If American Democracy Dies, Trump’s Republicans Won’t Mourn It

At a campaign rally earlier this month in Fayetteville, North Carolina, Donald Trump told the crowd, “You can’t have [Biden] as your president … Maybe I’ll sign an executive order: You cannot have him as your president.”

Leaving aside the unconstitutionality of such an order or of Trump remaining in office beyond two terms, as he has also suggested, most disturbing was attendees’ response these statements: not the horror one would expect in a healthy democracy or laughter suggesting the naive presumption he was joking, but cheers and applause.

Under Trump’s leadership, the GOP is now well into the final stretch of its transformation from a mainstream center-right party into a far-right authoritarian one, bearing less resemblance even to the GOP of 20 years ago than to Hungarian autocrat Viktor Orbán’s Fidesz party. That’s not to say all Republicans are hostile to democracy. But as evidenced by the defections of prominent conservatives like columnist George Will, former Illinois Rep. Joe Walsh, Bush administration aide Steve Schmidt, and others, it’s not the party of democratically inclined conservatives anymore.

Instead, the GOP is now the party of willing participants in Trump’s brazen assaults on democracy and human rights and the cowards who let them happen. It’s the party of credulous Archie Bunker slobs who applaud his unconstitutional fantasies. It’s the party of neo-fascist thugs like the Proud Boys and gun-toting militias. It’s the party of soulless Twitter trolls who make careers out of “owning the libs” — usually through bad-faith, hypocritical argumentation and bigotry meant to conceal their lack of original ideas — or promote absurd conspiracy theories like QAnon. It’s the party of propaganda disguised as news from outlets like Fox News, OANN, Breitbart, and The Federalist. It’s the party of white people who get mad at football players taking a knee or at Black Lives Matter protests and wave thin blue line flags to proudly proclaim their indifference to — or support for — racist police violence.

In sum, the party of Lincoln has become a proto-junta that in the mid-20th century would have been branded a fifth column and hauled before HUAC.

Maybe you think that’s unfair, but lest you doubt there’s an authoritarian vogue among Republicans and those adjacent to them, consider this snapshot of events since late August:

  • At the Republican National Convention, the party substituted for a platform a resolution that read, “the Republican Party has and will continue to enthusiastically support the President’s America-first agenda.” In other words, “Le Parti, c’est Trump”;
  • Trump has refused to commit to a peaceful transition of power should he lose the election, as his administration reportedly seeks to bypass election results entirely;
  • Leaked chats showed pro-Trump activists in Portland acquiring arms and ammunition, planning and training for violence, naming multiple Oregon politicians as possible assassination targets;
  • The Department of Justice declared Portland, Seattle and New York “anarchist jurisdictions” and pledged to strip them of federal funding over Trump’s distaste for their approaches to police brutality and racism;
  • Trump, Fox News’ Tucker Carlson and commentator Ann Coulter defended or even praised Kyle Rittenhouse, the 17-year-old arrested in a shooting during the Kenosha, Wisconsin, Black Lives Matter protests that left two dead and one seriously wounded, with a gun he was carrying illegally after traveling across state lines;
  • At a campaign rally in Bemidji, Minnesota, Trump called it “beautiful” when MSNBC reporter Ali Velshi was hit with a rubber bullet while covering unrest in Minneapolis after the killing of George Floyd by police. He also told the nearly all-white crowd they have “good genes.”

Now, consider that Richard Nixon lost much of the Republican Party’s support for offenses that paled in comparison to Trump’s. But what happens when Trump scorns and disregards democratic norms, traumatizes innocent children, snatches protesters off the street, cozies up to dictators and even admits on tape to lying about the severity of a pandemic that — thanks to his negligence — has now killed over 200,000 Americans and wrecked the economy? Polls report his job approval rating among Republicans remains at least in the mid to high 80s. Even his refusal to commit to a peaceful transition of power was met with, at best, muted criticism from prominent Republicans and a unanimous but toothless Senate resolution.

The unavoidable conclusion is that for all their lip service to the Constitution and patriotism, a large chunk of Republicans — from the party brass down to the rank and file — has abandoned liberal democracy, whether out of active hostility or preoccupation with enjoying tax cuts and other personal benefits of Trump’s presidency.

And a new report indicates this is a major cause of America backsliding into autocracy, potentially to the point of no return.

In a new report, Varieties of Democracy, or V-Dem, a group of international scholars that measures the health of democracy around the world, stated that the U.S. is experiencing “significant and substantial autocratization.” And according to The Washington Post, American democracy’s decline has reached a point that usually leads to full autocracy.

Citing Hungarian sociologist Balint Magyar’s theory of democracy giving way to autocracy in three stages — attempt, breakthrough, and consolidation — New York writer Masha Gessen has identified Trump’s 2016 election as an autocratic attempt, while reelection would mark autocratic breakthrough, followed by consolidation of his autocratic power. I wish I could say Gessen’s fears are overblown, but I don’t see any substantial Republican resistance to Trump’s authoritarianism.

