From "Police State Lite" to an American Gestapo: What a Trump Victory Might Bring

Donald Trump's dismal debate performance against Vice President Kamala Harris did not, of itself, constitute a political knock-out blow against the former president. The race remains relatively close, and thus the chance of a second Trump term is still a real possibility. What makes that prospect even more chilling is the kind of law enforcement and data collection tools that would be at Trump's disposal if he wins - tools he would be eager to use against his political opponents. But how did we get here?

Building the "Police State Lite"

I and many others have written about the long history of federal law enforcement and intelligence agency activities that have violated the constitutional rights of literally millions of Americans. The best online timeline displaying just a fraction of those violations is one I launched in 2016. The 1970s era Church Committee managed to enact a handful of important reforms after the worst executive branch excesses of the Cold War were exposed: creation of House and Senate intelligence oversight committees, the Inspector General Act of 1978, and the Foreign Intelligence Surveillance Act (FISA), which was supposed to be a safeguard against warrantless spying on Americans.

Yet over the last 50 years, bit by bit, those reforms have been largely undone. America has been for over two decades what I describe as a federal "Police State lite."

Prior to the 9/11 attacks, federal electronic mass surveillance was explicitly illegal. Since 2008 and via legislative modifications to FISA (including a key one made earlier this year), programmatic mass surveillance - ostensibly only of foreigners but which also automatically ensnares the communications of Americans - has been deemed lawful by federal courts.

The very same year that FISA's scope was expanded, then-Attorney General Michael Mukasey gave the FBI broad new powers to open investigations on individuals or groups absent a criminal predicate. The new authority was dubbed "Assessment" vice "Investigation" and it allows an FBI agent to search commercial (i.e., data from Google, LexisNexis, etc.) and classified databases for information on the target of an "Assessment," as well as conduct physical surveillance of and run confidential sources against the target.

I've written previously about how FISA, "Assessments," and other authorities available to federal law enforcement agencies have been misused against those engaged in First Amendment-protected activities. Other technologies and capabilities--geolocation data, credit history, online purchase history, the creation and deployment by police of cell site simulators, social media data aggregation tools potentially augmented through the use of various forms of artificial intelligence (AI), the deployment of facial recognition technology (FRT) at scale--these and more have all been misused by police at the federal, state, and local levels. And those abuses have all taken place while internal (agency/department inspectors general) and external (Congressional committees, Government Accountability Office, federal courts) oversight mechanisms have been available.

In some cases, one or more of those oversight mechanisms have actually exposed some of the abuses in question. But each of those oversight mechanisms is also vulnerable to various forms of political subversion or cooptation, and we can be absolutely certain that, if he's again elected, President Trump will not concern himself with traditional legal niceties and norms in dealing with those who oppose his agenda. We know this for two reasons.

The first is his past behavior, as for example trying (unsuccessfully) to get then-Secretary of Defense Mark Esper to use active duty Army troops against Black Lives Matter protesters in 2020. Then-Attorney General Bill Barr compensated by authorizing DEA agents to do the job via a Title 21 authority normally used for increased law enforcement protection at sporting events like the Super Bowl.

The second reason is because of what he's saying he will do if he wins in November 2024, and the list of outrageous and likely unconstitutional acts that he plans to try to carry out is a long one. But if there's one federal department that will face his full fury, it will be the Department of Justice, and especially the FBI.

Trump's "Deep State Purge" Agenda

Ever since the FBI's improperly predicated CROSSFIRE HURRICANE investigation against Trump campaign aide Carter Page, Trump has repeatedly publicly attacked the FBI, particularly in the wake of the FBI's August 2022 search and seizure operation at Trump's Florida home to recover highly classified documents Trump was no longer entitled to retain.

Indeed, the FBI's Mar-a-Lago document recovery operation motivated one deranged Trump supporter to try to attack the FBI's Cincinnati Field Office just days after FBI agents executed their court-approved search warrant in the classified documents case.

