FPOTUS believes in rule BY law, not rule OF law.
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— OPINION —
Donald Trump is a wannabe strongman. Donald Trump does not want to be the 47th president of the United States; Donald Trump wants to be the nation’s first dictator.
This is not hyperbole. This is not me Chicken Little-ing. No less an authority than neocon Robert Kagan wrote in a recent (and scary) column, “There is a clear path to dictatorship in the United States, and it is getting shorter every day.” For his part, Trump has made his autocratic intentions very clear, not bothering to deny them in a recent interview with his smarmy bestie Sean Hannity.
But what does that mean, exactly? Presidents, even weak ones, already have enormous power. So what separates POTUS from strongman? The answer is simple: their relationship to the law. The former are willing to be constrained by it; the latter bend it to serve their own tyrannical purposes.
As the rhetoric scholar Jen Mercieca, author of Demagogue for President, explains in a recent piece for Resolute Square, “When political officials are held accountable to established law, that’s called democratic ‘rule of law’ — the thing that Hannity asked Trump if he would violate.” She continues:
But Trump, like all dictators before him, claims that the other side has already broken the rule of law — that the rule of law doesn’t exist because his political enemies are cheaters. That claim gives him permission, like all unaccountable leaders before him, to argue that the nation needs a “strong leader” like him who will rid the country of supposed “lawlessness.” Trump would rid the nation of “lawlessness” by assuming uncontrollable power.
Would-be dictators don’t want to be held accountable to the rule of law themselves because, obviously, the rule of law restrains their power. Dictators want the law to be arbitrary; they want to have the power to decide which laws will be enforced and who is subject to enforcement and who is not. When political officials apply the rule of law as it suits them and to advance their own interests, that’s called autocratic “rule by law.”
Trump, in short, doesn’t believe that the rules apply to him. L’État, c’est Donald.
This isn’t a new development. A creature of organized crime, Trump has always gone to great lengths to avoid indictment, up to and including ratting out the mobsters who were his business partners. Avoiding consequences for his shitty behavior, we might reasonably say, is, to date, his life’s greatest success. He stiffs vendors. He falsifies business records. He steals classified documents. He cheats on his taxes and on his loan applications and on his wives. He rapes with impunity. And nothing ever happens.
“Democracy,” Mercieca reminds us, “requires that those laws are followed and enforced both for citizens and officials.” That hasn’t been happening for some time. Trump has already managed to pervert the rule of law in four ways:
- Inexplicable delay in indictment, trial, and punishment;
- Corruption of the judiciary;
- Abuse of the presidential pardon; and, most ominously…
- Weaponization of law enforcement to attack his enemies.
Combined, these undermine our collective faith in the fairness of the legal system — the rock on which the church of our state is built (to use a metaphor House Speaker Mike Johnson will understand).
Inexplicable Delay
Trump loyalists run afoul of the law like clockwork. We all know it. The culpability is obvious. But at every step of the way, inexplicable delay in indictment, trial, and punishment thwarts the administration of justice. Consider:
Steve Bannon, fresh off his presidential pardon, is convicted by a federal judge for contempt of Congress. He’s sentenced to four months in the hoosegow. But his hour of reporting to prison has been postponed, seemingly until the Earth falls into the sun, which has allowed him to continue to sow discord and spread Putinist propaganda on his podcast. That sentence was handed down over a year ago. Why is this arsonist of democracy being given special treatment?
Ken Paxton, the corrupt Texas attorney general and a Trump ally, has been under federal indictment since 20-fucking-15. On top of that, he was impeached by the Texas state Legislature for egregious, disgusting corruption, for which the evidence is incontrovertible; despite this, the Republicans in the Texas Legislature ultimately voted to acquit him. He remains at large, the top law enforcement official in the Lone Star State, now using his considerable power to deny pregnant women lifesaving health care.
Trump lickspittle Jim Jordan defied a Congressional subpoena related to his activity during the insurrection. There were zero consequences. That doesn’t even take into account his silence, if not his outright complicity, in the sex abuse scandal at Ohio State.
Alex Jones, a key figure on January 6, is supposed to pay millions of dollars to the Sandy Hook families his ugly lies injured. He hasn’t. He probably won’t. After all, what’s making him? The families, realizing he won’t ever pony up, have offered to settle. How is that justice?
Yesterday the alleged rapist and drunk Rudy Giuliani — alleged by his former employee, Noelle Dunphy, who appears to have ample proof; is law enforcement doing anything about that or nah? — appeared in DC court to determine how much he will have to cough up in the defamation case brought by Georgia election workers Ruby Freeman and Shaye Moss. His attorneys say this might be a “civil death penalty.” Will it? Like Jones, Rudy isn’t likely to fork over the cash, no matter the amount.
There were investigations into [far-right private military entrepreneur, Blackwater founder, and brother of billionaire Trump Education Secretary Betsy DeVos] Erik Prince for a long time, supposedly. Sources told me years ago that he was on the verge of indictment. Nope. Still hasn’t happened.
