On the Countercoup, and the Trials After

“Stop saying history will judge them. Judge them now. With judges.”—Joe Sandow, writing at the beginning of the Biden Administration

We forget that the Nuremberg trials were military tribunals; the victors in a war enforcing their will upon the losers. Some of the victors chose to do so by exacting justice but nothing constrained them to do so; the Soviets wanted to have show trials but failed to get the other participants to agree.

At Nuremberg law was created to prosecute the crimes of the Nazis. “Crimes against humanity” was invented to describe heinous acts previously unimagined. These concepts led to the writing, decades later, of the Rome Statute and the creation of the International Criminal Court.

Considering the law

Josh Marshall of Talking Points Memo has been trying for over a year to establish a DOJ-in-Exile, to record the law-breaking and new crimes of the Trump Administration. Unfortunately, as of this writing, he has been able to find funding, but unable to find people to lead and organize it.

It seems to me that current US law alone is not adequate to bring justice to the crimes of the Trump administration. Some have committed actual crimes under United States law, but others have not. The punishments under law for the crimes they have committed often fall short of the gravity of their offenses.

An abbreviated summary of charges

• Trump’s pardon of the January 6 insurrectionists was entirely legal.
• Various sorts of malfeasance and interference with government crimes were committed by Elon Musk and DOGE, but none of the punishments the law provides respond to the hundreds of thousands of deaths they have caused, and the millions that likely will follow on after.
• Elon Musk’s and Peter Thiel’s vast theft of data and compromise of government information systems is, it seems, illegal, but again, the legal penalties do not rise to the extent of the damage done, let alone reversing it.
• ICE routinely violates the due process clause of the 14th Amendment; it was, however, entirely legal for the Republicans in Congress to fund them.
• It was also legal for those same Republicans to endorse the destruction of USAID, which has already led to hundreds of thousands of deaths abroad.
• Leonard Leo’s role in corrupting the Supreme Court was apparently legal.
• Peter Singer and Harlan Crow’s patronage of Supreme Court justices Alito and Thomas, also.
• Chief Justice John Roberts’ apparent acceptance of bribes through his wife is a violation of various US laws, but the penalties seem minor compared to the amounts involved, as well as the harm done.
• The corruption of the Supreme Court legalized both Musk’s patronage of Trump and Thiel’s patronage of Vance.
• The extensive corruption of our legislatures at all levels of government by the wealthy, with the connivance of the corrupted Supreme Court.
• The monopolization of all major media outlets by right wing to far right owners. Some of this at least used to be subject to law and regulation, but those laws have not been enforced in a generation.
• Trump’s war on Iran, illegal under both US and international law, promises vast harm to the world. Again, there are no penalties.
• Hegseth’s murders on the high seas in the Caribbean and eastern Pacific. There are penalties in international law for this, but they are not well worked out.

The scale of the prosecutions

The scale is daunting. 222 House Republicans. 53 Senators. Donald Trump, JD Vance, and Trump’s cabinet. Multiple judges, including six Supreme Court justices. The various hangers-on and Trump family members. Numerous Department of Justice, Homeland Security, and military personnel.

Many of the greatest offenders are wealthy, with vast financial resources to mount a defense. Should a 2029 Congress and administration mount a prosecution, a huge number of judges and prosecutors would be needed. The current US Supreme Court, with six oathbroken corrupt complicit justices, would make every effort to prevent the prosecution, just as they prevented the prosecution of Donald Trump for his crimes during the Biden administration.

The countercoup

Rationale

All of which adds up to the need for a countercoup, putting the whole project in terra incognita, beyond existing law. There have been many insurrections in US history, large and small, most famously the War of the Rebellion; euphemistically called the Civil War. Arguably, the late 19th century saw a successful countercoup on the part of the South, similar to Trump’s second term.

It is possible to set aside the rule of law; every Republican administration since Nixon has done so and the Roberts Court has been ruling by whim for eight years. But there seems to be little effective law enforcement that addresses coups and treason in US history. In recent history, the Democratic opposition has erred on the side of inaction; Nixon was pardoned and his treason during his 1968 campaign was never prosecuted, and did not even become public knowledge until decades later. Reagan’s likely treason in Iran-Contra was never prosecuted; George H. W. Bush pardoned most of the actors. His son George W. Bush lied the United States into a war and, while that was debatably legal, was never faced with consequences for it. Trump was protected by the Republicans in Congress and the corrupted Supreme Court. Reaching back further in history we have the Business Plot against FDR, and the Nazi paramilitary that Maddow documented in Ultra and Prelude. Possibly the ultimate in erring on the side of inaction (by the Republicans, who at that time were the liberal anti-racist party) was the Compromise of 1877, which allowed the South to establish Jim Crow.

