What is a Legal Coup?

A constitutional crisis, how democracy dies, and what you can do today

Happy February everyone. I know I’m not the only one delighted that January is finally over. This week I began to approach a milestone that I never thought I would see. I just hit 50,000 subscribers on this substack. For an independent analyst and writer this is incredible and it is all because of you. Doing this work has become the focus of my life because I truly believe that independent voices are going to help save democracy. Please share this with friends so we can keep growing and keep talking about the things that truly make a difference. I appreciate all of you.

In 1923 Hitler led a failed coup called the Beer Hall Putsch, a rebellion that also sounds like a line dance at Octoberfest.

A couple thousand Nazis marched to the city center and four policemen were killed (sound familiar?) Hitler was arrested, charged and convicted with treason. He served eight months in prison. That’s where he wrote Mein Kampf and changed his strategy from rebellion to enacting change from within the system.

By 1932 the Nazi party held the most seats (but not a majority) in Parliament, and Hitler was appointed chancellor. There was a fire in the Parliament. Hitler said ‘the communists did it,’ and got the President to declare a state of emergency so he could purge political opponents and silence dissent. He then got the parliament to pass the Enabling Act which centralized the power to make laws to the chancellor and cabinet.

After securing emergency powers, Hitler methodically dismantled democracy. First, the Reichstag Fire Decree suspended civil liberties, including freedom of speech, press, and assembly. The Nazi regime then began arresting political opponents—communists, socialists, and even moderate conservatives—while the judiciary, already leaning authoritarian, did little to stop it.

The Enabling Act of 1933 gave Hitler the authority to pass laws without parliamentary approval, effectively sidelining the legislative branch. Within months, Germany ceased to be a democracy. Political parties were banned, labor unions were dissolved, and opposition voices were crushed under the weight of state-sanctioned violence and propaganda.

This was how Hitler legally turned Germany into a dictatorship—not through a successful putsch, but by exploiting the system, bending laws, and silencing dissent under the guise of “restoring order.”

There's a lot more nuance but the point is, it was a 'legal coup' ie: he worked within the system to destroy the system.

Why am I talking about this right now? Because what we saw in 2020 was just a shitty dress rehearsal, a putsch, and now that shadow President Musk has taken power, the legal coup has begun.

What Elon and the broligarchs are trying to do is more than a coup. They are trying to bend and contort America to their will. They are trying to break the country so they can control it. They want to control the culture, the way we think and how we consume information and goods. Their desire is to create a system wherein they are the gods and we are all mere mortals under their thumb.

In the first two weeks of Trump’s second term, he has moved to:

• Disempower the other branches of government through exertions on unilateral executive power.

• Initiate the process to remove legal restraints on executive power

• Purge civil servants

• Install propaganda regimes

• Curtail civil liberties

• Silence Dissent

• Obtain control over financial systems

Where is this all headed? Seems like a constitutional crisis.

A constitutional crisis is when there is a political problem that the constitution can’t resolve - or where those in power decide to interpret (or ignore) it in a way that leads to a standoff and recalibration of power.

Trump is a master of chaos. His team (Vought, Musk and more) have made clear they do not believe the current political order is the right one. They are initiating actions clearly intended to defy constitutional boundaries. These will be litigated, they will go to the courts - and then what?

The legislative branch, controlled by Republicans more loyal to Trump than America, seems incapable of acting. The judicial branch is the only check that remains. But if the Supreme Court says what Musk and Co. are doing is illegal, what if they just … keep doing it? That’s the coup. No soldiers needed.

As Vox pointed out, “The Silicon Valley founder mindset is to think in terms of action and power, not law and procedure. They view legal constraints as pesky annoyances – think about how Uber (whose founder advised DOGE transition planning) disregarded local taxi requirements to establish itself in various jurisdictions.”

Trump's actions over the past two weeks make clear he’s attempting to capture executive power more king-like than Democratic:

• Trump is pushing a legal theory called “unitary executive theory” that would allow him to hire and fire anyone in the executive branch.

• He is pushing a legal theories that make Congress unable to control the executive:

  • That the executive has authority to not spend money appropriated by Congress.

  • That the President has exclusive authority to decide how and when to enforce law, building on precedent in Trump v. US.

• He is taking control of foreign relations powers, dismantling USAID, threatening allies with territorial expansion and initiating trade wars.

Last week there was one major success story. When the OMB issued a memo freezing all non-individual monetary distributions across the government, the opposition quickly fired up a unifying message to block it AND legal groups quickly filed suit. The message was direct, it was about how this will affect YOU, not norms. It wasn’t the same message, it was all variations on a theme. Litigation groups immediately and successfully brought a case to halt implementation. Attorneys General from blue states filed suit. Those cases are still on-going. Trump rescinded the memo.

