(Part 3 of a 4-part series)

Part 2 of this series explores the Right’s recommendations to expand presidential powers.  The analysis reveals that many of these proposals are dictatorial or authoritarian in nature. Several also conflict with the Constitution. And, finally, if implemented, they will threaten our democracy.  Trump and the Republicans maintain that increased power is necessary to undo serious damage inflicted by Democrats.   

In this article we turn to the pivotal issue of whether the Right has made its case that an extraordinary expansion of presidential powers is necessary to save the country from harms inflicted by Democrats and an out-of-control federal government. That is, have Republicans proved the Democrats are responsible for the harms, and have they proved that extraordinary action is necessary to remedy these harms?

What are the critical questions that need to be explored in deciding whether Republicans have proved their narratives?

To address this pivotal issue, we need to do a deep dive on Republican narratives regarding the harms inflicted by Biden and the Democrats.  We need sort out “evidence and proof“ from allegation and innuendo.”   Here are the important questions we’ll explore:

• Have Biden and the Democrats weaponized the federal government?  Among the key matters we’ll examine is whether Biden ordered numerous criminal and civil actions to be brought against Trump. As part of this inquiry, we’ll also assess whether the charges against Trump are groundless or appear to have merit. We’ll also determine whether Biden weaponized government to benefit himself and his family (and especially his son Hunter).     
• Is the federal government under the control of leftists, Marxists, the deep state, and underworked and overpaid bureaucrats who want to pursue their own will?
• Are Biden and the Democrats destroying the country and ruining the freedoms of Americans?  Among the key matters we’ll examine is whether the FBI suppressed free speech by monitoring social media and flagging content for removal as “misinformation” or “disinformation” even though the speech is not tied to any plausible criminal activity.
• Given all the evidence, are the recommendations to increase presidential power necessary to overcome damage done by Democrats?

To the extent the Republican narratives regarding the harms are proven, this satisfies the first prong of the case.  If and when we conclude that extraordinary action is actually necessary—despite the potential dangers to democracy—this makes the second prong of the case.  On the other hand, if the narratives are false or unproven, the case for expanding presidential power is seriously undermined.  

Have Biden and the Democrats weaponized the federal government?

 Republicans and Trump have made numerous claims that Biden and the Democrats have weaponized the federal government.  Republican concerns led them to create the Select Subcommittee on the Weaponization of the Federal Government. This subcommittee of the House’s Judiciary Committee, has launched investigations (see press releases) and prepared reports on most of these claims.  For this article we’ll focus on two of the most prominent charges specifically lodged against President Biden:

• Biden ordered numerous criminal and civil actions to be brought against Trump—all of which are groundless—in order to persecute him politically and undermine his 2024 presidential campaign.
• Biden weaponized government to benefit himself and his family (and especially his son Hunter).

Criminal and civil cases brought against Trump: Did Biden order or orchestrate these proceedings to politically persecute Trump and undermine his 2024 election campaign?

Let’s start by describing the cases and then proceed to the allegations and evidence provided by Trump and the Republicans.  As of February 2024, Trump has been charged with 91 criminal offenses in four criminal cases. The cases relate to Trump’s attempts to overturn the results of the 2020 election, election interference in Georgia, falsifying business records in New York, and mishandling classified records after leaving the presidency.  In addition, civil litigation has been filed against Trump in New York, relating to fraud in his business dealings.  

Here is a summary of those five cases:

Falsifying Business Records—New York State Court:  On March 30, 2023, Trump was criminally indicted (34 felony counts) for falsifying business records in connection with an alleged catch and kill action to prevent negative press during his 2016 campaign.  A Manhattan grand jury approved the indictment for falsifying business records in the first degree. The records related to Trump’s hush money payments to Stormy Daniels, made through his attorney Michael Cohen and reported as legal expenses.  Alvin Bragg, the Manhattan district attorney and a Democrat, was responsible for the investigation and the indictment. A trial date is set for March 25, 2024, but a delay is likely.

Mishandling Classified Documents—Federal Court in Florida:  On June 9, 2023, Special Counsel Jack Smith (appointed as Special Council by Attorney General Merrick Garland in November of 2022) charged Trump with 37 felonies related to his handling and refusal to return hundreds of documents containing classified information.  Smith also charged Trump’s aide Walt Nauta with felonies for his role in handling the documents. On July 27, 2023, a grand jury issued a superseding indictment bringing additional charges against Trump, Nauta, and Carlos De Oliveira, the head of maintenance at Mar-a-Lago, alleging they conspired to delete security footage. A trial date is set for May 20, 2024, but a delay is likely.

