The Week Ahead

July 16, 2023

In what feels like an exercise in déjà vu, federal prosecutors and Trump’s legal team are scheduled to make their first appearance in front of Judge Aileen Cannon in the classified-documents trial this Tuesday. The court’s conference with the parties is set to take place in Judge Cannon’s courtroom in Fort Pierce, Florida. The reason for the hearing is to set the procedure for handling classified material and pretrial motions in that regard as the case proceeds. The Judge may also take up the pending motion to reschedule the trial date, which is now fully briefed.

Although the hearing won’t be public, at least not entirely, because of the nature of the issues under discussion, we will likely get a sense of how the Judge handles herself. That’s the case if for no other reason than that it would be unsurprising to see Trump weigh in after the hearing. Today, the former president made a transparent pitch on Sunday Morning Futures on Fox News for the Judge to continue to rule in his favor, taking credit for appointing her and saying: “I know it’s a very highly respected Judge. A very smart Judge and a very strong Judge…She is very smart, very strong, and loves our country. We need judges that love our country so they do the right thing.” If he still likes her after the Tuesday hearing, it will be a good sign things went his way. Most judges would be deeply offended.

In the meantime, Trump continues to confess to his crimes on national television. During a speech this week at a conservative gathering, the Turning Point Action conference, he acknowledged that he had the documents he’s accused of illegally retaining in his possession, saying there was nothing wrong with it. But that’s quite a concession. That takes a key issue prosecutors would otherwise have to prove at trial off of their plates. Now they can just play tape of the defendant acknowledging he had the documents.

Trump continues to maintain that he was entitled to have the records under the Presidential Records Act. While that may work in the court of public opinion, at least for now, it’s going to fall flat in the court of law because the Act isn’t complicated. It provides that White House records related to government business are public property and that when a president leaves office, they go to the National Archives for preservation.

Trump has manufactured a defense using a statute that does nothing to countermand the rules surrounding classified documents and criminal implications of violating them. The Presidential Records Act in no way exonerates him. It may sound good to the uninformed, but it’s not a defense—not even close.

There is probably a lot of gnashing of teeth going on among Trump’s lawyers, who have certainly tried to get him to quit speaking publicly. But the former president can’t stay off social media, where he keeps replaying his greatest hits and making derogatory and threatening comments about prosecutors. Since his federal indictment, Trump has spoken out in public about special counsel Jack Smith, calling him “deranged,” a “psycho,” and of course saying that the straight-arrow career prosecutor “looks like a crackhead.” Smith hasn’t responded publicly or asked the court to issue a gag order—the First Amendment issues there would take too much time to untangle if Smith wants his speedy trial. But that doesn’t mean prosecutors aren’t keeping track of Trump’s comments.

If Trump is convicted, they may end up being offered as evidence to support a sentence at the high end of the range recommended by the sentencing guidelines. It’s odd to reflect that, not long ago, Donald Trump’s photograph used to hang near the entry to every federal courthouse, every U.S. Attorney’s Office, and every federal law enforcement agency office in the country. Yet he has no respect or regard for the people who enforce the law.

But as we look to the week ahead, I’m putting Trump aside and putting on my law professor hat as someone who studies democratic institutions and is concerned with their future. Because Ron DeSantis, with his campaign sagging and his back against the wall, still shows frightening signs of authoritarian tendencies, and we must pay attention, even as the Trump prosecutions continue.

Even if DeSantis’s campaign dissolves and he’s forced to pull out of the presidential races, he’s not going away. He’s still Florida’s governor. And despite his coy statement this week that he’s not a No. 2 kind of guy, it’s hard to imagine someone this ambitious turning down the No. 2 spot on the ticket, especially with a running mate who would be 78 years old when he took office.

Ron DeSantis is not someone who believes in the Republic or in Democracy. He believes in Ron DeSantis and his ascent to power. Ruth Ben-Ghiat has this extraordinary new essay on DeSantis’s efforts to undercut public education and turn it into a tool of authoritarianism. She writes, “Authoritarians are happy to engineer the intellectual, social, and financial impoverishment of the educational sector to get rid of anyone who stands in the way of their dreams of national and ideological purity.” We’ve discussed this aspect of DeSantis’s “accomplishments” in Florida here on Civil Discourse as well, in May, when he signed a law designed to strip academic freedom out of higher education in the state.

