Why is everyone talking about America’s Reichstag Fire moment?

Why is everyone talking about America’s Reichstag Fire moment?

Interwar Germany seems to be on the minds of many commentators as they contemplate the direction that the American administration has been heading since Trump’s inauguration (just three weeks ago, yes its only been three weeks…).  And one moment from 1933 seems to be particularly concerning. Both Paul Walderman in a piece in This Week magazine and Roger Cohen in the New York Times  this past week brought up the possibility that there might be a “Reichstag Fire” moment in the future and mused what the consequences of that might be. 

The reference is to the February 1933 burning of the Reichstag building in Berlin, an event that justified the suppression of the political opposition to the newly-installed Chancellor of Germany, Adolf Hitler.  The fire was falsely blamed on a supposed coup attempt by communists and led to sweeping legislation targeting the political left in Germany.  And, after the election held in March of 1933 (which saw major abuses of power and voter intimidation by the Nazi’s), the fire was also invoked to justify the granting of even more draconian legislation – the so-called Enabling Act – which gave the Nazi-led government emergency powers and set in train the establishment of Hitler’s dictatorship.  The fire, George Prochnik’s recent New Yorker  article notes, quoting the memoir of Austrian writer Anton Zweig, was the “final toxin” needed to precipitate a total German catastrophe: the final collapse of constitutional accountability and the inevitable slide towards global war and genocide. 

Now Walderman and others are not predicting that history is repeating itself.  Rather, they are suggesting that a ‘shock event’ would provide the pretext for enacting draconian security measures by the Trump administration.  As Walderman puts it:

Just to be clear, I’m not suggesting that President Trump is going to turn the United States into a genocidal dictatorship. But we should understand that eventually, there will be some kind of terrorist attack on U.S. soil — perhaps one that fails, or one that succeeds in killing a few Americans, or more than a few. While we have been remarkably safe from terrorism since September 11 — fewer than 100 of us killed by jihadi terrorists over those 15 years — such attacks do happen from time to time. And when the first one of Trump's presidency occurs, he will probably move quickly to take advantage of it. In fact, I’d be surprised if Stephen Bannon and Stephen Miller aren’t already working on a plan for what to do when they get the chance.

….

What precisely might Trump do? …. he’ll ramp up people’s fear and anger, using the attack (no matter how minor it might have been) as justification for a range of policy moves. He said during the campaign that he wanted to put mosques under surveillance; that could be just the start of a range of harsh actions directed at American Muslims. More restrictions on travel and immigration would be almost guaranteed. He might well order mass deportations. And given his regular, personal attacks on judges that don’t rule as he’d like, there's a genuine question of whether he’d obey lawful court orders that restrained him in a situation where he felt he had the advantage.

Now, the inflammatory use of the Reichstag Fire reference is probably too alarmist – to anyone who knows to what it refers the event screams “Nazi Dictatorship” – which as I blogged a week ago is unlikely to be how autocracy in America would come about – if it did, which is a very big if, and by no means an inevitability.  But given what we have seen in Trump’s campaign and in the first three weeks of his presidency (yes, it really has only been three weeks…), how likely is this scenario of a “shock event” like the Reichstag Fire being used to further undermine US constitutionalism? 
In short, I think it very likely.  And the most likely event to precipitate a crisis would be an act of terrorism on US soil (or even against one of Trump’s personal properties overseas) – especially one committed by Islamist extremists.

Trump’s administration has done nothing to date that suggests it would act reasonably or proportionately to a domestic terrorist attack.  Given his rhetoric so far as President, and unlike Obama or Bush, there is no reason to believe Trump would try to calm people’s fears and diminish their anger.  As Walderman indicates, he is far more likely to do the opposite.  As Trump’s administration has already done plenty to stoke worries about their willingness to use a terrorist provocation to manipulate the public opinion and direct public policy.  

The first week of executive orders can be seen as not just fulfilling election promises, but also setting out the framework of the administration’s real priorities.  They indicate that the administration is already willing to target, vilify and shut out those it casts as outsiders and threats to its agenda in the absence of an actual terrorist outrage occurring on its watch.  These include not only undocumented Mexicans, immigrants and refugees from Muslim states, but also the press and the courts that have negatively reported-on and issued bans against Trump’s executive orders.  Indeed, much of what has been going on in the past week or so might actually be seen as evidence of the administration laying out the groundwork for their response to an attack that their own ill-conceived policies might actually provoke – although it is unclear if this is all entirely deliberate.  

Some in the media clearly think it is, as the Washington Post’s Philip Rucker noted, Trump’s statements accusing the press of actively suppressing news of terrorist attacks, was “laying the groundwork to preemptively shift blame for any future terrorist attack on U.S. soil from his administration to the federal judiciary, as well as to the media.”  If Trump’s Muslim ban order is permanently rescinded by the courts he will say to the American public that he tried to create tighter immigration controls but was betrayed by the judicial system.  As Harvard Law School professor and former Bush administration official Jack Goldsmith suggested, not only will this deflect blame for the attack, it will give him a pretext to enhance executive power after the attack.  As 9/11 showed, politicians are under intense pressure to loosen legal constraints after a domestic terror attack. Countervailing tendencies to guard against executive overreaction will be diminished if the courts are widely seen to be responsible for an actual terrorist attack.  If Trump or Bannon are assuming that there will be a terrorist attack in the near future, then blaming judges for it now will aid in their demands for more powers to thwart what will be cast as an existential threat.

And there is plenty of evidence suggesting the Trump inner circle is indeed fixated on seeing Islamic terrorism as its primary concern and as an existential threat.  As I recently detailed, past terrorist attacks have been invented, the press accused of covering-up terrorist attacks (although only terror attacks by Muslims against non-Muslims – even though Muslims make up, by far, the largest group of victims of Islamist terror), and the US court system lambasted for making America vulnerable to a future attack.  Such posturing by the Trump administration points to the conclusion that they would have no reluctance whatsoever to using a terrorist attack to further their general assault against Muslims, the mainstream media, and the judiciary.  I don’t think there can be any doubt of a reactionary, manipulative response from Trump and his inner circle in the event of an actual terror attack.

So, what kind of post-attack measures are likely?

It seems to me very likely that in the advent of a major attack, Trump will ask for more domestic surveillance powers, and the extension of the provisions of the Patriot Act (which was passed in the shocked atmosphere of the immediate aftermath of 9/11) that permit federal information-gathering targeted at religious minorities.  Congress might even be prevailed upon to suspend the writ of habeas corpus, and re-institute black sites, rendition, and “enhanced interrogation” techniques – that is, torture.  Add to this list the recreation of domestic Muslim registry – which has already been openly discussed by Trump.  

The only institution that could reasonably constrain Trump’s administration’s likely over-reaction to a domestic terror attack would be the Congress.  The House or Senate have the obligation to carefully assess whether they have been pushing back with sufficient force against the tendencies of the White House.  So far, although its only been three weeks (yes, it really has only been three weeks) the news is not good.  Stephen Bannon, Michael Flynn and Steven Miller exert significant influence over the policies Trump is signing in his executive orders.  Removing Bannon, Miller and Flynn from positions of influence should be the top priority for Congress in order to ensure an appropriate White House response to the next domestic terrorist attack and thereby prevent a Reichstag Fire moment.  And the fact that Flynn’s unlawful activities and collaboration with the Russians prior to Trump’s inauguration have now been documented, his removal is the first test of the willingness of Congress to hold this administration to account.