What’s To Be Done About Trump?—2
A response to Jamelle Bouie
This post is a response to the highest-profile critique I’ve seen of my New York Times op-ed arguing against prosecuting former president Donald Trump. It’s also the final post I will write on this subject for a while. I could use a break, and I’m sure my regular readers could as well. So I’ll turn to other topics next week. But not before one final attempt to grapple with the intricacies about how best to respond to the threat the 45th president still poses to American democracy.
Upholding a Crucial Distinction
But is Jamelle Bouie’s Times column, which ran on Tuesday, even intended as a rebuttal of my guest essay, which ran two days earlier? I can’t be sure. The column’s opening paragraph summarizes the position Bouie criticizes in the remainder of his essay. That position resembles mine, and I know Bouie is aware of my views about prosecuting Trump and disagrees with them, because we’ve tweeted potshots at each other on the topic for the past few weeks. Yet Bouie’s column never mentions me or my op-ed, opting to leave the identity of his opponent(s) obscure.
As I said, the opening paragraph seems to fit, but the headline—“The Idea That Letting Trump Walk Will Heal America Is Ridiculous”—does not. Headlines are often written by editors and sometimes misconstrue the line of argument in a column. But in this case, the headline fits the content: Bouie does portray those advising against a Trump prosecution as doing so because they think “letting him walk” will heal America.
I’ve never made that argument. (My only use of the word “heal” in any of my writing on this topic has been a curt dismissal of the claim that prosecuting Trump would heal the country’s civic wounds.) My argument has consistently been the logical inverse: Holding off from prosecution promises to keep things from getting worse.
It’s the difference between hoping to heal an ailing patient and trying to avoid making him sicker. In my view, an Attorney General appointed by a Democratic president arresting, indicting, trying, and (possibly) convicting and imprisoning the former Republican president will greatly intensify civic turbulence in the United States, moving us much closer to a violent fracturing of the polity.
Emphasizing the distinction between healing sickness and making sickness worse isn’t just nitpicking. Bouie’s decision to treat my position as the first rather than the second has important implications for how his attempted refutation unfolds through the first half of his column.
How Popular (and Politically Powerful) Is Trump?
Bouie maintains that those, like me, who think it would be wise to refrain from prosecuting Trump assume that “American politics has, with Trump’s departure from the White House, returned to a kind of normalcy.” But I don’t make that assumption. On the contrary, I think the U.S. has been diverging from liberal-democratic norms for quite some time—and I agree with Bouie that the political success (so far) of figures like gubernatorial candidates Kari Lake in Arizona and Doug Mastriano in Pennsylvania, along with the political downfall of Wyoming Rep. Liz Cheney, show that “much of the Republican Party has turned itself against electoral democracy.”
Where I part from Bouie is over whether this deepening radicalization of the GOP makes “a mockery of the idea that the ultimate remedy for Trump is to beat him at the ballot box a second time, as if the same supporters who rejected the last election will change course in the face of another defeat.” That’s clearly a broadside aimed at me, since I’ve repeatedly argued that Trump is, at bottom, a political problem, not a legal one. Which means that the best way to defeat him is to beat him in another election by the widest possible margin, not to try and throw him in jail.
Bouie disagrees. But I’m not sure pointing to the derangement of Trump’s most passionate supporters on election fraud demonstrates the foolishness of my position. Explaining why requires delving into a topic I’ve debated with lots of people (including Bouie) on Twitter these past few weeks: the scope and shape of Trump’s political support.
At times, I’ve described Trump as enjoying the support of roughly half the country. Bouie (and others) have responded that he enjoys the support of at most around one third of the electorate. (I consider fighting over the country v. electorate distinction a red herring because when discussing any politician’s support we’re talking about the electorate and assuming that support is closely mirrored in the country at large. That’s both a common assumption and a statistically reasonable one.)
So which is it? One third or one half?
Roughly one third of the electorate strongly supports Trump. But because that number is well north of 50 percent among Republicans, Trump controls the GOP, which is of course one of just two main parties in the United States. The GOP regularly fights the Democrats to a draw in election contests at all levels—local, state, and federal, including contests to determine control of the House, Senate, and presidency.
