Nothing is ‘Legally and Politically Tricky’ When There Is No Rule of Law
Because this is my first column published after a New York County jury found Donald Trump guilty on multiple felony counts, I suppose I ought to say something about the importance of the verdict. For starters, I agree with everything that Professor Dorf wrote last Friday in "Will the Trump Guilty Verdict Make a Difference to Enough Voters to Affect the Election's Outcome?" much of which rhymes with my own analyses in four previous columns on Dorf on Law (June 28 and August 4 of last year, February 29 and March 21 of this year) along with one column on Verdict on March 21: "Delaying Trump’s Trials Is What Savvy Democrats Should Have Wanted All Along."
The bottom line is that no one knows whether this is good or bad politically for Trump, Biden, or anyone down-ballot. We do know that the worst possible outcomes -- acquittal or a hung jury -- did not come about. Because that was my foremost worry, do I feel better? Obviously yes, at least in the same way that we are happy when a risky move does not blow up in our faces; but it was still a fraught situation.
Importantly however, my analysis suggested that the Democrats should have wanted to delay all of Trump's trials through the election season, because that would have kept Trump's misconduct and legal troubles in the news. That the Biden people did not try to meddle with the timing of a state prosecution for political advantage thus contradicts TrumpWorld's now unanimous claim that this was all rigged. The prosecution went forward because the DA's office believed that they had a case, and they brought that case as expeditiously as possible in the face of Trump's continued efforts to delay.
In other words, when Trump tells his crowds that "if they can do this to me, they can do it to you," he has it exactly backward. It is not that Trump's conviction somehow breaks new ground and will allow prosecutors to go after everyone else; it is that prosecutors have always had the ability to prosecute people who do what Trump did, and Trump is quite appropriately being held to the same standard.
I thus enjoy the responses from late-night comedians and others who say that of course if you did what Trump did -- have bad sex with a porn star, pay her off, falsify business records, and so on -- then you would be prosecuted, too. But the important point is that the unique facts of the case do not make the prosecution unique. This is what equal justice under the law means: no matter who you are, you can be prosecuted for criminal behavior.
It is thus more than a bit disheartening (to massively understate the point) to see nearly all Republican politicians now saying crazy Trumpy things about this verdict. An article in The Hill begins by describing Senator Susan Collins as "one of the Senate’s most prominent and respected moderate Republicans," only to report that Collins has proven once again that her reputation is completely unfounded. The supposedly reasonable Maine Republican, in fact, went full MAGA:
It is fundamental to our American system of justice that the government prosecutes cases because of alleged criminal conduct regardless of who the defendant happens to be. In this case the opposite has happened. The district attorney, who campaigned on a promise to prosecute Donald Trump, brought these charges precisely because of who the defendant was rather than because of any specified criminal conduct. The political underpinnings of this case further blur the lines between the judicial system and the electoral system.
To be clear, those words were taken from a written official statement from Collins, not shouted at reporters as she fled from a media scrum. Unsurprisingly, Collins was lying about Bragg's supposed campaign promise. Indeed, Bragg simply stated that he was, if you will, not not going to prosecute Trump, saying that he would be willing to hold Trump "accountable by following the facts where they go."
Collins, then, is merely proving what has long been obvious, which is that she has no shame when it comes to saying and doing unprincipled things. That she is not unprincipled as frequently as her party colleagues are unprincipled is not exactly a ticket to Heaven.
The larger point here, however, is that Collins is merely part of a pile-on that includes the more obvious Trump toadies like Mike Johnson, Lindsey Graham, and Ron DeSantis. Their goal is to convince people that all of the steps in Trump's case -- that he was investigated, indicted, tried, and convicted -- are proof that the Democrats are the bad guys. It is outcome-oriented reasoning to its last drop: nothing that is bad for Trump, they say, can possibly be legitimate.
And that means that nearly the entire Republican universe (with less than a handful of exceptions) are saying that this is a government of men and not laws -- or more accurately a government of one man, who is not subject to the law. As I noted in a column last week, the evidence that the Republican Party has become a cult of personality and not merely a power grab piles up higher every day.
What are the implications of that complete breakdown on the Republican side of American politics? What happens when one side simply rejects the possibility that they could lose anything -- elections or legal cases -- fair and square? The end of that very short road is what I once described as the choice between a "Banana Republic or Legalistic Lawlessness[,]" the difference being a matter of form and not substance. In the former, Trump merely does whatever he wants, and everyone goes along with it. In the latter, Trump gets exactly what he wants, but his people put a fake veneer of legitimacy on his tyranny by using what would truly be a rigged process.
How can we know what is rigged and what is fair? In the Trump trial in Manhattan, people truly did not know what would happen, because the legal process was being followed. In a post-rule-of-law world, everyone would know exactly what would happen. It would be no more mysterious than the outcome of a presidential election in Vladimir Putin's Russia. Going through the motions apparently seems like a good idea even to the most ruthless tyrant, but that does not mean that the conclusion is somehow up in the air at any point.
