Is There Value in Showing Restraint? Merchan/Trump and Biden/Netanyahu

One of the most frustrating aspects of the degradation of US politics is that some very prominent people continue to extol the old rules, acting as if there is not only virtue but an affirmative payoff when politicians and public officials refuse to fight fire with fire.  In the last two weeks, I wrote what turned out to be a series of three columns suggesting that people who are not fascist-curious might soon need to save the rule of law by violating it.  I mostly talked about this in regard to US Democrats' responses to Donald Trump, as well as Canada's two non-Conservative parties' responses to reactionary populism, in both cases noting that the non-reactionary parties seem unprepared to "go there."

Here, I want to discuss two specific recent examples of people in positions of responsibility -- one a judge, one a President -- who clearly seem to believe that they will earn points by being restrained and refusing to act unless pushed to the absolute limit.  In both cases, I believe that the delays were at best excessive and at worst disastrous, but I will concede that there is something to the idea that even the most extreme situations might arguably call for more caution than I personally think is wise.

Let us begin with the judge.  As almost everyone knows, Justice Juan Merchan of the New York State Supreme Court is presiding over a criminal trial of Donald Trump, who is accused in a multi-count indictment of falsifying business records.  Trump, of course, is trying the case in the court of public opinion, holding what amount to planned press conferences in front of a gullible and enabling media swarm outside of the courtroom in Manhattan.  He is also, of course, posting frantically on social media at all hours.

The problem is that Trump is not simply trying to get the broader public on his side after having tried to taint the jury pool, which is bad but not the worst thing that he could do.  That worst thing is to put people's lives in danger, using mafia-like signaling to bad actors (including potential "stochastic terrorists") that Trump is displeased with prosecutors, court personnel, witnesses, and jurors, as well as their family members.

There was once at least the hope that Trump would stop such tactics, but it is hardly a surprise that he has been continuing to act out in ways that caused potential jurors (including one juror who had in fact been selected) to drop out of the case out of fear for their lives and those of their loved ones.  And it hardly stops with the jurors.  As the headline to a Reuters column puts it today: "Trump blasts his trial judges. Then his fans call for violence."

The attacks on judges and prosecutors are more surprising, because there is usually no upside to such tactics.  As a federal prosecutor who worked on organized crime trials put it to me once: "No, I'm not worried about the mob coming after me.  I'm replaceable, and they know it.  Judges are replaceable, and the mob knows that, too.  You know who isn't replaceable?  Witnesses.  And the mob definitely knows that."  He pointed out as well that the mob would, if anything, go out of its way not to do anything to non-witnesses, because they knew that the full weight of law enforcement would rain holy hell on them if anything bad befell anyone who works in the criminal justice system.

Trump, of course, sees all of this quite differently.  He still seems to believe (wrongly, in my opinion) that delay is his best strategy.  Moreover, he thinks (or says he thinks) that the full weight of law enforcement has already been brought to bear against him, which means that he loses nothing by antagonizing everyone involved in the trial.  Beyond that, his impulsiveness and sense of grievance combine to make it impossible for him to stop lashing out.

Courts have been dealing with such problems for as long as there have been courts.  Mob trials infamously include efforts to flip jurors by threatening their families, and the very existence of witness protection programs indicates just how serious the courts have needed to be in trying to protect those who are willing to do the right thing.  Trump is undeniably more of a bad actor in this context than even the most coldly calculating malefactors, but what he is doing is not categorically different from anything that courts have had to battle against in any country at any time.  And courts have tools to take into such battles.

So it was no surprise that Justice Merchan used one of those tools early on, issuing a gag order requiring Trump not to attack the people he was attacking.  It turned out that New York State has done a bad job of keeping its tools sharp, however, as we soon learned that there is a statutory maximum financial penalty of $1000 per violation.  I should add, however, that it probably would not matter even if the judge could impose larger penalties.  If they were significantly larger but not enormous -- $100,000 per violation, say -- Trump could solicit donations to cover his bills; and if they were so large as to be a deterrent, we would see the same thing we saw after Trump was hit with a judgment north of $450 million in one of the NY civil suits against him: an appeal claiming that a big-enough-to-hurt financial penalty is not allowed specifically because it is big enough to hurt.

Speculation about an alternative universe aside, however, the reality in this universe is that the judge made it very clear from the beginning that he was going to do everything possible not to switch from fines to jail time for violations of the gag order.  Indeed, even as he was imposing his little fines after Trump predictably began to violate the order, the judge told Trump that he was giving the former President every opportunity to avoid being jailed for contempt: "Mr. Trump, it’s important you understand, the last thing I want to do is put you in jail. You are the former president of the United States and possibly the next president as well."

Did Justice Merchan have any other choice?  Of course he did.  The obvious alternative was to say that no defendant should receive special treatment, that Trump was doing things that would land any other defendant in Rikers, and therefore that Trump would suffer the same consequences for the same (actually worse) behavior.  Again, there is nothing legally unique about what is happening here, and courts deal with this all the time.

Returning to the larger question, then, what did the judge hope to accomplish here?  I suspect that he never expected Trump to change his behavior, so from the beginning this was a matter of going through the various steps that were inevitably going to follow.  In the end, the judge knew how he would justify his decision: "I did everything I could before taking this fateful step, but at some point it had to be done."  I suppose that the judge might also have been thinking about whether jail is "exactly what Trump wants," as some have said, but if that is the case, then there truly would be no point at which the judge would toss Trump in the clink.