It would be one thing if Trump controlled the GOP but the Democrats won two-thirds control of both houses of Congress in addition to winning the White House handily. This was the norm during Franklin Delano Roosevelt’s four-term presidency, and something like it happened again with Lyndon Johnson’s re-election in 1964. That’s what things would look like now if Trump really enjoyed the support of just one third of the country.
Instead, Trump won 46 percent of the national popular vote and an Electoral College majority in 2016, and four years later won 47 percent of the national popular vote and came within about 50,000 votes in 3-4 states of winning an Electoral College majority. That, to me, means that Trump is supported by something pretty damn close to half the country.
These results are made possible by negative partisanship, which convinces a lot of non-Republican independent voters who personally dislike Trump that a vote for him is nonetheless preferable to voting for a Democrat like Joe Biden. When I talk about the importance of defeating Trump in the political arena, I don’t mean that those most deeply in the tank for him can be won over. I mean it should be possible to persuade some of those who already dislike him but who have nonetheless voted for him to stop doing so.
A decent number of such voters are already appalled by the events of January 6, 2021. Others have been angered by the overturning of Roe v. Wade and the extremism of the anti-abortion laws Republican-dominated states have been passing. If the Democrats play their cards right, they should be able to peel some of these soft Trump voters away from the former president, lowering his overall support—provided they don’t do anything to persuade these voters to stick with him.
Interlude: Two Short Points
I’m largely going to skip over Bouie’s passing comments about how Trump must be prosecuted in order to demonstrate that he isn’t “above the law.” I dealt with this two days ago by linking to a deeply informed Lawfare post by Jack Goldsmith that suggests Trump actually might not be guilty of breaking any federal laws at all. Goldsmith has co-authored a book about the need to pass a number of new laws to prevent a future rogue president from getting away with so much (or more) misbehavior. But that’s about the future and not the past and present. All I can say is that I think the assertion Trump must be punished for his many crimes is typically treated as self-evident when it isn’t.
Neither do I think that refraining from prosecuting Trump will ensure that Republicans hold off on doing something similar to Biden or a Democratic successor, any more than Democrats keeping the Senate filibuster intact will ensure that Republicans do the same when they next hold the majority. Rather, I think prosecuting Trump will ensure that Republicans do do something similar to Biden or a Democratic successor. Once again, this is about refraining from acting in ways that are guaranteed to make a bad situation even worse.
The Return of “Green Lantern” Politics
The real core of Bouie’s column is found in its second half, where he invokes the American past. Bouie often draws on history in his writing to illuminating effect. In this case, he points to the post-Civil War Reconstruction era of the 1870s to argue that “this country has experience with exactly this kind of surrender in the face of political criminality.” Back then, this hesitation was over “the question of how much to respond to vigilante lawlessness, discrimination, and political violence in the postwar South.” Here’s Bouie’s summary of what those arguing for restraint were saying at the time:
To act affirmatively would create unrest. Instead, the country should let politics and time do their work. The problems would resolve themselves, and Americans would enjoy a measure of social peace as a result.
And here’s how following this advice ultimately played out:
Of course, that is not what happened. In the face of lawlessness, inaction led to impunity, and impunity led to a successful movement to turn back the clock on progress as far as possible, by any means possible.
And here, finally, is Bouie’s application of this episode’s supposed lessons to the present:
Our experience, as Americans, tells us that there is a clear point at which we must act in the face of corruption, lawlessness, and contempt for the very foundations of democratic society. The only way out is through. Fear of what Trump and his supporters might do cannot and should not stand in the way of what we must do to secure the Constitution from all its enemies, foreign and domestic.
That’s a rousing call to arms. But like most such calls, it’s written in the form of a categorical imperative. There are certain things we “must” do. This displays not merely indifference toward unanticipated bad consequences—“the only way out is through”—but even a touch of contempt toward those, like myself, who do our best to anticipate and avoid at least some of those bad consequences. Bouie seems to fear that getting tripped up in such cautionary thoughts will sap our will to fight our enemies, which is all that matters. (Consequences apparently matter a lot when opting for restraint, but not when contemplating action.)