Does this mean Musk’s efforts to control government spending stopped? No. Does this mean that *waves around* everything else Trump was doing ceased? Of course not. But it’s a roadmap for successful opposition tactics.

Democracy is currently intact. We have an independent judiciary. We have a functioning, albeit Republican Congress. We have a business sector that does not want economic collapse. Federalism serves as perhaps the biggest bulwark, there’s no ‘martial law’ capacity that allows the President to single handedly control all law enforcement in America.

Trump and Musk are engaged in a shock and awe strategy. Flood the zone. Shock Doctrine. Trump knows the power of walking into a room and acting like you own the place - it’s worked for him all his life. He wants to be a king and is acting like it. We can’t allow that to happen. The narrative needs to clear - Trump DOES NOT have these powers. Musk is an unelected despot intent on world domination.

As Ezra Klein wrote in the NY Times, “Trump is acting like a king because he is too weak to govern like a president. He is trying to substitute perception for reality. He is hoping that perception then becomes reality. That can only happen if we believe him.”

The threats are real, the destruction is real, but the path to a legal coup can be thwarted.

What should you do right now?

1. Call your Senators and tell them to vote no on Vought, Patel, Gabbard and Kennedy.

2. Call your Governor and State Attorney General and urge them to do everything they can to block Trump from taking away state power.

3. Post on social media about Trump actions that concern you AND how they will directly affect you.

4. Building a community of real life people who care, get involved locally. My book Democracy in Retrograde helps you figure out your path!

What should Democrats do right now?

1. File a package of bills to restrain Trump’s executive overreach they want Republicans to put up for a vote. I’m currently aware of two bills coming, one on tariffs and one on Musk. (As the majority party, Republicans have full control over what bills are voted on in both committees and the full chamber.)

2. A Senate Dem not running for re-elected needs to block every UC (unanimous consent) request until the package is put on the floor. Brian Schatz has said he will stall nominees until USAID is back.

3. An outside group, such as the Dem Governors Association, should start a daily broadcast about what's happening.

4. Understand that legal and legislative actions alone cannot halt Musk, this requires a full-fledged messaging operation and an abandonment of the old ways of operating.

Trump has done hundreds of things in his first two weeks, but a quick non-exhaustive list of how his actions are leading towards legal coup:

Disempower other branches of government through exertions on unilateral executive power

• While Congress has the power of the purse, Trump has repeatedly acted in ways that take this power from them, such as through tariffs and funding freezes.

• Congress established departments and programs to carry out their goals, Trump has ignored this by shutting down USAID, and I expect he will shut down the Department of Education.

• He’s issued Executive Orders saying he will not enforce laws passed by Congress, like the TikTok ban.

• Trump is expressly violating laws confirmed by the Supreme Court precedent, he's fired members of the National Labor Relations Board and U.S. Equal Employment Opportunity Commission.

• He’s violated treaties (Paris Agreement) and trade agreements (USMCA), and unilaterally exerted the right to control foreign affairs.

Purge civil servants

• Musk sent the ‘fork in the road’ email, closely following an email sent when he took over X, telling civil servants to resign

• Musk has shut down USAID, blocking all staff from entering the washington headquarters. Hundreds of employees are locked out of the computer system.

• Locked workers out of OPM computer systems.

• The EPA has warned over 1,100 employees that anyone who worked on climate change, or environmental law enforcement could be fired.

• The DOJ fired dozens of prosecutors who handled the Jan 6 case, and the FBI director is currently resisting a DOJ order to fire FBI officials.

• He fired the head of the Consumer Financial Protection Bureau, and will install his Treasury Secretary as the head on an acting basis.

• Trump fired 18 inspector generals.

Install propaganda regimes

• Through Musk's control of X, Zuckerberg’s policy changes at Meta and more Trump has the capacity to shape public discourse, suppress dissenting voices and promoting government-aligned narratives

• The DOD kicked mainstream media outlets out of their office space and replaced them with loyalist conservative media.

• The White House is inviting conservative influencers into the press room.

Curtail civil liberties

• He has made sweeping changes to DOJ civil rights division enforcement.

• He has banned transgender people from serving in the military and denied federal government recognition of transgender identity.

• Trump has gone after birthright citizenship and used the military in immigration enforcement.

• He has revoked federal guidance to address race and disability discrimination in schools, grant recipients and federal contractors.

Obtain control over financial systems

• Musk has gained access to the Treasury Department's federal payment system, which handles trillions of dollars in government expenditures and allows him to track and control government spending.

Silence Dissent

• Musk has threatened to fund opposition candidates to anyone who criticizes him.

• The WhiteHouse publicly targeted Selena Gomez over her concerns about immigration, which serves as an example to anyone else who would publicly stand against them..

I try to take all the news and provide you an analysis so that you can understand where we are, where we’re headed, and how you can take action. It’s always fact-based and from my heart.

To support my work please share and subscribe.