Schmittian thoughts on the latest Trump indictment
I had no idea that you, Noah, we’re so biased against Trump, and so blinded by partisanship.
You keep saying that Trump should have been dealt with politically through impeachment; well he was, twice, and he was acquitted twice, but apparently that’s not good enough for you.
You ignore everything that was done to Trump to impair his presidency. You’re silent about the legal double standard that is damaging our nation, and then you digress about a German NAZI. Get out of your bubble, and put your country first, instead of your political party.
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A Trump Exception?
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.
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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."
It appears that you are suggesting that Trump (and every other former president) is immune from all laws -- that only the political system can do something about a former president (not clear how this works for the former is never a "current" again). Is there any law that Trump is obliged to submit to at this point in your view?
This is excellent, Noah--bringing up Schmitt at the end is an appropriate way to capture the fundamental, and awful, tensions of our moment. I am finding it interesting that Damon, you, and several others I follow are committing strongly to the position that the second impeachment vote was our last, best hope for avoiding the present mess; it's water under the bridge, obviously, and it's not like a unified position among the punditocracy would have changed McConnell's mind at the time, but still, it makes me wonder what might have been, if the attack on the Capitol building had managed to pull enough people together across the ideological spectrum, and there had been a stronger voice insisting upon his impeachment three and a half years ago.
Last's suggestion a pardon might be justified was short on critical details. You suggest a prospective pardon, Last was unclear on that. This is frustrating to me, because the case for a pardon is dependent on details: Before or after a conviction? Is federal office forsaken? Is an admission of guilt required?
Without terms there is no point in discussing whether a pardon would politically stabilize the nation, with the rights terms I believe it would. Disqualification from office removes only Trump, but Trump is unique. He enjoys an emotional bond with millions of people, he has built a cult of personality. Whether achieved in a plea bargain, pardon, 14th Amendment Section 3, or by losing, avoiding a 2nd Trump term stabilizes our politics all by itself. Removing Trump moderates his base because only Trump has a special genius for whipping them up.
Trump's insults and attacks are dominance displays, he is unprecedented in US history as a dominance politician. Admitting guilt and accepting ineligibility is submission. No matter how he might try to take it back his spell will be broken. Putting him in jail doesn't break the spell, he can play the martyr. But martyrs don't cut deals.