Trump’s prosecution is a product of democratic politics — not the rule of law
As far as I can tell, Tuesday’s arraignment of a criminal former president is being taken as proof of the American credo – that no one is above the law. Forgive me for my repeating myself. His arraignment proves no such thing.
It is proof of something, though – that justice is the product of democratic politics. His prosecution is politically motivated. And thank God for that.
“No one is above the law” is and will be propaganda, not fact. If it were fact, we would never see a billionaire, because in order to become a billionaire, the government must look away while the billionaire does what he needs to do to become a billionaire. Impunity is baked into the American credo. It’s baked into the American dream, too. Billionaires embody the very definition of success.
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Robert Kuttner put it this way in a review of Trevor Jackson’s Impunity and Capitalism: “While in office, [Donald] Trump abused his pardon privilege to excuse dozens of corrupt, convicted allies, and he would likely do so again if reelected. We live in an age of selective application of law, in which influential people often evade responsibility for actions that are or should be criminal, while minor offenders such as shoplifters or drug users can face prison terms. Trump made crudely personal what has become tacit and structural” (my stress).
So even if Trump is convicted of the charges against him, his conviction won’t prove that “no one is above the law.” As Professor Jackson wrote, billionaires will continue to squeeze consumers, communities and markets with a degree of impunity that has become necessary for our variety of capitalism to exist.
I’ll believe no one is above the law when, after the next financial panic, those responsible for the vanishment of life, liberty and happiness are perp-walked toward justice. Until then, I think we can expect crimes that only billionaires can commit to continue being treated as “everyone’s fault and no one’s.”
By continuing to believe, uncritically, that “no one is above the law,” we actually enable impunity of the law by the very obscenely rich. “No one is above the law” asks Americans to believe that justice is something that just happens, independent of human agency, as if it were a weather system, all-natural, an outcome of God’s will. Like financial crimes that are treated as “everyone’s fault and no one’s,” justice is treated as everyone’s responsibility and no one’s. Is it any wonder, really, that corruption has become so normal as to be invisible?
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Invisible, of course, until someone goes too far. At some point, impunity for the law exceeds established levels of tolerance for it, as when a criminal former president led an attempted paramilitary takeover of the United States government. His corruption may well have been forgiven, or at least forgotten, but the most blatant political crime in US history has prevented that. It made every one of his corrupt acts seem like an intolerable assault on democracy.
That there is such a thing as “going too far” is proof that “no one is above the law” is propaganda, not fact. Once we accept it as such, we can see what’s going on. The deep and broad and democratic demand for Donald Trump to be held criminally accountable is not the consequence of a mindless abstraction that automatically brings wrongdoers to justice. It is the product of pressure applied to law enforcement – the political pressure of democratic politics.
That political pressure has given lead prosecutors in Manhattan, Georgia and Washington the freedom they need to pursue their respective criminal cases. Trump’s prosecution is indeed politically motivated. And thank God for that.
If there’s any doubt about this being a politically motivated prosecution – if there’s any doubt about it being the consequence of a deep and broad and democratic demand for it – consider it’s unlikely that Trump doubts it.
He can’t meet a political demand for justice with law. The evidence is too strong. (I’m deferring here to legal experts who know what they are talking about.) He must meet a political demand for justice with politics. That means running for president. Only the power of the presidency can save him now.
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