Back during the interminable debates surrounding the Iraq War nearly two decades ago, this kind of argument was polemically but aptly labeled “Green Lantern” thinking, after the comic book character of that name whose superpower is the ability to do pretty much anything necessary to defeat his opponents, provided he exercises sufficient willpower.
For those who view the world through this lens, no defeat, no bad result, no indecisive or less-than-ideal outcome of any conflict need be attributed to the greater skill or strength of an antagonist, structural factors that prevent a better conclusion, or contingency. All that matters is one’s own effort: Want to defeat Al Qaeda? Put down the Iraqi insurgency? Obliterate ISIS? Make the Taliban give up on ruling Afghanistan? Crush Trump and his fellow insurrectionists? Just try as hard as you can, and victory will be yours.
Take the historical example of the Reconstruction period. It’s worth noting, to begin with, that one major difference between that moment and ours is that the North had just defeated the South in a long, bloody war. The Confederacy had surrendered. That settlement came with terms, which gave the Union great leverage to push back against Southern recalcitrance. Those arrayed on Bouie’s side have nowhere near that kind of power over the Trumpified Republican Party today.
Yet even back in the 1870s, the North didn’t use all of the leverage it could have. Why? As the first of the three Bouie quotes above indicate, it was because the North wanted peace and considered the likely cost too high of spending years with its knee on the South’s neck. The result was Jim Crow and many decades of terrorism against the black population of the South.
That was obviously a bad outcome. The problems clearly didn’t (to quote Bouie) “resolve themselves.” They festered for three quarters of a century until the civil rights movement finally goaded Congress into breaking the back of southern racism and intransigence.
But where is the evidence that responding otherwise to the South in the 1870s would have produced a meaningfully better outcome? Is it realistic to assume the North had the capacity—in terms of both resources and support in democratic public opinion—to impose the racial equivalent of a years-long de-Nazification program on the South, including absorbing counter-attacks from insurgents? What would the political and economic consequences have been of attempting such a policy? Might the country have ended up stumbling into a second Civil War? Would the end result have been better for black Americans?
I don’t have certain answers to those questions, and I’m quite sure Bouie doesn’t either. The difference between us is I think it’s crucially important to think through such possible consequences when we formulate courses of action—while Bouie (along with many others on the progressive left) appears to believe doing so will weaken our will to do what moral righteousness categorically demands.
The latter is Green Lantern thinking, and I want nothing to do with it.
The Imperative To Do No Harm
Willpower isn’t the only factor in governing. And politics invariably involves unintended consequences. We need to try and anticipate them, manage them, and mitigate the damage from those that don’t go our way, trying to turn them into something better than the alternatives.
Which brings us back to the medical analogy I invoked at the start: America’s political culture is ailing. Our goal should be to follow the old Hippocratic dictum: Do no harm. I’m convinced that the Justice Department prosecuting Trump would do quite a bit of harm, making the country’s politics considerably sicker than it already is. That’s why I’ve devoted so many words to making that case over the past several weeks. Nothing I’ve encountered by way of criticism has convinced me that I’ve gotten that fundamental judgment wrong.1
Though it’s certainly possible that I have.
My question to Mr. Linker: what do you think the Trump supporters will do if he is indicted that they haven't already done? They currently use threats, intimidation, and violence to get what they want. How many Republicans said they wouldn't vote for impeachment because of fear for their family safety or their career, even though they thought it was right? What they do many intensify, and that is a concern, but we are already there. The only thing to do now is see it through.
First, I agree that we don't know if Trump broke any federal law. That remains to be seen. Once that would be established, the nature and seriousness of the activity has to be taken into account. If it turns out that what can be proven is trivial, I agree with your assessment. If it turns out that what can be proven has compromised the security of the country, such as sharing classified information with a foreign power, that would be another matter. Whatever course the DOJ takes is fraught. Doing nothing may provoke some people to resort to violence. Prosecution would lead to civil unrest and the temptation of a Republican congress doing the same to a Democrat. In either case, anything that can be done legislatively to prevent such future actions should be pursued. At this time, we just don't know what course of action will be the best.