In May of this year, Trump made the false claim that the FBI, on President Biden's orders, was "locked and loaded" and ready to shoot him during the Mar-a-Lago classified document search and seizure operation. Trump was in New York during that operation, but that has not stopped him from intensifying the attacks on the Bureau and Special Counsel Jack Smith, the lead prosecutor in the classified documents case. On June 14, Trump's legal team filed a motion opposing Smith's own request to Judge Eileen Cannon that Trump be publicly barred from attacking FBI agents involved in the case.

Trump's public attacks and legal guerilla warfare has a clear purpose: to delegitimize not only Smith's case, but the entire Justice Department as an institution in its current form.

So, if Trump does manage to beat Harris this November and lives to assume office in January 2025, among his first moves could be to direct that all charges against him be dropped, followed by a purge of the senior leadership at the Department of Justice, and in particular the FBI.

Over 18 months ago, I laid out the legal and regulatory authorities Trump could draw upon to remake not only the Justice Department, but literally every agency and department of the executive branch. These powers would allow Trump to effectively fire thousands of FBI agents through a reduction in force (RIF) or reorganization process that Congress would at least initially be powerless to stop even if both chambers were controlled by Trump's Democratic opponents. Trump and his Administration loyalists would then be in a position to recruit replacements from state and local law enforcement organizations that have traditionally been a bedrock of political support for Trump.

According to Bureau of Justice statistics, as of 2020 there were slightly over 13,000 FBI agents nationwide, but as U.S. Census figures from 2021 reveal, there were nearly 1,000,000 total uniformed officers in the United States. And that doesn't count those who might have left state or local law enforcement organizations within the last few years and who would still be physically and otherwise eligible to serve again.

Bottom line: Trump would have a large, readily available pool of applicants to replace "disloyal" FBI personnel given the boot. 

Trump could also draw upon a prior Justice Department practice of deputizing de facto auxiliary police to fill in personnel gaps created by a Trump DoJ/FBI purge.

During World War I, Chicago businessman Albert Briggs proposed to Attorney General Thomas Gregory that Briggs organize a privately funded auxiliary surveillance and investigative force to help the Justice Department enforce wartime laws and conduct surveillance on those deemed disloyal by the Administration or otherwise opposed to Wilson administration policies. That force, known as the American Protective League (APL), would swell to over 250,000 before the end of the war and was aggressive in "taking action against disloyal socialists and pacifists by engaging in domestic surveillance and raiding businesses.” Naturally, the APL's activities were due process-free and resulted in flagrant, systemic violations of constitutional rights.

While the APL was disbanded after the war, the concept of a citizen auxiliary surveillance force operating at the Justice Department's behest was revived in 1940 via the FBI's American Legion Contact Program. Legion members spied on their fellow citizens and reported back to their FBI handlers.

Trump and his DOJ loyalists could draw on these precedents to deputize groups like the Proud Boys, Patriot Front, and other pro-Trump, white supremacist groups to act as not only spies but de facto political enforcers for Trump and his agenda.

Antifa protesters a problem in Portland? Dispatch the Proud Boys to "take care of them." Black Lives Matter protesters in the streets of D.C.? Same drill.

And in the Trump Justice Department, you could be sure that any Antifa, BLM, or other groups that injured Trump-authorized auxiliaries would be prosecuted remorselessly, while any leftist or other anti-Trump "rioters" injured or killed by his auxiliaries would not have their cases investigated. Indeed, any hate crimes against LGBTQ or transgendered persons would not be investigated or such investigations would be slow rolled.

It's quite easy to envision a "division of labor" in a new Trump DOJ. In this scheme, his loyal FBI agents, under the direction of aggressive, totally sycophantic Trump-appointed U.S. Attorneys, target Trump's political opponents in Congress, Democratic governors and legislators, and left-leaning civil society groups with bogus, politically motivated criminal investigations and prosecutions, Meanwhile, DOJ-sanctioned auxiliaries conduct political surveillance and "culture war"-related violence and intimidation against migrants, Antifa, BLM, LGBTQ, and transgendered persons or organizations representing them.

