Trump's Prosecution Is America's Last Hope

Social norms—not laws—are the basic structure of democracy. Georgia’s indictment of Donald Trump is the last tool to repair what he has torn apart.

Donald Trump was arrested in Georgia tonight for his involvement in what prosecutors said was a “widespread criminal effort” aimed at overturning the results of the 2020 election. Trump and 18 others — including his former attorney Rudolph Giuliani and former chief of staff Mark Meadows — have been formally charged with 41 felony counts under state law. The case was filed by Fulton County, Georgia District Attorney Fanny Willis. Willis is not the first local prosecutor to charge a U.S. president with a felony, but she is the first to accuse a U.S. president of trying to steal an election.

Trump is personally accused of trying to intimidate and bribe top Georgia officials, including the top election monitor, Secretary of State Brad Raffensperger, among other charges of filing false documents and conspiracy to forge. Trump and other “conspirators” pressured officials to take action to “decertify the election” and “illegally appoint a presidential elector,” prosecutors said. The charges opened the door for further racketeering charges against Willis. The charge, filed under the state’s RICO Act, will require jurors to consider whether Trump and the other defendants participated in a single criminal activity. Conviction under RICO does not require that the defendants all know each other or be involved at the same time, as long as they are all committed to the same corrupt goal.

RICO, punishable by up to 20 years in prison, is a powerful, if not dangerous, legal weapon. Prosecutors may only need to prove two of dozens of possible crimes to convict. What constitutes a “business” by the state is rather vague. At the same time, jurors may be presented with reams of evidence and are instructed, usually in some narrative fashion, to see “patterns” in the defendant’s behavior; the human brain has been trained to do things, even subconsciously level. It would be the end of the world for Trump and his team to let the case progress to the point where the jury is actually deliberating on RICO.

In addition to the Georgia indictment, the cases against Trump include a Manhattan “hush money” case against a porn star; a lawsuit in Florida federal court over his retention of classified documents; and a federal case in Washington, D.C. , accusing him of his role in the Jan. 6 insurgent riot at the U.S. Capitol and efforts to overturn the 2020 election. In total, Trump faces 91 felony charges. He has so far pleaded not guilty to each.

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The indictment is the pinnacle of Trump’s political career, which by flouting checks and balances, mocking the law and the courts, cheered supporters who used violence in his name, including those rooted in white nationalism and misogyny, Prone to spontaneous and premeditated groups. Violence. Over the past 31 months, more than 1,100 of his most loyal supporters have been accused of physically trying to prevent Congress from certifying the 2020 election results. More than 80 of them admitted to beating the police officers who ordered them to disperse. More than 140 police officers were reported injured, four of whom committed suicide within 200 days of the incident.

These were not Trump’s only casualties. While these may seem trivial in the face of actual deaths, millions of dollars in damages and election interference, legal experts have long warned that Trump’s personal political style — acerbic, tool-wielding harassment — is corrupting the electoral process The norms and practices upon which it is based. Long-term dependence on stability. Prosecuting Trump could help present an apparently legitimate electoral challenge to those seen as outright criminals. But his arrest alone has underscored that certain political activities are an affront to democratic norms upheld by the public, regardless of the court’s own views.

In a 2018 book, the Harvard Law duo Steven Levitsky and Daniel Ziblatt propose two criteria for the foundations of a healthy democracy: “Social Norms” are unwritten codes of conduct that people generally agree on. By the end of its first year, the Trump administration had successfully violated both regulations with usual efficiency. Levitsky and Ziblatt’s norms include “mutual tolerance” and “institutional tolerance.” The latter describes the need for a politician to show restraint in the exercise of power; not in order to gain the upper hand and immediately use that power to destroy an opponent. “Think of democracy as a game we want to play indefinitely,” they wrote.