From Fascism to Hungary and the U.S., Authoritarians Target Universities

DeSantis has also signed one of the most restrictive abortion bans in the country and tried to silence conversations about race and LGBTQ issues. He’s used undocumented migrants for political theater, transporting them across the country even when they aren’t in Florida to try and score political points. He’s retaliated against critics, like he tried to do with Disney when the company objected to his “Don’t Say Gay” law. DeSantis behaves like a classic would-be strongman, hoping to turn back the clock on much of the progress our country has made.

Something new, and deeply disturbing, caught my attention last week. It started as a local story, and it bears close watching, because the historical parallels are far too obvious and dangerous. Last summer, DeSantis announced that he was reactivating Florida’s “State Guard,” which has been inactive for the last 75 years. He complained that Florida’s National Guard was understaffed and the state needed a force of volunteers to respond to hurricanes and other public emergencies.

Fair enough. But as it turns out, volunteers who signed up for the State Guard found that the program was something other than the civilian disaster training they had anticipated. Reporting in the New York Times calls the training “heavily militarized.” Participants had to train in “marching drills and military-style training sessions on weapons and hand-to-hand combat.” Many people who complained were removed from the program or quit.

A retired naval officer who helped recruit the first batch of volunteers objected to what he perceived as the change in the program’s orientation from the initial goal of training a disaster relief force. He told the Times that when he voiced his concerns on the first day of training, he “was abruptly escorted out.”

Is it a private army? The governor’s office said that one of the Guard’s missions would be “to ensure Florida remains fully fortified to respond to not only natural disasters, but also to protect its people and borders from illegal aliens and civil unrest.” And here’s what DeSantis said to reporters last year: “If you turned on NBC, it was ‘DeSantis is raising an army, and he’s going to raze the planet.’ But, you know, the response from people was ‘Oh, hell, he’s raising an army? I want to join! Let’s do it.’” State officials running the program defended it, saying that the military training made it a good fit with existing National Guard resources.

DeSantis issued a press release on June 30, celebrating the graduation of the first members of the State Guard: “Even though the federal government has underfunded our National Guard, we are ensuring that we have the manpower needed to respond during emergencies…When the need is greatest in their communities, these Guard members will be ready to answer the call.” He encouraged more people to apply, using the language below. The last “requirement,” “ready to be a part of history,” is perhaps just rank melodrama, but it feels ominous in context. Thanks but no thanks. Florida and America do not need a private Ron DeSantis army.

In a 2003 speech to the National Endowment for Democracy, President George W. Bush described the critical features of successful democracies. He explained that in successful democracies, “governments respond to the will of the people, and not the will of an elite.” President Barack Obama sounded similar themes in his farewell address in 2017. He charged every citizen to work to strengthen our own democracy: “All of us, regardless of party, should throw ourselves into the task of rebuilding our democratic institutions.” As President Obama explained, strengthening our democracy “depends on our participation; on each of us accepting the responsibility of citizenship, regardless of which way the pendulum of power swings.”

Safeguarding healthy civic institutions that allow for public participation in political debate is at the foundation of our system. DeSantis’s authoritarian style of leadership rejects that basic premise, seeking to stifle open conversations, let alone active dissent. Access to a militia-style force would be a dangerous development. Imagine if Michigan’s Democratic governor, Gretchen Whitmer, created a force like this to help immigrants arrive in sanctuary cities and support Black Lives Matter protesters. Fox News would cover it 24/7. This developing story merits the same scrutiny, until the public understands exactly what is happening here.

For so long Trump has been the most pressing threat to democracy. He remains that. But we have to appreciate that the existential threat this country faces will not disappear when Trump does. We need to educate ourselves, our communities and be ready. America was largely not ready for Trump and what he represented. This time, let’s make sure we are.”

I write about this tonight, I suspect, in a somewhat confessional way. I’ve realized that I’ve been trying to convince myself that if Trump is defeated in 2024, we can throw a big bash, celebrate, and get on with our lives. But—and despite the people who will call this alarmist, just as they did in the early days of the Trump administration when many of us tried to raise the alarm that what we were seeing was not normal—we do not have the luxury of living in an era where we can just sit back and relax. Some eras are difficult. Much as the Greatest Generation took on the fight against authoritarianism in Europe, we have to continue our work here. I’ve become increasingly resigned to that view, and I’m willing to accept the challenge because I believe that even though our form of government is not perfect, it is exceptional, and it has the power to be more so.

The American dream is not complete, but we are not stuck where we are today. One of its most important components is that it’s aspirational and that it continues to expand, that we can always envision more that we can do, more people who can be folded into the promise. We live in a time when there are people who want to limit who gets included and advocate for a narrowing vision of America. I have no intention of letting them get away with it. So, friends, let’s get ready for what’s ahead.

We’re in this together,

Joyce