Ginni Thomas was involved with the insurrection. How involved was she? We may never find out, because she’s a made man.
And then there’s Jared Kushner, whose scofflawing I wrote about five years ago — before the PPP shenanigans and the pardon oversight and the Blue State Genocide he authored that doomed so many Americans to a miserable COVID-19 death. There have been zero consequences, not one, for this soulless ghoul. He gets a golden parachute from Mohammed bin Salman and is, as far as the press is concerned, regarded as some sort of statesman.
And I haven’t even mentioned Trump’s two impeachment acquittals, his mismanagement of the pandemic response, his brazen theft of classified documents relating to nuclear secrets, and his attempt to, you know, overthrow the government.
Sure, all those low-level J6 convictions are great, and it’s swell that militant weirdos Enrique Tarrio and Stewart Rhodes are in prison. I know these cases take time, and that the DOJ prosecutors are hard at work. I understand that the wheels of justice grind slow and all that, but dude.
Taken together, this pattern of Trump cronies getting away with it undermines our collective faith in the Justice Department, and thus, in justice generally. This is dangerous for democracy. In states where the government cannot adequately mete out justice, mafias develop.
And Trump? The FBI’s James Comey would get him; special counsel Robert Mueller would get him; Attorney General Merrick Garland would get him; special counsel Jack Smith would get him. Only Smith has made any real headway — and his best efforts are being thwarted by…
Judicial Corruption
Working with the radical Catholic judicial activist Leonard Leo, Trump loaded the lower courts with unqualified birdbrains loyal to the MAGA cause. One of them, flamenco enthusiast Aileen Cannon, is single-handedly cockblocking the most important Jack Smith indictment: the one concerning the classified documents. Where did Marco Rubio find her? What is compelling this [expletive deleted] to tilt the scales for Trump? Have there been any journalistic investigations into her that I missed? Are we just stuck with her forever?
Matthew Kacsmaryk, another Trump appointee, is way more famous than a district judge in Texas should be. Right-wing activist groups now steer cases into his court, because they know that he is reliably anti-abortion, anti-woman, and pro-blastocyst rights. In the case of mifepristone, or RU-486 — a safe, noninvasive drug used for decades to terminate pregnancies in the early stages — he tried to overrule the FDA, to deny access to mifepristone nationally. This would do nothing to stop abortion, but it would endanger the lives of many thousands of women. Thankfully, SCOTUS granted a stay, but the case is still wending its way through the court system, taken up just this week by SCOTUS with a very real prospect of nationalizing Kacsmaryk’s ban. And you’re not gonna believe this, but there is shady shit going on in this hateful troglodyte’s financial disclosures.
At the federal level, the Supreme Court has become a sad joke. The John Roberts era has been an unqualified disaster. In ruling after ruling, that smug SOB has been slowly but surely dismantling voting rights to help his wealthy whoremasters accrue even more power. The way he conducted himself during the Trump impeachment hearings was a national embarrassment. “Grok,” the new AI toy on Elon Musk’s hell-site, would have conducted itself with more gravitas. Oh, and Roberts’s wife has made bank as a legal recruiter, which seems sus, as the kids say.
Trump’s appointees are all awful. Plenty has been written on these pages about the fishy finances of Brett Kavanaugh. Five years later, our underlying question — Who owns Kavanaugh? — remains unanswered. Neil Gorsuch has had at least one real estate deal with the head of a major law firm that smells bribe-y. Amy Coney Barrett was a handmaid in the People of Praise Christian cult organization.
In addition to being a model of arrogance, Sam Alito gets wined and dined by oligarchs. And Clarence Thomas may well be the most corrupt person in the entire federal government in the last 100 years — no small feat.
This is the best we can do? Really?
This week, Smith asked the Supreme Court to decide — with exceptional speed — whether or not Trump, who claims to have blanket immunity from prosecution for any crime committed while in office, can be tried for his coup attempt on January 6, 2021; the court has agreed. The strategy here is to make sure Trump can’t keep kicking the courtroom can down the road, as is his wont. Legal Twitter — or Legal X, I suppose — thinks this is a slam dunk. Of course SCOTUS will allow Trump to be charged, they assure us; he’s not above the law.
But… are we sure? Is anyone confident that this gaggle of corrupt reactionaries will do the right thing? Aren’t they down with unitary executive theory? Because if he wants to, Alito can find a precedent in some medieval English witch trial to make his case.
Supreme Court justices can be impeached, sure, but it requires two-thirds of the Senate to remove them, and that will never happen. The surest way to root out corruption at SCOTUS is to expand the court. But Sen. Sheldon Whitehouse (D-RI) told me on the Prevail podcast a few years ago that there is no public appetite for doing so. We’re stuck with these six venal losers for the foreseeable future, and have to hope that their own hunger for power will compel them to resist a Trump dictatorship, if common sense and love of democracy do not.
Pardon Abuse
The power of the presidential pardon is as ironclad as anything in US law. Short of hawking pardons like so many Trump steaks — which, per the Dunphy complaint against Giuliani, was very much in play in FPOTUS’s last days in office — there are virtually no constitutional restrictions on it.
