06.04.2023

Government by swarm

The former president faces 34 criminal charges. But Trumpism will grow stronger, whatever happens at his trial, argues Daniel Lazare. He is already clear favourite to run in the 2024 election

A local district attorney elected with just 211,000 votes in New York is throwing a nation of 330 million people into crisis by indicting an ex-president on the flimsiest of charges.

Anyone wondering how such a thing can happen should know something about America’s unusual political structure. Just as Walter Bagehot once said of the English constitution that “its mystery is its life”, the US constitutional system is mysterious as well, even though its workings are supposedly written down in black and white for all to see.

The reason is simple. Everyone praises the US constitution as a work of wondrous perfection - “the beautiful, exquisite, brilliant genius of the constitution” is how former speaker of the House Nancy Pelosi described it in 2020¹ - yet in reality it is filled with so many gaps and contradictions that it is increasingly difficult to figure out what it even means. Americans, for instance, long assumed that they elect the president. But they learned otherwise in December 2000, when the Supreme Court chose George W Bush for the White House despite the fact he was more than half a million votes behind Al Gore.

They long assumed that the federal government is the highest authority. But they learned otherwise, when the Supreme Court overthrew Roe v Wade last June, giving states control over abortion policy rather than the feds. They long assumed that the people’s representatives could make common-sense laws about guns. But, with the Supreme Court now viewing the right to bear arms as no less essential than free speech or a free press, they have had to stand by and watch, as judges strike down one gun law after another that, among other things, prevent private citizens from carrying concealed weapons in crowded public places.

Total war

Finally, Americans have long assumed that jailing politicians on trumped-up charges is something that only third-world republics do. This is why the Biden administration is criticising Indian prime minister Narendra Modi, however obliquely, for using a cooked-up slander charge to railroad opposition leader Rahul Gandhi into prison. Criminal justice should not be politicised - or so Americans have long assumed, and so the constitution, with its many protections of the rights of the accused, seems to imply.

Yet Manhattan district attorney Alvin Bragg is doing just that. He is prosecuting Donald Trump for paying $130,000 to porn star Stormy Daniels in a case that is so complex and ungainly that many legal observers warn it could collapse under its own weight. With the local Young Republican Club declaring “total war” in response, the political implications are explosive.² Outsiders might therefore assume that those in charge - either Joe Biden or his attorney-general, Merrick Garland - would try to coordinate with their fellow Democrats to make sure that the affair does not blow up in their faces.

But they would be wrong. In law-besotted America, outside interference is seen as unjust, improper and unconstitutional. Instead, the law - represented in this instance by Bragg - must be allowed to pursue its relentless course, even though no-one has a clue as to how it will end up.

In a remarkable New York Times op-ed - remarkable because it dared to challenge the liberal consensus in a newspaper that is its very nerve centre - a former federal prosecutor named Ankush Khardori pointed out that Trump is not being prosecuted for trying to overturn an election or “engaging in egregious financial fraud”, but for the comparatively piffling offence of paying someone to keep silent about an incident that he denies, but which would have proved embarrassing and disruptive if it had come to light during the final weeks of the 2016 presidential campaign.³

Hush money is not necessarily illegal, although Bragg maintains that in this case it was. But, even if he is right, there is a problem. America is filled with local prosecutors eager to do the same. As Khardori stated,

Every local prosecutor in the country will now feel that he or she has free rein to criminally investigate and prosecute presidents after they leave office. Democrats currently cheering the charges against Mr Trump may feel differently if - or when - a Democrat, perhaps even president Biden, ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make a name for themselves by prosecuting a former president of the United States.

Khardori added: “The vast range, breadth and diversity of criminal laws throughout the country provide plenty of opportunity for mischief.” As Robert Jackson, attorney-general under Franklin D Roosevelt, observed in 1940,

A prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone ... It is not a question of discovering the commission of a crime and then looking for the man who has committed it: it is a question of picking the man and then searching the law books or putting investigators to work to pin some offence on him.⁴

Since prosecutors have not changed a whit in the decades since, a conviction in New York will almost certainly embolden other scalp-hunters as well. Perhaps a local hotshot in Delaware will go after Hunter Biden for falsifying business records or for lying on his application for a gun licence. Maybe some far-right attorney will come up with a novel way of prosecuting Biden père in Florida or Texas. Legal battles will proliferate not only because each local actor is independent and autonomous, but because every last one of them believes that the constitution is on his or her side. It is their moral duty to turn the legal aggression up to the max. While Americans cheer or boo from the sidelines, the spectacle will drag on and on.