Nothing in this century has eradicated mutual tolerance among Americans more than the presidency of Donald Trump. His strategy of painting political opponents as illegitimate and un-American — for the better part of a decade — undercut the social and democratic norms that the jurisprudence guru has said for more than a century are integral to the functioning of a democracy. By the time Joe Biden took office, Washington post He listed 30,000 patently pathological false or misleading statements made by his predecessors. The Trump administration’s expanding ethical violations have made Americans aware, perhaps for the first time, that there are virtually no laws against some of the most basic forms of corruption nationwide; instead, conventions and norms—essentially It’s an honor system — the only thing standing between the president and gross abuses of power.

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Americans generally view the U.S. Constitution as the pinnacle of their legal system. Many modern legal theorists, and even the founders of the state, have described the concept of state authority from different angles.Rousseau, the Genevan philosopher General Volunteering, or the “general will” of the people, is the only legitimate source of state power. The American Revolutionaries believed that laws could only be considered legitimate if they were enacted with the “consent of the governed.” Jefferson once said that the only “source of power” is the people, and power can only be obtained “from them.” For politicians who believe that “supreme power” resides in the Constitution, early U.S. Supreme Court Justice James Wilson suggested they may be missing “accurately enough to consider our political system.”

As a result, democracies are effectively unable to constrain an elected dictator as they wish. Traditional checks and balances are often useless without strong norms. Levitsky and Ziblatt write: “The tragic paradox of the electoral route to authoritarianism is that the assassins of democracy use democracy itself—gradually, subtly, even legally—to kill it ’” The Georgia case pulled Trump and his associates out of the soft realm of “violating norms” and threw them into the cold, hard box of crime. The best argument for indicting Trump under RICO is that it appears to leave jurors room to consider both issues.

Of course, the indictment of Trump will do little to cement America’s deep partisan divide. Legal scholars have reason to believe that this will only further intensify hostilities and erode trust in U.S. institutions. Meanwhile, Republicans have launched an aggressive PR campaign based on the idea of ​​”letting voters decide.” But relying on voting, rather than on jurors who are obliged to consider the evidence and draw inferences from facts alone, may itself create a new normative curse on democratic values. Suing is not the first option. But all the other levers that could have been pulled to stem and neutralize the damage Trump caused were left in place. Republicans, in particular, have virtually never been denied the means or opportunity to hold accountable the de facto leaders of their party. Relying on a system that Trump previously spent tens of millions of dollars to destroy is at best like a country fulfilling its death wish.

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For American democracy to flourish, or to preserve the legitimacy it has left behind, prosecutorial systems, judges, and jurors in New York, Georgia, Florida, and Washington, D.C., must continue to work. Laws may not always prevent people from profiting from the mistakes they make. But they cannot be entirely denied the opportunity to decide whether their ill-gotten gains should be stripped.

Laws are ultimately made “real” by those they are directed against, including state officials, who, unlike ordinary citizens, cannot make a living simply by obeying the law. If judges, legislators, and even presidents think only of themselves, while ignoring the actions of their superiors, subordinates, and colleagues, the effectiveness of the legal system—and ultimately the system itself—will crumble. British legal theorist Hella Hart once wrote that one of the “necessary and sufficient” criteria for the existence of a legal system is to require public officials to consciously adopt common standards of conduct, “to critically evaluate their own standards of conduct, and to refer to each other’s Deviations are considered errors”. “.

For some observers, the notion of “norm violations” has been falsely intertwined during Trump’s presidency with failures by federal oversight officials, mostly unaware that they have been a bastion of ghosts. In the early years of the Trump administration, the lack of coherence in the pillars of democracy led too many people to focus too much on the absence of criminal charges, while equally important but flimsy democratic norms are being smashed into dust. If criminals have laws and courts to deal with, and the public has no right to sue, then social norms are unjust—beyond the law as defined by people, their values, and beliefs.

It’s no secret. The only specific directive implemented so far by Trump’s hypothetical subsequent presidency is aimed at firing more than 50,000 bureaucrats and civil servants to shield Trump from legal scrutiny and shield him from potential prosecution. According to Axios’ Jonathan Swan, the lobby group has compiled an “extensive” list of individuals considered loyal to the president and filling those positions. This plan is clearly contrary to the constraints that Levitsky and Ziblatt place great importance on maintaining a healthy and functioning democracy.

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