Joe Biden and Donald Trump (Getty Images/Salon)

ACLU's David Cole: "If Trump seeks to stay in power after losing the election," we'll be ready

ACLU's national legal director on the critical importance of rejecting a lawless president: "Democracy is working"



Chauncey DeVega
July 27, 2020 10:00AM (UTC)

Donald Trump and his regime are using the rule of law and democracy as their personal punching bags.

In Portland, Oregon, and elsewhere, Trump has unleashed a secret police force that may include "private contractors" (better known as mercenaries), along with Homeland Security, and other forces against Black Lives Matter, anti-fascist activists and other protesters.

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These Americans are exercising their constitutionally-guaranteed rights of free speech and assembly. In response, the Trump regime is kidnapping people off the streets, detaining them illegally, unnecessarily escalating the violence and engaging in wholesale violations of civil liberties and human rights.

Trump has publicly promised to unleash his federal goon squad — which reportedly numbers more than 50,000 — against Democratic-controlled cities across the United States.  

Trump has repeatedly signaled that he will not leave office if defeated by Joe Biden in the 2020 election. His move from autocrat to full-on fascist is almost complete. Matters are so dire that the Democrats, a few responsible Republicans and other senior civilian and retired military officials, among others, are strategizing for a scenario that may include widespread violence on and after Election Day if Trump refuses to concede defeat or step down on Inauguration Day.

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The Boston Globe offers these details about this recent political wargaming session:

"All of our scenarios ended in both street-level violence and political impasse," said Rosa Brooks, a Georgetown law professor and former Defense Department official who co-organized the group known as the Transition Integrity Project. She described what they found in bleak terms: "The law is essentially ... it's almost helpless against a president who's willing to ignore it."

The group used "a role-playing game that is a fixture of military and national security planning ... [and] envisioned a dark 11 weeks between Election Day and Inauguration Day," during which Trump and his allies "used every apparatus of government ... to hold onto power," while Democrats rely on court rulings and street demonstrations:

In multiple scenarios, officials on both sides homed in on narrowly decided swing states with divided governments, such as Wisconsin, Michigan, and North Carolina, hoping to persuade officials there to essentially send two different results to Congress. If a state's election is disputed, a legislature controlled by one party and governor of another each could send competing slates of electors backing their party's candidate.

Both sides turned out massive street protests that Trump sought to control — in one scenario he invoked the Insurrection Act, which allows the president to use military forces to quell unrest. The scenario that began with a narrow Biden win ended with Trump refusing to leave the White House, burning government documents, and having to be escorted out by the Secret Service. (The team playing Biden in that scenario, meanwhile, sought to patch things up with Republicans by appointing moderate Republican governors, including Charlie Baker of Massachusetts, to Cabinet positions.)

The group even conjured up the most contentious possible scenario, one in which Trump once again won the Electoral College but Biden refused to concede after winning the popular vote by a significant margin. In this far-fetched hypothetical universe, Trump gave an interview to The Intercept, arguing that Bernie Sanders would have won the election had Democrats nominated him, while Biden urged California and other West Coast states to threaten secession unless democratic reforms were made.

Donald Trump and Attorney General William Barr, along with other members of the president's cabal, have enlisted John Yoo, author of George W. Bush's infamous "torture memo," in an effort to subvert the Constitution by manufacturing a legal justification for Trump to ignore Congress and any other restraints on his power.

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The precedent for all of Trump's real and potential crimes was clearly established when Senate Republicans refused to convict Donald Trump for his attempted extortion against the Ukrainian as part of a plot to influence the 2020 election.

Trump continues to use the office of the presidency as means to enrich himself, his family and his surrounding circle of sycophants, at the literal expense of the American people. Trump is a self-styled mafia boss turned president and the most corrupt person to ever occupy the Oval Office.

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As dire as matters are in America in this year of pandemic, economic collapse, and a failing democracy there is room for some hope.

From the corporeal politics of the George Floyd protests to legal challenges in the courts, the American people are resisting the Trump tsunami. The American Civil Liberties Union is one of the most prominent organizations fighting to protect the rule of law in America and the civil liberties and human rights of the American people.

David Cole is national legal director of the ACLU, the United States' largest and oldest civil liberties organization. Cole is also the Hon. George J. Mitchell Professor in Law and Public Policy at Georgetown University.

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He has also litigated numerous cases before the U.S. Supreme Court and is the author or editor of 10 books. His writing has appeared in the Washington Post, the Nation, the New York Review of Books and other leading publications.

