B (4:03)

Yeah, I mean, the parallels are really remarkable, but I have so many follow ups. Go ahead.

C (4:08)

Well, the parallels here, I mean, so obviously what happened here, Trump comes in, immediately, cuts all the funding on a

B (4:15)

free and fair election cycle.

C (4:16)

Free and fair election, which, by the

B (4:17)

way, continue to exist in the countries you've taught us about. No longer free and fair, but nominal.

C (4:23)

Yeah, nobody cancels elections, they just rig them behind the scenes and we should come to that. But the opening salvo in Orban's plan was you cut the budget and then you fire all the civil servants. What happens with Trump? Right. He cuts the budget. Just everybody's suspended. Remember that initial order, just saying all federal funds are frozen and. And then mass fire civil servants. So I remember reading that in Project 2025, they were gonna do that. And the first thing I thought of is, this sounds a lot like Viktor Orban. I've been through this movie before. Right. And so I was talking to a lot of journalists and just saying this kind of reminds me of Hungary. And one of those enterprising journalists went out and discovered that actually Orban's English language think tank, it's called the Danube Institute, had a formal contract memorandum of understanding with the Heritage foundation that wrote Project 2025. So Orban's people were involved in it. And every time, I mean, I just see so many parallels, not because they're just coincidental, but literally, Orban's people were in there saying, here's how you do one of these blitz takeovers.

B (5:26)

Yeah, and let's talk about the blitz part, because one of the. When Trump came into power the second time, I'm not sure we knew what to think. He has certain instincts and impulses but certainly you don't think of him as an idea guy. And yet there was this shock and awe first couple months. And so it sounds like that itself is sort of a structural feature of the. So why that kind of page out of the playbook? And what does it do?

C (5:58)

Yeah, so there's this pattern of blitz takeover. So there's Orban in Hungary, there was Ugo Chavez in Venezuela, there was Rafael Correa in Ecuador. And what they all shared in common was changing the entire Constitution in the first year to lock down power so that these guys could never be dislodged. That was the goal. Okay, and so how do you do that in the United States? Because changing the Constitution, we have kind of an old constitution. You think about changing the Constitution, it's impossible to amend, politically speaking. There's this option of calling a Constitutional convention, which we're surprisingly close to. I mean, so, you know, watch the space. But, you know, it hasn't happened. So how do you change the Constitution in America? Well, what they decided here, this is the system. You issue these executive orders unmasked. Trump issued 225 executive orders in his first year. Only president who's ever done more than that is Roosevelt, who also led a constitutional revolution, by the way. Okay. 225 executive orders. You invite the lawsuits, and the lawsuits will eventually go up to your packed high court. Okay. Orban also packed the high court. He also was able to when he first came in.

B (7:08)

Cause that is my sense. What's the game plan? Raising it out makes somebody stop us. We have a pretty supine Congress, and we've got.

C (7:17)

Exactly. How does that happen?

B (7:19)

Integral is the courts and their overall acquiescence.

C (7:25)

Yeah. So you have to disable the other branches. Okay, so the way Orban did it was it's a parliamentary system. So he comes in with a guaranteed majority. He came in with a constitutional majority, which is to say he had enough seats in the parliament to amend the Constitution on his own. He amended the Constitution 12 times in his first year. And then at the end of the first year, they amended the entire Constitution by supplanting one with another constitution. In the meantime, they changed the procedure for appointments to the high court, and they're packing the high court all at the same time. And how do you make the Congress supine? What Orban did was to come in day one. The parliament's really big. We have almost 500 or almost 400. I'm sorry, members of the Hungarian parliament. Too big for a tiny country. Let's cut the size of the parliament in half. So they put through a constitutional amendment, cut the size of the parliament in half. At the next election, everybody votes for. That's the people.

B (8:19)

Bye bye.

C (8:19)

Well, they didn't think ahead. Right. Even the opposition votes for that. And then Trump Orban turns around to his own party and he says, in the next election, half of you will be gone. And if you wanna run on my party ticket, you will vote for everything I put before you.

