Eminent constitutional law expert: Country is in 'desperate trouble' if Biden and Garland won't go after Trump

Eminent constitutional law expert: Country is in 'desperate trouble' if Biden and Garland won't go after Trump
Judge Merrick Garland in 2016, the White House.

If American democracy were a hospital patient, the diagnosis would be "critical". The Jim Crow Republican Party and larger neofascist movement are escalating their war on democracy by passing laws across the country designed to stop Black and brown people from voting. A new report from the Brennan Center details this:

After the 2010 elections, for the first time since the peak of the Jim Crow era, states across the country began to enact laws making it more difficult to vote. This wave of voter suppression was intertwined with race and the nation's changing racial demographics and was, at least in part, a backlash against rising turnout among communities of color contributing to the election of the nation's first Black president. Efforts to suppress the votes of communities of color accelerated in 2013, when the Supreme Court gutted a key part of the Voting Rights Act in Shelby County v. Holder. In the eight years since, and especially in 2020, these trends continued.

Fascist violence continues unabated. In Portland, Oregon, last weekend right-wing street thugs attacked people they believed to be anti-fascists. The violence included a gun battle in downtown Portland. Police did not intervene, which is not entirely surprising given that America's police have long supported fascists and other right-wing extremists.

And let's not forget — as so many in the mainstream American news media have already done — that less than two weeks ago a Trump supporter threatened to detonate a car bomb near the Capitol if his demands were not met. He was apprehended after an hours-long standoff. (He did not actually have a bomb, but no one could be sure of that at the time.)

America's political institutions have shown themselves to be greatly weakened in the battle against Trumpism and the larger neofascist movement. A series of recent Supreme Court decisions have been made by fiat through what is known as the "shadow docket" process. Instead of acting as a final check against fascism and authoritarianism and other abuses of power, the right-wing justices of the Supreme Court have proven willing to restrict Joe Biden's presidential powers in ways they refused to do under the Trump regime.

The Supreme Court is no longer calling "balls and strikes," as the cliché holds. It is putting a fist on the scales of justice in favor of the far right. This is by design: Donald Trump and the Jim Crow Republicans packed the court, essentially for that purpose.

At the Daily Beast, commentator and author David Rothkopf offers this warning about America's crisis of democracy:

Fox News has run an article about the "news" that last week I tweeted: "The Taliban, all of them together, plus every Al Qaeda fighter in the world, do not pose the threat to the United States that Trump or Trumpist extremists do."
That was not the first time I have said that nor will be it the last time. Because it is true. They did ask me if I wanted to comment on what I'd already said publicly, and I emailed the following:

The Taliban and Al Qaeda are among the most vile, dangerous violent extremist organizations in the world. They pose a threat that must be taken very seriously and actively combatted. They do not, however, pose an existential threat to the United States or our way of life. Trump and his supporters have, with support of one of America's most dangerous enemies, actively sought to undermine democracy in America. The coup attempt on January 6th and the propagation of the Big Lie are an example of this.

Their efforts to suppress the vote are an example of this. Trump's active obstruction of justice is an example of this. Should they succeed, democracy in America will be gutted, our way of life ended, our values undermined and our standing in the world destroyed. They may yet succeed. As a consequence, the threat they pose is far greater to the United States as a whole....

For these reasons, it is irrefutable that Trump and many of the people seeking to advance his agenda or claim it for themselves are poised to have a far greater negative impact on Americans and the country as a whole than foreign extremist groups.

In response to the dagger being pointed at the heart of American democracy by Donald Trump, his followers and the Jim Crow Republican Party, President Biden and Attorney General Merrick Garland are not acting with the necessary urgency. In a new op-ed for the Boston Globe, Laurence Tribe, the Carl M. Loeb University Professor Emeritus of Constitutional Law at Harvard, offers this warning:

We need to begin with the fundamental precept that not all crimes are created equal. Those crimes — regardless of who allegedly commits them — whose very aim is to overturn a fair election whereby our tradition of peaceful, lawful succession from one administration to the next takes place — a tradition begun by George Washington, continued by John Adams, and preserved by every president since except Donald Trump — are impossible to tolerate if we are to survive as a constitutional republic. …

Trump's relentlessness has laid bare the defects in many of those accountability mechanisms. Now Garland stands as the final line of defense for our constitutional democracy. No prior attorney general has confronted so daunting a challenge. For what might be the first time in his life and what will surely be the last, Garland could hold the future of the last best hope on earth in his hands.