Cole's essay "Can Civil Rights and Civil Liberties Survive a Second Trump Term?" was featured in a recent special issue of Washington Monthly which focused on what could happen to the United States if Donald Trump wins a second term.

In this conversation, Cole details that Trump is one of the greatest threats to the American people's civil and human rights in recent history — a threat amplified by the deadly challenges of the coronavirus pandemic. Cole highlights efforts by the ACLU to help people of conscience organize and engage in corporeal politics and direct action. He also explains how the ACLU is working with other civil society groups to defend the rights of immigrants, women, nonwhite people, protesters, journalists and other targeted groups in the Age of Trump.

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Finally, Cole warns that the American people must vote on Election Day in overwhelming numbers as though their rights literally depend on it — and assures us that if Trump tries to remain in office after losing the 2020 election, the ACLU will be ready.

This conversation has been edited for clarity and length.

Given the tumult that is the Age of Trump, how are you feeling?

If you are not to some degree traumatized and deeply concerned, then you are not fully human. What we are seeing with the Trump administration is unlike anything that I have ever faced. I was very involved in the civil liberties cases after 9/11, but this is just on an entirely different scale. What the Trump administration is doing with the Constitution, the Bill of Rights and the rule of law more generally is impacting everybody — and that include the attorneys at the ACLU and myself as well. The only way to manage this emotionally is to know that this too shall pass. Here at the ACLU we are making sure that we are doing the best to get through this challenging moment with Donald Trump in a way that is true to our principles, effective and smart.

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I am also a big believer in the power of civil society — the private institutions central to checking government overreach such as the ACLU, the press, the academy and other institutions that are really important to a functioning democracy. Civil society is so very crucial right now.

How would you assess the health of American civil society, given Trump and his regime's assault on democracy and freedom?

American civil society has done a fantastic job in the Age of Trump, in the sense that people have not sat back and accepted what is going on in a fatalistic fashion. Instead we have stepped up, come together, organized and pushed back.

We saw this with the Women's March and how people went out to airports in droves to protest the Trump administration's Muslim ban. People also marched in the streets to protest Trump's revocation of protection for DACA and the Dreamers.

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The ACLU has gone from 400,000 members, before Trump was elected, to 1.8 million members after he took office. The New York Times and the Washington Post have some of the highest subscription rates in their history. Collectively, these are all indicators of the power of American civil society. It signals to a sense among our citizens that you do not just submit and surrender to these threats against civil liberties and freedom — instead you come together and support civil society organizations that are fighting back.

Here at the ACLU we just launched a direct-action group called People Power. This is the first time in 100 years that the ACLU has had a direct-action component. People Power has grown from zero people to over a half a million people who have identified as People Power activists, and have taken some concrete action in the real world as People Power activists, with our support, and reported back to us on that activity. I think our civil society is very strong.

One of the large differences between Donald Trump and for example autocrats and authoritarians such as Viktor Orbán in Hungary or Recep Tayyip Erdoğan in Turkey is that Trump has tried to do the same things against NGOs, the academy, the news media, reporters and journalists and other parts of civil society — and has failed because of pushback by the American people.

Donald Trump is lawless. He literally believes that the rule of law does not apply to him. How is the ACLU trying to stop this assault?

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No president does everything that we want him to do. Every president has engaged in what we view as unlawful actions. The ACLU has been in existence for 100 years. We've sued every president over the course of that time. We've sued Obama, we sued Clinton, we sued the Bushes and we've sued Trump. But the ACLU has sued Donald Trump more than any of the prior presidents because he is so dismissive of any legal constraints. The courts have repeatedly pushed back against Donald Trump and he has lost more cases than any prior president. It is also important to note that Trump has also appointed many judges to the courts.

The decisions from the Supreme Court, ruling against the Trump administration on its revocation of DACA and on its refusal to recognize that federal law protects LGBT employees, reinforces the point that the health of our system rests on checks and balances. 

But as I have always said, we cannot rely on institutional checks and balances alone. We, the citizenry, are a check ourselves — through our exercise of the right to dissent, to associate with like-minded people, to assemble in the streets and to petition the government for a redress of grievances. Those checks have never been more important. The anti-racist police demonstrations illustrate their power.

Authoritarians test norms as a way of ultimately breaking them. The abnormal becomes normalized and democracy eventually succumbs to authoritarianism. For example, Trump may not have gotten everything he and his adviser Stephen Miller wanted with their "Muslim ban," but they did get 90 percent or so of it. How do we measure the impact of the legal cases the Trump administration has won in court?