This is not, moreover, limited to the most explicitly politicized areas of government action. Last week, I wrote a column about Trumpists' plans for monetary policy if they retake the White House. At its core, their idea is to move the nation's central bank (the Federal Reserve, or Fed) directly under Trump's control. As it stands, the Fed is not fully independent of political pressure, but the law does provide it with important and meaningful insulation from meddling by politicians.
Such political insulation is essential because politicians will always have reasons to manipulate monetary policy for political, selfish, or corrupt reasons. Our currently robust rule of law lays out what the Fed is supposed to do (balance efforts toward low unemployment with the goal of low-but-positive inflation, all in an environment of sustainable economic growth) and then allows the people at the Fed to do their jobs by evaluating the current facts in light of those goals.
They must do so by using their expertise. Expertise is now, however, a dirty word among Republicans. For example, yesterday's free-for-all House hearing attacking Dr. Anthony Fauci was only the most recent reminder that Republicans do not respect scientific expertise. The Fed's current chairman, Jerome Powell, is to economic policy what Fauci is to public health policy: an annoyance to Republicans. More broadly, this is why Republicans are so hostile to universities, because they are certain that they (Republicans) know better than the eggheads who disagree with them.
Directly to the point that I made above regarding the ease with which today's Republicans would ignore the rule of law, consider what I wrote in last week's column about monetary policy. A recent news (that is, non-opinion) article in The New York Times laid out the most lurid versions of what Trump and his minions might do to the Fed but then offered this: "Curbing the central bank’s ability to set interest rates without direct White House influence would be legally and politically tricky."
This is only the most recent version of the oft-heard claim that "our institutions are strong." Trump might want to corrupt various areas of policy, but we have firewalls and bulwarks against the capricious acts of a would-be dictator. Trump tried -- but failed -- to overturn the 2020 election. The system held. Trump might try to wrest control of monetary policy away from the politically independent decision makers, but that "would be legally and politically tricky." What does that mean?
All it means is that the current law continues to work as it has long worked, not at all perfectly (after all, the Fed is dominated by pro-business interests and has institutional tendencies that are not all based on "the greater good") but certainly with the political insulation that previous Congresses and Presidents built into the law. If Republican majorities in Congress were soon to give their beloved and feared President the gift of changing that law to provide direct presidential control, then that would be the end of the Fed as an independent institution as a legal matter.
Ah, but the reporter who wrote that Times article did not merely say that it would be legally tricky but politically tricky as well. To be clear, and to repeat my point in the previous paragraph, there is nothing legally tricky AT ALL about taking away the Fed's independence. That is just happy talk that sounds good to people who want to believe that times have not changed in ways that threaten any independent sources of power. So the entirety of the argument has to be that the politics would be tricky.
How so? One way to think about it is that there would be people in positions of power and authority who would say no to Trump. Richard Nixon wanted to stay in office, but he gave up when he learned that the people who he thought would continue to support him had decided to abandon him. Franklin D. Roosevelt wanted to expand the Supreme Court, but that extremely popular President backed down when he saw that he could not make it happen. That, however, is not the world in which a Trump restoration would operate. Again, Republicans right down to the Susan Collinses of the world are now fully on board with whatever Trump says he wants, even to the point of attacking the criminal justice system as fundamentally corrupt in a way that supposedly harms Trump.
What about external political pressure? That Times piece suggests that Trump himself might not want to do his worst, or even well short of his worst by firing Powell (which in these before-times would be a truly radical move), because "tinkering with the Fed so overtly could roil the very stock markets that Mr. Trump has frequently used as a yardstick for his success." Note that this framing all but concedes that the Republicans in Congress would not stop Trump if Trump decide to "roil" the markets, but beyond that, why would Trump care at that point?
After all, Trump post-2024 would be able to guarantee that he would never leave office, again because the guardrails only mean something if there are enough people who are willing to push back. Why would Trump care to continue to use the stock market as his "yardstick"? And even if he still cared what people thought, it would simply be a matter of somehow blaming all bad things on Hillary Clinton or Joe Biden (or any of the countries that are still stable democracies).
Even if Trump still cared about being popular (enough) and did not want to mess with monetary policy, however, that would not mean that the system was stable but merely that the politics of the moment -- as filtered through Trump's attention-deficit-disordered and narcissistic mind -- would cause Trump not to abuse the power that Republicans would certainly cede to him. That is, the decision not to abuse absolute power might be the result of "political trickiness," but that is not the same as being limited by the rule of law. Putin has not defenestrated all of his political rivals, after all. Absolute power that is not at all times exercised fully is still absolute power. Tyrants can at their own discretion change their mind about what counts as tricky politics.
There is, therefore, no reason to breathe a sigh of relief when someone points to highly contingent political considerations as a brake on a ruler who would be outside of the bounds of political control. Republicans have shown that they will go along with whatever Trump says, and they are clearly willing to keep each other in line to do so. If Trump ends up back in office, his only limits will be what he perceives his limits to be. Based on his track record, that is already a very short list, and it is getting shorter every day.