I recently spoke to Tribe in search of more details on his deep concerns about the future of American democracy. In our conversation, he also reflected on how the current political crisis, in conjunction with the coronavirus pandemic and other problems, has caused many Americans to sink into a state of exhaustion, and an almost total withdrawal from politics. Tribe warned that such feelings represent a form of defeatism that will end in surrender to the neofascists.

Tribe also shared his thoughts on why Garland and the Department of Justice have (at least to this point) not attempted to prosecute Donald Trump and his confederates for their apparent crimes against democracy and the rule of law – and warned that not to do so would be a critical mistake, potentially fatal to the future of America's democratic project.

This conversation has been edited for length and clarity, as usual.

How do you make sense of all these events, from Jan. 6 to the continuing attacks on democracy, the upsurge of right-wing terrorism and this overall democracy crisis? And of course, all this is happening in the midst of the COVID-19 pandemic. It is a never-ending tsunami of events. How do you try to make it legible for yourself and the public?

If I had an answer I would sleep better at night. I am not sleeping well because I have not found a way to make this confluence of events even remotely legible. At this stage in my career, when I'm not actively teaching, it is much harder for me to avoid plunging into a sense of dismal distress. For example, when I look at how Republicans are organizing the suppression of votes — more specifically, the deliberate miscalculation of votes — and pushing this theme of "independent" state legislatures and their ability to just pick a president, even if the person that they're picking lost that state's popular majority, it is very depressing. I do not see even a little bit of a silver lining amongst the clouds.

So I tell myself, just put one step ahead of the other. I just take on one battle at a time and try to do the best to win it. Whether it's a battle over the massive eviction of people during the pandemic, or a battle over not adequately investigating people who were involved in the coup. If I can make even a slight difference on those few things, while other people try to do the best they can, I am hoping that the pendulum will at some point swing back and that we are not doomed to lose our democracy.

How do we help the public to maintain a balance between staying focused while also seeing the big picture?

Many people are overwhelmed and/or beaten down into indifference. I believe that many Americans are coping with this by withdrawing into their personal lives, the core self. They can take care of the parts of their lives they have control over, and try to forget about the threats to democracy. That is what fascists and authoritarians count on — indifference by everybody except those that they have successfully riled up and fomented into violence and anger. We cannot afford to withdraw from these events. I believe that many people are basically giving up on politics and on making any difference.

The only way to overcome this is by making a convincing case that there have been so many times in history where one person has made a difference. There are times in our own experience where perseverance matters. Somebody might have said during World War II, when it looked like Hitler was going to take over completely, that we were lost. And yet somehow we mobilized and came back.

What is the role of the rule of law in stopping fascism and authoritarianism in the United States?

It is the only alternative to anarchy and chaos and violence. That is the rule of law. If it's more than just a slogan, the rule of law is a set of binding precepts that are enforced by independent judges to make sure that no one is capable of getting away with unbelievably destructive behavior without being held to account. The rule of law also requires making sure that there are deterrents in place so that the worst instincts of people — especially those of profoundly bad character — are held in check.

Thus, the rule of law serves to provide a potentially stable platform on which people can plan their lives and not be subject to the whims and will of those who happen to have the greatest amount of power. That version of the rule of law is in great danger now. This is not only because some people appear to have gotten away with extraordinary acts of subversion and insurrection, but because corrupt corporations get away with minimal accountability as well. Money influences politics and the law in America to an alarming degree.

People with power can find their way around the rules, and because they make the rules there are loopholes and pathways that allow them to basically get away with murder. In that way, the rule of law depends on the substantive justice of the rules themselves. It's not enough just to have formal procedures and regulations. The law has to be just.

Why have Donald Trump and other members of his regime not been prosecuted for their many obvious crimes? Where is the accountability? To me it appears that some type of decision has been made at the highest levels of government not to prosecute Trump and his allies in order to "protect" the country.

There are very accomplished, serious people who have written op-eds saying not to worry and that it is important that Attorney General Merrick Garland builds his case slowly.