Illegal Efforts to Overturn the 2020 Election—Federal Court in Washington DC:  On August 1, 2023, Smith charged Trump with four federal criminal counts (a 45-page indictment) after a grand jury investigation into Trump’s attempt to overturn the 2020 election, culminating in the January 6th insurrection. Six co-conspirators were also charged, but not named.  Among those identified by the media are Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, and Kenneth Chesebro. A trial date is set for March 4, 2024, but a delay is likely.

Election Fraud and Related Offenses—Georgia State Court:  On August 14, 2023, Fulton County District Attorney Fani Willis (a Democrat) charged Trump and 18 others in a 41-count indictment. The charges came after a two-year grand jury investigation into election fraud in the state of Georgia during the 2020 election and after. The charges against Trump include solicitation of a violation of an oath by a public officer in response to Trump’s call with Georgia Secretary of State Brad Raffensperger, in which Trump urged him to “find” votes and reverse his loss in the state. While Trump pleaded not guilty, no trial date has been set, and he is making immunity arguments and seeking to have the case dismissed. A trial date is tentatively set for August 5, 2024.

Fraudulent Business Dealings—Civil Action in New York State Court:  On September 21, 2022, New York Attorney General Letitia James (a Democrat), filed a civil action against the Trump Organization (Trump, family members and business associates) for fraudulent business dealings. James’ investigations and other court actions regarding the Trump Organization had been going on since early 2019, and Presiding Judge Arthur Engoron sat for these proceedings.  In the new suit, the main claims involved presenting vastly disparate property values to potential lenders and tax officials.  

In September 2023, Engoron, issued a summary judgment that Trump and his company had committed fraud for years.  Engoron ordered the termination of Trump’s state business licenses and the dissolution of pertinent limited liability companies; but, on appeal, these actions were temporarily suspended.  

The trial on six additional claims not covered by the summary judgment then proceeded. Since neither Trump nor the prosecution requested jury trial, it became a bench trial to be decided by judge Engoron.  Closing arguments were made on January 11, 2024. 

Republicans and their media allies declare that Biden directed or orchestrated these actions–what exactly do they claim?

Trump, Republicans, and their media allies claim that these criminal and civil actions were orchestrated or directed by Biden and that they are groundless. Here are some direct quotes regarding those claims:

“CRAZY! My political opponent has hit me with a barrage of weak lawsuits, including D.A., A.G., and others, which require massive amounts of my time & money to adjudicate. Resources that would have gone into Ads and Rallies, will now have to be spent fighting these Radical Left Thugs in numerous courts throughout the Country. I am leading in all Polls, including against Crooked Joe, but this is not a level playing field. It is Election Interference, & the Supreme Court must intercede. MAGA!”

Former President Trump on Truth Social

“The real threat to our democracy is these baseless witch hunt investigations and lawsuits against President Trump.”

Elise Stefanik (House Republican Caucus Chairwoman).

“This is nothing more than the latest corrupt chapter in the continued pathetic attempt by the Biden Crime Family and their weaponized Department of Justice to interfere with the 2024 Presidential Election, in which President Trump is the undisputed frontrunner, and leading by substantial margins.”

Statement from the Trump campaign posted to Truth Social on August 1, 2023.

“Justice should be blind, but Biden has weaponized government against his leading political opponent to interfere in the 2024 election.”

House Speaker Kevin McCarthy’s comment upon filing of the Georgia indictment

Fox News leaves no doubt that Biden is a weaponizing dictator:

What evidence have Trump and the Republicans presented to back their claims that Biden directed or orchestrated these criminal and civil actions?

At this point in time, no direct evidence has been provided to demonstrate that Biden directed or orchestrated these criminal and civil actions.  Instead, Trump and the Republicans have cited various events and circumstances that they use to argue that Biden ordered the actions.  Let’s identify those events and circumstances and assess their probative value in demonstrating Biden’s culpability.