B (8:36)

That really does sound very familiar. And so. All right, well.

C (8:43)

Or you'll get primaried as our system.

B (8:45)

Right?

C (8:45)

Exactly, exactly. So you capture the party, then you capture the parliament, and then you capture the courts. Right.

B (8:51)

But he was able to do a whole new. He basically passed his own court packing plan.

C (8:56)

Exactly. It took him three years to get the. He got the constitution earlier here. It's a little different. Right. Trump was able to pack the court in his first term. That court then blocked everything that Biden would do that would have generated results during Biden's term and invented new doctrines, the major questions doctrine and so on. Our Supreme Court blocked Biden from looking effective in that term, so that when Biden ran again, he became vulnerable because people said, what did he do? And then, of course, he was bounced out because he didn't have the system around him. We don't have a strong enough party system to have gotten a stronger candidate at the beginning. Okay. So Trump comes back, he's got his paccord, he's got a different system. So if you think about what these autocrats want to do is capture the levers of power and disable all the checkpoints as preferably before the next election, so you can then rig the next election. That's also happening here. And here the order was different. So Trump first gets his court, he then gets reelected because that court's able to disable the competition. He comes back. The executive orders are designed to generate lawsuits that will go to the PAC court and the PAC court. And again, PAC courts don't always rule in favor of the autocrat because they have to look like courts. Right. So there'll be a few cases where

B (10:20)

they say, I can think of some of those here.

C (10:22)

Right. We'll have a few cases here, here. Maybe birthright citizenship, maybe tariffs, where the court will stand up to him. They'd stood up to him a bit on National Guard. Right. That doesn't mean the court's not packed. That means those things are not crucial for the autocratic consolidation lane. The autocratic consolidation lane here is hiring and firing powers of the president, does he have to spend the money that Congress gave him? Does he have to honor the agencies that Congress set up, or can he dissolve them at will? All those things are autocratic, consolidation lane stuff.

B (10:54)

That is quite the cautionary tale. And Orban's still in there, as I understand it. Elections go on. He is, by all kinds, all normal polling decidedly behind. He polls 15 points behind the opposition leader. But lo and behold, he wins. And that's where I wanted. Well, first, I do want to make sure we go to a more sanguine example, but let's stick with Orban. So we now have. You've mentioned a few. They didn't know what they were doing. And this theme of the administration's fecklessness, something that Steve Levitsky, who I'm sure is a kind of a comrade of sorts, has talked about, and also his plunging poll numbers, when we think about those features, we think, oh, it's falling apart in his hands. And yet you've seen them as structural concomitants of things in Hungary and others, other of the dark tales that end in which democracies really do devolve into totalitarian. Can you talk a little bit about that?

C (11:59)

Yeah. So Orban's poll numbers have never been good either. I mean, he tells you he has two thirds of the seats in the parliament after that first election. That was the result of rigging polls, Orban's popularities around Trump's 30 to 40%. So what do you do? You rig the rules. You know, and these days, people don't really stuff ballot boxes. They change the playing field, they change the ground rules, they affect the election, the machinery of the, you know, administration of the election. And we're already seeing that here. Right. And some of it's going to be in place for the midterm, a lot of it's going to be in place for 2028. Arbiti. Of course, you know that there's both a. A team of lawyers already saying that it would be permissible for Trump to run for a third term on different theories. We can talk about those, but they're laying the groundwork for extending the power of Trump into the future. And that's exactly what happened with all of these other autocrats. You rig the rules because once you control all the levers of power, who's gonna be able to block you? And once you get the courts on side, they'll approve what you do. So we're very far, you know, on that trajectory toward the consolidation of power for the foreseeable future. Okay, now, you know, you.

B (13:11)

And so, and this is, I mean, Putin's kind of like, so an opposition

C (13:15)

remains worked in Russia. Right? So I saw that.

B (13:18)

I mean, you had Bulgaria, you've really covered the water frame.

C (13:22)

People do sort of think when you've moved to a country, oh my God, what's going to happen next? I'm a little bit in that state.

