This piece is a sequel to the piece I published here several days ago — The Vital Importance of the Coming Showdown (Trump vs. the Forces of the Rule of Law) — where I argued that what was at stake is the vital American principle that “No one is above the law,” and that this principle must be understood to be part of the larger foundation of American Democracy that is under a multi-pronged attack from the Force of Fascism that has taken over the Republican Party.
In that piece, I mentioned how Donald Trump’s criminality is especially important because of his huge prominence on the American stage. But I didn’t deal with Trump’s being a Former President, which is often cited as a reason perhaps not to prosecute Trump.
I would argue that the opposite is true. A President’s criminality is the most dangerous kind, and is therefore the most important to prosecute.
As the most powerful person in the nation — invested with the considerable powers of the Presidency — a President who refuses to obey the nation’s laws can do far more damage than other criminals. How much threat is some street thief compared to a President who commands the whole executive branch of the government as well as the armed forces of the United States?
(Perhaps there is something in the American ethos that believes the most privileged are entitled to the most solicitude. I recall President Ford saying, at the time of his issuing his controversial pardon of then-former President Richard Nixon, that “Nixon has suffered enough.” That deeply offends my sense of justice: if the man who had enjoyed many of the greatest advantages American society has to offer had “suffered enough,” what then of the young criminal who was born into poverty and social dysfunction, who never got a break in his life, and who sticks up a 7-Eleven store? How much suffering is enough for him?)
In The Republic, Socrates’ interlocutor Thrasymachus defines Justice as “the interest of the stronger party.” Which is exactly what Justice is not: that’s what happens in the absence of Justice. And so if America aspires to be a society with “Liberty and Justice for All,” making sure that the strongest among us is subject to Justice needs to be at the top of the list of requirements.
But of course, the reason that people worry about prosecuting a former President has much to do with the setting of precedent. No former President has ever been prosecuted, the worriers point out. (Which is true, thanks to Ford’s pardon of Nixon, who had suffered enough.) And we don’t want to turn into one of those banana republics where those in power now imprison those they replaced in order to prevent rivals from threatening their position as King of the Hill.
How much should we worry about that?
Not much, I’d say.
First, Trump’s criminality is so blatant and widespread, no one now living will likely see its like again. (Even someone born in 1776 would not have seen its like before.) If the precedent to be set is that any President who makes himself into a one-man crime-wave will be prosecuted, what’s wrong with that?
But the worriers fret that, once Trump is prosecuted, it will open the door to future, completely unjustified wielding of the “law” against former Presidents. Should we be inhibited against prosecuting Trump because some future administration — e.g. run by a fascistic political party like the Trump Party — will take the spirit of “Lock her up” into court?
Now, for the second reason. We’ve seen the Republican Party of this era in action already, over the last quarter century, and we’ve seen how they end up hurting themselves when they overreach in that way.
Remember the impeachment of Bill Clinton? The American people judged — rightly — that the Lewinsky affair was no appropriate basis for an impeachment, and the electorate handed the Republicans a major rebuke in the 1998 midterms to punish that overreaching.
The Republicans are talking today about impeaching Joe Biden if they get control of Congress. I say to them, “I dare you to.” They don’t even bother to point out anything Biden has done that is on the wrong side of any relevant line. They don’t even have a blue dress with which to embarrass Biden. They seem just to want revenge for Trump’s having been impeached twice— albeit for the commission of highly impeachable crimes.
If, in 1998, the unjustified impeachment of Clinton prompted a backlash that led to a counter-trend loss of seats because the public saw the Republicans as having overreached, it seems likely that any future prosecution of a former President that is patently unjustifiable — that is undertaken not in the interests of Justice but only in a quest for political advantage — will likewise be punished by the American electorate.
That’s assuming that American democracy has survived. And about that, two points:
1) Prosecuting Donald Trump is an important component of helping American democracy survive, whereas shrinking from holding the one-man crime wave accountable would injure our constitutional order. And
2) If, in that future, that constitutional order has already been replaced with some authoritarian regime, it will not be the precedent that said “No one is above the law” that Americans would be worrying about.