On a recent episode of the Amicus podcast, Dahlia Lithwick spoke with Norm Eisen, whose new book is called Overcoming Trumpery: How to Restore Ethics, the Rule of Law, and Democracy. Eisen is a senior fellow in governance studies at Brookings and executive chair of the States United Democracy Center. He served as special counsel to the House Judiciary Committee for the first Trump impeachment, and he is author of A Case for the American People: The United States v. Donald J. Trump (Crown 2020) and The Last Palace: Europe’s Turbulent Century in Five Lives and One Legendary House. Our conversation has been condensed and edited for clarity.
Dahlia Lithwick: So, describe what it means to “Overcome Trumpery” and what Trumpery means in connection to the rule of law and subverting democracy?
Norm Eisen: There’s a deep strain of our law that has been profoundly regressive from the beginning of the legal system. And it’s contained in American society in the protection of powerful minorities. And that’s why we didn’t have—in the early decades of our politics of the post-constitutional era–direct vote for our senators and our representatives as you do now. (And by the way, this is something that the regressive forces want to return to with the independent state legislature theory.) So even the idea of voting was always contested. And then you had not just the racial element. You also had property limitations, gender limitations. That’s just one of these seven deadly sins. So I think that this is a very familiar battle that we are engaged in.
Trump simply exploited and accelerated some trends, while adding to them and putting in new developments, to create Trumpery, this philosophy of corrupt governance. As you noted earlier, God help us if a Ron DeSantis, a Josh Hawley, or a J.D. Vance could exploit these new trends. They’re intelligent, they’re Ivy League educated. They genuinely got into the Ivy League, unlike Trump. And they’ve learned from him. All of that brings us, though, the hopeful part is the short, medium, and long-term solutions.
Let’s do it. Let’s talk about solutions. I feel like we should start long term, but maybe we should actually start short term, since there’s a sense that the clock is ticking, and that a midterm election is bearing down upon us faster than we can do long-term accountability.
Unless we get the short-term right, there will be no long-term. So, I think hope for overcoming Trumpery comes in four boxes. Short term, the book is bristling with solutions. I forced all my authors and myself—I told them all, “Do not just describe what happened in your area. Don’t just give me the analysis of the problems. I want solutions. And I don’t care if we can’t get them now. You put the solutions in there. So there’s a book for posterity.” And you know they kvetched. And I had to send some of these chapters back to get the solutions.
Short-term hope comes in four boxes: The tally box, the cable box, the ballot box, and the jury box. What do I mean? The tally box, tally sheets as you know, are what Congress uses and state legislatures use to pass laws. And I’m still hopeful that we will … Even though we didn’t get the big democracy reform package we wanted in this Congress, there’s a very vibrant bipartisan effort in the House and in the Senate, a bipartisan and bicameral effort to reform the rules that Trump tried to exploit, and it’s called the Electoral Count Act. But to do an Electoral Count Act plus package, where you combine that with dealing with some of the worst things we’re seeing now, the threats to election workers, the need for more money, for safety, like the worst aspects—so ECA plus. There’s hope for that in this Congress. And the book is also full of not just legislation, but regulatory ideas that pro-democracy officials in the states of both parties, governors, attorneys general, secretaries, legislatures, that they can work on and pass and implement. The tally box, that’s No. 1.
No. 2 is the cable box. The Jan. 6 hearings are coming. This is a once-in-a-generation opportunity to educate the American people and the world about not just Jan 6. I don’t even like that name. It’s really the insurrection. They should call it the Insurrection Committee. And insurrections are not the work of a day. We know what happened on Jan. 6. There’s some questions. What was Trump doing during those mysterious 187 minutes when he was silent? But the biggest questions are about the run-up to Jan. 6 and the aftermath. The insurrection hasn’t ended. And we see this in the wins of candidates like J.D. Vance in Ohio, like Mastriano in Pennsylvania, the Trumpery advocates who succeeded in North Carolina in this cycle, and many more down the pike. Georgia is a Trumpery ticket with Herschel Walker for Senate, David Perdue for governor, and Jody Hice for secretary of state, all in various forms embracing the Big Lie. Trumpery is on the ballot. That’s the third thing.
But to set that up—the cable box—the Jan. 6 committee must tell that story before the insurrection, the day of the insurrection, and the continuation of the insurrection driven by Trump’s Big Lie. This is what a federal judge has now found to be a likely criminal conspiracy, an attempted coup that hasn’t ended. They’re setting up for the next coup. Telling that story effectively, and I think they’ll do it, which brings us to the ballot box. Like 2020. You mentioned my previous book, A Case for the American People. That book explained the first impeachment and trial in terms of making a case. We knew we weren’t going to get 67 senators. So why did we do it? We wanted to make the case to the American people, turn the 2020 election into a referendum on democracy versus Trumpery. The ballot box. 2022, the election’s going to be another referendum.