B (13:27)

Well, yeah, so I'm trying to be sensitive to the, you know, you're very, very knowledgeable and sophisticated. You're not the oracle of Shepley. And I know we are in some middle ground, right? I mean, we really could go either way. So let's talk about a more sanguine example. There are also examples of, well, democracies that devolved but then resumed a fair semblance of democratic rule, some of which then tumbled back again. I do wanna start with the point you made that, you know, the roots of democracy here are harder, I think to really unearth. But still. Okay, Hungary, boo hoo. What do you think of as the counterpoint?

C (14:17)

So we call these U turns, you know, where you sort of descend into autocracy and then come back up and you graph that and it looks like, like a U. So two countries that are interestingly good examples and also cautionary tales. Poland and Brazil. Okay, so Poland had this pro autocratic government. They captured the judiciary, they packed the high court. They weren't able to get as far as changing the election rules. So after two terms in office, they were able to get beaten by a pro democratic government. Okay, so the pro democratic government comes in, they're faced with a captured high court. They're also faced with a system in which the president in Poland, who's got some powers but is largely a figurehead, has to sign all the legislation. He's on a different electoral cycle. So the new pro democratic government comes in. The autocrats have the presidency and the Supreme Court. So the pro democratic government tries to govern. They pass laws that the president won't sign. They try to reinterpret laws or pass executive orders that the president doesn't need to sign. And then the Constitutional Court declares them unconstitutional. They've been in power now three years, they've accomplished nothing. You can see their polling numbers falling because they promised a transformation and they haven't been able to accomplish it. The next election they may well lose. It's almost the Biden phenomenon, right, where you can get elected, but then you're faced with these captured institutions, institutions and you can't accomplish anything.

B (15:45)

And then especially if you play fair.

C (15:47)

Especially if you play fair. Right. So Poland is a good story and not Brazil. Again, they had this autocratic President Bolsonaro. Bolsonaro governed like Trump in his first term, which was that he was mostly dropping government on the floor to see if it would break. He didn't actually kind of consolidate power. Right. It was chaos and whatever that said. So Bolsonaro was voted out again narrowly, because he's got a lot of support. He was not able to capture the Federal prosecutor's office or the independent Supreme Court, and he tried to lead a kind of insurrection. In fact, they had his supporters mobbed the parliament, the court, and the presidential palace on January 8, two years after. On January 6, in a copycat of what we had here.

B (16:35)

So.

C (16:35)

So Bolsonaro was actually able to be put on trial for trying to lead a coup. Right. And the prosecution indicted him. The court actually convicted him. And we're all saying, look, you can put presidents on trial, okay? It's not over yet. Next year, there's an election in Brazil. It's very likely that Bolsonaro's forces are likely to get a majority in the Senate, their upper chamber. Under the Brazilian Constitution, you can impeach the Supreme Court judges with a single simple majority vote of the Senate. So a lot of the judges are anticipating that they're all going to get impeached next year, and they've disqualified Bolsonaro from running. But his party may come back. What you learn with these episodes is that when autocratic capture starts to capture the veto players, as we say, the institutions that can stop any government from looking effective or can stop a court from proceeding with what it needs to do to restore democracy. It looks like you've won an election, but you haven't really won democracy back again. And that's why it's so crucial to act early, right before all the institutions are captured. Now, here in the.

B (17:46)

I want to talk to you. And where we are, but one more possible veto player that we put a lot of stock in in the United States is the people. And certainly some of the countries you've described have reached a point where there's some kind of cohesive opposition, but the playing field is so slanted, they really don't have to worry about them. They're never going to be able to do anything. Are there other examples? And do you think there are parallels? I guess the question, the way I'd put it, Kim, is those commentators who say maybe the court stays bad, maybe Congress stays supine, maybe. But look, look what's happening in Minnesota. Look what happened here. The people united will never be defeated. Any reason to think that? And where does popular opposition come in?

