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Lawyers, Judges, and the Road to Fascism – posted 3/14/2018 and published in the Concord Monitor on 3/22/2018

March 14, 2018 Leave a comment

Back on February 16, the New Hampshire Bar Association held its annual mid-year meeting. This year the program was a little different. Instead of the usual continuing legal education event, the Bar brought in two historians, Anne O’Rourke and Willliam Meinecke Jr., from the United States Holocaust Museum, to look at how German lawyers and judges responded to the destruction of democracy and the establishment of the Nazi state.

Their presentation showed that the worst horrors of the Nazi regime did not arrive full-blown. Rather, the road to fascism was taken in gradual incremental steps, each one preparing the way for the next.

While German lawyers and judges might have opposed Hitler’s authority and the legitimacy of the Nazi regime, they failed to do so. Not only did they fail, they collaborated and interpreted the law in a way that broadly facilitated the Nazis’ ability to carry out their agenda.

Admittedly, there was a very narrow window to dissent. Courts interpreted every appearance of coolness toward the regime as a breach of professional standards. insufficient enthusiasm for the regime could be a basis for getting disbarred.

O’Rourke and Meinecke pointed to a number of decrees by the Nazis that they used to consolidate their power and advance their program. After the February 1933 fire in the Reichstag, the German parliament, ┬áthe Nazis suspended critical provisions of the German constitution, including right to assembly, freedom of speech and freedom of the press.

They also removed all restrictions on police investigations. They rounded up political opponents, particularly Communists, Socialists and Social Democrats, holding them in preventive detention and sometimes disappearing them altogether. Relying on the Reichstag Fire Decree, the Nazis held people without specific charges. Defendants had no right to appeal, no access to a lawyer or right to judicial review.

The German Supreme Court did not balk at the new power arrangement. Sadly, the Court failed to challenge or protest the loss of its judicial authority.

Less than one month after the Reichstag Fire Decree, the Nazis enacted an Enabling Act that allowed them to promulgate and establish laws that violated the Weimar Constitution. Under the Enabling Act, they did not need the approval of then-President von Hindenberg or the parliament. The passage of law had previously required a two-thirds majority vote in parliament.

The Nazis prevented their parliamentary opponents from taking their seats, detaining them in camps. They stationed their thugs in the parliamentary chamber to intimidate remaining representatives.

The German Supreme Court did nothing to challenge the Enabling Act. The Court saw itself as a loyal state servant, owing allegiance to Hitler. Law became a means to serve the Aryan race. What was defined as good for the race became good law.

In July 1933, the Nazis enacted another new law against the founding of new political parties. With this law, they outlawed all other political entities and made themselves the only allowed party in Germany.

When President von Hindenberg died in August 1934, Hitler assumed power as Reich Chancellor and Fuhrer. The oath of loyalty for all state officials was changed. Rather than pledging loyalty to the German constitution, a new oath required loyalty to the Fuhrer.

O’Rourke and Meinecke showed how anti-semitism and the persecution of the Jews were a centerpiece of the Nazi enterprise. During the first six years of Hitler’s dictatorship, Jews were subject to more than 400 restrictive decrees and regulations. Among other things, the Nazis removed Jews from government service, forbid their admission to the Bar, banned Jews from editorial posts, and prohibited them from marrying or having sexual relations with persons of “German or German-related blood”.

By April 1933, the state ministries of justice suspended from duty all Jewish judges, public prosecutors and district attorneys. Also all professors of law who were Jews and those few who were not conservatives were driven out of universities and dismissed.

About this time period, the Holocaust historian Raul Hilberg wrote:

“… a lawyer necessarily had to face at every turn the critical question of harmonizing peremptory measures against Jews with law. In fact this alignment was his principal task in the anti-Jewish work. Yet in the end lawyers, no less than physicians, mastered those mental somersaults.”

It is impossible to know what degree of ambivalence or conflict German lawyers and judges had with the Nazification of the law. Hilberg wrote that the Nazis were obsessed with a need for legal justification. Even with the death of due process and any semblance of individual rights, the Nazis craved the appearance of legality.

Years before the Holocaust, the German judiciary had already rationalized the absolute debasement of law at the service of the Nazis. Considering the early years, what came later cannot be too surprising. There was never any outrage about the systematic removal of Jewish lawyers and judges from the German legal world.