So American people are going to be called on. I think they’ll repudiate Trumpery. That’s why I think Trump has to be front and center. I’m not in agreement with the people who say, “No, never talk about Trump.” He needs to be discussed. Trumpery, not Trump, Trumpery needs to be a part of every conversation. The 2024 election is going to be a referendum on both Trump and Trumpery, because if he’s alive, he’s running.
That brings me to the fourth box of hope: the jury box. Trump is very likely going to get prosecuted, at least in Georgia, by the Fulton County DA Fani Willis, who has a very advanced and very good criminal case. The Georgia statutes fit in a simple case. He told Brad Raffensperger to just find 11,780 votes. And even if he believed he was ripped off, you can’t take the law into your own hands. That’s vigilantism, right? Now, that’s a perfect case because you don’t have to prove his intent. All you have to do is show he wanted to fabricate one more vote than Biden had. You can also prove his intent, I think, beyond a reasonable doubt. And Georgia law is a very tight fit.
As I wrote for a Slate this week, myself and my wonderful co-authors, Stuart Gerson and Dennis Aftergut, both experienced prosecutors, I also think Merrick Garland, and the DOJ, in his own slow, methodical way, have built up the political capital of DOJ. And we think he’s about to expend it on a very serious investigation of Trump. And based on looking at the evidence, I think there’s also a good federal case to go with the state one. And I think we’ll see more state cases.
I guess that leads me to this question of whether it all feels like it’s too late, Norm. If it feels as though you are hoping that people are going to be infuriated and activated by July, and they’re going to race to the ballot box in November. And for folks like me … I wake up and then it’s just vodka shooters and back to bed. And the thing that I’m worried about is we’ve done all this in both impeachment trials. We know what happened in that call to Brad Raffensperger because we all heard it. We know what happened on Jan. 6, because we all saw it. I deeply understand what you’re saying, which is that folks need to see it. They need to hear the story. They need to be reminded of the visceral horror of it.
But here’s me saying to you, at the same time, we have elections officials quitting en masse. We have states choking off the vote. And we have this foot race between the values you are suggesting, which I agree won in 2020, and then Big Lie–based efforts to make it ever harder to win in 2022. And so I guess I want you to reassure me that in this foot race, A) the things that you are talking about, all of your four boxes, are salient and timely. That it’s all going to happen in time. And that B) it’s somehow going to overmaster what feels like a really dangerous push from, I think, arsonists on the other side, who don’t care about institutions the way you do. I want to know if you think we’re going to get there on time.
It’s a very profound question. In my view, it is the single most profound question in American public life today. And it is mirrored internationally by a similar version of the question about the Russian and Chinese assault on the international rule of law system. It is a mistake to view Ukraine as only a Putin endeavor. Just as Trump requires a lot of enablers and colleagues, so does Putin, and China is first among the enablers. He couldn’t do it without China. But be that as it may, I will answer your question for the United States, and we’ll leave for another day Ukraine. And by the way, the world is looking at your question as well, because without America, the international blue wall also falls apart completely. If Trump were in office, Putin would’ve had his way with Ukraine and much more.
OK, so now to answer your question. We know that we can succeed in 2022 and 2024 and beyond in defending democracy as a nation, because we survived the dry run, the spring training of autocracy. We know we can now survive the playoffs with the Super Bowl coming in 2024 because we won in 2020. We didn’t have that federal democracy protection package, H.R. 1, the Senate S. 1, and its various analogs, including the John Lewis Voting Rights revision. We had an assault on democracy led by someone in the White House in 2020. We can do that again. The elements are there. And indeed, in some ways the system is weaker because of this formula, Dahlia, now they have a formula. It’s a playbook they’re running again, the autocracy playbook. They tried in 2020, led by Trump, to attack the rules. That’s why they went to court. That’s what they thought the Supreme Court was going to do, those 63 losses to attack the referees. They viciously pressured the election deciders at the state and federal level up to and including Mike Pence himself. And why? To change the results. That’s all they’re doing now. It’s not fancy. States United this week had a huge new report out with Protect Democracy and Law Forward, called “A Democracy Crisis in the Making.”
We publish it roughly every quarter describing these trends. They’re trying to change the rules. That’s why all these election bills, hundreds of them around the country, pressure the refs. We have another report called “Replacing the Refs” at States United, so they can change the results, right? But the same bipartisan coalitions that saved us in 2020 can come together again in this great referendum at the ballot box, in ’22 and ’24 to do the right thing.