How Republicans have placed themselves above the law

It’s not a crime when a Republican does it.

It’s freedom.

For normal people like you, the answer is obvious. If people break the law, they should be brought before a jury and prosecuted justly for breaking the law. This question has an obvious answer, because we have all drunk deeply from the well of American exceptionalism.

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Here, right matters.

Here, everyone’s equal.

Here, no one is above the law.

So it must be confusing for normal people like you to hear the press and pundit corps debating whether Donald Trump should face criminal indictment. If he broke the law, yes. If he didn’t, no.

Why is this so complicated?

It’s complicated because American exceptionalism gives and takes. On the one hand, we say no one is above the law. On the other, we say America is no banana republic. We don’t go around jailing political leaders as they do in so-called democracies like Russia and Turkey.

But American exceptionalism is also convenient. It gives the press and pundit corps a way of talking about Donald Trump’s crimes without talking about the former president’s crimes. It also gives them a way of avoiding the real reason Trump has not yet faced arrest and trial.

That reason, as I wrote, is fear of Republican retaliation.

It’s more convenient for the press and pundit corps to gaze into their navels in lieu of debating the diamond-hard fact of the matter, which is that the GOP will seek payback if the Democrats follow the rule of law.

Let’s say that again: if US Attorney General Merrick Garland does what we’d expect of the nation’s top cop in any other situation involving crimes and criminals, the Republicans would set out to punish the Democrats. How? By doing what Trump did: Turn the Department of Justice into an extension of the GOP so it’s able to investigate, arrest and prosecute any Democrat for the crime of being a Democrat.

This is the real problem.

It’s not about some noble ideals.

But let’s take seriously those arguing that this is about American exceptionalism. We don’t jail our political enemies, they say. If we did that, they say, we’d destroy our exceptional experiment in democracy.

That argument is odd given that plenty of countries sharing our political values – indeed, are better at realizing them – have arrested, convicted and jailed former political leaders and lived to tell the tale.

These countries actually really live up to the idea of no one being above the law. Yet they have survived the ordeal. They did not, as we are often warned will happen here, descend into civil war. Those issuing such jeremiads were no doubt seen as part of the problem.

Last year, French authorities convicted former French President Nicolas “The American” Sarkozy on corruption charges. In 2019, police recommended the indictment of Czech Republic Prime Minister Andrej Babiš for fraud. An opposition leader in Bulgaria, who had previously served as prime minister, was arrested in March. In 2018, former South Korean President Park Geun-hye was convicted for abuse of power. In 2013, former Slovenian Prime Minister Janez Jansa was convicted, again for corruption. That same year, a disgraced former president of Germany (subordinate to the Chancellor) was prosecuted for corruption. Former Israeli Prime Minister Ehud Olmert was tried and jailed for accepting bribes and obstruction. In 1976, authorities arrested former Japanese Premier Kakuei Tanaka for accepting bribes.

All of these countries are democracies of one stripe or another. All of them are exceptional when compared to the US. Unlike us, they have chosen to uphold the rule of law despite political complexities. When put in an international context, the truth becomes clear. We’re not as exceptional as we think. Indeed, we’re normal by historical standards.

World history is full of groups, and individuals, with a stranglehold on their nations, people, ethnicities, tribes. But instead of a king who holds himself above the law, on account of the king being the law, the US has a major political party doing pretty much the same thing.

Here, right doesn’t matter. No one is equal.

Here, the Republicans are above the law.

Here, they are the law.

That the Republicans are the law has been plainly true since the moment Mitch McConnell, the Senate minority leader, said that Donald Trump was “practically and morally responsible” for the J6 insurrection. Though guilty on all counts, McConnell said, he voted to acquit. A Republican has the right to incite mutiny, betrayal and violence without the inconvenience of being held accountable.

Is there a better way of saying a Republican is above the law?

Turns out, yes, there is.

The J6 committee, as I said Tuesday, is illustrating just how Trump and his associates willfully, purposely and deliberately conspired seditiously to overturn the 2020 election on multiple criminal fronts.

In yesterday’s hearing, the front was state lawmakers and election officials. The theme was violence and threats of violence. As Adam Schiff said Tuesday, efforts to frighten, harass, intimidate and threaten those who refused to go alone with the coup were a preamble to the J6 attack, which was intent on pressing Mike Pence into going along.

Trump’s crimes appear to be piling up one atop the other such that the crime scene, as it were, is getting so much bigger than we thought during Trump’s second impeachment trial. The bigger it gets, the clearer it is that the second acquittal was, as University of Vermont political scientist Alex Garlick said, “a failure of historical proportions.”

But it wasn’t a failure.

It was a success.

It was a crime against democracy, equality, morality and justice as well as an affirmation of the fact that the Republicans are above the law on account of being the law. It’s not a crime when a Republican does it.

Instead, it’s freedom.

And any attempt to uphold the rule of law – to force the Republicans to abide by laws equally applied – is an infringement of that freedom.

Indeed, it might be grounds for the overthrow of the government.