• Alvin Bragg, the Manhattan DA, campaigned on holding Trump accountable for his crimes. He received campaign support from liberal billionaire George Soros.  These statements may be true, but they don’t prove that Biden directed the criminal action taken by the State of New York.
• Bragg failed to comply with freedom of information requests from the Heritage Foundation regarding his reputed communications with the Justice Department and the Biden Administration.  This statement is true, but it does not prove that Biden directed, coerced, or requested Bragg to indict Trump.
• If his name wasn’t Trump, a felony criminal action for falsifying business records on account of hush money payments would never have been pursued.  This statement may or may not be true, but it doesn’t prove that Biden ordered the criminal action.
• Nathan Wade, the special prosecutor on the Georgia election fraud probe, met with members of the Biden White House and congressional January 6^th investigators on May 23, 2022 (conference with White House Counsel) and November 18, 2022 (interview with DC White House).  The fact that these meetings occurred does not prove that Biden ordered the criminal action.  Republicans also complain that Wade had an inappropriate relationship with Fani Willis and that she may have violated conflict of interest laws.  While this may or may not be true, it doesn’t prove that Biden orchestrated the action or that it is groundless.  More information will be required about these meetings mentioned above before conclusions are drawn about Biden’s involvement.  The House Select Subcommittee on Weaponization of Government is investigating this matter.
• Fani Willis and her staff coordinated with the January 6^th Committee’s investigation concerning the events of January 6, 2021, and Trump’s actions to overturn the results of the 2020 presidential election. The House Select Subcommittee on Weaponization of Government is investigating this matter charging that Willis “colluded,” and more specifically: “Although we were aware that your office had coordinated its politically motivated prosecutions with the Office of Special Counsel Jack Smith, we recently learned that your office also coordinated its investigative actions with the partisan Select Committee to Investigate the January 6 Attack on the United States Capitol (‘January 6 Select Committee’).”  

The fact that there was coordination with respect to the two investigations does not prove the coordination was improper or illegal.  Also, the accusation that Fani Willis’ investigation was “politically motivated” has yet to be proven.  More importantly, even if true, this does not prove that Biden directed the Georgia indictment, as Trump and the Republicans have charged.  

• Jay Bratt, a top aide to Special Counsel Jack Smith, met with Biden White House officials on numerous occasions. In particular, on March 31, 2023, nine weeks prior to Smith’s indictment of Trump, Bratt met with the White House Counsel’s Office Deputy Chief of Staff Caroline Saba and FBI Special Agent Danielle Ray for a ‘case-related interview.’  The fact that these meetings occurred does not prove that Biden ordered the criminal action. More information will be required about these meetings before conclusions are drawn about Biden’s involvement.  The House Select Committee on Weaponization of Government is investigating this matter. 

While there is no direct evidence at this point in time that Biden orchestrated these criminal and civil actions, it’s clear that the meetings described above deserve to be fully investigated.  It’s possible that direct evidence may emerge to show some sort of involvement by Biden; and the President should be held accountable if he has broken the law.

The possibility that Biden directly ordered or orchestrated any of these actions is remote for at least two reasons.  First, the President has no legal authority to direct Alvin Bragg, Special Council Jack Smith, Fani Willis, or Letitia James regarding any of the cases.  In particular, there are layers of independence incorporated into the Special Counsel Smith’s investigations and the process surrounding the indictments.  Second, all of the cases involved multi-year investigations and decisions to indict made by grand juries. The New York criminal and civil actions are based on investigations that started as early as 2019 and 2020,  It boggles the mind to think how Biden could control or subvert all this. 

Are the criminal and civil actions against Trump groundless (“Witch Hunts”)?

The final aspect of our inquiry into the criminal and civil cases is whether these actions are groundless.  If the cases are found to be groundless this could help prove weaponization. On the other hand, if the cases show merit and are not dismissed by the courts, this serves to rebut the charge of weaponization.   

Thus far there is no evidence to support the claim that the cases are groundless.  Instead, most evidence points to their legitimacy.  The indictments for all the criminal actions and the evidence in the civil case are detailed and compelling.  Much of the evidence consists of direct statements made by Trump, or direct actions by Trump that are indisputable.  People who worked for Trump and had direct knowledge of events are a key source of testimony and evidence to support the charges. Finally, all of the criminal actions involved investigations by grand juries 

In the court proceedings thus far, there is nothing to show that they are groundless.  Trump lost in the first New York civil action.  All attempts to dismiss the criminal cases have been rejected.  Trump also has yet to succeed on attempts to dismiss the cases on the theory that presidents have “absolute immunity” from prosecution.  In the Georgia election fraud case, former Trump attorneys Jenna Ellis, Sidney Powell, and Kenneth Chesebro, and bail bondsman Scott Hall have all entered guilty pleas, after agreeing to testify in any trials related to the case.  Finally, In December 2022, two of the Trump Organization’s subsidiary companies were found guilty of 17 charges, including tax fraud, thus laying the groundwork to indict Trump for his involvement and bring civil actions against him.    

Has Biden weaponized the federal government to benefit himself and his family (and especially his son Hunter)?