But pardons are generally understood to be a last resort, a way for presidents to show mercy to criminals who have repented, or are wrongly imprisoned, or have been locked up for long enough, or were otherwise treated unfairly by the system. The Founders — poor devils! — assumed that the president of the United States would always be a man of honor. Trump has never been that.
When used corruptly, a pardon incentivizes former, current, and future accomplices, allies, and attack dogs. As the fascism scholar Ruth Ben-Ghiat explains:
Rulers who come into office with a criminal record, like Mussolini and Hitler, or are under investigation, as was the case with Putin, Trump, and Berlusconi, have a head start [in being corrupt]. They know that making the government a refuge for criminals who don’t have to learn to be lawless hastens the “contagion effect.” So does granting amnesties and pardons, which indebt individuals to the leader and make blackmailers, war criminals, and murderers available for service.
Trump, well aware of this, went to town. He pardoned or commuted the sentences of all of the Mueller felons who’d helped him take office: Paul Manafort, Roger Stone, Mike Flynn, Steve Bannon, even the hapless George Papadopoulos. The lone campaign associate not to receive a pardon was his former attorney Michael Cohen — notably, the only one who flipped on him. That alone proves abuse of power.
The circle extended outward. Rudy Giuliani’s pal Bernie Kerik got a pardon. So did Maria Butina’s former paramour Paul Erickson. The 2,000 Mules filmmaker Dinesh D’Souza scored a pardon, as well as Elliott Broidy, and Kenneth Kurson, a friend and business associate of Jared Kushner, who was convicted of cyberstalking. For good measure, Trump had similar mercy on felons who were once legislators: Ed Henry, Duke Cunningham, Chris Collins, Duncan Hunter.
In the case of the loan shark, drug dealer, bail skipper, and (alleged) violent scumbag Jonathan Braun — whose old man is an associate of Charles Kushner, Jared’s father and another beneficiary of a Trump pardon — the commutation of his sentence effed up an on-going federal investigation, meaning other criminals will now roam freely. And if he’s re-elected, Trump has vowed to pardon the J6 insurrectionists, both the foot soldiers and the higher-ups. That’s his private militia, after all.
Real harm was done with these pardons. Every one of those convictions was hard fought, the product of months (at least) of work by dedicated prosecutors. The victims of the crimes won some measure of justice. All of that evaporated with one stroke of Trump’s Sharpie.
Shamefully, the Garland DOJ did not even attempt to contest the corrupt pardons. Yes, that would have likely failed. But it also would have communicated, in no uncertain terms, that we are all equal under the law. Instead, the underlying message is that the rule of law is meaningless.
Only rule by law — that is, the crook’s relationship with Trump or one of his cronies — matters.
Weaponization of Justice
Trump has already weaponized the DOJ to attack his enemies, even as he falsely accuses the Biden administration of doing it. What was the Durham investigation if not $6.5 million of taxpayer money wasted on political retaliation? Would Hunter Biden be the subject of a five-year probe if he were not Joe Biden’s son? Would he right now be under indictment for stuff Rudy Giuliani and Roger Stone, to name but two Trump cronies, have also done, when not busy doing worse?
“What the indictment does show is the aggressiveness of the special counsel to find something, anything, to hang on Hunter Biden to placate the right,” writes Lisa Needham at Public Notice. “It shows [Republican David] Weiss going as hard as possible on tax charges, made all the more absurd because Hunter already paid the back taxes that form the basis for the indictment. Most of all, it shows the tawdriness of digging through the life of someone who was struggling with addiction and burning down his own world.”
In a second term, Trump will use his power to go after his enemies: politicians, judges, journalists, you name it. Kash Patel, a sort of third-rate Renfield, said as much on Steve Bannon’s podcast this week:
The one thing we learned in the Trump administration the first go-around is, we got to put in all American patriots top to bottom and we got them for law enforcement, we got them for intel collection, we got them for offensive operations, we got them for DOD, CIA, everywhere.
And the one thing we will do that they never will do is we will follow the facts and the law and go to courts of law and correct these justices and lawyers who have been prosecuting these cases based on politics and actually issuing them as lawfare.
We will go out and find the conspirators, not just in government but in the media. Yes, we’re going to come after the people in the media who lied about American citizens, who helped Joe Biden rig presidential elections.
We’re going to come after you, whether it’s criminal or civilly, we’ll figure that out. But yeah, we’re putting you all on notice.
Yes, Patel is a clownish character, but he’s also among the loyalest of Trump loyalists. Believe what he says. Trump will either round up his enemies, disbar them, arrest them, indict them, or have his cronies sue them into oblivion.
In short, if Trump is reinstalled at the White House, expect him to use the legal system as a tool both to insulate himself and his cronies from consequences, and to attack his political enemies.
And if you don’t believe that an autocrat can assume dictatorial power in such a wealthy, civilized, liberal democracy, well, that’s exactly what a lot of Germans thought in 1932.
Reprinted, with permission, from Prevail, Greg Olear’s substack.