This agency-by-agency and department-by-department "purge and replace" project would be applied to all key Executive branch elements, especially the Departments of Justice, Defense, and Homeland Security--those components most capable of applying coercion and violence at scale against Trump's opponents. It's also fair to assume that even with substantial, competent advance planning the process would be messy at best and perhaps even unworkable or ineffectual for a time. But politically, there would be nothing to stop Trump from carrying it out if he wins the White House and the GOP maintains control of the House and retakes the Senate.

All of this raises an obvious question: Is there any way to prevent this?

The Price of Defending Liberty: Resistance

It's true that some on the anti-Trump left are planning for a resistance to a new Trump administration. Unfortunately, the groups involved in the effort continue to labor under the illusion that somehow federal courts will be able to stop a man who has repeatedly flouted or otherwise violated the law time and again. In reality, federal courts would be powerless to stop any of this.

Unlike in many European democracies where the federal police fall under the control of the national judiciary, in the American system federal judges have no police force of their own to send out to arrest Executive branch personnel wanted for a crime.

While the U.S. Marshals Service provides security for the federal judiciary, it resides within the executive branch and reports to the Attorney General. If elected again, Trump could withdraw all federal marshals from their court protection duties at will--leaving any judge he subsequently publicly threatens at risk of bodily harm or death.

Alternatively, Trump could, like Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Franklin Delano Roosevelt, simply ignore federal court rulings or reinterpret them to fit his preferred legal or policy outcome.

It's worth recalling that in the summer of 2020, Trump wanted to use federal troops against Black Lives Matter protesters. His then-Secretary of Defense Mark Esper managed to stop him through a combination of calling up National Guard troops for the purpose while moving a single brigade of the 82nd Airborne Division to Ft. Belvoir, just outside of Washington, DC, as a way of appeasing Trump but also avoiding Kent State-like bloodshed.

Any Defense Secretary Trump appoints this time around will be willing to carry out any presidential "shoot to kill" order. Lawsuits Trump will ignore won't stop bullets he orders fired at protesters or political opponents. Those planning on opposing a de facto Trump tyranny must confront the reality that true resistance will likely require actual risks to life and limb to defeat it.

The alternatives--keeping a low profile and hoping that the terror will only last until Trump is gone, or trying to flee America before the terror begins--would likely only postpone the day of reckoning.

If America dissolves into a Trumpist tyranny, other western democracies will likely eventually suffer the same fate. Myriad authors have spent the last three years documenting the rising tide of illiberalism around the globe, including in once seemingly politically stable and reliable democracies like France and Germany. The question for us is this: do we have any tools at our disposal to contain Trump should he become president again?

The "Power of the Purse"...and the vote

Even if he regains power, Trump will need a reliable source of federal funds to pay his new loyalists in purged federal bureaucracies and to carry out his larger agenda...which brings me to the one tool we have at our disposal to stop him if he wins: Congress.

If Democrats manage to hold onto the Senate (difficult and perhaps impossible this cycle) or retake the House (looking more promising at the moment), they would be able to shut down the federal government by refusing to move any appropriations bills that would fund any Trump acts designed to violate citizens' rights or end our representative form of government.

Could Trump counter by ordering his Treasury Secretary to simply print the money or deliver the checks (via mail or electronic funds transfer (EFT)? He could order it, but according to sources I've spoken to who work financial sector issues, America's own banks and credit unions, as well as foreign ones, might well refuse to honor or accept such illegal payments. The same would likely be true of any companies with contracts with the federal government. More broadly, such a move by Trump would likely send global financial markets into a panic, putting a range of businesses and employers at risk.

As I noted in my own publication earlier this year, all of these scenarios could devolve into violent ones if Trump tried to physically arrest and remove House or Senate members opposed to his actions. The best way to avert those scenarios is to ensure Trump loses the November election.

Thanks for reading the Sentinel. If you're not currently a subscriber, please consider becoming one as doing so is free through 2024 and it's an easy way to show your support for my work. Also, please share this piece with family, friends, and anyone else you believe would benefit from reading it.