Trump’s Reichstag Fire
By Burt Neuborne
Democracy died in Weimar Germany on February 27, 1933, when Adolf Hitler, insisted, without persuasive evidence, that communists had burned down the German parliament building as part of a conspiracy to subvert democracy. Hitler, claiming to be defending democracy, arrested the communist members of the Reichstag, and awarded himself dictatorial powers under the poorly drafted emergency clause of the Weimar Constitution. Let’s be clear: Hitler didn’t act by himself; nor did he overthrow German democracy by force. Instead, he launched a big lie about a fake threat to democracy and used a loophole in the Weimar Constitution to stampede millions of adoring Germans into choosing authoritarian rule by a charismatic strong-man disguised as a savior of democracy. Sound familiar?
By endorsing Trump’s big lie, Trump’s Congressional enablers struck at the heart of American democracy — our willingness to accept electoral outcomes, even when we lose.
Donald Trump, who once kept a copy of Hitler’s speeches on his bed stand, is attempting to set a Reichstag fire in the United States. Instead of a big lie about communists conspiring to burn down parliament and overthrow the government, Trump asserts a big lie about a claimed nationwide conspiracy to steal the 2020 presidential election. Instead of Hitler’s legal veneer of emergency powers, Trump is seeking to exploit loopholes in the Electoral College rules to enable the vice president and Trump’s enablers in Congress to destroy American democracy in the name of saving it. It’s been two months since the presidential election in which Joe Biden defeated Trump by more than seven million votes, and by a 306 to 232 majority in the Electoral College. No evidence of fraud by election officials has surfaced in any state, much less evidence of a massive nationwide conspiracy coordinated over multiple states. Every state certified its electors by the December 8 safe-harbor date. The Electoral College elected Joe Biden on December 14. At least sixty of Trump’s lawsuits, bereft of proof, have cratered. The Supreme Court has rejected two efforts to subvert the 2020 presidential election and has put all remaining challenges in limbo. Trump’s extralegal efforts to pressure local Republican election officials to throw the presidential election into chaos have utterly failed. His sustained attempt to subvert Republican election officials in Georgia, including an hour-long telephone exercise in criminal extortion, has been rebuffed. His unprecedented effort to pressure Republican election officials and state legislators in Michigan failed completely. Trump’s effort to stampede Republican officials in Pennsylvania and Wisconsin went nowhere. Officials in Arizona and Nevada held the line against efforts to force them into repudiating the results of the 2020 election.
Hitler, insisted, without persuasive evidence, that communists had burned down the German parliament building as part of a conspiracy to subvert democracy.
Then, he zeroed in on Congress, urging Republicans to refuse to certify the result of the 2020 election. He failed, of course. The combined weight of the entire Democratic congressional delegation, coupled with more than enough congressional Republicans, crushed Trump’s last stand; but not before his big lie about massive fraud and illegality was cynically repeated by ambitious Republican politicians who thought they could gain power by signing on to Trump’s big lie, secure in the knowledge that they couldn’t win. They are the direct heirs of the center-right politicians in Weimar who thought there was no real risk in using Hitler’s big lie to amass political power, until it was too late.
By endorsing Trump’s big lie, Trump’s congressional enablers struck at the heart of American democracy — our willingness to accept electoral outcomes, even when we lose. This time, thanks to a thin red line of principled Republicans, we’ll survive Trump’s attempted coup — but will our commitment to democracy be strong enough to survive the next one?
Trump’s predictable last stand was to incite rioters and plunge them into the heart of American democracy in an effort to derail the certification process once it became clear Vice President Pence would refuse to play quisling. A majority in Congress yesterday chose democracy over personal political interest, abiding by Robert Frost’s admonition that “When at times the mob is swayed to carry praise or blame too far . . . choose something like a star, to stay [your] minds on and be staid.” But six Republican senators and more than one-half of the Republicans in the House were willing to support Trump’s attempted coup. Add their names to the German politicians who were part of the mob that always lies in wait to destroy democratic government.
Burt Neuborne is the Norman Dorsen Professor of Civil Liberties, founding legal director of NYU School of Law’s Brennan Center for Justice, and the author of When at Times the Mob Is Swayed: A Citizen’s Guide to Defending Our Republic.