Perhaps the party would be more inclined to preserve democracy if it were more confident in its long-term ability to win elections fairly.

In an article in the December 2019 issue of The Atlantic, Yoni Appelbaum wrote that with white Christians on their way to becoming a political minority due to America’s increasing ethnic and racial diversity, the Republican Party is losing faith that it can win elections in the future. And a study by Vanderbilt University researcher Larry Bartels found that antagonism toward Blacks, Latinos, and immigrants was the strongest predictor of antidemocratic attitudes among Republican and Republican-leaning independent voters.

But rather than getting with the times, the GOP engineers the political system through voter suppression and extreme gerrymandering so it can’t lose, using appeals to white Christian grievance and attacks on minorities to ensure the fanatical loyalty of its base.

Fidesz has successfully used similar tactics to undo Hungary’s democracy while tapping that country’s own sordid history of racism with attacks on Roma, antisemitic dog whistles against George Soros and scaremongering about Muslim refugees. The V-Dem report describes Hungary as an “electoral authoritarian regime” and thus non-democratic. The Republican Party under Trump is turning the U.S. into something similar, while the president himself exacerbates divisions that threaten to violently tear the whole country asunder.

And the rest of the world looks on with shock and dismay. But unlike Europe, Asia, and Latin America, the U.S. isn’t a mere generation or two removed from tyranny or war on its soil. My boyfriend comes from a former Soviet republic and has vivid memories of the USSR’s collapse, followed by years of civil war, deprivation, and dictatorship. His stories are the stuff of nightmares and show that anyone who would let the same things happen in the U.S. and prefer burning the nation down over sharing its abundance with people who are different recklessly takes our democracy, stability, tranquility, prosperity, and global standing for granted and doesn’t comprehend what they’re wishing for.

But with Donald Trump leading his party and country down the dark path of autocracy and armed thugs prepared to kill for him, it’s we true patriots of all political stripes standing up for the bedrock values of our country who would suffer the consequences of their death wish for democracy.

Yes, The SEC Has Noticed The Swarm Of SPACs Crawling All Over Wall Street

Morning Docket: 09.28.20

* Lawyers argued yesterday that a TikTock ban would be “devastating.” Many would definitely be devastated if they couldn’t see humorous videos during the quarantine… [Verge]

* A lawyer at Debevoise and Plimpton has had his protest-related charges dropped. [American Lawyer]

* Google’s parent company has settled a lawsuit claiming that it failed to properly handle sexual misconduct allegations against executives. [CNBC]

* The Los Angeles District Attorney’s Office will not prosecute a journalist who is accused of interfering with an arrest earlier this month. [New York Times]

* The New York Attorney General is suggesting that the NYPD stop making routine traffic stops. Unclear if this will have any impact on the always-congested FDR Drive… [AP]


Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

The U.S. Dominates At The Richest Law Firms In The World

(Image via Getty)

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to the 2020 Global 100 ranking, which is the only firm in the top 10 of the ranking that does not have the majority of its lawyers in the United States?

Hint: These are the top 10 firms ranked by 2019 revenue, and only #5 on the list has its largest presence outside the U.S.

See the answer on the next page.

90-Day Known Expert: Week 2 Roundup

Lawyer Forward continues with its series exploring how lawyers can transform themselves into “known experts” in 90 days. The second week’s episodes include “Focus on Insights,” “Positioning Problems,” “Defeating Impostor Syndrome,” and “A Habit of Idea Generation.”

Make sure you take advantage of the show’s Q&A feature. You can ask Mike questions about the latest episode and he’ll answer at the end of the next episode. Just submit your question in the form at the bottom of this post.

Additional Lawyer Forward Known Expert resources

Charge Your Lawyer


Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

Justice Department Releases Its Dangerous & Unconstitutional Plan To Revise Section 230

U.S. Department of Justice (photo by David Lat).

Every day it’s something new. The latest is that the Justice Department has come out with its official proposal to revise Section 230. As you may recall, back in February, the DOJ held some hearings about Section 230, followed by announcing some vague and contradictory guidelines for reform in early March.

Apparently between March and now there’s been nothing more important for the Justice Department to be working on, because it’s now blasted out its full unconstitutional proposal for reforming Section 230 and it’s like a greatest hits of bad ideas. You can look at the redline version of the law itself, but the DOJ’s announcement summarizes the revisions in two giant buckets: (1) “promoting transparency and open discourse” and (2) “addressing illicit activity online.” It will not surprise you that the actual recommendations would do neither of these things. There’s a lot in here and I’m honestly just too tired of going through and debunking all the various bad ideas in these proposals, so I’ll just highlight a few egregious parts.

