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How To Deal with Reichstag Fire Fears in the Age of Trump

Jane Chong
Tuesday, February 7, 2017, 8:19 PM

For conscientious commentators, one problem with having a loose cannon for a president is the rapidly thinning line between irresponsible speculation and legitimate analysis.

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For conscientious commentators, one problem with having a loose cannon for a president is the rapidly thinning line between irresponsible speculation and legitimate analysis. As I write these words, a record number of even-keeled folks are googling “Reichstag fire” and worrying out loud that the President of the United States is actively planning to exploit a future domestic terrorist attack to institute otherwise inconceivably bigoted, oppressive, and generally anti-democratic policies. Some of Trump’s troubling campaign tactics helped set off this particular hum even before the election, but earlier today Paul Waldman officially set the chorus in a carefully couched piece in The Week and a somewhat less careful follow-up in the Washington Post.

The reference is to the 1933 arson on the German Reichstag (parliament) building, which Hitler falsely characterized as part of an attempted Communist takeover. There remains dispute over whether the Nazis actually orchestrated the fire in a false flag operation, but it is undisputed that they used the episode as a pretext to institute sweeping emergency powers that enabled Hitler to crush the free press and political dissenters, overrule state and local authority, destroy all manner of civil rights—in short, usher in the conditions necessary for totalitarian rule and mass murder.

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Needless to say, in normal times, raising the specter of the Reichstag fire to criticize a U.S. president unquestionably amounts to nonsensical partisan histrionics; note that the charge was frivolously leveled against both POTUS 43, imperialist marauder, and POTUS 44, liberal fascist.

These are not normal times. And yet in most respects the historical analogy still falters—it’s a kind of expression of Godwin’s Law as applied to political debate. Although there are many legitimate reasons to fear Trump’s authoritarian instincts, Trump is not Hitler. And Congress is not burning.

At this point invocation of the Reichstag fire is useful in only one narrow sense—to help prepare us mentally to mitigate and respond posthaste to the worst-case scenario: an actual attack on U.S. soil, paired with an unacceptably illiberal response from the White House.

The alarmist way to engage in this preparatory discussion is to scream “Reichstag fire” into the echo chamber and hope people understand that you are not accusing the administration of plotting an attack or planning death camps in the wake of an attack.

As an alternative, I offer a few questions—and answers—for more productively framing the subject and the fears that drive it.

1. Will the Trump administration respond appropriately to a small- or large-scale terrorist attack on U.S. soil?

No. In my opinion, there is no basis for optimism on this score.

Nothing the Trump administration has said or done indicates it has the intention or ability to respond reasonably, proportionately, or effectively to a domestic terrorist attack, particularly if the attack is committed by someone claiming to be a jihadist. (Judging from Trump’s refusal to even acknowledge the Quebec mosque shooting, terrorist acts that do not accord with the administration’s Islamophobic position may not inspire much of a reaction at all.)

On the other hand, Trump and his team have done plenty to stoke worries about their willingness to use a future attack as an opportunity to manipulate the public discourse and public policy. This is what has everyone scrambling for the history books.

The president’s already extreme policies, most notably his executive orders instituting the immigration ban and directing the federal construction of a Mexican border wall, function as relevant control variables; think of them as performance baselines that reflect how far the administration is willing to go to target, vilify and shut out those it casts as outsiders and threat vectors even without an attack occurring on its watch. Add to that the talk of a Muslim registry, and it’s no surprise that people are alarmed by what might happen if an actual attack created the environment for crisis policymaking.

But even putting aside informed inferences based on the administration’s policy moves, we have plenty of evidence that directly attests to not just the Trump team’s willingness to exploit acts of terror to achieve its purposes, but more specifically, its fixation on viewing terror first and foremost in these terms.

Last week, senior adviser Kellyanne Conway literally fabricated a terrorist attack; over the weekend, Trump accused a federal judge and the “court system” of making our country vulnerable to a terrorist attack; and yesterday, during a speech at U.S. Central Command, Trump went off script to accuse the media of covering up terrorist attacks. All of the stars in this disturbing constellation point to a specific conclusion: the Trump administration has no reservations whatsoever about improperly using terrorist attacks to forward its positionsagainst Muslims, the press, the judiciary and anybody else who is the subject of or interferes with the implementation of Trump’s poorly constructed policies. So great is its appetite for this that it is pulling attacks out of thin air for that specific purpose.