So what lessons can we learn from the German experience? Why did the lawyers and judges turn out to be so weak, pliable and accommodating?

First, I would cite the failure of critical thinking by both lawyers and judges. They offered themselves up to the Nazis to do their bidding. The legal profession proved to be either too conformist or careerist to take chances and rock the boat. Lawyers and judges played it safe to try and get ahead.

By going along, they gave the Nazis a big gift, what the historian Timothy Snyder has called “anticipatory obedience”. If lawyers and judges had said “no” that would have caused significant problems. The Nazis desperately wanted at least the appearance of lawyer/judge buy-in to give themselves legitimacy.

Sadly, as Snyder pointed out in his book On Tyranny, most of the power of authoritarianism was freely given. The Nazis’ rise to power relied on zealous support from German conservatives and nationalists in the courts.

There was a massive failure of professional ethics. Somehow doing the right thing was replaced by subordination to a demagogue. We should remember that lawyers were vastly over-represented among the commanders of the Einsatzgruppen. The Einsatzgruppen were the death squads of Nazi Germany who were responsible for mass murder of Jews, Gypsies, Polish elites, Communists and the handicapped.

The experience of German lawyers and judges shows the need for a genuinely independent judiciary, regardless of what political party holds power. Without genuine independence, justice as an ideal disappears. What is left is glorification of power.

In all that has been written about the Nazis, I find it surprising how little attention has been paid to the collaborationist role of lawyers and judges. In an allegedly rule-of-law state, the Nazis needed lawyers and judges. For Americans today, the German experience provides a sobering example of how a nation’s legal and judicial systems can be made to aid and abet a rogue regime’s gradual descent into barbarism.

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Donald Trump and Fascism – posted 12/17/2015 and published in the Concord Monitor 12/27/2015

December 17, 2015 9 comments

This piece appeared in the Concord Monitor under the title American Fascist on December 27, 2015.

Probably no word in political vocabulary is more misused than fascist. It gets used all the time as an insult or as a way to tag a political opponent. It may just be used as a form of name-calling to indicate political disagreement with someone seen as authoritarian or dangerous. People on the political right or left can be called fascist although it is a charge typically levelled at someone on the right.

Lately it is hard to miss all the articles appearing on the subject of whether Donald Trump is a fascist. He certainly is not calling himself that.

In trying to get a handle on whether Trump is a fascist, I thought of an article written 20 years ago by the Italian novelist and writer Umberto Eco. The article, “Eternal Fascism: Fourteen Ways of Looking at a Blackshirt” suggests a list of features of fascism.

How Trump stacks up with these features is one way to get at the question about whether he is the real fascist deal. Eco thinks it is enough that one feature he describes be present to allow fascism to coagulate around it.

Eco suggests that the first feature of fascism is a cult of tradition. Trump’s baseball cap says, “Make America Great Again”. He harkens back to a mythological American past. In Trump world, there was no genocide against Native Americans or slavery. Trump doesn’t recognize that our past was worse than our present. We have actually made some progress in overcoming original sins.

I think irrationalism is at the core of the Trump phenomenon. Facts get in the way of his fantasy. The NBC reporter Michael Isikoff asked Trump if he thought the State of Hawaii was lying in regards to Obama being born there and Trump did not answer.

Trump says he will build a wall. He will deport eleven million and shutdown immigration. He will register Muslims. He will not allow American Muslims who leave the country back in when they want to return. He will waterboard and restore torture. He will keep us safe. It doesn’t matter that so many of his ideas are utterly unconstitutional. He demonstrates a cluelessness and disregard for constitutional law. For Trump, the law gets in the way.

What is important is that he is number one, especially in the everchanging polls. He is the smartest, the best, the richest. He holds himself up as so great. You have to ask why he is so insecure that he always feels the need to tout himself so much. I am reminded of something my dad used to say: “Self-praise is poor recommendation”. While it is not unusual to expect presidential candidates to be megalomaniacs, Trump carries the megalomania to new levels of preening narcissism.

Trump is not interested in ideas. He is a man of action. Eco says that irrationalism depends on the cult of action for action’s sake. Trump builds casinos and hotels. These other politicians simply talk. Trump doesn’t do policy, plans or specifics.

