Could We Slide into the Abyss Like Germany in 1933?

Will Donald Trump leave office if he loses the election? Many are wondering how he might bend the law to stay in the White House. The president frequently inveighs against “voter fraud” and says his opponents will steal the election with fraudulent mail-in ballots. Further, he refuses to say if he will accept election results.

Matters are so serious that a bipartisan think tank of 100+ current and former senior government and campaign leaders conducted matrix games on what could go haywire between the Nov. 3 election and the Jan. 20 inauguration. The Transitions Integrity Project concluded that there is “a high degree of likelihood that November’s elections will be marked by a chaotic legal and political landscape.” You can read the report here.

Trump has at his fingertips secret emergency powers called Presidential Emergency Action Documents (PEADs). They are, according to the Brennan Center for Justice, “executive orders, proclamations, and messages to Congress that are prepared in anticipation of a range of emergency scenarios….” They only require Trump’s signature.

They were created during the Eisenhower era in case of a Soviet nuclear attack. Over time they have been expanded. PEADs are, as a government document describes them, intended “to implement extraordinary presidential authority in response to extraordinary situations.”

What powers do PEADs provide?

+ Detention of dangerous persons
+ Suspension of habeas corpus
+ Martial law
+ Search and seizure of persons and property
+ Declaration of war
+ Censorship

Go to the Brennan Center to learn more.

There’s plenty of reasons to think Trump might declare a national emergency and invoke these powers. There’s the on-going Covid pandemic. Most likely, however, a post-election political crisis would be the excuse. Civil unrest after a hotly contested election could be the trigger he seeks. He did not hesitate to deploy federal agents to suppress protests in Portland and threatened to do the same elsewhere. Things could get ugly.

While there are legal scholars who believe PEADs are unconstitutional, that remains to be seen. Therefore, it is important that “we the people,” as the Constitution states, speak out about these potential dangers. Unless we do, we could easily slide into the abyss that befell Germany in the 1930’s. The similarities are hauntingly similar.

Hitler came to power when President Hinderburg appointed him Chancellor of a coalition government on Jan. 30, 1933. The Weimar Republic, created after World War I, had provided for a parliamentary democracy, but its constitution had a fatal flaw. Article 48 stated that under certain circumstances the president could take emergency measures without the approval of the Reichstag, the German parliament. The convenient crisis took place Feb. 28, 1933, when the Reichstag burned down. No one knows who set the fire, but Hitller claimed it was the first step in a Communist revolution. Hitler convinced Hindenburg to invoke emergency powers and Germany fell from democracy into a totalitarian dictatorship in days.

What emergency powers were invoked under Article 48?

+ Arrest of enemies of the state
+ Suspension of habeas corpus
+ Censorship
+ No right of assembly Search, seizure, and confiscation of property

The rest, as we say, is history. Could something like that happen here? We like to think our democratic traditions would prevent us from collapsing like Germany. While history does not always repeat itself, it offers insights into the dangers that societies face. An unstable president with unlimited power are ingredients that have poisoned democracies before. As the philosopher George Santayana warned, “Those who cannot remember the past are condemned to repeat it.”

The Very Rev. Stephen Brehe is the retired Dean of St. Peter’s Cathedral in Helena, Montana. Jim Nelson is a retired Justice of the Montana Supreme Court.