All of this is information straight from the horse’s mouth. And it tells us, in no uncertain terms, to prepare for a highly reactionary, manipulative response from the administration in the event of an actual domestic attack.

2. Does the likelihood that Trump will exploit a future attack provide a helpful frame of reference for understanding the Trump team’s pre-attack course of conduct?

Yes. After Trump’s latest set of rants—against U.S. District Court Judge James Robart for blocking enforcement of Trump’s immigration order and against the press for allegedly covering up terrorist attacks—the possibility that the Trump administration is positioning itself to capitalize on the next attack is one we must consider simply in order to have an honest conversation about what the administration is trying to accomplish.

Don’t take my word for this. Jack Goldsmith is fairly described as the polar opposite of an alarmist. Yet he suggested in a piece yesterday that if White House counsel Donald McGahn “did . . . warn the President about the impact of his tweets and was ignored . . . then that lends credence to the suspicion that Trump knows the consequences of his actions and wants to lose in court, with the most plausible explanation being that he is planning for after the next attack.”

What kind of post-attack planning are we talking about? Based in part on Trump’s newest statements accusing the press of actively suppressing news of terrorist attacks, the Post's Philip Rucker suggested last night that Trump is “laying the groundwork to preemptively shift blame for any future terrorist attack on U.S. soil from his administration to the federal judiciary, as well as to the media.”

This is a fair assessment of what Trump is already doing, though it is unclear whether that conduct is simply a reflection of his personality or the product of careful thought. If the Reichstag fire is on the extreme, democracy-crushing end of the attack-exploitation spectrum, Trump’s statements are sufficiently purposive and abnormal to put us somewhere at the other end of that spectrum. The point is that there is value in anticipating, based on Trump’s pre-attack finger-pointing, the forms his post-attack scapegoating may take. This anticipation is necessary if the press and the public are to prepare for and preempt his eventual efforts to translate this scapegoating into concrete policy goals.

3. Can we do anything to mitigate the problem of Trump’s likely exploitation of a future attack?

Yes. In fact, there is little point worrying about whether the Trump administration has (in the limited sense) Reichstag-fire designs at all unless the object is to inculcate in the public sufficient awareness of what is happening so as to stave off the administration’s ability to capitalize on terror. Now is the time to start drawing lines—that is, before disaster puts a vice grip on our emotions: how do we think the administration will respond to a small-scale or large-scale attack, and what are the White House reactions and policies we deem unacceptable?

In the case of a large-scale attack, will Trump ask for more domestic surveillance powers or, in the extreme case, ask Congress to suspend the writ of habeas, as Jack suggested to Ryan Lizza over at the New Yorker this morning? Or as Todd Breasseale and Matt Olsen offered in that piece, will Trump use existing federal information-gathering tools to target religious minorities or pursue 9/11-era measures such as black sites and enhanced interrogation?

These are things to be thinking about. But the single most important thing that could be done to mitigate the likelihood and fallout of an inappropriate Trump response to a future act of domestic terrorism is actually quite prosaic. It falls squarely on our lawmakers: anyone in the House or Senate who takes seriously the astonishing national security problem under discussion here has an obligation to carefully assess whether they have been pushing back with sufficient force against present conditions in the White House.

By “present conditions,” of course, I mean the installation of Stephen Bannon—and to lesser but still chilling extent, Michael Flynn and Stephen Miller—steps from the Oval Office.

The general consensus is that Trump is highly malleable and that his understanding of substantive policy issues is shallow. Thus, his inner circle exerts significant levels of control over the policies we see coming out of the Oval Office. Bannon is the most radical and powerful of those influences and has made clear that he is not above politicizing an attack for his own ends. We are talking here about a man who once allegedly declared himself a Leninist prepared “to destroy the state” and “bring everything crashing down”—and who, in accordance with these comments, has masterminded a set of xenophobic policies completely unmoored from factual reality or national security needs.

Backing the removal of Bannon (and Miller and Flynn) should be a top priority for any legislator who cares about securing the conditions for an appropriate White House response to the next domestic terrorist attack. It is the single shortest line to something resembling normalcy in a Trump administration and to strengthening the public’s confidence in the president’s good faith should crisis strike.

Jane Chong is former deputy managing editor of Lawfare. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.

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