The Fascism Question

Coup? Insurrection? Riot? Evidence of the the complicity of law-enforcement with the activists of the hard right? Here’s how Jacobin put it: “The far-right mob that took over the Capitol ... never would have gotten past the front door if the federal police hadn’t allowed them to storm in.” At this point the evidence is far from conclusive, but that last suspicion seems difficult to avoid.

The events of January 6 put a grim accent on a longstanding debate among intellectuals — scholars of law, history, and politics — about the nature of Donald Trump’s administration, specifically the extent to which analogies with the fascist regimes of Hitler and Mussolini in 20th-century Europe are accurate or useful. Samuel Moyn, professor of law and history at Yale, has been one of the most prominent critical analysts of the fascism analogy, especially in a New York Review of Books essay, “The Trouble With Comparisons,” published in May of last year. I spoke with Moyn about the events at the Capitol, the question of fascism, the role of law schools, and how his thinking about the Trump administration has changed.

In “The Trouble With Comparisons,” you said that you “count yourself as one of … those doubtful about the fascism analogy for Trumpism.” Did the events of January 6 change your mind?

The end of Donald Trump’s presidency is an excellent moment to take stock of our frameworks for understanding it. For four years, our prior assumptions crashed against reality, which doesn’t mean everyone was equally wrong. In recent days, a lot of people have taken victory laps, treating tragedy as an occasion for vindication, but the age of Trump was full of surprises. And I certainly want to own one egregious mistake.

It wasn’t that I failed to see Trump as a fascist. Rather, even while making the case for Trump’s weakness, I did not anticipate the role that his power to mobilize roving bands of white nationalists could play in our collective imagination — and the other day in real life. In retrospect, I clearly missed this possibility in my first notorious piece on Trump, the day before Charlottesville (as The New York Times remarked, I am very guilty of bad timing). And my attempt at a Trump postmortem soon after the recent election also didn’t account for what might happen after — not because Trump’s attempt to snatch victory from the jaws of defeat ever transcended parody, since it was blocked entirely, but because it led to a final paroxysm of mob incitement.

That said, I think the events of January 6 are best interpreted within a framework few share, one that acknowledges how little fearful state power Trump could ever exercise. The overestimation of that authority was the central mistake in mainstream “resistance” discourse. Even on the rare occasions that he grasped it, it slipped through his fingers; more normally, he lacked the desire, not just the know-how, and his opposition — often from his party and servants — was too strong.

The bombs and the deaths the other day are sickening but are not on par with the violence in earlier times and places in which a fascist outcome loomed. (This includes a newly invoked parallel with February 6, 1934, in France.) All actors were already poised to ratify Joe Biden’s electoral victory — in part because it was big enough — when the day dawned, and Mitch McConnell and Mike Pence had both signaled that they would not derail that outcome. It is hard to believe that those in the crowd themselves foresaw more than a stunt, unless they also attributed Trump far more power to help them than he had or even wanted. We can debate the proportions of danger and theater in the events, and how to make sense of what the police did. But there was never a threat of coup. Long before McConnell and Pence moved, the military has made quite clear that it is not Trump’s ally.

But don’t get me wrong: It was despicable. And I’ve never denied fascism is an ever-present possibility in America, capitalizing both on homegrown traditions and — even more — the elite failures in recent decades that made a Trump presidency imaginable. A framework that can include both the unholy forces Trump was able to summon from America’s history and his general weakness in the scheme of things offers the possibility for reconciling a lot of observers who have been at loggerheads in recent years.

Of the eight senators who objected to the validity of the election results, several have law degrees, including Josh Hawley, from Yale, and Ted Cruz, from Harvard. You’ve taught at both of those law schools. Is there something about an elite legal education that produces, in conservatives at least, a kind of extremism?

As I’ve argued in your pages, law schools, especially elite ones, are guilty of an excessive orientation toward the reproduction of elite rule. Legal education shares in the sins of the elites that it produces. This includes, most recently, the flagrant cases of Cruz and Hawley.

But it would be absurd to claim that law schools are driving the syndrome. Legal education is far more the consequence than the cause of elite governance. Cruz and Hawley have been making the outrageous moves they have not because they learned them at Harvard and Yale, but because Harvard and Yale put them in a position to ascend to the heights of U.S. politics as it shifted so disturbingly over recent years.

I suppose what seems striking about Cruz and Hawley is that, despite their elite law-school pedigrees, they should be the most prominent figures in what looks like the subversion of the idea of the rule of law. Do Yale and Harvard Law have a role to play by, for instance, censuring them publicly? Or is that overreach?

The rule of law is whatever we have made it. We should beware of the dubious fiction according to which the legal order was perfect or even stable, before being thrown overboard by a few miscreants. True, law-school deans (and most professors) often talk about the rule of law in laughably unrealistic terms every day. Ironically, however, Cruz and Hawley took advantage on January 6 of a legal process, and the opportunities — in the Constitution, the Electoral College arrangements, the Electoral Count Act of 1887, and so forth — it afforded them. Similarly, on the ground, January 6 revealed disparate and selective enforcement of laws — the underpolicing of some to match the overpolicing of others. Blackballing individuals is easier than facing up to the fact that the rule of law is usually the problem in need of solution.

On naïveté and realism: At some level isn’t naming one’s belief in the rule of law a precisely realistic way of sustaining norms? The rule of law may be whatever we have made it, but one of the ways of making it is to assert its sanctity. After all, only eight out of 51 Republican senators “took advantage” of the legal process to try to challenge a democratic result.

First off, those eight of 51 chose to disregard the facts for strategic reasons, to pretend up was down, and then to turn to a remedy the rule of law provides for election grievances. That’s why one of the most important tasks in American democracy is electoral reform, so that we have more faith and fewer risks in the existing legal framework. I agree with you that some (not all) legal norms are precious, but it is a mistake to equate those with the rule of law generally, which institutionalizes and legitimates noxious outcomes too. And in any event, even a better legal system could never provide complete insurance against the abuse of bad actors, including ones who might choose to scuttle it. (It was not for nothing that in the first years of his rule Hitler acquired the reputation of so scrupulous a rule-follower that he was called “Adolf Légalité.”) So both idealism and realism converge in calling for a better rule of better law, and more thinking about the social conditions and practices that can sustain it.

And the solutions are what? Democratic and electoral?

What happens in legal education is hostage to politics — but I still believe law schools are not just a crucial training ground for elites but also a laboratory for thinking about how to change the terms of their rule, and for forming some practitioners who try to do so. The Trump era reminds us of the ongoing victimhood of many who need legal help. But it also reminds us of the need for self-reflection on our failures as elites — even elite helpers. Talking a lot about democracy on its deathbed and the rule of law under threat in the last four years, aside from misstating the problem, has failed to forge a big enough coalition to get the country beyond a perpetuation of the dynamics that made Trump our reality.

I do think that in the current impasse, the only credible exit is an ideological and partisan realignment that would reconcile the victims who voted for Trump with those who have been injured even more badly by the centuries of American history that led to “normalcy” before they led to his presidency.