The prospect of fitting the orange man for an orange jumpsuit would create new problems of its own.
Lock Him Up?
For the Republic to survive Trump’s presidency, he must be tried for
his crimes. Even if that sparks a constitutional crisis of its own. JONATHAN
CHAIT
In the
end, the most salient fact about Donald Trump may simply be that he is a crook.
He has been defying the law since at least the early 1970s, when he battled the
Department of Justice over his flagrant refusal to allow Black tenants into his
father’s buildings. He has surrounded himself with mafiosi, money
launderers, and assorted lowlifes. His former attorney, national
security adviser, and adviser, and two of his campaign managers, have
been arrested on or convicted of an array of federal crimes
ranging from tax fraud to perjury to threatening witnesses. He employs the
lingo of the underworld: People who cooperate with law enforcement are
“flippers” and “rats”; investigators pursuing his misconduct are “dirty cops.”
To him, the distinction between legal and illegal activity is merely an
artificial construct enforced by sanctimonious hypocrites.
And although President Trump’s opponents have been
warning Americans what will happen to their 230-year-old constitutional
government if our gangster president gets another four years in office, the
truth is much of the damage has already been done. An electoral defeat in
November is, of course, necessary. But Trump has set off a profound crisis of
democratic legitimacy that even a resounding Joe Biden victory may not
completely resolve. It may not take a fully developed fascist movement to bring
down the Republic. All that may be required is one well-placed criminal.
The prospect of an electorally defeated Trump, though glorious, would immediately set off a conflict
between two fundamental democratic values: the rule of law and mutual
toleration. The rule of law is a banal yet utterly foundational concept that
the law is a set of rights and obligations, established in advance, that apply
equally to everybody. It is an ideal rather than a lived reality. Black
America, to take one obvious example, has never experienced equal
treatment from institutions like the police and the courts. But this serves
only to illustrate its essential value. The civil-rights movement has consisted
in large part of fighting to extend the protection of the rule of law to Black
people.
The experience of Black racial oppression shows
that the absence of the rule of law is a pervasive, terrifying insecurity. A
society without the rule of law is one in which the strong prey upon the weak.
The small-scale version is a town where you need the local warlord or mafia
boss to solve any problem or dispute; the nation-state version is Vladimir
Putin’s Russia, where the mafia is the government and bribery is endemic.
Mutual toleration means that political opponents
must accept the legitimacy and legality of their opponents. If elected leaders
can send their opponents to prison and otherwise discredit them, then leaders
are afraid to relinquish power lest they be imprisoned themselves. The
criminalization of politics is a kind of toxin that breaks down the cooperation
required to sustain a democracy. This, along with the misogyny, was what made
Trump’s embrace of “Lock her up!” so terrifying in 2016. He was already using
the threat of imprisoning opponents as a political-campaign
tool.
If the government is run by lawbreakers, though,
the state faces a dilemma: Either the principle of equal treatment under the
law or the tradition of a peaceful transition of power will be sacrificed. It’s
hard to imagine any outcome under which the rule of law survives Trump
unscathed.
One of the most corrosive effects of Trumpism upon
the political culture has been to detach the law from any behavioral definition
and to attach it to political identity. As Trump likes to say, “The other side
is where there are crimes.” He has trained his supporters to understand this
statement as a syllogism: If Trump’s opponents are doing something, it’s a
crime; if Trump and his allies are doing it, it isn’t. The chants, which
applied enough pressure to force James Comey to announce a reinvestigation of
Hillary Clinton in October 2016, simply to protect the FBI from being
delegitimized by Republicans after an expected Clinton victory, showed how the
field had been sown for Trump even before he took office.
It is because Trump
views the law as a morally empty category, a weapon for the powerful to use
against their enemies, that he has spent his presidency calling for the
prosecution and/or imprisonment of a constantly growing list of adversaries:
Joe Biden and Barack Obama (for “spying” and “treason”), House Intelligence
Committee chairman Adam Schiff (for paraphrasing Trump’s
Ukraine phone call in a speech), John Kerry (for allegedly violating
the Logan Act), John Bolton (for writing a tell-all book), Joe Scarborough (for the death of a former staffer), Nancy Pelosi (for tearing up his State of the Union Address), and social-media firms (for having too many
liberals). Trump has alleged a variety of crimes against at least four former
FBI officials and three Obama-era national-security officials.
