Sunday, February 12, 2017

Why You Should Care (a lot) About Trump’s Attack on The Judiciary

Trump supporters should not read this. It could cause them too much inner conflict.  For the rest of us: We have been warned. Keep your marching shoes on -- and your fingers on the phone calling your representatives.

Why You Should Care (a lot) About Trump's Attack on The Judiciary

by Stephen Pizzo | February 12, 2017

Because my friends, we've been here before. And we know how it ends, if we let it proceed.

So why do the media and pundits shy away from comparing what is nearly a carbon copy: How Hitler defanged and quickly gutted the German judiciary as soon as taking power?

It's a discussion that needs to happen..and soon. Wiser folks than I have already studied how the most dangerous and destructive fascist power defanged it's own independent judiciary. And the comparisons between then, there, and here now, are jarring…to put it mildly.

In this piece I will be quoting heavily from a scholarly work on the Nazification of the German judiciary. "THEY SHOOT LAWYERS DON'T THEY?: LAW IN THE THIRD REICH AND THE GLOBAL THREAT TO THE INDEPENDENCE OF THE JUDICIARY" by Matthew Lippman. You can find the full paper here.

Even before Trump was elected he was picking fights with particular the judge hearing the case of Trump University. Now he is again attacking the judiciary, as the courts rule against his Muslim-countries travel ban. So, we turn our eyes back to 1933 to look at how all this played out in Germany when another Trump-like autocrat took power:

No sooner had the Nazis taken power than it became clear to them that, along with a free media, a free judiciary posed the greatest threat to their continuing in power.

The Nazis vowed that they no longer would be constrained by the fetters of bourgeois law and rapidly moved to reconstitute the legal system. Goering brazenly boasted that the Nazis would "not be crippled by any judicial thinking."

The gauntlet was thrown down. Now began the dismantling:

Hitler's next step was to free himself from the limitations imposed by the constitution. On March 24, 1933, Hitler introduced, and the Reichstag passed, the Law for the Solution of the Emergency of People and Reich or the "enabling act" which constituted the major pillar of Nazi rule."

Article One abrogated the separation of powers and authorized the executive to promulgate decrees without parliamentary consultation.' Article Two permitted the government to "deviate" from the requirements of the constitution.' Article Four authorized the executive to enter into treaties without legislative approval.

As one legal observer remarked at the time: The "street gangs had seized control of the resources of a great modern State, the gutter had come to power."

The Nazification Of The Judiciary

The Nazis immediately launched a concerted campaign to limit the independence and impartiality of the judiciary. They quickly dismissed and demoted politically unreliable judges and officials of the Ministry of Justice.'

"The present crisis in the administration of justice today is close to … climax. A totally new conception of the administration of justice must be created, particularly a National Socialist judiciary, and for this the druggist's salve is not sufficient; only the knife of the surgeon, as will later be shown, can bring about the solution. The criterion . . . for the functions of justice and particularly of the judge in the National Socialist Reich must be a justice which meets the demands of national socialism.'

He who is striding gigantically toward a new world order cannot move in the limitation of an orderly administration ofjustice. To accomplish such a far-reaching revolution…is only possible if… all outmoded institutions, concepts, and habits have been done away with-if need be in a brutal manner… [aIll clamor about lawlessness, despotism, injustice, etc., is at present nothing but a lack of insight into the political situa tion." (Adolf Hiter)

Purge of "So-called Judges"

Hitler's executive orders began to fly:

The Nazi Law for the Restoration of the Professional Civil Service of April 1933 provided that officials, including judges, who were of non-Aryan descent were to be retired. Those officials, who because of their previous political activity, did not offer the security that they would act at all times and without reservation in the interests of the national state also were to be dismissed from the civil service.'

Only Quisling Judges Remained

The other judges remained silent and supine as their colleagues were terminated. The German Federation of Judges now proclaimed that its "main task" was:

…the cooperation of all judges in the revision of German law… Free of all shackles… judges must remain beyond the reach of the spirit of trade unionism and narrow professionalism.'" …'" that they would "'strive as German jurists to follow the course of our Fiiehrer to the end of our days.'

And, should a "so-called judge," fail to rule how he was expected to rule:

In April 1942, Hitler claimed the right to intervene to correct judicial decisions and to remove judges who did not "understand the demand of the hour.

"Furthermore, I expect the German legal profession to understand that the nation is not here for them but that they are here for the nation, that is, the world which includes Germany must not decline in order that formal law may live, but Germany must live irrespective of the contradictions of formal justice."

