Help Wanted: Honest Democrats

What Alvin Bragg started isn't going to stop without liberals standing up.

Paul has written a typically insightful post discussing what is in my view the most important question about the rule of law that has surfaced in my lifetime: How to set right the hideously corrosive lawfare Alvin Bragg kicked off with his jury-rigged and heedless prosecution of Donald Trump.

Having to face this question is both ominous and tragic, but it was predictable. In my talks to law students last fall, I told them we could all see it coming. Bragg, like almost everyone else, had little to no interest in Trump’s hush money payments or his mislabeling them as “legal expenses” (even if he’s actually the one who mislabeled them). Trump’s less-than-stellar character, including long-time philandering, has been known for years; it’s the definition of old news. And paying hush money to bottle up a story, while smelly, is not illegal. Something else, something much more ominous, lay behind this prosecution. I asked the law students to take a step back and think about it:

What to his critics is the main source of loathing Trump, really? It’s not his affairs or his markedly unsuccessful attempts to hide them.  It’s not his handling of the material he took from the White House, which other Presidents have done as well. It’s not even his sleazy gamesmanship with the government’s subpoena for them, important though I personally believe that to be. 

The burning gripe against Trump is his role in egging on the January 6 rioters to impede the counting of  electoral votes and, thus, to sidetrack the peaceful transfer of power to Joe Biden.  Most people I know, liberal or conservative, think that was by far Trump’s most egregious sin against democracy and the rule of law. (A view in which I think they are, unfortunately, correct).

But here's the news, if we’d just wake up.  It's precisely the peaceful transfer of power that Trump’s prosecution puts at risk.

Why?

Because the entire, irreplaceable predicate of the peaceful transfer of power is the losing side's faith that the winning side won’t try to put them in jail.  Trump's prosecution  is a dagger in the heart of that predicate like none we have seen since at least the Civil War and probably ever — Jefferson Davis himself was never prosecuted for so much as trespassing.  We have not asked ourselves with the sobriety the moment demands whether that is too high a price to pay to hold even a guilty and unrepentant man to the punishment that a strict application of some obscure law would make available — would make available, that is, if the law were administered by robots.

I neglected to say, if it were administered by a prosecutor more seized with ambition than judgment.  

It’s true that prosecuting a powerful man like Trump could  have a bracing effect on future office holders — notice that you really can wind up in trouble, and maybe in jail, for your lawlessness. But the more probable outcropping of Trump’s prosecution will be considerably less wholesome:  It's less likely to spawn an embrace of prudence than an appetite for revenge.  The Democrats’ appetite will be whetted by their success in putting a despised Republican  in the slammer, or at least an ankle bracelet. The Republicans’ appetite, once they return to power, is too obvious to elaborate: You used the law to screw us and now we’re going to use it to screw you.  These prosecutions will launch, not an era of renewed accountability, but a cycle of recrimination. In the real world of hardball politics, a cycle of recrimination  is certain to degrade rather than enhance whatever chances people of good faith have left to nourish the rule of law.

Which is where we are now. And it’s going to get worse. Democrats have five more months to shout, “convicted felon!” — something that, in addition to its own punch, will facilitate their avoiding having to talk about what they’ve done to the country with four years of inflation, open borders, “criminal justice reform,” racial pandering, reckless spending, COVID huckstering, anti-Semitism galore, military weakness, etc., etc.

But avoiding a campaign on the state of country — you know, something we’d be doing if there were any actual interest in, to coin a phrase, “saving democracy” — has, astonishingly, become only the second most grievous injury we have suffered. The most important is the long-term destabilization of our law that its corruption by raw politics has created.

We can afford to distrust a number of institutions in our country. Law is not one of them.

What to do?

