Does Preserving Democracy Require Letting Trump Off?
It’s hard to weigh domestic tranquility against justice.
In the little world in which children have their existence whosoever brings them up, there is nothing so finely perceived and so finely felt, as injustice. —Charles Dickens
It isn’t just children who burn with indignation about injustice. The longing to see right prevail and wrong punished is arguably one of the fiercest human desires, along with the desire for recognition and the yearning for meaning. That’s why it is nothing less than agonizing to consider that in the case of Donald Trump, justice may have to be sacrificed on the altar of order.
That is the argument advanced by my Beg to Differ colleague Damon Linker:
Large numbers of Republicans think Democrats are out to destroy Donald Trump (and really, any Republican who dares to challenge the political and cultural dominance of the left) by any means necessary, including through the use of federal law enforcement. . . . This is a dangerous problem, because it shows both that the rule of law is already in an advanced state of decay and that pressing charges against Trump, putting him on trial, and potentially throwing him in jail will accelerate this process, making the decay far worse—because each of those acts undertaken against Trump will confirm the right in its conviction that ‘the rule of law’ has already been replaced by rank partisanship.
Every fiber of my being rebels at this conclusion. Citing the fact that large numbers of Republicans think Democrats are out to get Trump—and therefore that any legal action will be interpreted as illegitimate is exactly the argument that Ted Cruz and others made about the “stolen election.” Explaining his vote not to certify the results, Cruz observed that “We right now have a substantial chunk of our country that has real doubts about the integrity of the election.” Well, yes, because that chunk of the country was lied to repeatedly by Trump and his obedient sycophants in the Republican party. It’s as if a food inspector had repeatedly lied about unsafe food handling at a local restaurant and then refused to issue a health certificate on the grounds that many people believed the place to be unsafe.
I’ve chosen to highlight Cruz, but could easily have substituted any random Republican. The non-liars in the GOP can be counted on one hand.
Now the Republican party, as if with one voice, is declaring that the Department of Justice’s search warrant for pilfered government documents, including highly-classified documents, is a pure political attack on el Jefe. Not just the wildest MAGA caucus in the House, but major figures in the GOP discarded centuries of tradition like so much pocket lint. Rick Scott compared the FBI to the Gestapo, and Kevin McCarthy called the search “an intolerable state of weaponized politicization.” Paul Gosar, who doubtless caused less pain when he was a practicing dentist than he does as a member of Congress, tweeted, “We must destroy the FBI. We must save America.” Marjorie Taylor Greene posted that “Last night’s tyrannical FBI raid at MAR is unifying us in ways I haven’t seen. In January, we take on the enemy within.” Greene and others in the party supposedly outraged by calls to “Defund the police,” took up (unironically) the call to “Defund the FBI.” And Rand Paul proposes immediately to repeal any law that Trump might have transgressed, or at least the Espionage Act.
The world is upside down. It is the Republicans who are completely politicizing the rule of law by declaring that any accountability for their master is ipso facto illegitimate. Hardly a single Republican office holder suggested waiting to see what the evidence was before reaching a conclusion. If they’d investigated for five seconds, they could have learned that the National Archives and Records Administration as well as the Department of Justice engaged in lengthy negotiations with Trump and his representatives to get the stolen documents back. “They could have asked nicely,” Trump insists. Please. The relevant agencies reached out to Trump repeatedly starting in May of 2021 requesting the return of documents that Trump had taken. On June 3, 2022, four investigators, including a DOJ counterintelligence specialist, paid a personal visit to Mar-a-Lago to move things along. They were thwarted by Trump and his lawyers, one of whom signed a document affirming that all classified documents had been returned. That was false. (And that false statement may constitute a crime.) There were more calls and requests. Unavailing. On June 22, DOJ served a subpoena demanding the materials. Also unavailing. (Failure to comply with a subpoena is also a crime.) Only after all of that did the DOJ, fully lawfully, seek a search warrant.
