The Dual State: How Trump Is Using Ernst Fraenkel’s Playbook to Fracture the Law

Donald Trump has created a space in America where the law is no more than the armed weaponization of his desires.

Edwin Eisendrath is the former CEO of the Chicago Sun-Times and Chicago Alderman who hosts It's The Democracy Stupid on Lincoln Square and a weekly radio show on WCPT820AM/ Heartland Signal. Subscribe to his Substack.

Let me tell you about Ernst Fraenkel. Born in 1898 in Germany, Fraenkel grew up a proud German. He fought for the Kaiser in World War I. He later became a prominent lawyer. He was also Jewish, which meant he was banned from appearing in court in 1933, when the Nazis came to power. In 1938, he fled the country. In 1939, he arrived in America, and four years later, he became an American citizen.

Fraenkel studied American law at the University of Chicago, and he wrote about what was happening back in Germany. His book, The Dual State, has a lot to tell us about America today.

He explains that for most Germans, the rule of law continued as it always had. He called this the normative state. Contracts were enforced. The government protected the rights of citizens. Laws constrained prosecutors, and courts did their jobs. But the normative state had boundaries, and many Germans—particularly Jews—fell into what Fraenkel called the prerogative state. Those in the prerogative state were subject to all the power and none of the justice that a state can deliver.

Among the insidious dangers of a dual state is that, for most citizens, it is business as usual. They don’t see the cruelty. They don’t experience the coercion. They think these are normal times. They say things like, “The pendulum swung too far in one direction, but it will swing back, like it always does.” And they don’t notice as the prerogative state expands, and their own freedom leaches away.

Donald Trump and the Republicans have recreated that dual state in our country. To be sure, we have more tools than the Weimar Republic to fight back. But the dangers are very real—and, for some, fatal.

Three stories in the news last week prove this point.

An Out-of-Control ICE Agent

Steve Held, Dave Byrnes, and Raven Geary at Unraveled Press have done incredible work that showing how ICE operates in the prerogative state. They managed to uncover the identity of one of the masked agents who terrorized Chicago last October. His name is Martin Lagunas.

He leads what is called an Enforcement and Removal Operations team based in Chicago. At Broadview, his team threw tear gas at protesters. In Waukegan, he took part in the incident where ICE arrested a man and abandoned a child in a car. He went to Minneapolis during the ICE occupation there. He threatened people on the street, telling one observer, “Stop following us. Trust me. You’re not gonna like the outcome.”

When ICE murdered Renee Good in Minneapolis, Lagunas posted a story about her death on Facebook and wrote, “FAFO” (fuck around and find out). He was caught on camera spraying chemical agents into car vents before breaking the windows and forcing drivers and passengers onto the ground.

This week, you may have seen the video: Lagunas stopped a car in Falls Church, Virginia, and pointed a gun at the driver’s head.

In the normative state, bad officers are relieved of duty. There is oversight. Officers like John Burge and Derek Chauvin were charged, prosecuted, convicted, and jailed.

Lagunas remains on the street. Why? Because Donald Trump has created a space in America where the law is no more than the armed weaponization of his desires. It is his prerogative whether someone gets arrested, charged, or even killed.

The Corrupt Trump DOJ

My friend, Mike Nellis, is a political consultant. For a time, one of his partners was the daughter of the judge in New York who oversaw Donald Trump’s hush-money trial. You remember that. Trump was convicted by a jury of 34 felonies. That trial was an example of the normative state. But Donald Trump rejected the verdict and created space around it for his prerogative state to intervene.

His henchman in the House, Ohio Congressman Jim Jordan, held hearings to discredit the judge. Those hearings went after Nellis’ firm because Jordan wanted to create the impression that Trump’s prosecution was political. Because Nellis would not release emails with his clients, Jordan sent a letter to then-Attorney General Pam Bondi referring Nellis’ firm for contempt.

The U.S. Attorney in Chicago, Andrew Boutros—the same guy who oversaw the corrupt manipulation of a grand jury to indict the Broadview Six—launched an investigation into Nellis’ firm. Subpoenas were issued, but there was never any indication of what crimes might have been committed. There were no crimes committed. Instead, the government engaged in another fraud, issuing broad subpoenas not because there was a crime, but to try to find one—and to create a lot of smoke to give the impression that was a fire somewhere.

The Nellis case and the fraudulent indictments of the Broadview Six make it clear that the U.S. Attorney here in Chicago is using the power of his office for political persecution. That is the prerogative state: the lawless abuse of power.

New Revelations from Minnesota

Last week, we learned that after Renee Good and Alex Pretti were murdered by border agents, the federal government opened an investigation—not into the killings, but instead targeting labor unions, environmental groups, the Democratic Socialists of America, and a local activist coalition.

They were looking for evidence that these groups supported protesters. It is not illegal to protest in America. It is not illegal to support protesters in America. Not in the normative state. But in the prerogative one, instead of investigating the murder of Americans, the tools of government coercion target the regime’s critics.

There are plenty of other examples. Perhaps the clearest is the government’s effort to take away the freedom of an Olympic athlete because Donald Trump needed a fall guy for his botched reflecting-pool fiasco. In that case, our government was perfectly willing to take away an American’s freedom for 20 years just because it was good propaganda for a corrupt administration.

One man leads the effort inside the Justice Department and the FBI to create and enforce this prerogative state. That’s Todd Blanche. And Republicans in Congress just confirmed him to be our Attorney General.

In spite of it all, I remain an optimist. Across our country, the growing resistance to the Trump administration gives me comfort. The way people came together when ICE attacked Chicago and Minneapolis confirmed that, when pushed to extremes, we will not be divided by race. The turnout and energy on the pro-democracy side in recent primaries prove that we will not quietly give up our national project. We are winning in court. We are winning in the streets. We are winning in public opinion. We are winning at the ballot box.

But all our efforts are predicated on the rule of law. Our efforts are legal, and they rely on a system that protects us from arbitrary power. In America, unlike in Russia, our government cannot just jail us. In America, unlike in Tiananmen Square, our government cannot just shoot us.

And yet, in some instances, that is exactly what is happening.

The prerogative state in America still faces real constraints. We still have space to push back. But we are in a race. We simply must win in November, and we must insist that the winners be seated in Congress. But we cannot stop there. As Fraenkel witnessed, no one is safe in a dual state. The Executive Branch is powerful. So long as Donald Trump leads it, it acts to satisfy his whims rather than our laws. Until he is removed from power, American freedom is at risk.

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