I will come back to the implications of this in a moment, but I will change my focus briefly to draw a comparison to how President Biden has responded since October 7 to the actions of Benjamin Netanyahu and the government that he leads in Israel.  In a Verdict column in November, I noted that Biden has painful personal experience dealing with someone who was acting rashly and destructively (including self-destructively), because his living son has had trouble with substance abuse.  Noting that there is a maddeningly hazy line between being patient and being an enabler, my observation was that Biden's initial embrace or Netanyahu -- even though it was very clear from those early days that Biden did not like what Netanyahu was doing -- amounted to erring on the side of enabling.

The hope on Biden's part, of course, was that being on good terms with the prime minister would allow the US government to encourage better choices, whereas coming down hard might cause Netanyahu to make even worse decisions.  Yet more than seven months later, Biden finally reached the point where he decided to do what others thought he should have been doing all along, most importantly by withholding a recent shipment of offensive weapons.

Although these two situations -- a judge possibly imposing short jail sentences and a president choosing for the first time to take a harder line with an ally -- are different in obvious ways, the common element is that both men clearly decided that restraint was the wiser course.  Why?  In the NY case, what Trump has been doing has put real lives in danger.  In the Gaza conflict, Biden seems clearly to believe that Netanyahu's decisions have ended lives that need not have been lost.  What could outweigh all of that?

As I noted above, this can all be described as a calculated effort to seem sober-minded, with each decision-maker saying something like this: "I tried and tried and tried.  I avoided doing this, but I was ultimately faced with the reality that literally nothing else was working.  I had no choice.  Give me credit for being more than reasonable."  Does that make sense?  More importantly, would that have its intended effect?

I will set aside the question of whether the consequences of waiting are so bad that delay is the worse choice even if the public reactions were as Merchan and Biden hoped.  It might be reasonable to respond to either man: "Yes, you got the public credit that you wanted, but at what cost?"  My interest here is in the threshold question of whether the strategy of being the patient adult could even work.

There is an easy way to make the case that no such credit will ever be forthcoming.  If Trump ends up going to jail for contempt, neither he nor any of his worshipers will say: "You know what, that Merchan guy really did keep his powder dry and gave Trump every benefit of the doubt."  Obviously, they will say the same thing they would have said if the judge had instead treated Trump like any other defendant: Witch hunt!  Corruption!  Bias!  They will say that Merchan is doing what he is doing because that is what he wanted to do all along.

Meanwhile, the Republicans (and some Democrats) predictably reacted harshly to Biden's decision.  Some have even talked about impeaching him over it.  Humorously, they are likening Biden's foreign policy decision to what landed Trump in his first impeachment trial -- because both guys withheld foreign aid, right?  The stupid train is running at full throttle.

Does this mean that it was foolish for Merchan and Biden ever to imagine that they could put themselves in a better position by showing admirable (or, depending on one's substantive views, excessive) restraint?  Not necessarily.  The audiences in these cases are not the hard partisans but the public at large.  And Biden in particular has long been attuned to the sensibilities of the DC pundit class, that is, the people who impose ridiculous double-standards that always demand more from Democrats.

One of the most important among those voices speaks for the hive mind of The Washington Post's editorial board.  These are the people who clutch their pearls about "court packing" and generally do everything possible to tell Democrats to be docile.  Interestingly, while I was writing my columns last week about whether non-fascists might have to take an ends-justify-the-means hard power approach to fighting Trumpism, those editors collectively asked: "In the campaign against Donald Trump, do the ends justify the means?"

Ooh, I thought, does that mean that they are finally seeing just how dire the situation is?  No, not at all.  The "worrying" and troubling -- "even dangerous" -- things that Biden has done include exactly two things: delaying a ban on menthol cigarettes, and opposing Nippon Steel's offer to buy US Steel.  The horrors!  The board ended with this:

Which brings us to our final point about the menthol ban delay and other such policy gambits: At least they’re reversible. The FDA could revisit the ban after the election, and the ultimate decision on the U.S. Steel sale awaits input from regulators. On the other hand, a Trump victory could eliminate any chance of a good policy outcome in either case. So trim your principles, Democrats, and pander away. Just remember: The only thing worse than playing Machiavelli for a good cause is playing Machiavelli for a good cause and losing.

These are exactly the kinds of people that Merchan and Biden must have in mind when thinking about whether they will receive credit for not being rash.  The problem, of course, is that there is no limit with those people.  There is always an argument for more restraint.  After all, when many Democrats started talking about expanding the Court, they were doing so only after playing by Marquess of Queensberry rules forever; yet the response to "We've finally had enough" was a horrified: "Oh, no no no no.  You're being unreasonable.  Where is your self-restraint?  Patience is a virtue."

Even so, I have not seen the self-appointed defenders of restraint freak out about Biden's decision regarding offensive military shipments, and if Merchan ultimately jails Trump, perhaps those people will be similarly sanguine.  So maybe the strategy of restraint works with this target audience?  Possibly, but I continue to be skeptical.  We do not know that they would have gone bonkers if Biden had changed tactics three months ago (or six), nor do we know that they would have flopped onto their fainting couches if Merchan had simply said "No special treatment" from the beginning.  That is the problem with counterfactuals.

I do think that both Merchan and Biden have been exceedingly patient.  I am, in any case, skeptical that they got what they wanted, and it is extremely difficult to see how it could have been worth it.