A step-by-step checklist toward autocracy — moving along too easily so far

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So you want to change a democracy into an autocracy.

Where to begin? Well, Justice William Brennan famously wrote that “the First Amendment is the cornerstone of democracy.” To transition to an autocracy, you’ll need to chip away at that cornerstone.

No need to worry about the legislative branch. It’s been neutralized, as the members of Congress have put personal ambition ahead of the national interest (just look at the Cabinet confirmations). And the minority seems incapable of organizing and mounting a viable resistance. The judicial branch is your only concern, and you have plans for handling that branch as well.

Begin by eroding press freedoms. Then move on to threatening major universities, followed by the intimidating of students. Frighten the legal community into doing your bidding. Finally, go after any judge who has the temerity to disagree, on constitutional grounds or otherwise, as to your steamrolling tactics.

Your tools are fear, confusion, intimidation and, where applicable, loss of funding.

Let’s begin with the press.

In summer 1991, Ruth Marcus, a reporter for the Washington Post, traveled to my law office in St. Paul to interview me regarding a First Amendment case I was about to argue before the U.S. Supreme Court. I remember her as insightful, personable and professional. In the years that followed she became a successful opinion columnist for the Post. This month, after 41 years of service with the Post, she resigned in protest due to a directive issued by the owner of the Post, Jeff Bezos. The editor of the opinion page resigned as well.

The directive limited the subject matter opinion columnists could cover and circumscribed what viewpoints they could express. So much for press freedom at what has been one of the nation’s leading newspapers. Media reports have suggested Bezos, who sat in the front rows with other billionaires at the inauguration, is busy currying favor with the White House and doesn’t want to offend the occupant.

This comes on the heels of the Associated Press being banned from presidential events for continuing to refer to the “Gulf of Mexico.” The AP has filed suit alleging “an unconstitutional effort to control speech.” In the meantime, the White House pool of reporters have been reminded that unless they toe the line, they too may be banned. You’ve passed the first step.

On to the major universities. The Trump administration has made clear that it will withhold funding from these institutions if they do not cooperate. Columbia University is the most prominent target. With concerns that the school would lose over $400 million in funding, the university caved to the administration’s demands, agreeing to 36 new campus police officers (presumably to quell any student demonstrations) and even to allowing the federal government to control the Middle East department “to ensure the educational offerings are comprehensive and balanced.” This from an elite university that is billed as a private Ivy League school.

Closer to home, we have seen the University of Minnesota Board of Regents vote to restrict who can speak for the institution and what they can say. That policy, or a reasonable facsimile, is likely to be repeated at other major universities where federal funding is at risk. The schools suggest that they will continue to protect free speech, but a climate of fear is descending on institutions of higher learning, leading to self-censorship and muted voices, and it is hard not to conclude that free speech is being sold for federal funding. Good job on this one as well.

As to the students, consider Mahmoud Khalil. Khalil, a Columbia student with a wife who is eight months pregnant and who has a green card, which signifies permanent residency, and who is in the process of being deported. He is an anti-Israel activist who, regardless of whether you agree with his position or not, is entitled to due process. The administration has labeled him a “terrorist sympathizer,” as though his viewpoint enables them to skip over due process in detaining him and revoking his legal status. It will be up to the courts to decide whether there are legal grounds for deporting him, or whether he is being deported for his disfavored viewpoint. Make no mistake about this move to deport. It was done to chill students and faculty from voicing controversial viewpoints, on this topic and others not in line with the administration’s edict. Checkmark here too.

Now we move on to the law firms. Our goal is to intimidate the legal community and settle old scores. We’ll punish large law firms (Perkins Coie; Covington & Burling; and Paul Weiss) for who they have represented in the past, thereby discouraging attorneys from taking on clients that do not adhere to the administration’s positions. The lawyers will be afraid for their clients, for themselves and their careers. Proof of that fear became clear when Paul Weiss — one of the three law firms subject to an executive order removing security clearances, barring access to government buildings and imposing limits on government contracts — gave in to the administration’s demands, much to the chagrin of the legal community. The firm agreed to provide “$40 million in pro bono legal services to support the administration’s initiatives.” Once again, fear and intimidation are moving you closer to your goal.

That was easier than it should have been. You are on track.

That brings us to the one major impediment to establishing your autocracy: the rule of law, as pronounced by the third and co-equal branch of government, the judicial branch. So far more than a dozen federal judges, appointed by presidents from both major parties, have issued injunctions and have otherwise put at least a temporary halt to your myriad attempts to impose your will, as these attempts are so often made without regard to the provisions of the Constitution (as an example, birthright citizenship is a right guaranteed under the 14th Amendment). These judges, both state and federal, are independent and impartial. You cannot allow that to continue.

Back to fear and intimidation. Call for the impeachment of these obstructionists. As you claim the need to impeach, others pick up your voice with hateful and threatening rhetoric. This leads to the chief justice reminding all that “impeachment is not an appropriate response to disagreement concerning a judicial decision.” Sooner or later, one or more of these cases will come to the Supreme Court. If a majority of the justices rule against the administration — that is, if the rule of law holds — then you will have to decide if you will accept the decision or defy it. If you defy it, and succeed in doing so, you have your autocracy.

For the rest of us, one is reminded of the words of Benjamin Franklin in 1787, describing our nascent form of government as “A republic, if you can keep it.”

Can we?

Edward J. Cleary retired as chief judge of the Minnesota Court of Appeals in 2020. He is currently a senior judge on that court.