What's To Be Done About Trump?—1
The first of two responses to critics of my New York Times op-ed
Last Sunday, the New York Times was good enough to publish an op-ed of mine in which I distilled and sharpened the many arguments I’ve been making here about the imprudence of prosecuting former president Donald Trump.
My argument, in sum, was that we have no ideal path forward. We’re damned if Attorney General Merrick Garland goes forward with a Trump prosecution and damned if Garland holds off. But the latter path should nonetheless be treated as a viable Plan B because it permits the Democrats to continue beating Trump in the political arena by the widest possible margin. That involves all kinds of risks as well, but it’s less risky than the legal option.
As one might expect of an essay published in a newspaper with a readership of millions, the result has been a wave of criticism much larger than anything I’ve received in response to my Substack posts. Because I think the issues wrapped up with these arguments and counter-arguments are extremely important to the near-term future of the United States, and because they also fit in quite well with the subject matter of this newsletter, I’m going to devote this post to responding to the most frequent criticisms I’ve seen on social media and in my email inbox. On Friday, I will post a response to Jamelle Bouie’s Times column from Tuesday, which doesn’t mention or link to my op-ed but is clearly intended as a rebuttal. And presumably by next week, I’ll be ready to move on to other topics.
The Danger of Appeasing Trump
By far the most frequent response to my op-ed accuses me of appeasement. A surprisingly large number of critics went so far as to analogize Trump to Adolf Hitler and me to Neville Chamberlain.
The problem with this analogy is that it misconstrues our situation at the most basic level. Trump isn’t a genocidal dictator leading a foreign country that poses an external threat to neighboring polities. He’s a man whom nearly 63 million of our fellow citizens voted to make our president in 2016—and who won 11 million additional votes in his bid for re-election four years later.
I found the first fact, along with Trump’s victory in the election, quite difficult to accept in the aftermath of Hillary Clinton’s defeat. I still find the second fact pretty inexplicable. (You mean 11 million Americans who didn’t favor Trump in his original run for the White House observed him through the entirety of his term in office and concluded I’d prefer more of this than giving Joe Biden a chance?) But that’s what happened.
Trump is very widely disliked by the electorate—but not so much that his Democratic opponent can win a truly sweeping victory against him. Partisan Democrats can scream Biden won by 7 million votes! as often and as loudly as they want, but it doesn’t change the fact that the U.S. has never elected its president by nationwide popular vote—or that Trump lost the presidency in 2020 by a mere 50,000 votes scattered across 3-4 states.
All of which is to say, once again, that Trump isn’t a foreign tyrant threatening us from abroad. He is part of us—the political leader and top choice of one of our country’s two major political parties. To use the full powers of federal law enforcement during a Democratic administration to indict, try, convict, and punish this man would drive large numbers of Republicans even further into Trump’s arms—and well beyond the boundaries of a shared legal reality and sense of the rule of law.
Does this means I favor appeasing or conciliating him? In a legal sense, perhaps. But not at all in the more crucial political sense. Democrats should do everything they can to run up the tally in any electoral contest in which they face him (and those most like him within the Republican Party). The goal should be his political defeat—turning him into a loser in the court of public opinion—not using an extra-political workaround to try and exile him from political competition. If you think making Hitler and Chamberlain analogies clarifies these issues, good for you. I think it’s pretty idiotic.
America’s Legitimacy Crisis
I didn’t use the words in my op-ed, and I haven’t emphasized them in my previous posts on this topic, but it’s now time to be a little blunter about what we’re really talking about here: Whether or not the country is moving in the direction of open civil conflict.
Some critics who picked up on that subtext in my op-ed dismissed it as an absurdity, believing the U.S. government and law enforcement still have easily enough broad-based legitimacy for the Justice Department under a Democratic administration to go after the former president and head of the Republican Party. Others acknowledged the risk of moving the country closer to a civic conflagration but expressed so much loathing for Trump and his supporters that they welcomed the opportunity to inflict pain on them, no matter the risks. The point must be to “crush” the “insurrectionists.”
I’ll be honest: I don’t know if we’re headed toward an actual civil war. I know the arguments against it: We’re too fat, lazy, and pampered to do more than take part in vicarious political-shooter games on social media; and we’re too intertwined in the physical world for an actual military conflict to take shape. (This wouldn’t be the North fighting the South so much as the countryside and outer-ring suburbs fighting inner-ring suburbs and cities, along with many politically intermixed neighborhoods dissolving into violence.) One or both of those objections may well be decisive in keeping a civil war from breaking out. I really don’t know.
