In April 1933, the German government’s civil service law decimated the independence of public servants by firing those who the Nazi Party perceived as disloyal, including those removed on ethnic or faith grounds. Prosecutors and judges were prime targets for removal. That was one of the very first steps the Nazis took to seize control of all aspects of German life. It made the country a dictatorship within months.
Comparing any nation that didn’t start a world war and the Holocaust to the Nazis may seem incongruous or even hyperbolic, but there are critical historical lessons to draw from 1930s Germany that we ignore at our peril.
There’s been much discussion and apprehension about America flirting with authoritarianism. President Donald Trump was willing, if not eager, to disparage democratic institutions, including the judiciary. His critics saw him as a wannabe authoritarian, and his election denials and encouragement of the Jan. 6, 2021 insurrection were damning confirmations of this.
The unwinding of democracy begins with undermining the rule of law. And the first step toward that is to disrupt those who are tasked with upholding it. Every day, countless civil servants—law enforcement officers, prosecutors, judges, government administrators—implement the rule of way in countless ways.
The 2020 election and its aftermath provide a recent example. Despite strong political pressure to do otherwise, people did their jobs. From election workers properly counting ballots to Vice President Mike Pence certifying the election results, to the Capitol Police, prosecutors, and judges who arrested, charged, and sentenced January 6 rioters: they all followed the law and ignored the calls to do otherwise.
But we also saw Trump try to subvert that process. He attacked the Department of Justice, including Attorneys General Jeff Sessions and Bill Barr, and sought to interfere with investigations into his own conduct.
Sadly, Trump is not alone. Florida Governor Ron DeSantis has taken a similar combative approach with prosecutors. Last August, he suspended the twice-elected local prosecutor in Tampa, which a federal court found to be politically motivated and in violation of state and federal law.
DeSantis has also outlined a massive overhaul of the federal Department of Justice and FBI if elected president, saying he would “break up” those agencies. Both DeSantis and Trump have announced plans to destroy the federal civil service if elected. Just before the 2020 election, Trump signed an executive order removing protections for workers in civil service. (President Joe Biden rescinded that order shortly after taking office in 2021).
The Trump administration said the order made it easier to fire incompetent workers. The actual reason, however, was to purge federal employees who were not sufficiently loyal. Trump advisers even openly discussed firing federal employees to create a “chilling effect” to keep others in line. Other Republican Presidential hopefuls support this idea, and House Republicans also have the DOJ and FBI in their sights following Trump’s federal indictment.
It’s hard to overstate the dangers of removing federal employees tasked with implementing the law and replacing them with partisan loyalists, especially those in the Justice Department.
Trump is a known commodity: Americans are aware of his anti-democratic tendencies and his temper tantrums. But the national audience is far less familiar with DeSantis. Although DeSantis’s supporters have attempted to portray him as an alternative to Trump and the drama that follows the ex-president, the governor’s track record shows that he is as willing as Trump—if not more so—to break political norms, ethical boundaries, and black-letter law to further his agenda.
Since the Pendleton Act of 1883, federal positions are based on merit rather than political patronage. These two presidential candidates, however, are looking to take us back 150 years to when cronyism and nepotism openly flourished, so that no one can or will oppose them. As totalitarians know, if you replace those who follow the law with those who follow orders, there is little to stand in your way. America cannot let this first line of defense fall.
For anyone who is concerned about Trump’s authoritarian tendencies, DeSantis should raise similar red flags. DeSantis has repeatedly shown his disdain for the law. Several of his most significant legislative accomplishments have been found unconstitutional. He has targeted businesses for speaking out against his agenda, most notably Disney.
He orchestrated political stunts to relocate migrants from Texas to Massachusetts—which is under criminal investigation—and to California—which is also being investigated. There are well-founded allegations against him of campaign finance violations, and he has flouted public records laws to hide his travel records and other conduct.
DeSantis has been able to get away with much of this, and he has leaned into passing laws that he knows are unconstitutional while relying on Florida’s courts—which he reconstructed—to approve. His conduct has alarmed his opponents, but many others appear to shrug at the abuses of power. That needs to stop now.
The warning signs are all around us. Trump, DeSantis, and some other politicians have abandoned traditional conservative principles for autocracy. They aim to dismantle all checks on their power, while distracting their supporters with a war against imaginary enemies in the so-called “deep state.”
If we’re going to stop the slide into authoritarianism and preserve our democratic values, we must lose all illusions about what is at stake here. This is a turning point for our nation. We must use the lessons of history to make sure we don’t take the wrong path.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Author Information
Richard W. Painter is a professor at the University of Minnesota Law School and was chief White House ethics lawyer under former President George W. Bush.
Andrew Warren was state attorney of Hillsborough County, Fla. 2016-2022 until he was unlawfully suspended by Gov. Ron DeSantis for opposing laws criminalizing abortion and discriminating against transgender Americans—a federal court found the suspension violated the US and Florida Constitutions but said it lacked jurisdiction to reinstate him. Warren’s legal fight against DeSantis continues. He’s a former federal prosecutor.
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