Trump has eagerly seized upon the sporadic riots
and looting that followed George Floyd’s murder, but no actual violence is
required for him to equate his opposition in general with illegal subversion of
the state. “You don’t hand matches to an arsonist, and you don’t give power to
an angry, left-wing mob,” he said in 2018. “And that’s what the Democrats are
becoming.” Just as the term fake
news used to describe deliberately false stories written by
pseudo-journalists but was repurposed by Trump as an insult for very real
reporting about his administration, crimes has ceased to
denote violations of written law and become instead a catchall description for
any anti-Trump activity.
Even though it is
staring us in the face every day — or perhaps for that reason — we have failed
to grasp how profoundly Trump has undermined the rule of law and how
irreversible the damage may be. His contempt for the law is not merely
incidental. He never put himself forward as a
straight arrow. As a first-time major-party candidate, he depicted his history
of dealing with politicians as a sequence of successful bribes. He spent years
railing against the Foreign
Corrupt Practices Act, a law banning bribes of foreign officials,
and tried to weaken its enforcement as president, reportedly complaining, “It’s
just so unfair that American companies aren’t allowed to pay bribes to get
business overseas.” When he sought to collect a portion of the fee for
brokering the sale of TikTok, Trump cited the
long-standing practice of tenants paying off landlords to get rent-controlled
apartments: “It’s a little bit like the landlord-tenant. Without a lease, the
tenant has nothing. So they pay what’s called key money, or they pay
something.” His vision of the good society is one in which powerful businessmen
grease palms to get things done.
Two years ago, the New York Times, using
documents supplied by his niece, Mary Trump, proved that the president had
engaged in widespread fraud involving a fake company and falsifying financial
information to steal millions of dollars. Also that year, the federal
government said he had ordered a felony by directing hush money to his former
mistresses during his campaign. His business paid millions for defrauding
enrollees in a fake university. And he admitted using the Trump Foundation,
supposedly a charity, to funnel money to his campaign and business.
That Trump made it to 2017 without being
personally convicted of a crime is itself a testament to the ineffectiveness of
white-collar-criminal-law enforcement. That Trump has not been charged since
taking office is owed to the privileges of being president of the United
States. Because the Justice Department has a policy against charging the
president with crimes, it did not indict him for the same crime Cohen went to
jail for — even though Trump had ordered Cohen to commit it. The same
protection held back Robert Mueller from officially
describing the many actions Trump had taken to obstruct the
FBI’s investigation as “obstruction of justice.” And his standing as president has
allowed him to keep his tax returns out of the hands of New York prosecutors.
But at some point, the impunity will end. The law
is coming.
At the moment, Trump is reportedly the subject of
three investigations.
Manhattan district attorney Cyrus Vance Jr., New York State attorney general
Letitia James, and Southern District of New York acting U.S. Attorney Audrey
Strauss are all probing reported crimes by the Trump administration, ranging
from tax fraud to embezzling funds at his suspiciously expensive inauguration,
a large proportion of which was spent at his own properties. (Strauss took over
after William Barr clumsily attempted to remove her boss, who had clashed with
Barr over his investigations into Trump’s misconduct, but is reputed to be
independent.)
Even beyond these ongoing probes, the potential
for criminal liability is vast. Trump was impeached for leveraging support from
Ukraine for an announcement of an investigation of Joe Biden. But the plot
reportedly involved Rudy Giuliani and his clients hitting up Ukrainians for
business deals, even as Giuliani was representing Trump’s agenda — which is to
say, they were apparently seeking a personal payoff in addition to a political
one. The Washington Post has pried loose from the Secret Service just a
portion of the records of its spending at Trump properties, giving evidence of,
at minimum, severe conflicts of interest.
Trump has fired and intimidated the inspectors
general who monitor the executive branch for misconduct and has virtually
halted all cooperation with congressional oversight. It stands to reason that
turning over more rocks will reveal even more crimes. Upholding the rule of law
is going to lead straight to the kind of grisly spectacle Americans associate
with banana republics: the former president leaving office and going on trial.
“Usually, these kleptocracies are the ones that
hang on to power most bitterly,” says Daniel Ziblatt, a professor of government
at Harvard and the co-author of How Democracies Die. Trump is particularly
dependent on his incumbency. His various legal appeals to keep his financial
information from prosecutors have relied on his status as president, and he has
used campaign funds to finance his legal defenses. Most important, he has
bluntly wielded his power either to pardon his allies or to get the Justice
Department to withdraw its charges as a signal of the benefit of remaining
loyal.
The political climate will not easily permit a
peaceful, straightforward prosecution. The maniacal Republican response to the
past two Democratic administrations shows that the prospect of any real
Republican cooperation is a fantasy. The fever is not going to break. So what
is a post-Trump administration to do?