Historically, it is not the government or elected officials that have resisted the various attempts, some successful, some not, to turn the US government into an authoritarian aristocratic state; it is the people. Republicanism, in the original sense of the word, runs deep in the US public. The Vietnam war was not ended by the federal bureaucracy or Congress; it was a popular movement that ended it. The prosecutions Maddow describes in Ultra failed, but it was reported and the public voted out the Nazi collaborators in Congress. Union veterans were the strongest opponents of compromises with the racists of the South. And now the major opposition to Trump and the neo-fascist Republican Party is not elected officials or federal bureaucrats; it is a broad public coalition.

Structure

First, and foremost, if there is to be a countercoup, we must make it. Historically, all successful opposition to authoritarian governance in the United States has been driven by popular activism, so the countercoup must be a movement based outside the government, though officials, former officials, and candidates must be brought to participate.

Second, it must be a powerful action. Since 2000 at least, arguably since 1992, it has been one step forward and two steps back. The recent Callais decision of the Roberts Court is a 150 year step back.

We must break the power of white supremacism and fascism for generations. In 1943 Commager (Henry Steele Commager. Majority Rule And Minority Rights. Oxford University Press, 1943) felt that the protection of minority rights must stand with Congress, but Congress itself is now complicit; a handful of Republican Representatives and Senators could end the Trump coup, yet they do not. If the House, the most representative organ of government, does not act, only the people are left.

Tribunals

There are a number of proposals for institutional reform; political scientist Mark Copelovitch has posted a number on Bluesky, and Liberal Currents is in the process of publishing a whole book of them. These steps certainly should be undertaken, but for this piece I want to address the tribunals that will try the crimes committed by the Trump Administration and its supporters.

It must be admitted that only some of the crimes of the Trump administration are covered by current law. The Constitution forbids retroactively declaring something a crime for what are ordinarily good reasons, but these are not ordinary times. In ordinary times, too, the Supreme Court would try such crimes, but six of the judges are defendants. So who will the judges be? Will there be juries?

At Nuremberg there was one main trial, that of the German leaders. In addition, the US held twelve subsidiary trials. Various participants restricted what could be considered a crime, to protect themselves. Neither the United States nor the Soviet Union wanted to give an international court jurisdiction over acts committed against their own citizens. The US was primarily covering for Jim Crow, while the Soviets had a long list of abuses. The Soviets also did not want the Molotov-Ribbentropp pact brought into evidence, though Ribbentropp himself was one of the defendants. The British wanted to simply execute the German leaders. The French wanted to prosecute grievances going back centuries. (And were not party to the Potsdam agreement which enabled the trials, but this didn’t keep them from making demands.)

I am not versed in law and there seems to be much more theory than practice in this area; even the people who know the law well are limited. Nonetheless, as an outsider I will put forth some tentative thoughts.

Why tribunals?

Tribunals are both an alternative to the historic inaction on the part of the US political system and government in response to high crimes, and also an alternative to a dissolution into widespread violence. There are many people who hate the criminals of the Trump administration, the Republican Party, and their backers. Tribunals provide a way for society to express its outrage without extensive internecine violence.

What venue?

The highest court of law in the United States is of course the Supreme Court in Washington, DC, but six of its judges are compromised. Instead, perhaps the trials ought to be held in a city which was occupied by the Trump Administration. Perhaps Chicago, the first major city to be occupied by ICE, and the most American major city. Or Minneapolis, which mounted an effective resistance.

Which law?

1. Where possible, prosecute under existing law. This avoids arguments over what is a crime, what crimes to prosecute, and so on. If the crimes are already on the books, use the books. This is a huge project; no need to further complicate it.

2. But create new law when it is needed. It is important to both restrain the criminals from perpetrating further crimes and to see justice done. Elon Musk, in destroying USAID, has caused the deaths of hundreds of thousands, with an ultimate death toll that will probably be in the millions. Appropriate law must be created. This must not happen again.