Going back to at least 2019, and especially since the 2020 campaign for the presidency, Trump and the Republicans leveled a dizzying array of charges against Joe Biden and his family.  Here’s a summary:

• The first formal impeachment inquiry regarding President Trump revealed Trump’s concern about Biden and his family. The inquiry documented that Trump withheld military aid and an invitation to the White House to Ukrainian president Volodymyr Zelenskyy in order to influence Ukraine to announce an investigation into Trump’s political opponent Joe Biden and son Hunter.  
• In October of 2020, an abandoned laptop computer belonging to Hunter Biden was found in a Delaware computer repair shop. The New York Post published a front-page story that presented emails from the laptop, alleging they showed corruption by Joe Biden, the Democratic presidential nominee.  
• Soon after Biden came into office in 2021, Republicans and the conservative media continued to raise concerns about Hunter Biden’s business dealings and the President’s knowledge and involvement.  In January of 2023, the United States House Committee on Oversight and Accountability launched a “Biden Family Investigation.”  Also in January, the House created the Select Subcommittee on the Weaponization of the Federal Government. Both of these committees have been very active in leveling charges, launching specific investigations, and documenting their findings. Below are some of the key matters that have been or are being investigated.
• Republicans charged that the Biden Administration and the intelligence community tried to minimize the Hunter Biden laptop story. They did so by having 51 senior intelligence officials sign a letter that the story “had all the classic earmarks of a Russian information operation.”  The officials and the FBI purportedly knew the statement was not true, and the deception was thus part of a political operation to help elect Biden in 2020.
• Republicans also charged that Hunter Biden got a “sweetheart deal” with respect to a plea bargain in a criminal proceeding relating to tax and gun charges. Based on the testimony of IRS whistleblowers, Republicans claim the Department of Justice gave him preferential treatment, that the case was “slow walked”, and that the attorney in charge (David Weiss) was overruled in his effort to bring more serious charges.  The Weaponization Subcommittee has opened up several inquiries, including: whether the whistleblowers have been smeared or prosecuted for their actions, and DOJ interactions with Hunter Biden attorneys.  
• Finally, on September 12, 2023, then Speaker of the House Kevin McCarthy launched an impeachment inquiry with respect to President Biden. The inquiry is being conducted by the House’s Judiciary, Oversight and Ways and Means committees. James Comer, chairman of the Oversight Committee, was named to lead the investigation.

Interestingly, a possible impeachment offense popped up in connection with Hunter Biden’s refusal comply with subpoenas to provide closed-door testimony to the House Committee on Oversight and Accountability.  Because the President was said to be aware of Hunter’s decision not to comply, Republicans charged that the President possibly “engaged in a conspiracy to obstruct a proceeding of Congress” which could constitute an impeachable offense.

At this point in time—February 2024—Congressional investigations led by Republicans have yet to publicly provide direct evidence that Biden weaponized government to benefit himself and his family.   On the matter of the Hunter Biden laptop controversy, Wikipedia and reporting by the New York Times, the Washington Post, and Reuters also conclude that no direct evidence of wrongdoing by President Biden has yet been found. The same is true with respect to the Biden Family Investigation being conducted by the House.

“The United States House Oversight Committee investigation into the Biden family is an ongoing investigation . . . into whether US President Joe Biden is improperly involved in his family’s foreign business practices, with some Republican representatives claiming suspicion of “international influence peddling schemes,” bribery, money laundering and a Justice Department cover-up. The investigation has found no evidence of wrongdoing by President Biden, according to the House Republican inquiry’s own report.”

The Biden Family Investigation, Wikipedia

It’s important to understand what is meant by “direct evidence.”  Congressional investigations tend to be partisan in nature and are conducted differently than court proceedings, especially regarding the rules of evidence.  Democrats and Republicans have used “weaponization” investigations to attack one another for several years. Typically, they point to suspicious behaviors and unanswered questions as reasons to believe wrongdoing has occurred—what lawyers call “circumstantial evidence.”  For instance, suppose official A meets with official B, a person who could help carry out official A’s weaponization plot.  Suppose we have unanswered questions about what was said at that meeting.  This could certainly cause us to have suspicions or concerns about weaponization, but it does not prove that weaponization occurred.  To make this determination we need to have evidence or proof that official A actually directed or coerced official B to undertake the weaponization.  This would be “direct evidence.”

On the other hand, most of the Congressional investigations cited above are still underway.  It is thus premature to conclude that Biden is innocent of any and all weaponization charges being investigated.

Is the federal government under the control of leftists, Marxists, the deep state, and underworked and overpaid bureaucrats who want to pursue their own will?

 Before we the answer the question raised above it is necessary to gain a better understanding of what Trump and the Republicans are driving at.  Below are some direct quotes from Wikipedia treatments and Project 2025.  Let’s start with the deep state. 

