The Constitutional Crisis is All Around us

What we can all do

Last week, we reached a new inflection point in Donald Trump’s quest for dictatorial power. Without hedging or deflection, Donald Trump brazenly declared he would take retribution against any TV networks that criticized him. He also announced he would pursue left-leaning organizations that he has yet to prove have any connection to violence. While purely performative, Trump also pronounced that he would designate “ANTIFA,” a non-organization, as a domestic terrorist group, a label that does not legally exist. (This proclamation the pretext for claims that other groups have connections or affiliations with the amorphous “ANTIFA” movement.)

As if that were not enough evidence of unhinged dictatorial ambition, “President Trump demanded on Saturday that his attorney general move quickly to prosecute figures he considers his enemies, the latest blow to the Justice Department’s tradition of independence,” the New York Times reported. He made no bones about it—this is about revenge:

We can’t delay any longer, it’s killing our reputation and credibility,” Mr. Trump wrote in a social media post addressed to “Pam,” meaning Attorney General Pam Bondi. “They impeached me twice, and indicted me (5 times!), OVER NOTHING. JUSTICE MUST BE SERVED, NOW!!!

Arriving immediately after forcing prosecutor Erik S. Siebert from the Eastern District of Virginia to step down for refusing to carry out Trump’s plot of vengeance (with plans to install another lackey from his own legal team, Lindsey Halligan), this marked an unrestrained plunge into authoritarianism. Increasingly, Trump’s regime looks like Viktor Orbán’s autocracy (albeit less organized), where threats and silencing of enemies provoked by personal whim have become commonplace.

Yet with such unabashed authoritarianism on full display, the public may have also reached an inflection point. Politically disengaged Americans may not follow the details of court fights about redistricting or pocket rescissions, but maneuvers like firing a comedian at the implicit behest of the president just might rouse ordinary folks who know this is un-American.

A functional democracy with an independent Congress certainly would not accept any of this. An impeachment investigation of Trump and Bondi would be well underway. For that matter, recently confirmed Third Circuit Judge Emil Bove—front and center in the corrupt bargain involving dismissal of bribery charges against New York Mayor Eric Adams and allegedly a key player in shutting down an investigation into border czar Tom Homan for accepting $50,000 from undercover FBI agents before the election—would be under investigation; his underlying actions and apparently false testimony, contradicted by witnesses and documents, warrant scrutiny.

For those who have refused to recognize that we are well into a constitutional crisis, the latest developments should be a wake-up call. The 2026 midterms are still more than a year away. No offense, no outrage seems to be sufficient to shock MAGA Republicans into recovering their patriotism and rediscovering their oaths. It certainly doesn’t help that the Supreme Court seems bent on enabling Trump’s quest for total power.

Still, the courts, Democrats, the press, and ordinary Americans have time and power to act.

The courts

Judges must begin to act sua sponte, on their own volition, as we saw when U.S. District Judge Steven Merryday, without prompting, summarily dismissed Trump’s frivolous $15B lawsuit against the New York Times. He reamed Trump: “[A] complaint is not a public forum for vituperation and invective—not a protected platform to rage against an adversary…. [nor] a megaphone for public relations or a podium for a passionate oration at a political rally or the functional equivalent of the Hyde Park Speakers’ Corner.”

As I and others have written, courts can no longer accept the presumption of regularity. Courts can no longer assume that “executive officials have ‘properly discharged their official duties’ and that government agencies have acted with procedural regularity and with bona fide, non-pretextual reasons.” Every declaration, complaint, motion, and representation must be fly-specked; misrepresentation by government officials should be met with swift sanctions.

Courts should treat any indictment of Trump’s enemies with grave skepticism and due consideration should be given to dismissal for prosecutorial misconduct and/or selective prosecution.

Democrats in Congress

It is time to ring the alarm. When Congress returns, a day-long floor proceeding in the Senate akin to open remarks in an impeachment trial to set out Trump’s blatantly unconstitutional actions would set the appropriate tone. Democrats must leave no doubt that they will use oversight hearings to explore lawlessness and then proceed with investigations when they win back the House. (Most federal crimes have a 5-year statute of limitations so there should be plenty of time for prosecution if a Democrat wins the presidency in 2028.)

Certainly, they should supply no confirmation votes for any Trump judicial or Justice Department nominees. Since Trump apparently is incapable of appointing anyone but loyal stooges, the heavy presumption of unfitness should apply.

News media

We have seen sporadic indications that the legacy media, after they are attacked, can, after all, tell truth-telling from false equivalency. Most notably, in the days after Trump sued the New York Times, the Gray Lady seemed to perk up:

President Trump has begun a major escalation in his long-running efforts to stifle political opposition in the United States, using the assassination of the right-wing activist Charlie Kirk to make the baseless argument that Democratic organizations and protesters are part of a violent conspiracy against conservative values and the American way of life.

That sort of unvarnished, candid recognition must be the default setting. However, even calling the Trump order to prosecute his enemies “an extraordinary breach of prosecutorial protocols,” is woefully inadequate. This is a gross breach of the Constitution and our rule of law. The Times surely can make that clear.

Media companies such as CBS, ABC, and the Washington Post—which have capitulated to Trump with bogus settlements and self-censorship—may never regain credibility, but the rest must finally abandon the outmoded framework of coverage that is spectacularly unfitted to cover politics when one party acts as an ordinary democratic party and the other as a cult of personality at odds with democracy. (They could have rejected the MAGA script treating Charlie Kirk’s funeral as a state funeral and instead spent time covering Trump’s overthrow of the Constitution, e.g.)

In addition, the White House press corps must stop worrying about access and start aggressively confronting Trump with his anti-constitutional pronouncements. When he says networks “can’t” criticize him, someone should ask him if he thinks the First Amendment applies to him—and to the journalists from said networks.

We The People

Mass, peaceful demonstration is more critical than ever. (No Kings Day 2 is on Oct. 18.) Everybody can participate. However, Americans selected for grand or trial juries can also, as they have done in D.C., refuse to enable groundless, vindictive prosecutions. Jury nullification has a long and noble tradition.

Civil servants can serve their country as whistleblowers to reveal illegal and reckless conduct; if fired, they can share their experiences and/or litigate. All of us can support organizations that litigate and fight for democracy, volunteer and/or donate to campaigns, and persistently (but politely) birddog representations and candidates. Simple questions carry enormous power. (Do you support the 1^st Amendment? Do you support vindictive prosecutions?)

This is no longer a question of losing our democracy. The question has become whether we are prepared to fight to get it back.