C (18:37)

Yeah, so I've been leaning into US Federalism, frankly, because. And we saw the blue state attorneys general have been among the most active litigants in a lot of these battles, fighting the Trump executive orders. But we also have pretty strong state constitutional law. Okay. Now, that's not gonna help the states that are all in on autocracy all the time, but we do have a kind of red team, blue team political configuration in the US the blue states actually have been doing a lot now starting to lean into their own laws. So can't you prosecute the ICE people who have been exceeding their mandate? I mean, delicately put, shooting US Citizens is not in the mandate of ice.

B (19:22)

I don't see that.

C (19:22)

Okay. Also, actually, even directing traffic is not the mandate of ice.

B (19:26)

But actually, this is a very good point. They have no authority to make traffic stops. But I digress.

C (19:32)

Yeah, but all of those things could be within state law because it's not within their federal mandate. And so far, the states have been a little slow to catch on. But I think Minnesota is now trying to. Philadelphia's made some noises that if ICE comes there. So I think we're gonna start to see some state criminal law pushback. I think we're also gonna start to see states leaning into their own constitutional protections. So, for example, I'm really worried about the elections, but state constitutions often have rights to vote that are stronger than the national constitution. And so we might have a backstop of state constitutional law if the federal courts are not gonna defend democratic process at national level. So I'm just. And I'm seeing like, these blue state ags are now starting to pivot to looking at state law as a resource. So I think that may be a kind of port in a storm. You keep democracy at least afloat in some parts of the US and therefore, you have some seeds that have been planted to build from when you can get the national government back again. But here's the problem. Like, even if the Democrats win the presidential in the next cycle, which if Trump keeps going like this, and the elections are not rigged, they should just because, A, rotation of power, and B, this is all not popular policy, how can they govern with a PAC Supreme Court? How can they govern when Trump has reduced the Department of Justice to rubble? And Trump is gonna create a lot more rubble. He's alienated all of our allies. He's been destroying international law. I mean, you look around and all the things that have actually supported and sustained American democracy here, but also to keep us safe and to have allies abroad. That whole system, after one year, is already half deconstructed. After four years, there may not be much left. So any new president is going to have to hit the ground running with some unconventional measures to restore government.

D (21:42)

I'm Michael Waldman, host of the Briefing podcast. I'm a former White House speechwriter, a lawyer, and a constitutional scholar. And I'm president of the Brennan center for Justice. We work to repair and strengthen American democracy, from gerrymandering to abuse of presidential power, from Supreme Court reform to congressional corruption and more. What fun. You're going to hear new ideas in this podcast and you're going to hear about the strategies and the legal and political fights that will shape the next phase of American politics, if you care about our democracy. The Briefing is a podcast for you.

B (22:16)

Now, you mentioned, though, that timing really matters. And you mentioned that Poland missed the opportunity at the stage of control of elections now. So let's come to the states now. We are literally, as we speak, at a time where it's not just state constitutions, but the federal constitution would seem to place all the authority in the states to govern time. Everything about elections. But Trump is bidding fair to somehow steamroll that. A meeting that I'm going to be harping on to talking feds listeners coming up soon where they've invited all the secretaries of state into a room and they're just going to say, give us the keys to the kingdom, meaning the voter rolls. And you can do such mischief with that. We've heard him say outright the Republicans should nationalize the elections in 15 states. It's the same kind of combination wholesale retail strategy. He sort of tried it after 2020. He wanted to have some machine thing there and some fraud there and then find out what's close and what he could do. So, again, I don't want to. You do. No good deed goes unpunished. You have a lot of knowledge from other places, but what do you. Are we at that, as you see it, relative to other places, extremely critical juncture. Is this the time that we might look at from a vantage point in years from now thinking that sort of was a point of no return? And if so, what is to be done to stick with the European.