I hate the whole idea of creating law and applying it retroactively. In ordinary times this is forbidden by the Constitution, and for good reason, but there seem to be so many acts that current law does not apply to, yet should be penalized. This was also a problem at Nuremberg. Making war was never considered illegal before that time; the idea that nation-states should be subject to any higher law fell by the wayside with the Reformation but, after World War II, it seemed plain that higher law was necessary.

Who judges?

The current Supreme Court has six oathbroken partisans who support and participate in this anti-democratic coup; they must not be allowed to sit in judgement over their fellow coup participants. There are multiple proposals for Supreme Court reform—more justices, term limits for justices, making removal of justices easier, and so on. One of these must be implemented before the tribunals.

Who prosecutes?

The obvious choice is Kamala Harris, who served as Attorney General of California, heading the California Department of Justice, with over 4,000 employees. She is capable of managing such a large prosecution.

Should there be juries?

The US Constitution says, “the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” In US legal practice, this has been interpreted to mean a “random selection of citizens who are a representation of the community where the case is being tried.”

The issues of these cases are complex, and the law itself uncertain; it’s not a situation conducive to reliable jury verdicts; it is not for nothing that “lawyers fear juries.” At the same time, we have seen over and over that the formal judicial system is biased towards authority and will find ways to excuse even the most egregious criminal conduct by privileged individuals. The movement that leads to a countercoup is a popular movement. So, yes, juries, despite all their difficulties.

The depredations of the coup extend to foreign policy, perhaps foreign citizens ought to be included in juries.

Penology

They would have hung at Nuremberg.

At Nuremberg, the worst offenders hung. The International Criminal Court remands convicted criminals to one of the participant states for imprisonment; it can also order reparations.

The Pardon Power

Above, I wrote about reforming the courts, so as to make it possible to have honest trials, but a second part of erring by inaction has been enabled by the Presidential pardon power, which must also be reformed. In 1867, Lincoln’s successor, the former slaveholder Andrew Johnson, pardoned over 12,000 of the Confederate traitors, opening the way to the terrorism of the first Klan. In our time, President Trump pardoned the insurrectionists of 2021. Many have since been re-arrested; it turns out that they were simple criminals rather than ideologues, who saw the insurrection as an opportunity to commit crimes and evade punishment. This cannot be allowed to stand; it is now twice that the pardon has been used to protect insurrectionists; reforms are needed.

Property penalties

US law is reluctant to confiscate the property of the rich as a penalty, yet that seems to be called for here. Most of the crimes here are either vast property crimes or enabled by vast wealth. Especially egregious are the mass corruption of legislatures at all levels of government, the concentration of media in the hands of political supporters of the coup. and the of purchase government functions. Much more than imprisonment or death, property penalties are called for; the fortunes and organizations that made this coup possible must be broken, or the crimes will continue. The families of the offenders must also be penalized; it will do no good to distrain Donald Trump of his ill-gotten gains if he simply transfers them to his sons. This area of law is conflicted; the Constitution provides that Congress can directly punish treason, but forbids the punishment of family, and says nothing at all about what the courts can do. So far as I know, the issue has never been litigated in US history, but we seem to be back in a time of aristocratic politics, and it would be best to address it.

Criminal Penalties

Beyond property penalties, justice demands punishment of the offenders; they must be kept from committing further crimes. In our time, this is customarily done through imprisonment, but more than imprisonment is needed, restraints on conduct are also required. Albert Speer, imprisoned rather than executed because he confessed and persuaded the judges he was remorseful, made a prison career of publishing books about the Nazi regime which conveniently exonerated him as an apolitical technocrat; they were only debunked after this death. Nazi filmmaker Leni Riefenstahl, not charged at all, spent her postwar career suing people who doubted her claims of ignorance and innocence; as with Speer these claims were only debunked after her death. Riefenstahl was successful in keeping the accounts of her depredations from wide distribution.

The Broader Penological Question

What, in the final reading, is to be done with MAGA? We can punish the leaders—far too many of them—but what of the rank and file? We fluffed this in the post-Civil War period; the political issues that led to the Civil War survived the war and led to the creation of Jim Crow, which was also a slave system, though a less horrible one than antebellum chattel slavery. I will not advocate a Terror, nor do I believe that a Terror would resolve the political issues. So then what?

Conclusions

I do not expect these proposals to be adopted in full. It is much more likely that the United States will muddle along, as it did in 1877. The question of how to deal with MAGA I do not at all have an answer to. I do hope that some of these proposals will see practice in at least reduced form.

“Justice, Justice Shall You Pursue”

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