It is very disturbing. From immigrants' rights to LGBT rights, racial justice, reproductive freedom and many other issues, things have not been good. In the long term the way we assess America under Trump is what happens on Nov. 3. If the American people say to themselves that it is fine with them that we have a president who sought to separate families. We have a president who sought to deny undocumented teens who learn they're pregnant while they're in federal custody access to a doctor so that they can get an abortion, which is their constitutional right. We have a president who is trying to put a citizenship question on the census in order to deter immigrants from responding, in order to advantage the Republican Party at the disadvantage of the Democratic Party. We have a president who has called white supremacists "very fine people." If on Nov. 3, the American people say, "Hey, that's fine with me" and re-elect Trump, then the norms have really been broken.

But if instead there is a resounding rejection of Donald Trump, then I think the lesson we draw as a country is that when a president challenges norms in the way that Donald Trump has, then such behavior has consequences. A president who behaves that way will be rejected by the American people. Ultimately, it is up to the American people. If Trump is rejected on Nov. 3, it is an object lesson in how not to behave as president. Future American presidents would learn that lesson.

As an organization, how is the ACLU prioritizing its responses to Donald Trump and his administration's tsunami of lawlessness?

It is exhausting. The ACLU is an across-the-board civil rights and civil liberties organization. But we prioritize where we see threats being greatest at any particular time. With the Trump administration, the ACLU has prioritized immigrants' rights, reproductive freedom and voting rights. We are, of course, still fighting for LGBT rights and racial justice and the like.

But that's where he's put his resources: xenophobic efforts to scapegoat immigrants, efforts to overturn Roe v. Wade and deny women access to reproductive health care, and efforts to suppress the vote, use the census to ensure the success of the Republican Party even if they don't have majoritarian support in a democracy. Over time, the ACLU has brought many lawsuits to protect immigrants' rights and to make sure that women have access to reproductive health care, and that the American people can vote in a moment when the Republican Party does not want majority rule.

The immigration lawyers are working especially hard because in the context of the COVID pandemic, we really need to get people out of immigration detention. Being detained right now is a lethal situation. The immigration lawyers were challenging all the anti-asylum policies. Now they're trying to get people out of these detention centers where they may die if the COVID infection gets in there.

In terms of women's reproductive freedoms, many states are exploiting the pandemic to further their anti-abortion agenda. The ACLU is in court seeking emergency injunctions to keep abortion clinics open in order to allow people to get the essential medical services they need.

What do Donald Trump and his agents want? How are they trying to achieve their goals?

I believe that Donald Trump is a pure narcissist. What he wants is attention and to be re-elected. I do not believe that he has many principles other than those.

Why is Trump so hostile to immigrants? Because it plays to his base. The same is true for Trump's efforts to take away women's reproductive rights. The answer to virtually every question about Trump is: Does it play to his base or not? That strategy has worked for him to the degree of pleasing his built-in voters but has not worked in terms of him expanding his support with the American people in any meaningful sense.

Virtually everything Donald Trump has done — with the exception of the tax cuts — is unilateral through executive order. Well, that means that everything Donald Trump has done unilaterally through executive order can be undone using the same power. If the American people vote like their rights depend on it, they can correct many of Trump's wrongs in the first 100 days by electing a new president.

Donald Trump and his agents have taken the Office of Civil Rights, which is supposed to protect the rights of marginalized and vulnerable individuals and communities, and transformed into a tool for expanding the power of right-wing Christian evangelicals and Christian nationalists to impose their will on other people. How did the OCR become so perverted and twisted?

The Office of Civil Rights is a disaster under this administration, with both Jeff Sessions and Bill Barr. The OCR exists to protect the rights of the marginalized and the vulnerable. The OCR has historically focused on monitoring police abuse and responding to local police departments that are systematically discriminating and violating the civil rights of African Americans and Latinos and other marginalized groups. The OCR has also pushed for increased voting access, again for historically marginalized groups. Trump does not care about those things. He does not want to empower minority communities. Trump cares about suppressing those minority communities.

This means that the Trump administration has pulled back from any meaningful monitoring or enforcement with respect to local policing. Trump has also done nothing to enforce voting rights. In fact, Trump is doing everything he can to suppress voting rights. What the Trump administration has done with the Office of Civil Rights is one of many outrageous things, which means it is hard to pay attention given the scale of his torrent of abuses.  

What are some of the most egregious examples of how the Trump regime is taking away fundamental human and civil rights in this country?

