Between the hosts and their law prof commentators on MSNBC, the only remaining question is which prison will house Trump after his conviction. Mind you, that Trump has yet to be indicted is hardly an issue. Larry Tribe argues it’s a fait accompli, and who would doubt a Harvard law prof, right Dersh? And yet, the steamroller of justice they passionately believe is about to run all over Trump has yet to budge.
Should it? Damon Linker argues that, guilty as Trump may be, his prosecution would be inescapably viewed as political and put the law, rather than Trump, on trial. And he’s got serious doubts whether the law would be acquitted.
One of the many ways in which Trump has demonstrated his skill as a demagogue is in his ability to provoke severe reactions in his political opponents that he then turns around and points to as evidence of their untrustworthiness.
These reporters call themselves journalists, but they’re left-wing activists with press credentials! They’re out to destroy me!
Those members of the intelligence community say they only care about defending the country, but they’re spreading ridiculous lies, calling me a Russian asset!
That prosecutor says he’s just upholding the rule of law, but he’s clearly gunning for me!
You know the drill. We all endured it for four interminable years.
Then again, Trump didn’t accomplish this all on his own, the media, for example, doing every possible to prove their lack of integrity in response, providing plausibility to Trump’s whining victimhood. And this same approach, never losing but always being the pathetic victim, captures the weepy hearts of the empathetic on the right. Can facts, evidence and law ever dry their fragile tears?
The case for indicting Trump comes down to the claim that it should be illegal to attempt the overthrow our democracy by disregarding the outcome of an election, and there should be severe legal consequences for doing so. Otherwise Trump himself (and other would-be tyrants to follow) will be emboldened to try it again.
This is a powerful argument. A public trial, presentation of evidence to a jury, conviction, and punishment, with all of it widely viewed as legitimate—this is what justice demands when it’s viewed in the abstract and treated as an automatic process taking place fully apart from politics. If this were realistically achievable, I would fully support it.
But of course this isn’t realistically achievable.
As Trump would half-jokingly say, he could shoot someone on Fifth Avenue and his supporters wouldn’t care. One might think he supporters, hearing him say something so outrageously asinine and offensive would recognize the scam, but no, which is why they’re his supporters in the first place. Here, it’s worthwhile to draw an important distinction between people who supported Trump because they adored this cartoon character as opposed to people who held their nose when voting for him because they found the other side even more insufferable.
The line between law and politics is permeable. Laws are made by politicians, and prosecutors are either elected or appointed by those who are. Moreover, a prosecutor’s decision about whether to seek an indictment is far from automatic. It’s a judgment call, and politics is one factor influencing it. This is especially so when the prosecutor is the Attorney General appointed by the currently serving Democratic president and the alleged criminal is the Republican former president of the United States.
Because of this permeability between law and politics, upholding the rule of law is a tricky business. Any appearance of bias, unfairness, hypocrisy, double standards, favoritism, or animus can do enormous damage, undermining public faith in the distinction between justice and officially sanctioned persecution of political opponents.
Garland has done nothing to suggest that he’s a political animal. Sure, he was nominated by Biden, a Dem president, but that’s how it works. Still, between his Supreme Court nomination being derailed and his appointment by Biden, the dots will be connected in the genius minds of Trump supporters for whom paranoia is like water to a fish. But are there any set of circumstances where Trump could be prosecuted, even if there were a thousand videos of him shooting someone on Fifth Avenue, where his sycophants wouldn’t come up with some excuse like a space alien morphed into a look-alike?
But the thing about this MO is that it works whether or not the person on the other side has done anything unprofessional or unfair. The case against Trump for his actions leading up to and on January 6 looks rock solid. But regardless, he is bound to respond to any indictment by impugning the Attorney General’s motives. Dummy Democrat Merrick Garland is so pissed off that I put Neil Gorsuch in the seat Obama promised him on the Supreme Court that he’s trying to throw me in jail for pointing out that Old Man Biden stole the 2020 election!
The rule of law itself would be on trial in any prosecution of Donald Trump, and I’m not at all sure it would end up exonerated in the eyes of tens of millions of Americans. The additional damage to our capacity for self-government could be considerable.
Linker isn’t wrong. Trump will say anything, because that’s what he does no matter how obviously false and completely idiotic, and those inclines to lick his anus will lick away. Whether that’s tens of millions is unclear, but it could be even if it’s not nearly as much as some assume. Some of us would like to believe that the majority of Trump voters are well aware of who and what he is, and are constrained to support him anyway.
But still, Linker’s strong argument against prosecuting Trump, and the failure of the “rule of law” in the eyes of millions of Americans, is largely the same argument in favor of prosecuting Trump, with millions of Americans, likely more than Trumpers, seeing a president walk away from criminal conduct as the failure of the rule of law.
Whether Trump committed a crime, should be indicted and can be convicted remains an far more open question than the television suggests, and unless and until he’s indicted, there really isn’t much to discuss about the prosecution of Donald Trump. But if the evidence is there, and the balancing of law to politics could just as easily tip either way, the law should prevail. Indeed, the law must prevail.
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