I've always liked Jonathan Chait, dating back to his TNR days. Over the last several years—long predating Trump—his New York magazine work has been excellent.
But his new long piece on the question of whether or not Donald Trump should be prosecuted post-presidency might be the best thing he's written on politics. And I say this even though I don't necessarily agree with his conclusions.
The piece is here and it's very long and very much worth your time. But the nub of it is this:
Trump's rule-of-law shattering presidency has created a problem for our political order that will extend past his term in office. Should he be prosecuted for possible crimes? Or should prosecutors decline to pursue him?
Each choice supports one good while weakening the other.
If prosecutors pursue Trump, they will be upholding the rule of law and deterring future bad actors who may come to the White House. But such prosecution would almost certainly be seen as illegitimate by half the country, would deepen our divisions, and further raise the temperature in a political climate which is already in dangerous territory.
If prosecutors decline to pursue Trump, it will create space for the healing of public scars and give the country the opportunity to move past the Trump years and into a healthier political environment. (This does not mean joyful harmony in America—just the possibility that, say, the percentage of the population sympathetic to QAnon might fall below 20 percent.) On the other hand, giving Trump a free pass creates moral hazard for future would-be gangster presidents.
What Chait explores is: Which good is more valuable to America right now? Adherence to the rule of law, or a restoration of the sense of legitimacy to our political system?
It's important to understand, right off the bat, that whichever one you pick, the downside is substantial. We're not looking at "good" options here, only trying to find the less-bad one.
Here's where Chait lands:
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. . . .
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.
All of this is correct. And yet I don't think it's where I come down.
Not prosecuting Trump post-presidency probably does create problems down the road.
But I'm not entirely sure we're going to make it to down the road.
Look, we've got militia members running around the country sun's out/guns out stizz. We've got Hugh Hewitt's fill-in radio host basically calling for armed insurrection. |
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We've got a growing number of people glomming on to a conspiracy theory about secret satanist pedophiles ruling the world.
Oh, and we've got the coronavirus raging out of control with the Mask Wars Part Deux looming to break out the minute after a vaccine becomes available.
Do I think we're headed for a total breakdown of the civic order? Probably not.
Do I think a total breakdown of the civic order is theoretically possible for the first time since the Great Depression? Yes.
So my tentative view is that you triage the problems. And in triage terms, we try to put out the wildfire in our public square first. If we succeed, then we have the opportunity to try to shore up the rule of law.
Because buttressing the rule of law today won't matter if we descend into widespread, open civic unrest that undermines the legitimacy of the political system itself. That would be a generational, ongoing crisis. And once the toothpaste is all the way out of that tube, then there is no going back until the people who have decided to be against the system die off.
I'm not naive. I understand that there's a subset of the population which is going to remain in their current hyper-antagonistic posture, no matter what. As of right now, there are at least 60 million of those people. That's a lot.
But if you doubt the importance of leadership, look no farther than what Donald Trump with regards to mask wearing. Any normal president would have defanged the opposition to masks from his side by openly embracing them and de-politicizing them. Sure, you still would have had your don't-tread-on-me "slave mask" holdouts. But they would have been the militia-style, white nationalist fringe. Instead, it's close to the median Republican position.
It's possible that good presidential leadership which intentionally tries to deescalate our current crisis can bring enough people off the ledge to return the Kurt Schlichters of the world to the fringe, instead of having them sitting smack-dab in the middle of respectable Republicanism.
If that doesn't happen, then the breakdown of the rule of law becomes only a secondary problem.
thebulwark |
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