Paul ‘s essay takes as good, and as serious, a stab as I have seen. But I think any true solution depends on the courage and patriotism of a dying breed: honest Democrats. Sohrab Ahmari in his opinion piece in the New Statesman describes it at least as well as I could:

Reacting to Donald Trump’s hush-money conviction in Manhattan on 30 May, the French writer Pascal-Emmanuel Gobry asked on X: “Has there been a single left-of-centre person… who has said: ‘Hey, nakedly partisan prosecutions of your political opponents goes against the values of liberal democracy, rule of law, justice, and everything my side claims to support?’”

A number of progressive figures have, in fact, decried lawfare against Trump and the Trumpians. The law professor Samuel Moyn, the civil libertarian Glenn Greenwald, the left economist Christian Parenti, and the heterodox Marxists clustered around Sublation magazine, among others, have maintained that in a democracy, politics should mainly be conducted in the voting booth, not in the courts or the interrogation rooms of the FBI.

Not that the FBI, for all its problems, had anything to do with Bragg’s decision to carry on with this prosecution. To the contrary, the feds, and DOJ Special Counsel Jack Smith, conspicuously never indicted Trump for any supposed campaign finance violations.

But the honour roll of the principled anti-lawfare left is all too short. That’s a shame, because right-wing populists won’t be the only victims.

Does Manhattan district attorney (DA) Alvin Bragg’s case against Trump count as lawfare? You bet. As the former federal and state prosecutor Elie Honig wrote in New York magazine, “The DA’s charges against Trump push the outer boundaries of the law and due process.” To wit, Bragg pressed a boutique legal theory “seemingly crafted individually for the former president and nobody else” – a classic form of prosecutorial abuse….

[E]ven if the conviction wasn’t legally dubious, half of Americans would still view it as illegitimate. For that half of the country, they (Democrats, the security establishment and their media allies) have been out to get Trump from Day One. Trump’s first term was consumed by Russiagate and two impeachments.

Since then, he has been barraged with 91 [felony counts] across four jurisdictions, plus unsuccessful attempts to boot him from the ballot in at least two states.

An excellent and important point. Let’s not forget those who, only a few short months ago, were lecturing us at ten thousand decibels that the way to “save democracy” was — ready now? — to make sure voters had only one choice for President! We had to destroy democracy in order to save it!

Some of these charges are more meritorious than others. His attempt to intimidate the secretary of state in Georgia into helping him “find” votes in the wake of the 2020 election should make all Americans queasy.

Yet much of the public can’t but notice that the disciplinary hand of the law comes down harder and more swiftly on Trump & Co than any other political sector. For example, while it has become clear that seemingly every ex-official with a security clearance keeps a cache of classified documents in his garage, only Trump is facing a special-counsel prosecution related to his mishandling of such papers.

By contrast, when the New York Post exposed the Biden clan’s influence-peddling in Ukraine and China, traditional media, Big Tech and the security apparatus circled the wagons. Facebook and Twitter suppressed the story, and most mainstream journalists defended the censorship, taking for gospel the false assertion by 50 prominent ex-spies that the Post’s reporting on the Hunter Biden files was Russian disinformation. Only after the election did some outlets do their own reporting and conclude that, yes, the Hunter laptop is real and troubling.

Ahmari then notes that, once before, it was the Left that was on the receiving end of lawfare……………and it could be once again:

For much of the 20th century, it was the socialist left that bore the brunt of [law infected with politics]. Beginning in the 1950s, the security state singled out militant labour unions and left groups for both covert infiltration and overt lawfare. In the opening decades of the 21st century, however, the target has shifted to right-wing populists, while the CIA and FBI recruit for “intersectionality” and give a culturally leftish veneer to their [investigative leanings].

My point here, though, is that fear of retribution probably won’t work in the long run to drive lawfare out of legal culture. That’s because fear is only fear, and incentivizes, not a change of heart, but only a steely determination to become more feared than the other guy. In my view, that’s not the answer; that’s the problem.

With apologies in advance for seeming like a Pollyanna, what we need to foster is not fear but conscience — conscience and an understanding of how much of civilization itself we are losing if we acquiesce in replacing law with vendetta.