America is Already Failing the Trump Test
The rule of law can't be vindicated if half the country thinks the effort to do so is a sham
"These are dark times for our Nation…. Nothing like this has happened to a President of the United States before. [T]his unannounced raid on my home…is prosecutorial misconduct, the weaponization of the Justice System, and an attack by Radical Left Democrats who desperately don’t want me to run for President in 2024."
—Former President Donald Trump
“The Department of Justice has reached an intolerable state of weaponized politicization.”
—Rep. Kevin McCarthy of California, House Minority Leader and presumptive House Majority Leader if Republicans take the lower chamber in November’s midterm election
“The raid of MAL is another escalation in the weaponization of federal agencies against the Regime’s political opponents, while people like Hunter Biden get treated with kid gloves. Now the Regime is getting another 87k IRS agents to wield against its adversaries? Banana Republic.”
—Florida Gov. Ron DeSantis, potential rival to Trump for the 2024 presidential nomination
“Using government power to persecute political opponents is something we have seen many times from 3rd world Marxist dictatorships. But never before in America.”
—Florida Sen. Marco Rubio
“You may not realize it yet, but they’re coming for all of us.”
— Rep. Lauren Boebert of Colorado
Within a few hours of the FBI’s Monday raid on former president Donald Trump’s home at Mar-a-Lago in Palm Beach, Florida, leading Republicans made very clear where they stand. In an effort by federal law enforcement to investigate and possibly prosecute the former president, some of the party’s most prominent elected officials would side with Trump against the rule of law, against any sort of deference to the FBI, Attorney General, or Department of Justice, and quite possibly against holding him legally accountable at all.
Hence my gloomy tweet from Monday night aimed at all the giddy Democrats in my feed: “None of you has the slightest clue how bad this is gonna get.”
How Not to Solve Our Donald Trump Problem
I’m already on the record opposing the federal prosecution of the former president for his actions leading up to and throughout the insurrectionary violence on Capitol Hill during the afternoon of January 6, 2021. At the moment, it’s unclear if Monday’s raid was connected to the Justice Department’s investigation of those actions, or if the search for classified documents in Trump’s home was part of some other investigation. But it doesn’t really matter, since the theatrics of the event served as a preliminary test of how the country will respond to any effort by law enforcement to prosecute Trump.
And America is already failing that test.
In a country where the political system, including its two major parties, believed in the rule of law and trusted the nation’s public institutions to uphold it, response to the raid would have been muted. Republicans would have joined with Democrats in releasing grave but cautious statements, calling for patience, making the point that the unprecedented criminal investigation of a former president must be allowed to run its course before firm opinions can be reached.
Instead, leading Republicans immediately treated the raid as an illegitimate act undertaken by an alien, tyrannical “Regime” resembling a Third World dictatorship. Several used language about law enforcement being “weaponized” for political purposes. Many also connected it to the recent party-line passage of the Inflation Reduction Act, which included provisions for hiring an additional 87,000 IRS agents to pursue tax cheats. This was the message: If they can raid the home of the former president, they will be coming for you next.
Trump, His Party, and Its Voters on Trial
The Republican response confirms at least two troubling things about the state of the party and the country.
First, Trump maintains an iron grip on the GOP. If you want to understand why so many leading Republicans rose immediately to his defense, look at the results of the straw poll at last weekend’s CPAC conference, which the former president won with 69 percent. That’s up from 55 percent in February 2021 and 59 percent in February of this year—showing that devotion to Trump is increasing over time among the most committed voters and activists on the right, despite considerable admiration for Florida Gov. Ron DeSantis, and despite (or maybe because of) the January 6 hearings. Trump remains the boss, in other words. The Republican base trusts him more than the institutions of American government, which is why elected members of the party are quick to side with him against the latter.
That points to the second thing that reaction to the raid has confirmed: Confidence or trust in American institutions is at historic lows. Trump’s political rise was a manifestation of that lack of trust—and, as a master demagogue, his very presence on the political scene continually drives those numbers lower.
He accomplishes this by refusing to play along with the atmospherics of high-minded politics. No one is given the benefit of the doubt unless they personally ingratiate themselves to him. No Democrat (like Attorney General Merrick Garland) could possibly be trying to do the right thing. There’s always a baser motive to point to, always an interpretation of events that suggests an effort to cloak a power-grab in exalted language. Law (and its enforcement) is indistinguishable from politics. The effort to pretend otherwise is just another (more deceptive) act of self-aggrandizement.
All of which means that for the better part of a decade now, Trump has been teaching his party that “the rule of law” is for saps, suckers, and chumps—and its voters have learned their lessons well.
A Failure of Political Imagination
To this, many Democrats and anti-Trump conservatives respond: All the more reason why we need to prosecute him, to vindicate the rule of law and show that justice can still be done.