“A deep state is a type of governance made up of potentially secret and unauthorized networks of power operating independently of a state’s political leadership in pursuit of their own agenda and goals. . . During the presidency of Donald Trump, deep-state rhetoric has been used in the United States to describe the ‘permanent government’ of entrenched career bureaucrats or civil servants acting in accordance with the mandates of their agencies and congressional statutes when seen as in conflict with the administration.” (emphasis added, Deep state)

Wikipedia, “Deep state”

“While America’s belief in the deep state dates back to the 1950’s, “the theory reached mainstream recognition under the presidency of Donald Trump, who referenced an alleged ‘deep state’ working against him and his administration’s agenda.” (emphasis added, Deep state in the United States)

Wikipedia, “Deep state in the United States”

Project 2025 echoes the sentiment that federal bureaucrats are fixed on their own policies and preferences rather than those of the president.  

“Sadly, however, a President today assumes office to find a sprawling federal bureaucracy that all too often is carrying out its own policy plans and preferences—or, worse yet, the policy plans and preferences of a radical, supposedly “woke” faction of the country.” 

(Project 2025, page 43)

“The modern conservative President’s task is to limit, control, and direct the executive branch on behalf of the American people. This challenge is created and exacerbated by factors like Congress’s decades-long tendency to delegate its lawmaking power to agency bureaucracies, the pervasive notion of expert “independence” that protects so-called expert authorities from scrutiny, the presumed inability to hold career civil servants accountable for their performance, and the increasing reality that many agencies are not only too big and powerful, but also increasingly weaponized against the public and a President who is elected by the people and empowered by the Constitution to govern.”

(Project 2025, page 43)

If you read these quotes carefully there’s a huge unresolved issue that affects our analysis. Under current law and interpretations of the Constitution, federal employees are bound to perform their duties as prescribed by law (e.g., oath of office).  Their duty is to carry out laws, and they have no authority to substitute their own priorities and personal judgment.   The same is true of federal agencies. Their duty is to faithfully execute the law and they have no authority to substitute their own priorities and judgment.

Project 2025 and Trump, however, want a different reading of the Constitution.   Because the Constitution says, “The executive power shall be vested in a President of the United States” this means, it is the President’s agenda that should matter to the departments and agencies, not their own.  More specifically:

“It is the President’s agenda that should matter to the departments and agencies that operate under his constitutional authority and that, as a general matter, it is the President’s chosen advisers who have the best sense of the President’s aims and intentions, both with respect to the policies he intends to enact and with respect to the interests that must be secured to govern successfully on behalf of the American people.”

Project 2025, page 44

Push comes to shove when a president’s policy agenda is not yet in law or is something that is inconsistent with or in conflict with existing law. Here, it doesn’t matter what the president’s policy agenda is. Federal employees and agencies must adhere to the laws and must rightfully refuse to perform directives that aren’t within the law or their legal authority.

Coming full circle, Trump and Project 2025 condemn federal agencies or employees as “deep state” because of their refusal to perform the president’s agenda.  This, however, is not the law.  Agencies and employees are required to adhere to the law, not the president’s will or agenda. Thus, it’s not deep state behavior when an employee or agency doesn’t implement the president’s agenda when it would violate the law. If Trump and the Republicans want federal agencies and employees to be bound to the president’s will and agenda, they will need to change the law. This could come through an action of Congress or a Supreme Court decision.

Finally, presidents have a lot more authority over federal agencies than what is described in Project 2025 and Agenda 47. Most federal executive branch agencies, including their political appointees, are under the direct control of the president. If it’s a matter of judgment or preference, as opposed to a matter of staying within the law, presidents can direct these agencies and political appointees exactly as they’d like. Recalcitrant political appointees can be fired and replaced. On the other hand, presidents have less control over independent agencies, such as the EPA, the Federal Reserve System, the FCC and the FTC. These agencies are accountable to Congress, not the president. There is also less control over the Department of Justice. Again, it’s erroneous to brand these agencies and employees as “deep state” simply because they may resist carrying out the president’s agenda.

Moving to the accusation that the government is under the control of leftists and Marxists, we must do some interpretation.  Because there are neither “Marxist” nor “leftist” parties in the United States, we’ll assume the accusation relates to members of the Communist and Democratic parties.  The Communist Party has an estimated 5,000 members nationwide, according to Wikipedia.  Thus, if there are Communists in the federal government, their numbers are bound to be tiny.

