Plenary Power: The Final Step in Trump’s American Autocracy

How the Insurrection Act could become the 21st-century Enabling Act, with six justices and the GOP standing by…

The endgame for Trump, Vance, Noem, and Bondi is coming into clearer focus, and it’s nearly a one-for-one, step-by-step implementation of Nazi jurist/philosopher Carl Schmitt’s ideas that created and sustained the early Third Reich. Vance has even gone so far as to directly quote Schmitt.

The concepts aren’t particularly complicated, and it’s easy to see how Trump and his enablers are implementing them:

First, Schmitt taught, “there is no law, there is just power”: democracy is a messy anachronism in which whomever controls the political majority inevitably imposes their will on everybody else, stifling individuality and freedom, both in thought and behavior. The cure for this messiness of democracy, he argued, is a strong leader who transcends politics, understands the people and reflects their true desires, defends their racial and religious identity, ignores inconvenient laws, and thus leads the superior/majority race of people to their true destiny. A fascist dictator, in other words.

Second, the way the noble dictator rises to “plenary” (ultimate, unchallengeable) power is by discarding participation in the political process; contemptuously ignoring norms; breaking previous promises; flaunting national laws while blowing up negotiations; and refusing to compromise with “inferior” political parties or political ideas. Instead, Schmitt says, a “true leader” puts every institution and person in the nation into one of two binary buckets: “friends” or “enemies.” Friends are lavishly and publicly rewarded with wealth and power; enemies are relentlessly pursued and conspicuously punished until they’re either neutralized, bankrupted, or dead.

Third, the way to get past the guardrails built into constitutional republics (like the German 1930s Weimar Republic or today’s American republic) is by invoking “emergency” powers, even if it’s necessary to create an emergency to justify the invocation.

When JD Vance sat down with New York Times columnist Russ Douthat in May of last year he complained that Democrats opposing Brett Kavanaugh’s appointment to the Supreme Court weren’t interested in Kavanaugh’s legal positions but, rather, whether he would serve or oppose Democratic Party political efforts. He said:

“The thing that I kept thinking about liberalism in 2019 and 2020 is that these guys have all read Carl Schmitt — ‘There’s no law, there’s just power.’”

Not only has Vance apparently read Schmitt, his mentor and benefactor, Peter Thiel, has — according to extensive reporting in Wired magazine — long been fascinated by the Nazi theorist’s ideas.

While it’s unlikely that Trump could tell Schmitt from Fred Flintstone, he instinctively understands the man’s theories; he’s systematically following them, starting with his flouting norms and laws like the Hatch Act (2 years in prison for selling Tesla’s in front of the White House) and both US and international laws against selling pardons or killing civilians (in boats in the Caribbean) without trial and conviction.

And that’s just the beginning. Taking a jet plane in an alleged bribe; giving the UAE high-tech chips in violation of America’s national security in exchange for a $2 billion investment in a Trump family crypto business; and exempting companies that gave him gifts or money from antitrust regulation, tariffs, and Foreign Corrupt Practices Act enforcements continue the trend.

From there, Trump moved to Schmitt’s friend-enemy doctrine, maliciously punishing his perceived enemies even when — like Comey, Taylor, and Clapper — they’re Republicans.

As South American strongman Oscar Benevides famously said, “For my friends everything; for my enemies, the law.”

He’s characterized Democrats in terms never before used by an American president to describe members of his opposition party, using words typically reserved for traitors and criminals. This is incredibly wrong and destructive, which is why George Washington warned against it and no president has ever done it.

His friends, though — even if they took $50,000 in a paper bag in an FBI bribery sting (Homan), or looked the other way as Epstein raped little girls during her 8 years as Florida’s top law enforcement officer (Bondi) — can do no wrong. Attack the Capitol and cause the death of three police officers? You get a pardon, and now it appears even compensation.

And now he’s preparing to use the sledgehammer that Hitler wielded to destroy the German constitution, taking it as a club to seize absolute, plenary power: he’s taking visible steps toward invoking a nationwide state of emergency.

Schmitt first advanced this idea in 1933 when a Dutch communist set fire to the German parliament (Reichstag) building, describing what we call a state of emergency as a “state of exception” (Ausnahmezustand).

During such an “exception” or (even phony) moment of “emergency,” Schmitt said, a leader could — indeed, should — use it as an excuse to ignore normal constitutional requirements and laws because the urgency of the exception supersedes the law in order to preserve the republic.

Using this process, Schmitt argued, would allow a “noble Führer” with his finger on the pulse of his people to end-run around the tedious, laborious normal legal and ethical processes by which a nation’s leader normally executed the law.

It would let him become, initially, above the law (as six Republicans on the Supreme Court have endorsed) and, ultimately, become the law himself and rule by decree or executive order.