And hey, I get it. In theory, that sounds exactly right. I’d love to see Trump punished for any acts that broke the law, both for the sake of justice and in order to deter future acts of political treachery. The problem is that this is a polity, not a graduate seminar in Kantian ethics. If only one of the country’s two major parties accepts the legitimacy of prosecuting a former (and possibly future) president, then the rule of law will not be vindicated, only Democrats will think that justice has been done, and no future bad actors will be deterred. Rather than healing the country’s civic wounds, the effort to punish Trump will only deepen them.
When I make this point on Twitter, I usually get a response that refers back to some outrage from Trump’s time in the White House, along with the comment: Things are pretty awful already!
They certainly are. But presuming things couldn’t get far, far worse demonstrates a real failure of imagination. Consider some passing comments from former Trump administration official Michael Anton in Elisabeth Zerofsky’s excellent New York Times Magazine essay on the right-wing Claremont Institute from last weekend.
Students of classical texts, Claremont scholars don’t always subscribe to the decorum once associated with Republican politics. Trump’s boorishness is of a piece with what some of them view as the rough-and-tumble nature of political life. “The philosophers that we tend to study are not deluded about this,” Anton told me. “Aristotle, in the treatise, explains how the actual practice of politics can be bare knuckle in lots and lots of ways.” On an American Mind podcast last year, Anton reflected that what is “too insufficiently remembered is that a lot of what went down in revolutions was rough stuff. We have a picture of dignified men in Independence Hall deliberating and debating. And all that happened, I don’t discount that. But there was a lot of other stuff going on, too.”
What other “stuff” does Anton have in mind? You know, “bare knuckled” stuff like assassinations, coups, plots, terrorism, riots, insurrections, massacres, bloody uprisings, and elite intrigue and murder. We’ve seen some of that in American history, including of course a bloody civil war, though we’ve also seen less of it over time.
But in much of his recent writing, Anton sounds eager to return us to a less liberal world in which this “rough-and-tumble nature of political life” comes back full force—presumably because he believes that his side, Trump’s side, will do quite well under such conditions. For that reason, I wouldn’t be at all surprised if some on the right (I’m looking at you, Steve Bannon) are keenly hoping Garland really does go after Trump—because they suspect it could well send the country careening into a state of political chaos from which their movement to impose a new anti-liberal order on America will emerge much stronger.
The Coming Storm
I guess you could say I simply don’t agree with those who insist that not going after Trump will be even more dangerous than pursuing his prosecution. It’s possible they’re right. It all depends on how bad things get as we approach and go through with arresting, charging, trying, and then either acquitting or convicting (and then punishing) a former president who (along with nearly his entire party) spends the entire ordeal railing against the fundamental injustice of the entire spectacle. I really don’t see that going well at all.
Yet I could be wrong. I’m not a soothsayer. Maybe we just need to see it all through. If Trump committed crimes, maybe we have no real choice but to try and attempt to convict him in order to ensure future would-be political criminals are deterred. Maybe Trump’s incessant rabble-rousing will finally stop working. Maybe seeing all the evidence carefully laid out in a courtroom will have an educative effect on Trump’s most loyal supporters, and even restore some trust in the country’s public institutions among a broader segment of the electorate.
Maybe. But I doubt it. As my friend Jonathan Last wrote on Tuesday, it’s much more likely “there’s a storm coming.” I wish I had more confidence Americans were adequately preparing themselves for what lies ahead.
So we should feed the beast, as it were, and let Trump continue to be unaccountable? That’s utterly unacceptable in what is ostensibly a nation of laws. Your argument boils down to a more polished version of, “Just do what they say, and maybe no one gets hurt.” After all, who is served by letting Trump skate? Certainly not the American people. And I’d encourage you to stay conscious of a key relevant fact: Having announced news of the search, Trump is solely responsible for the ensuing theatrics, as are the cynical and sociopathic politicians and commentators who are rushing to defend him without knowing what’s even happening. Because ultimately none of them really cares whether Trump is a criminal.
You're not wrong in your analysis of the issue but, even realizing that the consequences of prosecuting Trump are likely to include rightwing political violence, the consequences of allowing the former president to flout the rule of law are equally horrendous. If Trump committed illegal acts (and he very likely did) allowing him to skate reinforces the already prevalent view that the rule of law applies only to the poor and the stupid. Prosecuting Trump will exacerbate pre-existing political fault lines, but those lines existed pre-Trump encouraged by Fox News grievance culture on the right and woke-ism on the left. The middle ground, like the middle class, has been hollowed out. We're left with opposing political camps who see each other not as rivals with differing views who share a love of country, but as mortal enemies. Whether the DOJ ultimately prosecuted Trump or not, those divisions won't be healed anytime soon.