C (23:58)

Yeah, well, okay. So making sure elections remain free and fair now that the institutions are crumbling, that's all we got left. Okay. I mean, we are very far down into the autocratic Rabbit hole. You know, once the institutions disappear, Congress is not doing anything. The courts are captured. At federal level, things are very bleak. I just want to. It doesn't mean you can't come back. It means coming back is very hard. Gets harder the longer you wait. Okay, so the last thing we have to grab onto are free and fair elections. This is where it's going to be absolutely crucial for ordinary citizens as well as state governments, right, to stand up to this, to use not just federal law, but state law to push back. And one thing that happened in Poland when the judiciary was under attack is that you get mass demonstrations showing up to escort the fired judges into court when they were denying that they had been lawfully fired. We need the public to stand up and defend election officials, local election workers. We've had a huge turnover of local election workers because a lot of them were, frankly, retired people who were doing this for civic engagement. Covid took them all out of the map because it was too dangerous to be an election worker. Now we've seen actually the first.

B (25:17)

Not just Covid also, you know, partisans coming in and like, I don't know, I'm just.

C (25:23)

And threatening election workers. That's why I'm saying, like, we need poll observers to come in and protect the election workers. We need. If there's gonna be. If somebody's gonna come in and try to take the ballots out, including with a court order, maybe we need to form a cordon around where the ballots are kept to prevent. I'm just thinking of civil disobedience. Even in the name of protecting the integrity of the election. We've gotta be thinking out of the box because they're thinking they're gonna be shutting down a lot of the legal avenues for challenging this. We need to actually figure out ways to protect the elections. For me, that's really the most crucial thing to do now. And the midterms are practice, you know, and the midterms are not very far off. And the point here is actually, how to put it. This is not a partisan effort. Right. We used to be in a world in which political disagreement was along a left right spectrum. We're not on that map anymore. The partisan divide or the red state, the red blue dividend as autocracy democracy. And that's where, when we think about preserving democracy, this is not just about electing a particular political party. This is about electing people who are willing to defend democracy regardless of whether we would fight tooth and nail with them on the left right spectrum or not. Right? So we Need a big tent. We need a lot of unity. We need to forget some of the things we used to fight over in this round, because if things work out well, we can go back to fighting over those things in the next round. We really have to think about democracy defense first. And then we go back to fighting over our traditional left right battles.

B (27:06)

And I want to just make a couple points about that. When you mentioned civil disobedience. And we now have canonized certain historical chapters, but if you look at them clearly, you know, you have peaceful protesters in Minneapolis all being disparaged as domestic terrorists. And there's no doubt that the tactics that everyone studies in third grade now of the civil rights era and Martin Luther King Jr. Were in their day. He was in jail. There was a reason he was in jail. So it's not so tidy and polite. That's one. It's also, I think we tend to have an image sometimes of a total pouring out of millions of people in the streets. But really, the most noteworthy and successful civil disobedience chapters have been a really sort of concerted band, okay?

C (27:59)

And often small and focused. The lunch counter, sit ins, major protest, huge historical residents, not that many people involved. Right. So one other thing to remember is that you don't need the masses and you don't need an official position to be able to do crucial things that are important at preventing the kind of autocratic takeover or preventing the violence and dictatorship that's coming at you. Right? So we need people to be brave and have their eyes open and to think about how to insert themselves into this system, always peacefully, to try to stop the autocratic consolidation from getting worse. And right now that we've lost almost everything at federal level, I mean, we still have to fight and litigate all that stuff. Maybe we can bring some of it back, maybe we can improve some of it. But if we lose free and fair elections, then we've lost the ability for the peaceful transfer of power, and then you're really in a pickle, let's say, to use the technique.

B (29:00)

But it does seem also that there are historical linchpins. It seems possible to me. Minnesota is one, but it needn't be flooding the streets. On the other hand, there's so many ways in which different people can be really do a part in their own town halls or dinner tables. Look, you haven't sugarcoated things. I very much didn't want you to. It's a really sort of bracing lesson to look around the world. There are ways in which things are Maybe different here, but I thought we'd end with your thoughts about when you examine the horizon, what's the single best thing in your view that's happening now that makes you. That buoys you somewhat even in the wake of all this bad news.

