Lock Him Up?



Lock Him Up?

by Jonathan Chait, nymag.com

September 14, 2020 04:30 AM

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.

Unsurprisingly, an enormous number of his political aides have been charged with, or convicted of, felonies: Michael Cohen (tax fraud, lying to Congress), Paul Manafort and Rick Gates (several financial crimes), Roger Stone (obstruction, witness tampering, and lying to Congress), Michael Flynn (lying to the FBI), Steve Bannon (fraud), Lev Parnas and Igor Fruman (illegal campaign donations and falsifying statements and records), so far.

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.