First off, like the recent “Online Freedom and Viewpoint Diversity Act” and the soon to be marked up “Online Content Policy Modernization Act” from Senator Lindsey Graham, the DOJ’s bill would remove the term “otherwise objectionable” (get your t-shirts while they’re still relevant!), and simply create a longer list of why a website could moderate content. It would also require an “objectively reasonable belief” that the content falls into one of those categories to qualify. The new list of acceptable reasons to moderate content to keep your immunity:

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, promoting terrorism or violent extremism, harassing, promoting self-harm, or unlawful, whether or not such material is constitutionally protected

This is pretty similar to the two bills listed above. The only real difference is that this one adds in the promotion of “violent extremism” which you already know that this DOJ will use to include trying to force social media companies to take down Antifa and BLM content.

But, of course, as we discussed with the previous bills, this is clearly unconstitutional. It is a form of regulation of content that is not content neutral, and that’s not allowed. Also, note what kind of content is not included here: racist, homophobic, hateful content would not be covered in many cases. Nor would spam. Yes, in some cases it could be argued that such content is “harassing” or perhaps it might qualify for some of the other categories, but most of it would lead a site to not have 230 protections. Websites would still have 1st Amendment protections, but to fight that legal battle would be hugely expensive and destructive for most websites — meaning that many will not fight at all.

The bill would also expand 230’s exemptions such that federal civil actions were no longer exempt (as per the FTC’s wish). It also includes a bunch of other carve-outs that I’m too tired to go through, but will note that it would appear to allow state Attorneys General to bring lawsuits against websites that were previously barred by 230. This would be allowed in cases where the sites had knowledge of the dissemination of content that would violate Federal criminal law, that the site was notified of this content, and then failed to remove it or failed to preserve evidence of it.

This section is at least worded slightly more carefully that earlier proposals, but would still lead to the risk of significant censorship at the behest of Attorneys General who criticize a website’s content moderation practices — which again would likely make it unconstitutional under the 1st Amendment.

It would then throw in a long list of new laws that were exempt from 230, basically taking the FOSTA model of saying that 230 no longer applied to sex trafficking, and saying “ditto for anti-terrorism laws, child sex abuse laws, cyberstalking, and antitrust.” There are, of course, significant problems with each of these. We’re already seeing how much harm FOSTA has caused with no indication that it helped stop any sex trafficking, and now the DOJ wants to just expand that treatment to a bunch of other laws, just because.

The anti-terrorism one should be particularly concerning. We’ve wrote about a whole bunch of cases involving people who sued social media for “material support for terrorism” in response to a loved one being killed by terrorists. The arguments are, roughly, that because their family member was killed by a terrorist, and because some terrorist-connected individuals used social media, clearly, the social media companies are liable for their family member’s death.

Courts have, rightly, been tossing these cases out on 230 grounds. But if the DOJ got its way, that would no longer be possible, and we’d likely see a ton of frivolous litigation in response.

Another change is an attempt to remove 230 protections for sites that fact check the President. This is not how it’s framed of course, but it’s pretty obvious why Bill Barr wanted this in there. Existing 230 says that you can be liable for content if you were “responsible, in whole or in part, for the creation or development” of the information. The new bill would add to that:

Being responsible in whole or in part for the creation or development of information includes, but is not limited to, instances in which a person or entity solicits, comments upon, funds, or affirmatively and substantively contributes to, modifies, or alters information provided by another person or entity.

Basically, fact check someone, and you can lose your 230 protections. Of course, again, this is unconstitutional, as it’s an attempt to suppress the very thing that 230 (and the 1st Amendment) were designed to encourage: more open discussion. Indeed, for Bill Barr — who has whined about “cancel culture” — to include this in there is deeply ironic. This kind of thing will decrease incentives to add commentary or fact checks, thus suppressing speech.

Finally, the new bill would have a whole section to define what is meant by “good faith” in content moderation, which is basically that you have to clearly delineate in your policies what is allowed and what is not, and your moderation must match that. This is, of course, impossible. It is written by people who have never had to moderate content at all. It is written by people who don’t understand how content moderation is not black and white, but often vast areas of gray where judgment calls need to be made. It is written by people, in bad faith, assuming that all users of a website are acting in good faith. So many of these attempts to reform Section 230 refuse to take into account that people will seek to game the system. And restricting sites’ ability to stop those gaming the system is a recipe for disaster.

But, hey, this is Bill Barr’s DOJ and Donald Trump’s White House. A policy proposal that is a recipe for disaster, as well as unconstitutional, seems to be par for the course.

Justice Department Releases Its Dangerous & Unconstitutional Plan To Revise Section 230

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FL Senator Rick Scott Will ‘Fix’ Elections By Tossing Out All Those Pesky ‘Votes’

DEEP THOUGHTS! (Photo By Tom Williams – Pool/Getty Images)

Today’s “You Tried It” award goes to Florida Senator Rick Scott for his proposed amendment to the 2002 Help America Vote Act, which he’s dubbed the Verifiable, Orderly, & Timely Election Results (VOTER) Act.