C (29:52)

Yeah. So one thing that the United States has that these other autocracies, now, autocracies used to be democracies, didn't have. The US has this amazing. I sort of think of it as a root system of civil society organization. Yeah, exactly. I mean, R O O T. Yeah. And that is that what you're seeing now is these protests that are very localized. People talking about the stuff in their book clubs. You know, people like when the Minnesota thing happened, neighbors come out to defend neighbors. ICE pulls into a city and suddenly you meet all your neighbors because you find out that you're gonna defend your other neighbors. And this reminds me, like after 9, 11, I remember the, the government, US government shut down. I thought, isn't this what governments are for? Like, we just got attacked, like, whatever. And what you saw was like, it was mayors, it was local, you know, it was school principals, it was like local people trying to figure out, how do we deal with this major threat. We were all terrified at the time, which it's easy now to forget. And the government kind of stopped working. Like, they just all went. They stopped. Right. And there were undisclosed locations or whatever. And so what you saw was this kind of spontaneous rising of people connecting with other people at this incredibly local level. Right, we're seeing that already. You know, I say to my European colleagues who say, well, what's happening? You guys aren't doing anything? And I'm saying no. You see these little like indivisible protests. You see the Tesla protests, we forget that.

B (31:20)

Right?

C (31:20)

All those people used to show up at the Tesla dealerships when Musk was kind of, you know, running riot through the government and he had to step back because his company started failing. Tesla sales are way down in Europe, for example. They used to be the best selling ev, but now they're not. So those little protests have had a huge difference. And that's the kind of thing the US really musters that other countries don't. And I keep saying to people who say, well, what do we do? Because you think you have to do something to fix the Justice Department from being a professor, for example. And it's just you don't have the leverage to do. What you do have the leverage to do though, is just talk to your friends and neighbors. It may be hard to persuade the people who are hardcore Trump supporters. But there aren't that many of them really. I mean, it's like in all these other countries where the autocrats lose popularity, but there are all these people who are hangers on or vote for them or opportunists. You can often change their minds. So this kind of very local, whatever networks you've got, this is the moment to turn those networks into roots of strength. Not pillars of strength because they knock down the pillars right now, but this root system so that when we have the chance to build back again, build back better. I hate to say was a slogan that kind of got captured, but I think we all recognize that when we build something new, it will have to be different than what went before. And this root system is what will sustain all the plants that will eventually flower at that time. Right? So just build the root system so

B (32:51)

that we have some or exploit what's already. I think it's beautifully put. And I think, you know, Poland, Hungary, Brazil, they just didn't have the same. We all grow up saying the pledge of Allegiance in first grade. And I think it's not just change minds, but change subject to the extent people understand we really are talking about, we really are talking about rule of law, democracy, then issues of even immigration, which matters a lot to people, taxes, whatever, are like, oh shit, yeah, need to jump into action. Kim Shabley, such a pleasure to be with you. I'm sorry it's been so long on Talking Feds that we're first sitting down. I hope we'll be able to do it going forward.

C (33:33)

Great to see you, Harry. This is really wonderful and thanks for paying attention to the world beyond.

B (33:40)

You've actually been the opened my eyes on that.

C (33:42)

So thank you, thank you,

B (33:46)

thank you

A (33:47)

for tuning in to One on One, a weekly conversation series from Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. You can also subscribe to us on YouTube where we are posting full episodes and daily updates on top legal stories. Check us out on substack harrylittman.substack.com where we're posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. And Talking Fez has joined forces with the contrarian. I'm a founding contributor to this new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust just now, linked up with an ambitious and vital project designed for this pivotal moment in our nation's leadership, legal and political discourse. Find out more@contrarian.substack.com thanks for tuning in, and don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Lou Cregan and Katie Upshaw, associate producer Becca Haveian, sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hansuma Hadranathan and Emma

B (35:30)

Maynard and Hallie Necker are our contributing

A (35:33)

writers and production assistants by Akshaj Turbailu. Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Deledo llc. I'm Harry Littman. Talk to you later.

B (35:55)

Sa.