Who’s Really Undermining the Rule of Law?
You hear it said in responsible quarters of the right that Democrats are undermining the rule of law by handing up an indictment of Donald Trump. Sure, they acknowledge, Trump has done terrible things, but by bringing this case, Democrats are twisting the law to get at one particular defendant, and that’s not the way things should work. Further, they argue, Democrats are inviting retaliatory lawsuits in the future and setting America on the path to banana republic status. These abuses, they urge, are just as dangerous, or perhaps more dangerous than what Republicans are saying and doing in Trump’s defense.
I beg to differ. The indictment by Manhattan District Attorney Alvin Bragg is risky, but nothing about it undermines the rule of law. The risks are political and prudential. The Republicans, by contrast, are chest-deep in contempt for law.
We saw one political risk of Bragg’s indictment play out even before anyone had read the charges. Call it the Rally Round the Criminal effect. It has been evident for some time that Republicans thrill to imagined persecution. After the completely justified, arguably essential, search of Mar-a-Lago for stolen top secret documents, the GOP sprang to Trump’s defense in Pavlovian fashion. It wasn’t just that their knees jerked; it was the language they adopted, dipping autonomically into the extremist/incendiary vocabulary they’ve learned at Trump’s knee. It was “defund the FBI” (per Marjorie Taylor Greene), and “impeach Merrick Garland” (per Josh Hawley), and eliminate the “brownshirts of the FBI” (per Paul Gosar).
Another political risk: Bragg played to Trump’s strengths in some ways. The news of the impending indictment (announced by Trump himself with a faulty timeline) made Trump the center of attention and stoked his favorite posture—aggrieved victim of the Democrats and the “deep state.” As recently as February, Ron DeSantis was gaining on Trump as the choice of Republicans for the 2024 nomination. On February 26, DeSantis was the choice of 30 percent of GOP voters, compared with Trump’s 43 percent. But news of the impending indictment sent Trump’s stock up. In the last four weeks, Trump has improved his standing by 11 points and is now favored by 54 percent of Republican voters.
A second Trump presidency would be a catastrophe for the United States, and accordingly, anything that boosts Trump’s popularity among Republicans and makes it more likely that he is the 2024 nominee is perilous. In a closely divided country like ours, any nominee of a major party stands an excellent chance of election. Recessions, deaths, natural disasters, financial crises, and other unforeseen events can swing the outcome.
Beyond the Rally Round the Criminal effect, there is the danger of firing at the king and missing. If, as has been reported, the case is weak (due to issues relating to the statute of limitations and yoking a state misdemeanor to a federal crime to yield a felony charge), the chances of the case being successful fall. So another risk of the Bragg indictment is that it results in an acquittal, which will further strengthen Trump within the GOP and even possibly among independents.
Another risk is that by going first with a case about hush money (if that is indeed what is charged), Bragg will have limbered up the GOP’s partisanship muscles. “Where is the indictment of Bill Clinton for similar conduct?” they will demand. Admittedly, this Republican party is extremely far gone in the bad faith department. But if the first indictment had come from Fani Willis regarding solicitation of election fraud, or from Jack Smith concerning conspiracy to obstruct an official proceeding of Congress, or obstruction of justice, the whataboutism would be a bit more difficult to muster. They could not ask “Where is the indictment of Biden for soliciting election fraud?” But now, those additional indictments, if and when they arrive, will be slotted more easily into the “They’re Just Out to Get Trump” folder that Republicans have conjured.
None of that casts any cloud on the lawfulness of what Bragg has done. Trump’s lawyer/fixer went to prison for this crime. There is no question that a crime was committed. Bragg has followed the rules. Trump will get his day in court. He will have every opportunity to argue his innocence to a jury of his peers.
By contrast, Republican officials and officeholders who are rallying around Trump are implicitly and sometimes explicitly endorsing his attacks on the justice system. Keep in mind that Trump has denounced the African American district attorney as a “Soros-funded animal.” He has called the prosecution a “witch hunt.” And he has encouraged his supporters to violently protest his indictment. That is what Republicans are sanctioning. GOP Chairwoman Ronna McDaniel declared that the indictment “endangers us all.” Tucker Carlson offered that it was “probably not the best time to give up your AR-15s.” Nikki Haley sniped that it was about “revenge rather than justice.” Mike Pence denounced the indictment as “outrageous.” Ron DeSantis vowed to defy his constitutional duty and refuse to extradite the accused. Kevin McCarthy accused Bragg of “irreparably damaging our country in an attempt to interfere in our presidential election” and of “weaponizing our sacred system of justice” which, he continued, “the American people will not tolerate.” In the wake of Trump’s calls for people to “PROTEST! PROTEST! PROTEST!” to say nothing of January 6th, it strains credulity to believe that McCarthy himself is not flirting with incitement.
The antisemitic overtones of the “Soros-funded” meme did not inhibit Mike Pompeo or Elise Stefanik from repeating it.
So while Bragg may have done something imprudent, he has followed the law in every way. From one point of view, he has vindicated an important principle—that no one is above the law. Republicans, by contrast, have demonstrated reckless contempt for rules, order, and justice in service to their deranged master.