Emphasis on the “timely.”

Because if the Florida Republican was actually able to ram through a massive overhaul of the nation’s election laws 40 days before the polls open and while voting is already underway, the result would be less “verifiable” and “orderly” than outright pandemonium.

Most outrageously, Scott’s law would force states to stop counting votes “24 hours after the conclusion of voting on the date of the election.” Even in a normal year, it can take several days to count the votes. And this isn’t a normal year.

Some 80 million voters may cast their ballots by mail this year, as compared to 57 million in 2016. Most states aren’t even opening envelopes to verify absentee ballots until election day, a process that can take several minutes per ballot. The impossibility of meeting an arbitrary 24-hour cutoff would necessarily disenfranchise millions of voters. But it would be timely!

Why the hurry, when the 1887 Electoral Count Act gives states 41 days after the election to name electors to the electoral college? Surely it has nothing to do with the expected overrepresentation of members of Senator Scott’s own party at in-person polling places, while Democrats have concentrated on racking up votes by mail-in ballot. Perish the very thought.

And speaking of mail-in votes, Scott’s proposed legislation would make it illegal to count those votes until election day, in contravention of legislation he himself signed as Florida’s governor allowing absentee ballots to be processed and readied for tabulation before election day, and forcing the 16 states which count votes as they come in to delay their counts.

Scott would cut off absentee ballot requests 21 days before the election, and throw out any votes received after election day, overriding state laws which count votes postmarked on election day itself and received within a few days, as well as laws allowing voters to “cure” defective ballots. (Not that it would matter, since Scott demands an official tally within 24 hours.)

He’d make so called “ballot harvesting,” the process of collecting ballots en masse and delivering them to the elections office a crime punishable by up to one year in jail.

And he’d further gum up the works by imposing a responsibility on every precinct to report the total of in-person and absentee votes received within one hour of the polls closing.

“We can’t wait weeks or months to find out the results of this election or any election in our future – a scenario made all the more likely by the Democrats’ push to change laws late in the game and eliminate standards that protect against fraud,” Scott said. “The VOTER Act will create uniform standards for voting-by-mail, provide important protections against fraud, and make sure we have a timely federal election result. We need to pass this bill now to ensure a smooth and secure election.”

Yep, this is a very serious proposal. Or … it’s a publicity stunt that has no chance of passing the Senate, much less the House, and is simply designed to cast doubt on a careful election tally that takes several days to tabulate and may show some races shifting from red to blue as all the votes are counted.

Probably the second one, TBH.

Verifiable, Orderly, & Timely Election Results (VOTER) Act


Elizabeth Dye lives in Baltimore where she writes about law and politics.

Change Management And Corporate Culture

In case you’re not familiar with it, change management is a powerful tool for managing the human side of change to achieve a desired business outcome. After decades of being used in the business world, it’s (finally) migrating into the legal world — and forward-thinking in-house lawyers need to know about it.

This past Tuesday, September 22, I moderated a great panel about change management and corporate culture — sponsored by Cadence Counsel, the in-house division of the Lateral Link consortium of legal recruitment firms — which featured the following impressive panelists:

  • Monique Burt Williams – CEO, Cadence Counsel
  • Brittanie Chin-Merkerson – Change Management Consultant, Johnson Controls
  • Paula Edgar – Partner, Inclusion Strategy Solutions LLC
  • Julie Honor – General Counsel, 3Q Digital

The wide-ranging discussion began with defining the key terms — not just “change management,” but also “corporate culture” and “diversity” (or really “diversity, equity, and inclusion” — DEI). The panelists offered both big-picture theories and concrete tips for how companies can attract diverse talent, combat unconscious bias, use personality assessments and other traditional hiring tools responsibly, and promote a culture of compliance. You can watch the full discussion here (or via the embed below).

Later in the fall, we’ll present the third installment in this free webinar series, focused on change management and technology. Please keep an eye out for additional information and registration. Thanks!

Cadence Counsel Presents: Change Management and Corporate Culture [YouTube]

Earlier:

Ed. note: This is the latest installment in a series of posts from Lateral Link’s team of expert contributors. This post is by David Lat, a Managing Director in the New York office, where he focuses on placing top associates, partners, and partner groups into preeminent law firms around the country.


Cadence Counsel is the in-house division of Lateral Link, one of the top-rated international legal recruiting firms. With over 14 offices worldwide, Lateral Link specializes in placing attorneys at the most prestigious law firms and companies in the world. Managed by former practicing attorneys from top law schools, Lateral Link has a tradition of hiring lawyers to execute the lateral leaps of practicing attorneys. Click here to find out more about us.