But what about Democrats?  Do they make up a disproportionate share of the federal workforce?  Not so much. Government Executive reports on a 2015 survey of federal employees, finding, “44 percent of respondents identified as Democrats or Democratic-leaning independents, while 40 percent identified as Republicans or Republican-leaning independents. The remaining respondents were undecided or did not identify with either party, though a plurality of them said they were ‘conservatives’.”

A more recent poll reported in Government Executive (November 2022) found that federal workers were just slightly more likely to vote Democratic in the upcoming midterms.  Just 48% of those surveyed expressed approval of Biden, while 52% expressed disapproval.

Thus, available data rebut the notion that the ranks of federal employees are filled with leftists (Democrats) or Marxists (Communists).   Further, regardless of political affiliation, federal employees are legally restricted in terms of what they can do politically.  The Hatch Act limits political activities of federal employees. It serves the following purposes according to the US Office of Special Council, “to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.”

Finally, some surveys and analyses conclude federal workers are underpaid, while others find they are overpaid.

In summary, Trump and the Republicans have not made their case that the federal government under the control of leftists, Marxists, the deep state, and underworked and overpaid bureaucrats who want to pursue their own will.  In fact, most of the claims are false. We can acknowledge that Trump and the Republicans have expressed frustration with the federal bureaucracy and have felt thwarted by it. But this does not prove that federal agencies and federal employees have behaved improperly.  Also, a president can seek recourse under existing laws if there is improper behavior. 

Are Biden and the Democrats destroying the country and ruining the freedoms of Americans?

Trump and the Republicans complain of numerous instances where Biden and the Democrats are ruining American freedoms. However, the most prominent complaint relates to the suppression of free speech by federal authorities. On this matter I went to the “press releases” section of the Select Subcommittee on Weaponization of the Federal Government. Here I found sixteen separate releases announcing subpoenas, demanding information, reporting on newly discovered details, and releasing reports.  Several federal agencies are under investigation for monitoring social media and flagging content for removal as “misinformation” or “disinformation” even though the speech is not tied to any plausible criminal activity. 

Outside the political arena of Congressional inquiries, the courts have become involved.  In May of 2022, then Missouri Attorney General Eric Schmitt filed a lawsuit (the lawsuit was also co-filed by Louisiana Attorney General Jeff Landry). Biden and top administration officials were charged for colluding with social media companies to censor and suppress free speech.  Specific charges included, “working with social media giants such as Meta, Twitter, and Youtube to censor and suppress free speech, under the guise of combating “misinformation.”  Matters censored included stories on: Hunter Biden’s laptop before the 2020 election, the origins of the COVID-19 pandemic, the efficiency of measures to mitigate spread of COVID-19, and the integrity of the 2020 election. The suit alleged the Biden administration coerced social media companies to suppress speech on their platforms in violation of the First Amendment.

On July 4, 2023, a federal district judge in Louisiana found for the plaintiffs and issued preliminary injunction. It blocked employees from several federal agencies and the White House from having certain contacts with social media companies. Included in the injunction were the Department of Justice, Department of Health and Human Services, State Department, the Centers for Disease Control and Prevention, and the FBI. In addition to numerous social media companies, the injunction blocked the government from communicating with programs at Stanford University and the University of Washington that study the spread of misinformation online: the Election Integrity Partnership, the Virality Project, and the Stanford Internet Observatory.  The injunction allowed for exceptions related to criminal activity and national threats. 

On September 8, 2023, the U.S. Court of Appeals for the 5th Circuit upheld the injunction, but found it too broad in many instances:

“The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.”

Murthy v. Missouri, 5th Circuit Court of Appeals, September 8, 2023

Later, on October 20, 2023, the US Supreme Court decided to hear the case. In so doing, it agreed to temporarily pause the lower court’s order limiting the contact Biden administration officials could have with social media companies as part of government efforts to address the spread of misinformation. The restrictions in the preliminary injunction have thus been lifted. The Supreme Court will consider the case in the next few months, setting the stage for a major ruling on free speech and online social media.  The case before the US Supreme Court is Murthy v. Missouri, and a decision is expected by the end of June 2024. 

In summary, the court decisions thus far have at least partially validated the claim that the Biden Administration improperly suppressed or censored free speech.  Having shown harm from these actions, Republicans have made the first part of their case.  Next, we must consider whether expanding presidential powers is necessary to remedy this harm.  We’ll examine this question shortly. 

Of all the Republican claims addressed in our analysis, which have been proved?