What I do know is that usually no one expects such a cataclysmic event to start before it does, and participants often underestimate how bad it will be once it gets underway. And the signs at the moment don’t look especially reassuring. Not that I worry about a civil war breaking out next week. I don’t know if this is 1838, 1850, or 1858. All I’m saying is that I think it’s obvious we’re living through a legitimacy crisis that has the potential to culminate in violence bad enough that the country eventually ends up shattered.
The most vivid example of this crisis is the undeniable fact that the country’s two main parties are moving ever-closer toward viewing a victory by the other as intrinsically illegitimate. This was obviously true about Republicans in the wake of the 2020 election, when Trump’s lies about election fraud convinced many GOP voters that the “official” outcome was bogus.
But how would Democrats have responded in the aftermath of the election if those 50,000 or so votes had gone the other way, giving Trump another Electoral College victory while losing the national popular vote by 7 million after polls preceding the election had predicted a sizable Biden victory? Or what if something similar takes place in 2024, handing the White House to the insurrectionist Trump and his party control of both houses of Congress, with an especially wide margin in the Senate? Can anyone doubt that significant numbers of Democrats would begin talking about and perhaps acting on the conviction that such an outcome is illegitimate?
I can already hear the cries of my critics in response to this hypothetical: But Trump conjured his side of this “legitimacy crisis” out of thin air so he could stay in power, while Democratic objections are completely justified!
I’m inclined to agree. But I honestly don’t think it matters for the purposes of this discussion. People embroiled on clashing sides of rancorous civil conflicts invariably tell stories about how the other side deserves the blame for starting and escalating it. I’m much more interested, by contrast, in doing what we can to prevent America’s legitimacy crisis from getting even worse. That’s why I think it would be far wiser for Democrats to work toward defeating Trump in 2024 by the widest possible margin than for them to pursue a potentially explosive effort to put him in jail.
Has Trump Even Broken the Law?
The final line of criticism I’ve encountered in response to my op-ed amounts to the claim that failing to punish Trump for his many crimes will demoralize Democrats and other law-abiding Americans, convincing them that the rule of law doesn’t apply to Republicans (or bullies in general) who commit crimes.
In all the thousands of apoplectic tweets I’ve seen over the past several days insisting that Trump must be severely punished for his misdeeds, I can hardly recall a single one that cited a specific law he purportedly broke, beyond vague statements about treason. For the sake of argument, I’ve been happy to concede the point and assume Trump is guilty of … something. But is it true?
After reading a highly illuminating exchange between widely respected legal scholar Jack Goldsmith and journalist Josh Marshall, I’m honestly not sure. All I know is that the liberal Marshall is firmly convinced Trump is guilty of a multitude of crimes, while the moderately conservative Goldsmith makes a very cogent case that, on the basis of publicly available information, it’s not entirely clear Trump has broken any laws at all.
Could it be that all of the sound and fury I’ve seen online from the left about the imperative of punishing Trump’s self-evident criminality is based on nothing more than a feeling, a conviction, a moral certainty that he simply must be guilty of something? If so, that would be a further sign that loathing for the former president is a fundamentally political impulse, not a legal one.
To win a legal case against Donald Trump, prosecutors must be able to persuade the members of a jury beyond a reasonable doubt that he is guilty of violating the law. To win a political contest against him, his opponent needs to persuade a sufficient number of voters that he is a bad man who should never be president again.
The latter is the better path forward, and it always has been.
Doesn't the argument on whether or not to prosecute depend on there being something clearly indictable to begin with. If there isn't, or if it's simply ambiguous, I can't see Garland prosecuting -- nor should he. The question is -- should Garland refrain from prosecuting a case whose merits are clear, serious and undeniable, a case he would prosecute against anyone else. Someone suggested that if there is a decision to prosecute, Biden should then step in to pardon. That may be the best of the bad alternatives.
From reading your posts and editorial on this issue I get the feeling that you're a little less alarmed by Trump the individual than many of your readers, including me. That may account for some of the disconnect. The issue isn't simply polarization -- it's the man uniquely capable of stoking rage and amplifying it, who's succeeded in transforming his party in his very frightening image. The Democrats, for all their potential foolishness, wouldn't have stormed the capitol in an analogous situation because they don't have a Trump at their head.
Where I tend to disagree with you is that I think we have already entered the civil war aspect. Once Trump supporters acted on their belief that threats, intimidation, and violence were acceptable (and a way to win), we've entered the battle. The only way to disabuse them of this notion is to use every method to stop them - political, legal, and physical. In 2017, I would totally have agreed with you. Today, the landscape is radically different.
This doesn't mean we are destined for a bloody conflict, but we cannot pretend that the conflict is not in a physical way.