Hitler Gives Broad Powers to his Jeff Sessions:

In August 1942 Hitler issued a decree which gave the new Reich Minister of Justice broad powers to bring the administration of justice into conformity with Nazi ideology:

A strong administration ofjustice is necessary for the fulfillment of the tasks of the Greater German Reich. Therefore, I commission and empower the Reich Minister of Justice to establish a National Socialist Administration ofJustice, and to take all necessary measures in accordance with the Reich Minister and Chief of the Reich Chancellery and the Leader of the Party Chancellery. He can hereby deviate from any existing law.

Judges Follow Proscution Orders:

As late as 1942, the Security Police sent a secret report to Hitler which argued that additional "political and ideological adjustment of the judiciary" was required in order to insure that their decisions fully complied with principles of National Socialism."

'Prosecutors typically met with judges prior to trial in order to instruct them as to the expected disposition of the case. The President of the Berlin Court of Appeal wrote Justice Minister Schlegelberger in 1942 complaining that these meetings were undermining trust in the judiciary and suggested that they should be conducted with greater circumspection one day prior to trial.'

Tyrants Are Never Satisfied

The Fuehrer, however, harbored continuing suspicions concerning the competency of judges and regularly found it necessary to intervene to correct sentences. (If only Hitler had had Twitter.)

The Nazification Of The Legal Profession

Hitler had low-regard for the legal profession. Ingo Muller writes:

He detested lawyers as pen-pushers who filled whole volumes with tangled commands and prohibitions and always had their noses buried in ridiculous tomes. He once confided to a gathering of confidants that going to law school must turn every rational person into 'a complete idiot,' and that for his part he would 'do everything he could. . . to make people despise a legal education.

The Final Solution to the Justice Problem Came Very Quickly

By 1935, their ranks had been devastated. Ingo Muller writes:

Justice as an ideal disappeared from Germany with the "elimination" . . . of the Jewish, socialist and democratic members of the legal profession, who made up one fifth of the total number and were the group at which Hitler's attacks were chiefly aimed. What remained was a mutilated and perverted sense of justice, characterized . .. by glorification of power, brutalization of the climate of opinion, and in- humanity … which shared Hitler's aversion to "legal-mindedness.

James Wilford Garner, writing in 1933, observed that, like Trump, Hitler replaced smart, professional jurists with, well, useful dopes.

The result of the Nazi "purge" has been. . . to denude the German universities of the great majority of the professors of international law, "Aryans" and "non-Aryans" alike, whose reputations extended beyond the frontiers of Germany. Of those who have been undisturbed, only a few are known even by reputation to American international lawyers…. The vacancies created by the removals have been filled for the most part (if at all) by men without distinguished reputations and who are largely unknown outside Germany, but whose loyalty to Naziism is at least publicly professed.

The Courts Get "Reorganized."

The Hitler regime immediately organized various extraordinary courts. Special Courts (Sondergerichte) were established in order to adjudicate the guilt of "opponents of the new regime. "

Two aspects of the Special Courts were designed to ensure immediate and certain punishment:

First, there was no legal appeal against a decision of the Special Court." Punishment was immediate in those cases in which the offender was caught "in the very act or if his guilt is otherwise obvious. In all other cases, punishment was to be imposed within twenty-four hours.

Reorganized All The Way up to The Supreme Court

The next step in the reorganization of the judicial system was the establishment of the People's Court (VGH). This extraordinary tribunal was given jurisdiction over treason, which previously had been the preserve of the Supreme Court.

In 1930, Hitler had vowed before a German tribunal that:

"[w]hen our movement is victorious, then a new Supreme Court will be assembled, and before this court . . . you may be sure heads will roll in the sand."

Between 1937 and 1944, the Court adjudicated 14,319 cases. The Tribunal sentenced 5,191 of these defendants to death. In July 1942, Reich Minister Hermann Goebbels addressed the judges who sat on the People's Court and attacked their lenient treatment of defendants. He lectured the judges that they should:

… proceed less from the law than from the basic idea that the offender was to be eliminated from the community.. . . [Ilt was not so much a matter of whether a judgment was just or unjust but only whether the decision was expedient. The State must ward off its internal foes in the most efficient way and wipe them out entirely. The idea that the judge must be convinced of the defendant's guilt must be discarded completely. . . . The criminal must know beforehand that he will lose his head, should he assault the foundations of the State.

And with that, my fellow Americans, I leave you to ponder the course ahead, unless we stop this neo-fascist administration in its tracks. Because failing to learn from this is the best way to repeat it. And we are seeing the seeds sprouting for just that as you read this.