Column: Is it a coup if it’s legal? When you make the rules, it’s hard to break them

Hello and happy Thursday.

Week three, day four. Chaos seems like an insufficient term to grasp the confusion and fear that has overtaken many of our government institutions, not just the ones Elon Musk is occupying.

I spoke on Wednesday with a mid-level federal employee who told me the paranoia is so great that even on encrypted apps such as Signal, people have stopped identifying themselves for fear of being turned in — whatever that means — by once-trusted colleagues.

We are in the middle of a purge, one that will almost certainly lead to the crippling of government functions — from the FBI to the National Oceanic and Atmospheric Administration, which warns us of dangerous weather. Latest up: Musk, the guy whose rockets regularly blow up, is apparently now meddling in air traffic control.

But anyone who didn’t see it coming, or doesn’t believe this was the plan, wasn’t listening.

In July, Musk ally and now-Vice President JD Vance said on a conservative podcast that if he could give Trump one piece of advice, it would be to “seize the administrative state” for his own purposes.

“We should fire all of the people,” and “replace them with our people,” Vance urged.

And here we are, quickly learning that the bluster of Trump 1.0 has been replaced by the double-bluster of Trump 2.0 — but with something dangerous lurking in the shadows.

It turns out “our people” means President Musk and his Gen Z firing squad.

It’s in the details

But is it a coup?

That’s a word that’s become as common as popcorn in a movie theater the last few days, but here’s a hard truth from Jonathan Adler, an administrative law expert at Case Western Reserve University School of Law: “A lot of it really depends on the details.”

There are actions that certainly seem like they should be illegal, including Musk taking personal data from thousands of federal employees and even maybe rewriting parts of government payment codes for reasons that are unknown to the public. But also, a lot of it might skate along a thin gray line of law, in areas that have never been tested before.

Or more concerning, in areas where executive power has been stretched by former presidents — Republicans and Democrats alike — to allow actions that most of us hoped were illegal, but turns out are just fine.

“We have become way too permissive of executive power,” Alder told me. “That kind of power in a single person is concerning to us and we are kind of lucky we haven’t had a president be so cavalier about exercising such power before.”

But nobody, except Musk and maybe the president, knows what is actually happening.

“Many people are asking me if Elon Musk is stealing tax-payer money or using our private information to enrich himself?” wrote Florida Democratic Rep. Maxwell Frost on formerly-Twitter. “I’m a Member of Congress on the committee for Government Oversight and I can’t tell you that he’s not. That’s a problem.”

Indeed it is.

Courts and Congress

So while I, like my source at the federal agency, am stunned and fearful of what Musk and his team of post-high school smarty pants are doing, whether it’s legal or not is up for debate — because it’s a billionaire’s secret.

That, of course, is where we would hope for the kind of oversight that gives clarity to the people. Say, from Congress, if it could root around in the closet and find its spine. Not only are Republicans in line behind Presidents Musk and Trump, they appear to be pulling dirty tricks to prevent Democrats from even causing a ripple of trouble.

On Wednesday, Democrats on the House Oversight and Government Reform Committee, the one Frost is on, tried to subpoena Musk to get some answers, but were defeated 19-20 when Republicans took an unexpected vote without a bunch of Democrats present.

“I would have voted yes,” California Rep. Ro Khanna tweeted later. “They called a procedural vote without notice & I like 8 others didn’t make it there on time. Musk’s attacks on our institutions are unconstitutional.”

Musk is acting with the impunity of a president, and with complete disdain for our elected officials. Well, what about the courts, you ask? Surely they can stop this mad power grab by a private citizen and his pet president?

Adler, the law professor, told me he’s not as worried about our judicial branch as I am. He believes that while the Supreme Court and many lesser judges are ideologically conservative, and even Trump appointees, they will still rule on law over politics. And he may have a point — two judges have now given temporary restraining orders on Musk’s freeze on all federal grants.

“I don’t think the court is going to roll over because it’s Trump,” he said. But they are also not going to be a roadblock.

“If [Trump administration officials] are clever enough to figure out how to do it legally, they are going to be allowed to do it,” he said.

Or, UC Berkeley Law Dean Erwin Chemerinsky put it, “If there is a path to authoritarianism, this is it.”

That brings me back to Vance and the rest of that July interview. In it, he offers a suggestion for what to do if courts, that last check on the power of these mad kings, rule against his purge.

Vance quoted President Andrew Jackson, who once infamously showed his contempt for the courts when after a decision he didn’t like, proclaimed that the chief justice had made his ruling, “now let him try to enforce it.”

It’s one thing for Trump and Musk to push the boundaries of the law. Though their moves are unlike anything in recent history, there is a precedent for executive power being exercised and even abused.

It is how the pushback on that is met that will determine the question many are asking: Will our democracy hold? What if Musk and Trump simply decide to heed Vance’s advice and ignore the courts?

Political scientist Monty Marshall, who has spent his career studying democracies and their decline, told me that by his index, the U.S. is no longer considered a functioning democracy, based on the last few weeks. So really, anything is possible.

“It’s not a game anymore,” he warned. Because it may not be a coup.

But it is definitely not a government of the people, by the people, for the people.

What else you should be reading:

The must-read: List: Examples of Trump’s actions that are defying legal limits
The what happened: ‘Blow this place up’: Frustrated Democrats want the Senate to fight harder
The L.A. Times special: ‘My home has become a cemetery.’ Amid cease-fire, Gazans unearth their dead from rubble

Stay Golden,
Anita Chabria

P.S. Why do some trees burn in a fire and others seem untouched? It’s a question that comes up after every fire, often leading to conspiracy theories about space lasers or arson. Here’s a Cal Fire video with the scientific answer.

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