The Way Trump’s America Most Closely Resembles 1930s Germany

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For the vast majority of Americans, the legal system hasn’t changed in any meaningful way unless they are watching the news. Contracts are enforced, divorces are resolved, parking fines are paid. Unless you are witnessing ICE raids at your church, or your law firm has just agreed to do free legal work for the president, the creep of a weaponized authoritarian legal regime happens largely in the shadows. On this week’s Amicus podcast, professor Aziz Huq, who teaches law at the University of Chicago Law School, discusses his recent article in the Atlantic titled “America Is Watching the Rise of a Dual State.” Huq builds on the work of a Jewish labor lawyer named Ernst Fraenkel who fled Nazi Germany in 1938 and later published the book The Dual State, which helps explain the split screen in which Americans are suspended between one world in which the law proceeds as usual while disfavored minorities experience a frightening rule by fiat. Their conversation has been lightly edited and condensed for clarity.

Dahlia Lithwick: Can we just start with this term, “dual state”?

Aziz Huq: The term “dual state” was coined by a Jewish lawyer called Ernst Fraenkel in a book published in 1941. Fraenkel was an extraordinary man who is undeservedly forgotten today. He was a lawyer trained to work mostly on labor matters in the 1920s. In 1933, Jewish lawyers were banned from appearing in German courts, but Frankel had served in World War I, and as a consequence of doing that, had a dispensation from the ban. Fraenkel chose to continue representing clients in the Berlin courts from the beginning of 1933 up until 1938, when he had to flee because he was targeted by the Gestapo. Fraenkel slowly built up a portrait of how the Nazi government at the time was constructing a zone of lawless and arbitrary power while at the same time permitting many Germans to go about their ordinary lives without being disturbed or put off by the existence of this lawless power. Fraenkel called that the dual state.

The dual state theory, as Fraenkel describes it, has two key elements. The first is that the legal system is split into two parts. On the one hand, there is the familiar zone of ordinary law applied in ordinary courts in ordinary ways. Frankel called this the normative state. On the other hand, there is something called the prerogative state. The prerogative state is a domain in which the government exercises lawless and absolute authority over individuals.

The second and really important part of the dual state is the existence of a switch. By pulling a switch, an official moves a person from the normative state—from the ordinary world of law—into the prerogative state—a domain in which no rules apply to that person. The dual state is how the state builds up this regime in which there are two domains, one characterized by lawfulness, the second characterized by lawlessness, and how it builds a series of switches in and outside the law, whereby officials have essentially unlimited power and discretion to move people from the normative to the prerogative state.

I am very struck, as I’m asking you this question, by the ways in which the role of lawyers is so confounding right at this moment. There are all these executive orders; attempts to go after law firms for retribution, but most huge law firms just live in the normative state, right? They do mergers and acquisitions. They have really wealthy clients. They don’t get to cross that membrane, so they don’t fully understand what it means for a law firm to say, “We’ll do all this pro bono work for Donald Trump, and we’ll agree not to ever cross him on anything,” because they just exist in the prerogative state. There’s not a lot of lawyers practicing law, as you and I think of it, who actually ever brush up against the prerogative state.

[There are the] firms like Paul, Weiss that were confronted by executive orders over the last three months. On the other hand, they know that litigating even a plainly unconstitutional order takes a long time. They know that there is the possibility that other law firms will try to steal their clients, steal their rainmaking partners while that litigation is going on. And so they are faced with a choice of either standing on their rights, defending the integrity of the legal system, or capitulating in the hope that they will be able to weather the storm. The point here is that ethical choice, that dilemma, was completely new. It was not something those lawyers had experienced before, and therefore, they have no tool kit. They have no guidebook for thinking about what exactly was at stake, what exactly they were giving up when they agreed. But when they entered into these Faustian deals with the president, they just did not know what they were doing.

Maybe to concretize this you can give me an example from recent headlines of a dual state moment in the 100-plus days that we’ve lived through Trump 2.0—a way in which for most people, the law is just ticking along as we understand it, and then a dual-state moment yanks us into the prerogative state?

Probably the most powerful example of the dual state at work are the instances in which either citizens or lawful permanent residents who have speech rights as a consequence of the First Amendment have been detained as a consequence of positions or statements that they have made or perceptions of their nationality. Those immigration cases are the closest parallel to the forms of the dual state that we see in other, much more openly autocratic countries. I think that the range of prosecutions and investigations that have been opened against individuals who are perceived by the administration as its ideological enemies are the second wave of the dual state.

I would put into that bucket the [withdrawal of the] indictment of the New York mayor, the indictment of a sitting member of Congress, the indictment of a Wisconsin judge, and the investigation that has been opened into Eric Adams’ leading opponent in the race for New York City mayor. I think in all of those cases, there is only a thin shell of legality. And I think that in none of the cases could you plausibly say that this is a criminal investigation or a prosecution that we would ever have seen under normal circumstances. I think that the law firm executive orders are precisely lawless because they are in flagrant violation of the First Amendment’s prohibition on viewpoint discrimination. The law firms express implicitly the idea that they recognize the president’s power to act without constraints of law and therefore put themselves permanently at the mercy of the president, which makes it ethically impossible for those firms to represent individuals or companies that are adverse to the federal government.

I think that the exercise of federal spending power to preempt money that has been promised by statute and contract to entities or researchers that are engaged in work that the administration arbitrarily deemed “woke” is yet another form of pulling people from the world of legal relationships to a world in which all that counts is the administration or the president’s discretion.

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