Given the extensive array of complaints we examined, here’s a summary of the current status (February 2024) as to whether Biden and the Democrats committed the wrongful acts alleged, or whether they are responsible for damage to the country and the freedoms of Americans:

• Republicans have not yet proved that President Biden ordered or orchestrated the criminal and civil cases against Trump, or that these cases are groundless.  The cases have merit.  Unless and until there is direct evidence that Biden orchestrated these actions, we should reject unproven allegations as a basis for expanding presidential power.
• Republicans have not yet proved that President Biden has weaponized the federal government to benefit himself and his family (and especially his son Hunter).  On the other hand, we need to recognize that several of the weaponization complaints are still being investigated.  Also, we need to recognize that Republicans have at least two existing and viable remedies to hold the President accountable:  Congressional investigations, and impeachment.  Unless and until there is direct evidence of Biden’s weaponization of the federal government, mere unproven allegations don’t justify expanding presidential powers.  
• Republicans have not proved that the federal government is under the control of leftists, Marxists, the deep state, and underworked and overpaid bureaucrats who want to pursue their own will.  In fact, most evidence contradicts these allegations.  While we can acknowledge that Republicans are frustrated that federal agencies and employees aren’t more responsive to the president’s agenda, this does not by itself prove that the agencies or employees have broken the law. Unless and until Republicans prove the claims stated above, mere unproven allegations don’t justify expanding presidential powers.
• On the other hand, Republicans have shown, through litigation, that in specific instances Biden and federal agencies acted to suppress and censor free speech.  They have thus shown harm regarding this claim, and we should thus proceed to the second prong of the case:  Is expanding presidential powers necessary to remedy this harm, or are existing powers and legal remedies sufficient?

If and when any of the harms alleged by Republicans are proved, we should next consider whether expanding presidential powers is necessary to remedy the harm, or whether existing powers and legal remedies are sufficient.

While Republicans have not yet provided proof of alleged wrongdoing and harms for most of their claims, let’s allow for the possibility that some of these claims may eventually be proven.  If and when that happens, does this mean Republicans have made their case to pursue expanded presidential powers?

Proof of harm should not, by itself, be enough to justify expanding presidential powers in the direction of dictatorial and authoritarian rule.  Before taking such action, wouldn’t we want to be convinced that existing powers and existing legal remedies are insufficient?  That is, shouldn’t we determine that no other solution will work before we expand presidential powers in a manner that could threaten our democracy?

Let’s apply this rationale to the one instance where we found that alleged harms by Biden and the Democrats were validated—the suppression and censorship of free speech.  As noted earlier, under our Constitution’s separation of powers, interpretation of the law is a function of the judicial branch.  As such, the traditional method for challenging efforts to suppress or censor free speech is to access the courts.  There is an extensive body of case law, and the courts have made nuanced decisions, based upon the facts and circumstances of each case.  Freedom of speech is not absolute, and evolving case law provides a limited array of exclusions, including: inciting imminent lawless action, fighting words, obscenity, some falsehoods (e.g., fraud or perjury), and pornography. 

In addition, concerns that a president and the federal agencies are engaging in unlawful suppression or censorship of free speech can be addressed via Congressional investigations and impeachment.  Both are being pursued with respect to President Biden and his Administration. 

Thus far the courts and Congress appear to be grappling with the complaints raised by Trump and the Republicans. The matter is now before the Supreme Court, and we should have a decision by this summer, well ahead of the presidential election. Thus, do we really need the authoritarian actions that Trump proposes?  For instance, here is the first of five he proposes:

 “I will sign an executive order banning any federal department or agency from colluding with any organization, business, or person, to censor, limit, categorize, or impede the lawful speech of American citizens. I will then ban federal money from being used to label domestic speech as “mis-” or “dis-information”.  And I will begin the process of identifying and firing every federal bureaucrat who has engaged in domestic censorship—directly or indirectly—whether they are the Department of Homeland Security, the Department of Health and Human Services, the FBI, the DOJ, no matter who they are.”

Former President Trump, Agenda 47,

If such power-expanding measures are implemented, they will be available to both Republican and Democrat presidents. Also, is it plausible that an executive order can capture all the nuances of 1^st amendment law regarding when government may properly intervene?  Is there a chance that an outright ban on federal money being used could be overbroad?  Will employees be fired for “indirectly” engaging in domestic censorship, whatever this means? 

Finally, if the actions specified in this recommendation were implemented, they presumably would apply to the president and all appointees in the Administration.  A president couldn’t call out “fake news” in the media or threaten to revoke broadcast licenses on account of such news.  It would be improper to allow certain media outlets to attend meetings but exclude others.  Perhaps the prior administration has forgotten its actions. Notes Wikipedia, “the Trump Administration ordered the Environmental Protection Agency to scrub climate change information from their website, instructed that all studies by EPA and the United States Department of Agriculture be reviewed by political appointees before publication, and in some cases issued de facto gag orders to agencies who conduct research.”