Biden’s position on this problem is easy enough: He will leave it up to the prosecutors. But
what will the prosecutors do? The prospect of fitting the orange man for an
orange jumpsuit, delicious as it may seem for MSNBC viewers (or readers of this
magazine), would create new problems of its own. To begin with, it would be
essential that any prosecution of Trump not only be fair and free of any
political interference but be seen as
fair. A prosecution that appears vindictive would serve only to confirm the
politicization of the law that Trump has done so much to advance. Prosecutors
in New York and the Justice Department can make every effort to apply the law
neutrally, not singling out Trump for punishment, but it will be difficult to
avoid the impression of banana-republicanism formed by the sequence of a Trump
criminal trial following an election defeat — especially when his supporters
have been primed to fight “witch hunts” for years. Want to lock up the “Lock
her up!” guy? Good luck avoiding the appearance of turnabout, however legally
legitimate the process.
An incoming Biden administration is going to need
a peaceful transition — not least because the federal government will probably
be either distributing or in the final stages of approving vaccines and
treatments for a pandemic that has killed nearly 200,000 Americans and is
crippling the economy. Biden will require months of some form of broad social
cooperation with measures like mask wearing and vaccine uptake, all of which
could easily and legally be sabotaged by a cornered Trump.
Biden has emphasized
some measure of social peace as a campaign
message and will be tempted to offer a pardon as a gesture of
magnanimity — why not use all his partisan chits on substantive policy goals?
Perhaps the closest American analogue is Richard
Nixon, whose fate was sealed by Gerald Ford’s decision to pardon. After an
immediate backlash, Ford came to be seen in later decades as a statesman and
was given the Profile in Courage Award by the John F. Kennedy Library a
quarter-century later in recognition of what became a bipartisan consensus
about the greater need for mutual toleration than the rule of law.
From the standpoint of 2020, that decision has a
different cast. The president has emulated Nixon, borrowing everything from his
slogan (even Nixon and his vice-president Spiro Agnew resigning in disgrace
somehow did not prevent their “Law and Order” slogan from surviving them in
unironic form) to his position that if the president does something, it’s not
illegal. The reforms put in place after Nixon, such as establishing the offices
of inspector general and walling off the attorney general from political
prosecutions, are in ruins. Trump adviser Roger Stone has a massive tattoo with
Nixon’s likeness on his back and revels in crookedness. Stone gave Trump a
campaign back channel to the stolen Clinton emails, then openly promised not to
“roll” on the boss and was duly pardoned.
Had Nixon faced prison, rather than walking away a
statesman, would Stone have set out to help elect a crook to the highest office
in the land? And would that president have gleefully mimicked so many of his
crimes? If Trump isn’t prosecuted, what will his successors do?
To think about a society in which Trump’s gangster-state logic prevails, consider
Russia. Putin is one of the richest people in the world, having amassed a net
worth believed to range up to $200 billion. Obviously, one doesn’t make that
kind of money honestly while spending decades in public service. Putin’s
political network is honeycombed with criminals, whose impunity is a direct
function of their ties to him. The way you can tell whether wealthy Russians
have fallen out of favor with the regime is that they’re charged with crimes.
While Americans tend to think of Putin as an autocrat, it’s more accurate to
see him as the boss of a criminal syndicate that gained control of a failing
state. Even in a second Trump term, America would be many steps removed from an
oligarchy like Russia’s but still several steps closer than it had been a short
while before.
Trump deeply admires Putin. (This is, in fact, the
most innocuous explanation for the submissive devotion he gives the Russian
president.) Using the tools available to him, Trump has tried to replicate a
version of the Putin approach to criminal justice. He has lavishly used the
pardon power to exonerate a wide array of criminals loyal to him or his party:
Joe Arpaio, Scooter Libby, Dinesh D’Souza, Rod Blagojevich (who, not
coincidentally, is the highest-ranking Democrat to endorse the president), and
Stone. Trump promised pardons to officials who would violate the law on his
behalf.
Legal scholar and Social Democrat Ernst Fraenkel
fled Germany in 1938 and three years later published The Dual State: A Contribution to the
Theory of Dictatorship. The “dual state” describes the way in
which Nazi Germany continued to operate under the formal, democratic legal
apparatus that had predated Hitler, while running a parallel state that
violated its own laws. Legal impunity for the ruling party is the key pillar in
a system that can destroy the rule of law even while retaining laws, judges,
and other formal trappings of a working system.