Former Labor Secretary Robert Reich is calling out Trump’s four-step plan to achieve Schmitt’s goal of plenary power (summary in my words, not his):

1) Deploy ICE to Blue cities with brutal tactics that intentionally inflame local people to protest;
2) Exaggerate the “crisis” and try to provoke the protesters to violence;
3) Deploy troops to further polarize and inflame local sentiment, evoking physical resistance to their presence that justifies arrests and live ammunition, a Tiananmen square of sorts;
4) Citing that resistance, invoke the Insurrection Act of 1807 to suspend parts of federal law and the Constitution so you can use the troops to steal the 2026 an 2028 elections for the GOP.

Illinois Governor JB Pritzker has echoed that narrative, explicitly saying that the goal of Trump’s “invasion” is to control and corrupt the elections next year and in 2028, and California Governor Gavin Newsome has echoed the sentiment.

Trump’s behavior is a virtual mirror of the steps Schmitt recommended after the Reichstag Fire, and Hitler followed with both the Enabling Acts (they made it legal to prepare lists of your political enemies to use the state against), and his political assassinations during the later Night of the Long Knives (for which Schmitt wrote the legal justification).

Like so many of us across the nation, Robert Reich is basically begging people not to take the bait Trump is dangling. So far here in Portland, for example, Trump’s and Noem’s attempts at provocation have been met with street theater, dancing furries, people bringing flowers to the ICE building, and a naked bike ride protest.

But the ICE guys, laughing, shot a praying priest in the head from the roof of the ICE building, hitting him with a Pepper ball round that knocked him to the ground.

Baffled, Kristi Noem told Trump and America at a cabinet meeting yesterday that Portland must have “cleared” the “war-torn” areas and hidden the parts of the city that are smoking ruins from the recent riots she imagines (and Fox “News” lyingly suggests by playing 5-year-old B-roll of the BLM protests) have happened:

“[Mayor Keith Wilson] said that Portland was perfectly safe, a beautiful city, no problems. And I said, ‘well, why did you clear the streets for me today then, and build out a four-block radius to make sure I could get in and out of here?’”

Lacking any evidence whatsoever of organized violence against ICE officers or their building in Portland, the notorious puppy killer, her (also married) alleged boyfriend in tow, added:

“This is a sick situation. But those are anarchists, those are people that want to overthrow government. They’re really degenerates. And we’re finding out who is supplying all of those beautiful signs and everything else.”

So far, Portland, Los Angeles, and Chicago have succeeded in not giving in to Noem’s and Trump’s Schmittian provocations. Odds are, though, they’ll continue to ramp up the violence until finally a breaking point is reached, and Trump can then claim justification for the Insurrection Act, something he’s now openly discussing almost daily.

Stephen Miller appears to be salivating at the prospect, telling CNN that “under Title 10 … the president has plenary authority” and then suddenly realizing that he’d slipped and let the cat out of the bag; he froze for the next dozen or so seconds until CNN claimed technical difficulties and cut away. When they came back, Miller omitted that “plenary” word that Carl Schmitt so loved — which means “ultimate power that nobody can challenge” — from his final remarks.

In federal court in Chicago yesterday, U.S. Deputy Attorney General Eric Hamilton said, “The president’s judgment is unreviewable,” echoing Schmitt.

As historian Heather Cox Richardson explained:

“It is this power under Title 10 that White House deputy chief of staff Stephen Miller yesterday claimed was ‘plenary,’ or absolute. The idea that exceptions to the rule of law reveal who is really in charge of the government was central to the political philosophy of German political theorist Carl Schmitt, who joined the Nazis and whose work is increasingly popular among the radical right in the U.S. these days.”

Forbes notes that Trump is already claiming that if courts try to stop him, he’ll neuter them by invoking the Insurrection Act, claiming it gives him plenary powers:

“Trump has suggested he could be inclined to invoke the law if courts rule against him. ‘If people were being killed and courts were holding us up or governors or mayors were holding us up, sure, I’d do that,’ Trump said Monday, referring to using the Insurrection Act.”

The next few days, weeks, or possibly months will be pivotal.

— Will citizens in one of the Blue cities Trump’s thugs have invaded give him the riot he wants?
— If they do and he invokes the Insurrection Act, will the six compliant, frightened Republicans on the Supreme Court back him up?
— If they don’t, will he ignore them and order the military into our streets to establish martial law anyway?
— Will the nation’s military commanders go along with such an order?
— And if they do, can they stop or effectively disrupt the elections of 2026 and 2028 in Blue cities? (We even had elections during the Civil War and WWII.)

Most Americans, polls show, are aghast. Few of us ever thought we’d live to see the day an American president would be following the steps to cripple a republic laid out by Nazi Germany’s most famous political theorist.

But here we are. And the most important things we can do are to fearlessly keep speaking out (“courage is contagious”), demand action from our elected officials of both parties, and show up peacefully in the streets on October 18th for No Kings Day 2.

See you there!

Louise’s Daily Song: “Trump’s March Toward Plenary Power”

The song that was inspired by this article is here.
My reading this article as an audio podcast is here.
My newest book, The Last American President: A Broken Man, a Corrupt Party, and a World on the Brink is now availble in bookstores nationwide.
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