Comparing his indictment to Nazi Germany, Donald Trump is right for extremely wrong reasons

Donald Trump at a political rally in Erie, Pennsylvania. Photo by Getty Images

Few of us were surprised by yesterday’s news that special counsel Jack Smith had filed an indictment against Donald Trump in a federal court in Washington, D.C.

Nor were we surprised by Trump’s response to the indictment. On his Orwellian platform Truth Social, he denounced the “Biden Crime Family” for this act of “election interference.” He then placed this criminal act in a historical context: “The lawlessness of these persecutions of President Trump and his supporters is reminiscent of Nazi Germany in the 1930s, the former Soviet Union and other authoritarian, dictatorial regimes.”

Yet while Trump’s indictment and his response are not surprising, they are nevertheless shocking. Shocking because this indictment, unlike the two previous two, poses an existential question for our democracy: Can a sitting president flout the will of the people and cling to power after losing an election? Can he or she, in short, become a law unto themselves?

It is no less shocking because Trump, by framing the indictment as an act of “lawlessness,” unwittingly connects what happened in “Nazi Germany in the 1930s” to what nearly happened in the United States in 2020.

Coincidentally, this year marks an important anniversary that captures the nature of this connection. Ninety years ago in Cologne, a widely respected and politically conservative professor of law, Carl Schmitt, joined hundreds of fellow Germans waiting in line to receive their membership cards for the Nazi Party. Glancing at his card, Schmitt noticed that he had become the 2,098,860th member of the party. That more than 2 million Germans had already preceded him must have given Schmitt a good deal of psychological and philosophical comfort.

There has been a recent upsurge of interest among academics in Schmitt’s ideas and their legacy. This is understandable. Like his admirer Martin Heidegger, Schmitt is a strikingly original and influential thinker. Yet both men also happened to be Nazis, a fact that divides scholars. There are those who argue that, for both Heidegger and Schmitt, it was a matter of practical convenience, not unlike joining a Masonic lodge or professional association. Others, however, insist that it was a matter of philosophical conviction, that Hitler’s politics was, in effect, their philosophy by other means.

While no one is turning to Heidegger to make sense of the Trumpian conception of law and lawlessness, it is a different matter with Schmitt. In part, this is due to Schmitt’s critique of the notion of legal norms. Those who believe in the centrality of a written constitution — or, like liberal Israelis, lament its absence — believe it is the source of legal norms that both legitimizes and places limits on political authority. Yet Schmitt scorned this bedrock belief of liberalism, claiming that the hard and clear distinction between the “rule of law” and “rule of men” was in fact without foundation.

It is tempting to think of Schmitt as modern Germany’s equivalent of Thomas Hobbes. Just as the 17th-century English thinker, confronted by the chaos of civil war, embraced the absolute sovereignty of a royal state — his infamous “leviathan” — the 20th-century German thinker thought he confronted a similar situation in 1933 when the Nazis took power from the flailing Weimar Republic. There are no norms that can be agreed upon by all parties in a conflict, he argued. Instead, there is only power that can be exercised by a sovereign ruler — one who, when he or she deems it necessary to protect the nation, can ignore existing laws and rule by the exceptional powers their office represents.

“The sovereignty of law,” Schmitt declared, “only means the sovereignty of those men who draw up and administer the law.”

In Trump’s tweets and bleats, we hear grotesque echoes of Schmitt’s claims. Whether it is the claim he made in 2016 that “I alone can fix” the ostensible crisis facing America; or the assertion that he made in 2020 that “when somebody is president of the United States, his authority is total and that’s the way it’s got to be”; or the claim in 2022 that he had the power to declassify any and all top-secret documents — not to mention the vow he made to his followers this year that “I am your justice, I am your retribution” — Trump has provided irresistible material for a Dummies Guide to the Philosophy of Carl Schmitt.

Irresistible, but insidious. For Carl Schmitt, all societies must accept that, in essence, their fundamental lawlessness because no law, no matter how appealing or desirable, has a normative status or universal foundation. We see the dire consequences of this philosophical stance in Schmitt’s practical decision (and ethical collapse) to become a Nazi. This is the same motivation of countless Republicans over the past 24 hours who have rallied to Trump’s defense. Since you can’t fight him (and hold on to your powers and privileges), it is best to join him.

Though he lived well beyond the fall of the Nazi state he had joined, Schmitt never seems to have taken the full measure of his ideas and actions. These actions included defending not just the Nuremberg Laws, which revoked the citizenship of German Jews, but referring to Jews as “racial parasites” and praising the brilliance of Mein Kampf. As we prepare for yet another stress test of our democracy, it is time for Republicans to spare a thought for Schmitt and take the measure of what they have enabled.