Trump hasn’t created a dual state, but he has laid
the groundwork for it, not only in his rhetorical provocations but also as a
kind of legal manifesto. In a series of letters, Trump’s lawyers have argued
that he enjoys almost complete immunity from investigation by law enforcement
or Congress. “The President not only has unfettered statutory and
Constitutional authority to terminate the FBI Director, he also has
Constitutional authority to direct the Justice Department to open or close an
investigation, and, of course, the power to pardon any person before, during,
or after an investigation and/or conviction,” they wrote in 2017. Last year,
the president and his lawyers described impeachment as “illegal,”
“unconstitutional efforts to overturn the democratic process,” and “no more
legitimate than the Executive Branch charging members of Congress with crimes
for the lawful exercise of legislative power.” One of his lawyers, Alan
Dershowitz, wrote that Trump could not be impeached even if he
handed over Alaska to Russia.
Trump’s incredible claim to be both the sole
arbiter of the law and beyond its reach was on vivid display at his nominating
convention, a festival of televised lawbreaking. The Hatch Act, passed in 1939,
prohibits using government property to promote any candidate for office. It has
been observed continuously, often in exacting detail. Political scientist Matt
Glassman recalled working as a staffer at the lowly Congressional Research
Service, where he had to remove old political memorabilia, like a 1960 Kennedy
poster and an 1884 Blaine-Logan handkerchief, lest those items be mistaken by
passersby as endorsements for a living candidate.
Trump
has smashed the Hatch Act to bits, to the point where he turned
the White House into a stage for his party convention. It isn’t that he was
simply willing to pay the price of breaking the law in order to get the best
backdrop. Trump’s aides told the New York Times he “enjoyed the
frustration and anger he caused by holding a political event on the South Lawn
of the White House, shattering conventional norms and raising questions about
ethics-law violations,” and “relished the fact that no one could do anything to
stop him.” Unashamed legal impunity was itself the message.
A democracy is not only a collection of laws, and
norms of behavior by political elites. It is a set of beliefs by the people.
The conviction that crime pays, and that the law is a weapon of the powerful,
is a poison endemic to states that have struggled to establish or to maintain
democracies. If the post-election period descends into a political crisis,
having all the relevant prosecutors promise immunity for Trump would be the
most tempting escape valve. Yet the price of escaping the November crisis, and
simply moving past Trump’s criminality by allowing him to ease off to
Mar-a-Lago, is simply too high for our country to bear.
Gulag, Anne Applebaum’s 2003 history of Soviet concentration camps,
argues in its conclusion that the failure to come fully to terms with the
crimes of the old regime had “consequences for the formation of Russian civil
society, and for the development of the rule of law … To most Russians, it now
seems as if the more you collaborated in the past, the wiser you were.” This
observation, written in the early years of Putin’s regime, captures a cynicism
that pervades Putin’s now-almost-unchallenged autarky.
Ziblatt likewise suggested to me that Spain’s
handling of the post-Franco era has soured in retrospect. In the immediate wake
of Spanish democratization, letting many of Franco’s fascist collaborators walk
away scot-free seemed like a masterstroke. But over time, a “growing resentment
of a collusive bargain between elites” discredited the system and fueled the
growth of extremism.
Before 1945, the international norm held that
deposed rulers, however crooked or abusive, should be allowed exile. Kathryn
Sikkink’s The
Justice Cascade: How Human-Rights Prosecutions Are Changing World Politics captures
the modern norm, which emphasizes the social value of transparent and fair
prosecutions as a deterrent. These cases apply most often, though, to states
transitioning from dictatorship to democracy. There is less precedent for what
to do when a reasonably healthy democracy elevates a career criminal to the
presidency.
Trump’s unique contribution to the decay of the
rule of law has been to define criminality in political terms, but he has also
joined a very old project in which the political right has long been engaged:
associating criminality with a category of people, so that knocking over a
7-Eleven makes you a “criminal” but looting a pension fund does not. Trump’s
unusual level of personal crookedness dovetails with a familiar reactionary
agenda of combining permissive enforcement of white-collar crime with a
crackdown on street crime — or, as Trump calls it, simply “crime.” The implicit
meaning of “Law and Order” is that order is distinct from lawfulness and that
some crimes create disorder while others do not.
Trump’s reversals of Obama-era police reforms and
his open contempt for the law send a signal about whom the law constrains and
whom it protects. The fashioning of a more equal society means sending a
different message: The rule of law must bind everyone, just as it protects
everyone. A world where the power of the state can be brought to bear against a
person who was once its most famous symbol of wealth is one where every
American will more easily imagine a future in which we are all truly equal
before the law.
*This article appears in the
September 14, 2020, issue of New York Magazine. Subscribe Now!
The
People v. Donald J. Trump
The criminal case against
him is already in the works — and it could go to trial sooner than you think.
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