and policymakers. It’s the spectrum of ideas that are legitimate, feasible choices, and anything that falls outside of the window is considered too extreme for serious consideration. For instance, the idea of deploying the National Guard, or even the military, on American streets to control the local population is something we would have considered far outside of the Window for decades.

Think of what Donald Trump is doing in the District of Columbia in these terms. He’s made up a crisis—a wave of crime that doesn’t exist. The law in the District is different from how it is elsewhere because of limited home rule and a law that was drafted, at least arguably, to give the president alone the ability to declare an emergency that would permit control of local law enforcement. Trump tried it in Los Angeles, but ran into issues, like the Governor’s objection and the Posse Comitatus Act, which prevents direct law enforcement by the Guard and the military. But in the District of Columbia, Trump has asserted the ability to seize control of the Metropolitan Police for at least thirty days and longstanding DOJ interpretation of the law says Posse Comitatus doesn’t apply in D.C.

Trump is using the quasi-federal status of the District to socialize the idea that he can:

• make up an emergency and no one can challenge his thinking

• seize control of local law enforcement

• use the National Guard for direct law enforcement purpose

For the casual observer of American politics, he’s creating a new normal and shifting the Overton Window to include a presidential takeover of American cities.

Next stop, Los Angeles, Baltimore, Oakland, New York and Chicago, all cities Trump said were "bad, very bad," without explanation. All cities where the law is less friendly to a Trump takeover than it is in the nation’s capital. But Trump has been more than willing to brazen it out in court and live to fight in the Supreme Court, where he hopes for, and has frequently been rewarded with, a decision that hands over more power to the unitary executive. To be able to last out the appeal, Trump needs to make sure that the public isn’t so outraged that he has to pull back. Hence, the need to move the Overton Window.

A potential pitfall for Trump is that outside D.C., he’ll need to convince courts, where his moves will certainly be challenged, that his determination of an emergency or other condition necessary to allow him to interfere with state and local control is not reviewable. Since his first day in office, when he declared an emergency at the border, Trump has been relying on that notion, that contrary to the checks and balances the Founding Fathers set up, any decision he makes that there is a national emergency can’t be challenged in the courts. Then, he declared an emergency that permitted him to make the (false) claim that the Venezuelan drug cartel Tren de Aragua was invading the United States, which set up his inhumane deportations of people to CECOT prison in El Salvador without due process. Most recently, it has been tariffs, predicated on the claim that “foreign trade and economic practices” have led to a “national emergency.” In each instance, Trump has faked an emergency, while pushing the courts to say that they cannot review his decisions. So far, the lower federal courts seem to be skeptical. At some point, that issue will make its way to the Supreme Court. If SCOTUS lets him get away with that, our position becomes that much more precarious.

Understood this way, what’s happening this weekend in the District of Columbia is a matter that should concern all of us. We cannot afford to let the Overton Window move. Our conversations with the people around us matter and it’s a moment where we need to make real the spectre of armed and masked troops marching through our streets—not just those in other people’s neighborhoods.

Last week, we discussed how small of a force the D.C. National Guard is. There are reports that early this week, National Guard troops from other states, Trump-friendly red states like West Virginia, Ohio, and South Carolina, will arrive to assist in whatever it is that Trump thinks he’s doing—surely not fighting crime, since these troops aren’t trained to do that. If Trump wanted to help reduce crime, he’d be funding data-driven best practices that are shown to work and that have, in fact, been bringing down crime in the District, as then-interim U.S. Attorney Ed Martin announced Trump had done during his first 100 days in office. Make sure you point out the incredible hypocrisy by Trump when he justifies his actions by claiming crime is out of control.

The most important news is that Americans are not giving way to Trump. As the pictures sent to me by protestors show, people were out in the District of Columbia today, refusing to be intimidated by a president who wants to convince us that sending out masked law enforcement agents and armed troops on the streets of the nation’s capital, and any other city for that matter, is within his power. It is not. We will not tolerate his creeping totalitarianism. We are not obligated to accept his power play or make any of this easy for him, as he takes a well-worn page from every authoritarian’s playbook. We are not that country and he is not a king—nor a dictator.

On Friday, Judge Ana Cecilia Reyes, born in Uruguay and appointed to the district court in D.C. by Joe Biden in 2023, wasted no time in scheduling a hearing after the District filed a lawsuit challenging Trump’s attempt to exceed the power granted by the home rule law in his attempt to take over the Metropolitan Police. The previous night, Attorney General Pam Bondi tried to replace the D.C. Chief with the head of the DEA.

You have to like a judge who has this picture of herself with her pup on Wikipedia and reportedly brings her dog to work. Such a breath of fresh air during an administration where the president has no pets and the Secretary of DHS admitted that she shot hers.

Judge Reyes began the hearing by clarifying that she was not holding an evidentiary hearing and would not get into issues that would require development of the facts, like whether there was actually an emergency or a legitimate federal purpose behind Trump’s takeover. For purposes of the hearing, she assumed that Trump was correct on those points, saying she would go into them this coming week if necessary, before delving into the legal issues surrounding Trump’s order.

In the end, Attorney General Pam Bondi backed down, agreeing to let Metropolitan Police Department Chief Pamela Smith continue to run the Department’s day-to-day operations under Mayor Muriel Bowser’s orders. She wrenched a concession from the district, directing Bowser to order the police department to assist in federal immigration enforcement. There is likely another legal confrontation coming where that process may conflict with laws passed by the District, which is a sanctuary city.

And as for Trump’s claim that he was worried about crime? Chief Smith wrote in an affidavit accompanying the District’s lawsuit that, “If effectuated, the Bondi Order would upend the command structure of MPD, endangering the safety of the public and law enforcement officers alike.” Imagine your local police department being run by the attorney general or his designee instead of the people who know your city and its needs the best. We’ve come full circle to where we started: Trump is making up the need for any of this. It’s about moving the Overton Window to give him the opportunity to seize more power, in more places, in a distinctly un-American fashion.

We shouldn’t forget about what was on the front pages before Trump started all of this and his embarrassing knee-bending exercise with Putin in Alaska on Friday. Trump has something to hide. And, apparently, he’s willing to take some hits to try and knock it off the public’s radar screen. Let’s not let anyone forget about it: Trump could release the Epstein files tomorrow.

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We’re in this together,

Joyce