Immigration. Denying people the right to apply for asylum in ways that are directly contrary to the statute if they face persecution abroad. Detaining people when they do not need to be detained, especially immigrants. Trump is detaining people to stop them from seeking asylum. That attack on immigration is one of the many egregious things that the Trump administration has done. The list is very long.

Trump and his administration have repeatedly threatened protesters and others exercising their rights of free speech and freedom of assembly with violence, imprisonment, lawsuits and other punishments. How is the ACLU intervening?  

This is our bread-and-butter work. We have long defended the right to demonstrate, and sued government officials who impose unreasonable restrictions on that right. In connection with the protests of police abuse in recent weeks, we have sued Trump and Barr for gassing peaceful demonstrators in Lafayette Park so the president could have a photo-op carrying a Bible, Los Angeles for its overly broad curfew, and Seattle for its use of chemical irritants and flash grenades against protesters. 

During the George Floyd protests, the police, National Guard and other government forces repeatedly targeted reporters and journalists with tear gas, pepper spray and rubber bullets. Reporters and journalists, as well as others, have suffered serious life-threatening injuries from so-called non-lethal weapons. 

Journalists must have the right to cover protests in a free society. The ACLU recently sued state and local police in Minnesota for attacks on journalists during the protests there. We fully support both the right to protest and the right of the press to shine a light on protests. As to the protests themselves, we've long been critical of police abuse, including those directed at people of color. We wholeheartedly support demands to spend less money on police and more money on interventions that affirmatively support people in inner-city communities, where opportunities are most limited and the risk of both police abuse and victimization from crime are greatest. We think we can and should spend more on education, aftercare, housing and job training and less on police and prisons. 

America's descent into authoritarianism continues. The Trump regime is now literally using de facto secret police to detain and "disappear" protesters in Portland. Trump is planning to unleash similar forces all over the country against Democratic-led cities. By doing this, Trump is violating long-standing and basic understandings of law and justice in America to create a state of terror as a means to help him win the 2020 election.

Trump's introduction of federal forces into cities where they are not wanted is almost certain to increase the likelihood of violent confrontations and abuse. We have already sued over the situation in Portland, Oregon, and are working with our affiliates to respond to abuses as they arise.

As part of his reign of terror against Americans who dare to dissent and stand up to him, Trump is trying to criminalize dissent. He has basically declared war on any Americans who disagree with him, calling them Nazis, "anti-American," "enemies," "the radical left" and other slurs.

The president is supposed to be the president for all the people, not a divider in chief. He has shown himself to be as thin-skinned as any public figure in living memory, and he is increasingly lashing out at those who disagree with him — not only in his speeches, but with efforts to muzzle critics like Michael Cohen and reward loyalists who commit crimes for him, like Roger Stone. But as is often the case with heavy-handed government efforts to suppress or penalize critics, it's not working. The ranks of those who disagree with him are growing in size and volume, and his support is dropping precipitously. Could it be that democracy is working?

If Donald Trump wins a second term in office, what do you want to prepare the American people for?

Such an outcome would send a deeply disturbing signal to the rest of the world. Such an outcome would also say something very troubling and disturbing about the United States and its people. Trump will get more Supreme Court appointments. He will double down on his anti-immigrant measures because he will see that it worked for his re-election. He will double down on overturning Roe v. Wade and denying women their fundamental freedoms and equal status in this society. There are many horrific things that will happen if Donald Trump is re-elected.

The only real response, in my opinion, is to push back, organize, and build a movement to reject him. But the American people do not have to wait for Election Day. We can do that now. That's what we've been doing at the ACLU. We are not a partisan organization, so we don't endorse candidates for elective office. But the ACLU does believe that voting is a critical part of being a citizen because the ultimate guardian of civil liberties and civil rights are the people themselves. The ballot box is one of the most important places to exercise those rights. The American people should vote like their rights depend on it.

What will the ACLU do if Donald Trump refuses to leave office after the election, or perhaps goes so far as to impose martial law?

The United States has always seen peaceful transitions to power. That is one thing which distinguishes the United States from too many other countries. We as Americans must keep it that way. Rest assured that if Trump seeks to stay in power after losing the election, we here at the ACLU will do everything in our power to challenge his actions. 


Chauncey DeVega

Chauncey DeVega is a politics staff writer for Salon. His essays can also be found at Chaunceydevega.com. He also hosts a weekly podcast, The Chauncey DeVega Show. Chauncey can be followed on Twitter and Facebook.

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