Though the Heavens Fall
Though the Heavens Fall
What does justice demand in the matter of Donald Trump?
My post from last Wednesday really struck a nerve.
Some high-volume Twitter accounts sharply disliked my argument warning about the dangers of the FBI and Attorney General executing a search warrant against former president Donald Trump at his Palm Beach home. That kept things pretty lively for me on the platform all day long. Then on Friday, two New York Times columnists linked to the post—Michelle Goldberg critically and David Brooks appreciatively.
To those who have subscribed to this newsletter after encountering it through the swirl of arguments spawned by that controversial post, welcome. Given all the attention and criticism, I thought it would be useful to circle back to the topic one more (last?) time. This will be my third run at it, since last Wednesday’s post was itself a restatement and elaboration of the position I originally laid out in mid-July.
The first thing I want to clarify is my intent in weighing in on the topic of whether Trump should be prosecuted. My goal wasn’t to climb up on a soapbox with a megaphone to pronounce that Merrick Garland must turn a blind eye to evidence the former president broke the law. In my original post, I asked whether it was wise to prosecute Trump for his actions connected with the events of January 6, 2021, and I answered in the negative.
I recognize that if the former president had classified documents in his possession in violation of the law, then the Attorney General may really have had no choice but to act to secure them by raiding Mar-a-Lago and taking them.
Yet the question of prosecution is another matter. I wrote both of my posts to work through the possible consequences of pursuing that course of action, because I sensed that many liberal Democrats were failing to think about the issue as clearly as they should be. I’m sorry to say that the responses to my arguments haven’t convinced me otherwise. On the contrary, they’ve convinced me my original worries were well founded.
Trump the Terrorist?
Several critics made versions of this argument: Your position is based on cowardice. Trump is a bully. The only way to defeat a bully is to stand up to him with courage. I’ve also seen this variation quite frequently: Trump is a terrorist, and if you give in to terrorists, they become emboldened. The only thing a terrorist understands is the use of force.
I certainly feel the power of such arguments. In certain contexts, I even think they’re correct. There’s just one problem: Trump isn’t (just) a bully, and he and his party are not terrorists.
To begin with the second claim: Because Trump and those in his party who are most loyal to him seem hellbent on tearing down longstanding American norms and sometimes institutions as well, it’s tempting to think of them like terrorists. Yet terrorism is a political tactic adopted by the weak against the strong. Terrorists don’t compete in elections, cycling into and out of power. Only those who have been systematically deprived of or excluded from power adopt murderous methods as an alternative to campaigning for office.
That doesn’t describe the Republican Party at all. Not only do its candidates manage regularly to win the presidency, but the GOP also competes successfully for control of both houses of Congress, and its members tend to do quite well at winning power at the state level. That’s why critics who mocked me for saying Trump has the support of half the country missed the point. Trump controls the Republican Party, and the Republican Party manages, in the aggregate, to fight roughly to a draw with the Democrats across the country. That gives Trump and his supporters a level of strength that a genuine terrorist could only dream of enjoying.
As infuriating as it might sometimes feel, Trump and his supporters aren’t terrorists. Or mobsters. Or playground bullies. They are our fellow citizens. This country is as much theirs as it is ours. They want it to be one thing. We want it to be another. The stakes are high. Trump portrays himself as a fighter defending his side against ours. He takes that role very seriously. Part of making it convincing involves acting like a bully, and nothing makes it easier for him to maintain the support for those who long to be protected by a bully than for him to confront opponents who seem driven to take him (and them) down.
In this respect, using the legal powers of the state to defeat him plays right into his political hands.
What is “The Rule of Law”?
Then there was the rather intense response to the argument I compressed into a promotional tweet: You claimed that “the rule of law can’t be vindicated if half the country thinks the effort to do so is a sham.” But allowing Trump to get away with committing crimes will undermine the rule of law even more!
I think this response misconstrues what “the rule of law” is. Many of my critics seem to think it is, or is supposed to be, a nearly automatic process of fairly and uniformly enforcing the law in all cases. If Trump broke the law, these critics say it follows that he is a criminal and must be prosecuted and punished. We don’t take public opinion polls about whether to indict murderers or bank robbers, and we shouldn’t do it with former presidents accused of violating the Espionage Act or whatever other federal law the Attorney General thinks Trump may have transgressed.
