Tuesday, March 28, 2023

Donald in the Dock?

As the will-he-or-won't-he-be-indicted legal and political soap opera continues, the two warring factions into which we as a country have divided are arming themselves with their respective rhetorical weapons - ritual incantations of "no one is above the law" and "without fear or favor" on one side vs. warnings against "politically charged prosecution" and the "weaponization" of justice by the "deep state" on the other.

Now, I have long been somewhat dubious about any Trump indictment because of the further damage which that would likely do to whatever is left of our democratic culture and institutions. When John Adams left the White House at 4:00 a.m. on March 4, 1801 - an event rightly heralded as establishing the precedent that the losing party peacefully gives up power to its opponents after losing an election - he did so reasonably confident that he would not be arrested, indicted, or prosecuted by his successor. That understanding has remained a normal assumption of American democratic politics - and a mark of distinction, separating American democracy from many other less fortunate states (some of them sometimes pejoratively labeled "banana republics") where a president may feel compelled to maintain himself in office forever in order to avoid prosecution, imprisonment or execution at the hands of the opposition. It is bad enough that impeachment has now been normalized so that it is increasingly routine to expect that a House of Representative controlled by the opposition party will impeach a president. What will be the consequence of normalizing prosecution of former presidents by officials of the other party? Amid all the virtue signaling repetitions of "no one is above the law" and "without fear or favor," I recommend some consideration of those possible side-effects, ominous consequences for democratic culture and institutions.

(These, what might be called long-term, constitutional, and political-culture concerns, are prior to and apart from whatever worries one may have or feel regarding the possibilities of anti-government, right-wing violence that may be anticipated as our country continues down this precarious path.)

That said, there can be no doubt that Trump has uniquely damaged our democratic culture and institutions and represents a radically more significant threat that any of his predecessors ever did (including the much maligned Richard Nixon of Watergate fame). Such an unusual threat may require an unusual response, but that does not justify ignoring the real or potential side-effects of such a response.

Obviously, January 6 represented a unique assault on our democratic culture and institutions. If ever impeachment was justified in our history, that was when it was most justified. And, of course, had Trump been immediately impeached and then convicted by the Senate, then he could have been disqualified from federal office, and the specter of his running again would not now be haunting the country, which would have been the best and most efficacious penalty for his offenses (not to mention the one actually intended by the constitution).

But, of course, thanks to Republicans' loyalty to their Dear Leader, that didn't happen. So we are threatened with this unfortunate and extremely divisive spectacle of possible criminal prosecutions being directed by officials of the party in power against the former president from the other party who just happens to be running for office again!

Add to that the obvious concern that the expected New York case is widely recognized as the weakest one, an attempt tp elevate a real but relatively minor infraction into something more significant - not totally unlike what the Republicans tried to do with Bill Clinton's personal moral lapses in the late 1990s. If Trump deserves to be prosecuted, shouldn't it at least be for something  both more serious and more likely to succeed in court? Shouldn't it be for his attempts to overthrow the 2020 election and prevent the constitutional process of transferring power from one party to another? I am not a lawyer, but in my layman's legal understanding the case against Trump that comes closes to that standard would be the Georgia one - not this peculiar New York case.

NY Times columnist David French, who is a lawyer, has expressed skepticism about the New York case. He describes the case as "unique" ... "the first-ever indictment of a former president brought by a state district attorney — one that his predecessor didn’t choose to seek and that relies on federal criminal claims that the Department of Justice declined to prosecute" (NY Times, March 26, 2023).

So, even assuming some sort of prosecution somewhere may be warranted, of all the things that Trump has done, why - of all possible charges - this relatively minor offense? And doesn't that increase the risk of acquittal or of a conviction being overturned on appeal, and where would that leave all our "no one is above the law" virtue signaling?

Oh the other hand, the political context in which this is occurring may well force the New York DA into acting. Perhaps no indictment was actually likely a week or two ago; but now, after all the Republican political posturing, it would appear as if the DA were caving in to political pressure if he did not indict.

As a country we find ourselves in one of those dilemmas from which there seems likely to be no good outcome. And, as usual, we can blame Trump and his political party for putting us in this position in the first place!

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