On balance, the current remedies appear to be appropriate and sufficient. On the other hand, the remedy of expanded presidential powers could be abused by either a Republican or Democratic president. 

In the big picture, existing presidential powers and existing avenues of redress appear to be sufficient to address most of the harms complained of in Project 2025 and Agenda 47.  Let me cite some key examples:

• Concerns about too much discretion being given to federal agencies and employees can be addressed via the courts.  The US Supreme Court appears to be poised to significantly limit the discretion of federal agencies when it comes to rulemaking.  For decades, federal agencies have been afforded strong deference by the courts.  Also, employees who act for their own partisan reasons, instead of carrying out the law, can be disciplined or subject to Hatch Act violations. Further, the president has significant power to carry out his/her agenda via some 4,000 political appointments in key policy positions in the federal government.
• Concerns about the schools being subjected to left-wing policies (Critical race theory, gender ideology, etc.) can be addressed via the courts, the state legislatures, and local school boards.  This is consistent with the Constitution’s separation of powers and intent for a federal government of limited powers, with power being reserved to the states and to the people.    
• Concerns about colleges and academics that lean too far left in their teaching can be addressed in the courts and the state legislatures.  Again, this is consistent with the Constitution’s intent to limit the power of the federal government.
• Concerns about left-wing gender insanity being pushed on children can be addressed in the state legislatures as well as the courts.  As noted, several state legislatures have acted to limit or prohibit certain practices, and some of these actions have been challenged in court. 
• Concerns about waste and inappropriate spending can be addressed by working with Congress to expand the impoundment power and bipartisan efforts to reduce spending.  Deficits, exploding national debt, and excessive spending have occurred not only during times of Democratic control, but also during times of Republican control.
• Concerns about illegal immigration can be addressed by working with Congress on bipartisan reform legislation.  Included in these negotiations could be changing the policy on birthright citizenship.   

Perhaps the most damning indictment against expanding presidential powers comes from asking why increased powers are necessary if the Republicans were so wildly successful when Trump was President.

Let’s accept, for a moment, that Biden, the Democrats, and their out-of-control federal government have done extensive and persistent harm to America and American freedoms. And let’s accept, for a moment, that existing presidential powers aren’t sufficient to turn this around. Then how do Republicans explain the unprecedented successes they say they achieved during the time Trump was president?

Take a moment and review this list of Trump Administration Accomplishments. Here you will see literally hundreds of major achievements that improved the lives of Americans and made America great again.  The list goes from creating an unprecedented economic boom, to tax relief for the middle class, to achieving energy independence, and to heroic efforts to defeat Covid-19.  In fact, the list asserts major achievements on matters we’ve been talking about. Trump achieved massive deregulation and overreach by the federal government.  He also achieved a secure border and ended asylum fraud.  Finally, he remade the federal judiciary, enabling conservative courts to undo years of liberal decisions.

The response, of course, is that Republicans were able to reverse these harms, but that Biden and the Democrats have since wiped out all the progress.  But given Republicans were so successful with existing powers, why couldn’t this success be repeated when a Republican returns to the White House?  Why is it necessary to expand presidential powers in a manner that conflicts with the separation of powers, expands the role of the federal government, and tilts the country toward dictatorial rule?

I suggest there are two reasons why Trump and the Republicans are pursuing these recommendations:  First, they help win elections by portraying a decisive leader willing to take bold actions to cure horrible wrongs inflicted by Democrats.  Second, and probably more important, they believe that expanding presidential powers will enable them to achieve more complete and long-lasting progress on their policy agenda.  This second reason seems legitimate enough until we begin to think about it.

Here’s what could happen, at least conceivably.  Republicans could use the president’s enhanced control of government, including legislative and judicial powers, to remove restrictions on imposing their policy agenda over the long haul. They could even make it more difficult for Democrats to win the White House or Congress.  Enhanced presidential powers could also be used to restrain state and local governments on policies that inhibit the president’s or party’s agenda.  They could control information and the news by prohibiting and punishing what they determine is “misinformation” and “fake news.”  This could include revoking broadcast licenses.  They could remove uncooperative employees and replace them with people who will carry out their will. They could blame problems and a lack of success on Democrats, prompting more restrictions and sanctions.

This, of course, is not the intent of Trump and the Republicans.  This could never happen in America.  Or could it?  And, if we rewrote the previous paragraph to substitute “Democrats” for “Republicans”, this also could never happen in America.  Or could it?