A Trump Exception?

Schmittian thoughts on the latest Trump indictment

I haven’t said anything about the indictments of former president Donald Trump because, you know, what is there really to say? Inasmuch as they are a purely legal matter, they aren’t worth getting emotionally invested in because, as I’ve argued before in a different context, you can’t expect the legal system to deliver symbolic and moral victories. If this is a purely legal matter, then we should let the system do its work and otherwise ignore it, because a single bad verdict doesn’t touch us, only evidence of systematic perversions of the justice system. But of course, nobody is treating it like a purely legal matter. The fate of democracy and the rule of law is—in the view of many people on both sides—very much on the line. The mere fact that so many are so emotionally engaged by the indictments is proof that they are a form of politics. How could they not be?

I’ve read a handful of good pieces brooding on this fact in a common vein. I’d single out my friend and colleague Damon Linker’s piece at Notes From the Middleground, Jack Goldmith’s Op Ed in The New York Times, and especially Damir Marusic’s piece at Wisdom of Crowds. What they share is an understanding that, whether or not the prosecution of Trump is undertaken for partisan motives—and for a variety of reasons I am inclined to be charitable on that score—it is de facto a partisan undertaking, with all that implies about its unlikelihood of being seen as impartial, and thereby actually bringing closure to the breach in the body politic that Trump opened.

There was another way, of course. Impeachment is the proper way to deal with crimes committed by the president as president, which is what the most recent and most inflammatory indictment is about. Trump was impeached after January 6th, and was acquitted by the Senate after he had left office. Senator Mitch McConnell, the GOP Majority Leader, declined to impeach a former president and said it was more appropriate for the legal system to deal with Trump’s crimes, and that’s what’s happening now. But the fact that McConnell said it doesn’t mean it’s true or even that he’s going to stick with his view that the legal system should deal with it; I assume, rather, that he will reverse himself (if he hasn’t already) and say that the prosecution is political. Which it is, unavoidably so, but that’s precisely why the Senate should have dealt with the question back when it had the chance.

The only way to deal with a criminal president is political, in other words. There is no law to appeal to that is above politics in this case because the president is the chief magistrate—only the political system as a whole can preserve itself from a corrupt or lawless executive. But by refusing to be part of a political solution, the GOP has made it not only political but unavoidably partisan as well. And that is our fundamental problem.

Where does that leave us? Nowhere good, no matter what happens, though some eventualities are worse than others. One of the worst possible outcomes from a political perspective, as Goldsmith avers, would be for Trump to lose the election and then be acquitted at trial after it is done. The GOP would take that as unequivocal evidence that the whole point of the indictment and prosecution was to win the election, and the breach would widen measurably, perhaps fatally. Even worse, I would argue, would be for Trump to win the election and then pardon himself either before or after conviction. The Democrats would, of course, be similarly outraged, but what would actually break our political system entirely would if either the Supreme Court endorsed that move as legal or if, alternatively, the Court struck down the pardon as illegal and Trump defied the Court for going beyond their authority. All of these are very real possibilities, and ones that the rest of our political system would be largely impotent to prevent—more evidence that this problem should have been handled politically back when the Senate had the opportunity to do so.

Of course, one way of handling it politically even now would be for President Biden to preemptively pardon Trump. At The Bulwark, Jonathan Last makes an extended analogy to John Maynard Keynes’s pleas during the Versailles negotiations that Germany be forgiven the vast bulk of the reparations it owed, lest the imposition of harsh terms—even if just—undermine the viability of the fragile new German political system and ultimately lead to a new war. While forgiveness might seem morally outrageous, it might have been pragmatically necessary. In a similar spirit, Last suggests, perhaps it is pragmatically necessary that Trump be pardoned lest a prosecution lead to a new and worse conflagration.

That sounds like a plausible argument, though Last himself pokes a variety of holes in it at the end of his piece. But there’s a bigger hole that he doesn’t acknowledge—namely, that he never actually makes the analogy that he gestures towards. Forgiving Germany’s reparations debt might have stabilized Germany’s economic system by relieving them of an oppressive economic burden; this, in turn, might plausibly have stabilized the German political system and thereby helped prevent the rise of extremism and another world war. How, though, would pardoning Trump stabilize our political system? Last never actually explains how—he just gestures at that possibility. Implicitly, he must be assuming either that the GOP base would moderate in response to the Democrats’ gesture of conciliation, and reject Trump, or that Trump himself would show grace and retire from the scene in gratitude, or that the less-committed portion of the electorate would be so impressed with the Democrats’ magnanimity that they would return them to power. Is any of those scenarios particularly plausible? I don’t think so.

Which does not imply that a prosecution, even a successful one, would be politically efficacious. Last worries that prosecuting Trump will only make him stronger, and I suspect it will—certainly in the primary it will, and maybe in the general election as well depending on how distrustful the median voter is towards the Biden Administration by that point. It will also bind the GOP even closer to him, and will embolden him to greater and more vindictive recklessness should he win the general election despite being tried or even convicted. But pardoning Trump would also make him stronger—because it would be an unequivocal victory. Why, after all, would Biden pardon him; out of the goodness of his heart? Or because he was afraid of him or knew he was going to lose in court? Which do you think Trump is going to say, and what will the voters believe? From a political perspective, it doesn’t really matter whether Trump screams about political persecution or whether crows that a pardon vindicates his claims that the indictment was political persecution—either way he can persuasively demonstrate to his constituency that none of this was about law, but that all of it was about him, and therefore about them. Either way, the breach that he opened remains open.

In other words, I think Marusic is right that we are already in a Schmittian situation, a contest over who is truly sovereign in the sense of being above the law. Is it Trump? Or is it those who would prosecute him? In a democracy, the answer to who is sovereign is supposed to be “the people,” but who they are is also a politically-contested question these days. Indeed, that contest is central to what all our ructions are fundamentally about.