Even now, with the Trump base baying about Gestapo tactics and Marxist “regimes,” the Department of Justice is clinging to tradition and norms. Justice officials are resisting calls to release the affidavit that supported the search warrant. There are many reasons. The government objects that release would “chill future cooperation by witnesses,” and “serve as a roadmap to the government’s ongoing investigation, providing specific details about its direction and likely course.” There’s another reason to resist disclosure, though this will be lost on Trumpworld: the allegations in an affidavit are meant only to establish probable cause to believe a crime was committed. If released to the public, the unrebutted allegations could compromise the target’s rights.
But the Justice Department is living in a world of laws, rules, and traditions that the GOP is attempting to upend.
Let’s pause to consider what the Republican party’s posture means. They are rallying around a man who attempted to stage a coup; a man who used lies, intimidation, bullying, and eventually violence to try to retain office after his defeat. If nothing did it quite so thoroughly before, the past week has demonstrated beyond doubt that the Republican party is a threat to democracy.
Even now, the former president is playing the part of Mafia don. Through an intermediary, he apparently contacted Attorney General Merrick Garland saying, “The country is on fire. What can I do to reduce the heat?” Trump’s lackeys are portraying this as high-minded patriotism. “Trump will do whatever he can to help the country” read a Fox headline. Just the opposite.
Just as he did on January 6, when he rebuked a frightened McCarthy with the comment,“Well, Kevin, I guess they’re more upset about the election than you are,” Trump is using the grass-roots anger he stoked as a cudgel. The country is not, in fact, on fire, though some Trump zealots have threatened the FBI with a dirty bomb, crashed a car into a Capitol barricade, and opened fire on an FBI field office. That suits Trump. The power to incite violence is something a lost election has not removed from him. Further into his Fox interview, he lays out the threat clearly:
The country is in a very dangerous position. There is tremendous anger, like I've never seen before, over all of the scams, and this new one—years of scams and witch hunts, and now this. . . . There has never been a time like this where law enforcement has been used to break into the house of a former president of the United States, and there is tremendous anger in the country—at a level that has never been seen before, other than during very perilous times.
Linker argues, with a heavy heart, that we have no choice but to refrain from making Trump a martyr with a prosecution. Like it or not, a significant constituency will have its faith in the rule of law further eroded by a Trump trial with consequences we cannot tolerate. The Trump minions are openly discussing civil war. And so, though it means surrendering to intimidation, the wiser course is to refrain.
Opinion polls bolster Linker’s argument. Two August polls show that Trump’s favorability rating hovers around 42 percent, which is far below his disapproval of between 55 and 58 percent, but about even with President Biden’s approval rate. The polls were conducted before the FBI’s search of Trump’s estate, but polls following the raid found that 72 percent of Republicans “strongly or somewhat” disapproved of the FBI’s action.
Republicans have succeeded in undermining confidence in the rule of law, and though I waver on this, I find Linker’s argument that pursuing Trump criminally will only speed the descent compelling.
But that doesn’t mean surrender. As Liz Cheney has demonstrated with her inspiring leadership, the truth can yet chip away at the wall of lies Trump has erected. Only 28 percent of Americans identify as Republicans (versus 29 as Democrats and 41 as independents), and about 45 of those independents lean Republican. So a total of about 46 percent of the electorate either identifies as Republican or leans Republican. While the leaners tend to vote Republican, that’s because there are usually only two choices on the ballot. There’s a reason these voters decline to be identified with the party label. Something is troubling them. Even among self-identified Republicans, some percentage disapprove of Trump. For example, 15 percent of Republicans in the recent Politico/Morning Consult poll approved of the FBI’s actions at Mar-a-Lago, and a July New York Times/Sienna poll found that 20 percent of Republicans think Trump "went so far that he threatened American democracy."
That is the crucial foothold for climbing out of the abyss into which Republicans threaten to plunge the nation. Buttress that foothold. Bolster it with truth. Never stop making the case. The GOP has an enraged mob at its core, but sane democrats and Democrats together have the numbers.