Without real policies beyond the cult of himself, Trump is totally mocking other candidates. They are losers, low energy, stupid, at one percent in the polls or weak. There is no room for disagreement. If you disagree with the Donald, you are, by definition, a fool. He says all who oppose him will fall. Ted Cruz is next. He sucked up but his time is now coming.

Eco says the fascist exploits and exacerbates the natural fear of difference. Fascism appeals against the intruders. The Donald is big against The Other. First it was the Mexicans. They were rapists and criminals sneaking across the border. Now it is the Muslims – all the Muslims. We must keep them out because they could be secret jihadis.

Racism is close to the heart of Trumpism. He has become a favorite with America’s pitiful white supremacists. Trump’s rants give white supremacists more room to spew their poison and to act out. In August, two Boston brothers beat a homeless man with a metal pipe and then urinated on him. The two men told the police, “Donald Trump was right.” They thought the homeless man was an illegal immigrant and they went on to say, “All these illegals must be deported.”

Rhetoric matters and Trump’s unhinged style has green-lighted violent vigilantes and white supremacists. I think we can expect more attacks on those perceived to be Muslim. It would appear that for American fascists Muslims are filling and replacing the role previously designated for Jews.

It probably does not need to be restated where scapegoating led during the German Nazi era. I will say millions perished. The historical track record of fascism is littered with corpses. Trump has commented favorably on Operation Wetback in the 1950’s and he has been equivocal about the internment of Japanese-Americans during World War II. In spite of almost universal condemnation of the Japanese-American internment, Trump still sees it as a tough call.

Trump plays to the frustrations and insecurities Americans feel about the economy and terrorism. He indulges simple-minded solutions. Bomb them, kill them, deport them. To the rest of the world he is the stereotypical Ugly American. I would note that there is a popular petition going around the United Kingdom right now which would ban Trump from travelling there.

It is sadly ironic that some white working class and middle income people fall for the Donald’s celebrity routine. Trump tries to act like a regular guy but he is a one percenter through and through. Trump said his dad helped get him started with a small loan. The loan was for $1,000,000. Doesn’t everybody get that?

There is a dark side to the glitz. I find it surprising that the media has not more closely investigated his bad business practices. The multiple bankruptcy filings, the bad real estate deals, the evictions carried out against poor and elderly people, all are part of the Trump story and they deserve an airing. The media likes the fact that Trump’s celebrity has increased viewing and ratings.

Trump says he is not dependent on campaign contributions from rich people but what he is not saying is that he acts in the interests of his 1% friends. He will never do anything about economic inequality.

What Trump does when he scapegoats Muslims or Mexicans is to point the finger away from Wall Street and Big Business profiteers who did tank our economy. It is not Muslims or Mexicans who shipped good American jobs overseas, reduced wages and harmed our standard of living. In thinking about Trump supporters, I am reminded of this quote from the writer, Michael Lind.

“The American oligarchy spares no pains in promoting the belief that it does not exist but the success of its disappearing act depends on equally strenuous efforts on the part of an American public anxious to believe in egalitarian fictions and unwilling to see what is hidden in plain sight.”

Whether Trump is considered a fascist or a demagogue, his candidacy poses a special problem for Republicans. Trump is no conservative. He is not about conserving what is valuable in America’s laws and heritage. He has crossed enough lines to indicate he is something else altogether.

Being Jewish, I would admit to a special concern about fascism. The words “never again” ring in my mind. The maligning of broad groups like Muslims or Mexicans is unacceptable coming from any political candidate.

I do think members of the Bar have a particular responsibility to repudiate Trump’s unconstitutional antics. We need to protect our Constitution and our Bill of Rights. During the Nazi era, the German Bar and judiciary did a terrible job of repudiating fascism as it advanced to power. They accommodated fascism and ended up as fascist apologists. Americans lawyers and judges have a responsibility to do far better than the disastrous performance of their German counterparts.

It would be wrong to expect fascism in America to evolve as a duplication of previous fascist incarnations whether in Germany or elsewhere. It would likely be uniquely different and as Eco writes it could come back under the most innocent of disguises. Americans of all stripes need to repudiate fascism in whatever form it takes.