If we don’t follow this procedure, the critics go on, it would be perfectly reasonable for any other criminal or would-be criminal to conclude that the president in general, and this president in particular, is effectively above the law. This would breed cynicism among law-abiding Americans at large and convince some indeterminate number of aspiring presidential troublemakers that they have free rein to do whatever they want without fear of punishment.
That makes a lot of sense. And if the rule of law were what these critics say it is, they would be correct. But it isn’t, and they aren’t.
The rule of law is a set of complex institutional procedures and behavioral norms around matters of law enforcement. Those procedures and norms acquire and maintain their legitimacy by shared, ongoing, tacit acclimation by the American people. If “we the people of the United States” accept that the Justice Department, Attorney General, FBI, and other arms of federal law enforcement are trustworthy, they are thereby empowered in our name to investigate crimes and prosecute criminals, and those actions will be treated as legitimate, whether the alleged perpetrator is a Democrat or a Republican.
That is the rule of law in action.
Yet in recent decades, the United States has begun to experience a precipitous collapse in trust in public institutions. Trump himself has accelerated this collapse among more conservative Americans, and much of his party now contributes to it, too. That means that the foundations of the rule of law have already been seriously undermined.
Large numbers of Republicans think Democrats are out to destroy Donald Trump (and really, any Republican who dares to challenge the political and cultural dominance of the left) by any means necessary, including through the use of federal law enforcement. The reaction of leading Republican officeholders to news of the Mar-a-Lago “raid” (which I quoted at the top of my second post) shows, among other things, that they think they benefit politically by stoking this distrust.
This is a dangerous problem, because it shows both that the rule of law is already in an advanced state of decay and that pressing charges against Trump, putting him on trial, and potentially throwing him in jail will accelerate this process, making the decay far worse—because each of those acts undertaken against Trump will confirm the right in its conviction that “the rule of law” has already been replaced by rank partisanship.
So, I guess this means that I’m saying we sort of do have to take public opinion into account when preparing to go after the man who once occupied, and might occupy again, the country’s highest political office—the only one voted on by the whole country. If only one of the country’s two major parties pursues the prosecution, it will inevitably fall short of, and may actually violate, the rule of law. Democrats can’t simply say we’re the only people left who care about the rule of law, so we will take on the sole responsibility for punishing Republicans for violating it.
Well, they can do that, but if they do, they will be violating the rule of law in the very act of claiming to uphold it. The rule of law isn’t some objective standard floating out there in the ether waiting for someone, anyone to enforce it. It’s something we—the members of the American polity—collectively establish and sustain (or cease to sustain). Once half of our political system stops giving its tacit consent, the rule of law effectively ceases to exist.
The Political Stakes
And that brings me right back to where I ended in my initial post about the foolishness of prosecuting Trump—with the claim that the former president is primarily a political problem for the United States, not a legal or criminal one.
Until he is defeated at the ballot box by such a convincing margin that even the most passionate of his supporters have to recognize him as a loser, Trump will be a threat to American democracy. Throwing him in jail won’t remove that threat. How many minutes would it take the just-inaugurated President Ron DeSantis to pardon a convicted Donald Trump? And that’s assuming he doesn’t run for (and win) the presidency while on trial or from jail, an event that could well break the country.
Some will surely respond as someone on Twitter did, by quoting the old saying about how sometimes we need to ensure justice is done though the heavens fall. That’s very noble. I would only urge my fellow liberals to reflect on whether it’s really a good idea to act in a way that could well help to ensure or hasten such a calamitous outcome.
It's been a busy day for me, but it's wonderful to see so many of you commenting on this post, debating, and building a community of conversation.
Damon-If the U.S. government investigates a serious crime purportedly committed by the former President, finds probative evidence of the commission of that crime, but chooses not to prosecute for political reasons, then I don’t know how the government can then avoid the implication (which will be loudly proclaimed by the former President and his followers) that no crime was actually committed, or otherwise the government would prosecute him.