These same people have also counseled that the American people should not assume that because we know nothing about investigations into the role of Mo Brooks and Rudy Giuliani and Donald Trump himself in fomenting the insurrection that there is not in fact a grand jury looking into those matters.

I hope that is the case. But if you are correct and there's been some kind of decision at a high level that we shouldn't rock the boat, that we should look forward, not backward, that we should let bygones be bygones, that we should not descend into what some people will call an endless spiral of vengeance and retribution, that we had better not go after people like Trump, then the country is in really desperate trouble.

As wrote in my Boston Globe op-ed, what I'm saying to Merrick Garland is: Wake up! You've got to do something to hold this man accountable.

Now somebody could say, well, what about the presumption of innocence? How do you know he's guilty? All I can say in response is that we've heard with our own ears, and Donald Trump has never denied, that he said to Georgia Secretary of State Brad Raffensperger, "Just find me 11,780 votes." To me that is compelling proof that Trump was essentially trying to erase his legitimate loss by creating votes that were not his. That is stealing the election.

Moreover, it's an attempted coup when Trump twists the arm of his acting attorney general and tells him, "Just say that the presidential election was corrupt, and I'll take care of the rest with my friends in Congress." On its face, that is proof of corrupt intent beyond reasonable doubt. It is also proof of a plan to take over the country without legitimately winning. That's a crime.

So the question is: Why is it taking so long? One possible answer is that it's not easy to get a conviction of a president. What appears compelling to a layperson is going to be difficult in practice. It will also be difficult to put down the riots that the very announcement of an indictment may bring. There may be a great deal of worry about fomenting civil war to no good end, because we will not succeed in holding the president accountable.

In the end, all I can do is make the counter-argument that if you're worried about the consequences of going ahead with this evidence against Trump and perhaps not convicting him, then you had better start worrying about the consequences of not going ahead with this evidence — and telling presidents in the future, including this president, who undoubtedly is going to try to seize power again one way or another, that they can get away with this. If that is the message, then the rule of law has basically been thrown out the window.

My other deep worry is that these so-called institutionalists are so afraid of how the American people and world would respond to the full truth about the Trump regime's crimes that they have decided the only way to protect the institution of the presidency is not to prosecute Trump and his confederates. Am I going too far?

I desperately hope that is not a shared mindset because it would be delusional. If anyone worries about destroying the institution of the presidency, I would say that when the presidency has been transformed into an autocracy and a veritable dictatorship, it has already been destroyed. If anyone thinks that the presidency will be dangerously weakened by saying that a president who tries to bring down his own government and steal the next election should not be able to do that, then there's something wrong with them.

That is certainly not what the framers had in mind with the presidency. Their great fear was that the president would have more power even than a monarch, to use his command of the military, his role as commander-in-chief and his power as chief executive to end the process of peaceful transition to the next election. In the United States we established a tradition with Washington passing the baton to Adams and Adams to his great enemy Jefferson.

It was an unbroken tradition, but it was one that I think people who have been serious about preserving the country and the Constitution have realized was quite fragile and could be destroyed at any time.

With Donald Trump we have now seen someone who tried his damnedest to destroy that tradition. It almost succeeded. There is now a substantial cadre of an entire major political party, the Republicans, who are trying to whitewash the past, rewrite history and claim that they are the true patriots. They want to claim that theirs is the "real" Constitution, and those of us who believe that the American people should choose who leads them are misguided and crazy.

How would the "originalists" and "strict constructionists" on the right, a group that wraps themselves in the American flag and the Constitution, have responded to Donald Trump if they truly believed in those principles and symbols?

If they believed in either the letter of the Constitution or its structure or its history or its purpose, they would have responded by being aghast. Such people would say, "We didn't really know what monster we were we're putting in place. He's clearly a threat to the Constitution. If not literally a traitor, Trump is certainly treacherous and dangerous." They would have abandoned Trump in droves. They didn't, so it follows that they are hypocrites who do not really believe in any of the things you are describing.

You are a doctor of democracy. Evaluating America as your patient, what is your prognosis? How is the patient doing?

The patient is in a deep sleep and needs to be awakened immediately. If not, that deep sleep may become a coma that slips into death. My parents fled the pogroms and the Holocaust. I grew up in Shanghai and came here. I feel I owe something to the United States. If I can help wake it up, then I will have paid a small part of that debt.

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