This is not democracy, but government by swarm. Democrats have been prosecuting Trump since the moment he entered the White House. “The campaign to impeach president Trump has begun,” The Washington Post posted on its website on January 20 2017, at precisely 12.19pm - which is to say at virtually the same moment that he was raising his right hand to take the oath of office.⁵ By May, Democrats had brought in a special prosecutor named Robert Mueller to nail Trump on charges of colluding with Russia. (For a detailed analysis of the fiasco, see the four-part series that an ex-New York Times investigative reporter named Jeff Gerth published in the Columbia Journalism Review in January.⁶) When Mueller concluded that he was unable to “establish that members of the Trump campaign conspired or coordinated with the Russian government”, Dems tried to impeach him on charges of soliciting foreign election interference by pressuring Ukrainian president Volodymyr Zelensky to investigate business activities by Joe Biden and his family.

When that failed, they impeached Trump for his role in Capitol Hill insurrection on January 6 2021 - and, when that went belly-up, they held prime-time televised hearings in the hope that they would somehow prompt the department of justice to prosecute him instead. Since that did not work either, they are now hitting him with a two-bit case in New York. At every stage, the only thing they have succeeded in demonstrating is their own weakness - and the weakness of political institutions in Washington.

Make no mistake - the case that Bragg is assembling in New York is shaky in the extreme. Falsifying business records, which Trump is accused of doing to hide the $130,000 payoff, is a misdemeanour with a two-year statute of limitations. Since that expired in 2018, Bragg is accusing Trump of disguising the payment to further a second crime: violation of federal campaign finance laws - a felony that carries a five-year statute of limitations. But since that expired in 2021, he will reportedly argue that the clock stopped while Trump was out of state in the White House or in Mar-a-Lago, Florida. That means that a statute of limitations is not a statute of limitations at all, but something quite different.

Confused? Even the left-liberal Nation magazine admits that Bragg is engaging in “a lot of legal contortions to make this a felony”.⁷ But Bragg ran for DA on a ‘Get Trump’ platform and is now under overwhelming pressure to see the case through. Backing down is inconceivable, regardless of the political consequences.

Battle lines

Prosecuting Trump only makes him stronger. Prior to the indictment, rival Republicans like governor Ron DeSantis of Florida and former UN ambassador Nikki Haley had begun jockeying for the 2024 Republican nomination. But, now that he has been charged, Trump’s lock on the nomination seems secure - not despite Democratic efforts to drive him out of politics, but because of them.

If a jury votes to convict - unlikely, but not impossible in anti-Trump Manhattan - odds are that he will run from jail. His martyrdom complete, he will either romp to victory or ignite a full-blown civil war against the forces that put him behind bars.

It is worth keeping in mind that Trump was laughed out of court when he first threw his hat in the ring in 2011. Barack Obama skewered him expertly at the annual White House correspondents’ dinner, causing Trump to squirm in his seat.

But, while the act flopped the first time around, it clicked the second. It is not hard to see why: deepening anger over the lingering effects of the post-2008 recession, growing irritation with Democratic nominee Hillary Clinton’s blithe assumption that she was entitled to the presidency as Obama’s heir apparent, and deepening war weariness as well after years of terrorism and chaos in the Middle East. These are all things that Democratic hawks like Clinton brought on themselves. But Trump was able to use them to fashion a new type of rightwing populism that was anti-plutocratic and anti-Nato, while at the same time friendlier to a degree toward Russia. Trump was the first presidential candidate in generations who had never been elected to a public office. But, given the political horror show in Washington, voters took his anti-politician status as a plus.

The more Democrats reeled in horror, the more voters figured that Trump must be on to something. The battle lines were thus drawn.

Trumpism’s fortunes have expanded ever since. Trump-style populism is now a force to be reckoned with in France, Italy, Poland and Scandinavia. Nigel Farage is a Trump fan, as is rightwing Dutch firebrand Geert Wilders. So are Matteo Salvini, head of Italy’s far-right Lega party, and Jimmie Åkesson, leader of the equally ultra-right Sweden Democrats. “Keep on fighting, Mr President,” Hungarian strongman Viktor Orbán tweeted earlier this week. “We are with you.” Laura Huhtasaari, a member of the rightwing Finns Party, which is set to enter the Finnish government following its strong performance in the April 2 parliamentary elections, nominated Trump for the Nobel Peace Prize in 2020.⁸

That is quite an endorsement. Trumpism is growing because capitalism, rent by war, inflation, environmental decay and economic polarisation, favours authoritarianism and governmental breakdown. The trend is evident around the globe. But nowhere is it more spectacular than in the US, with its ancient constitution that is both dysfunctional and unchangeable, and a political system in Washington that has been gridlocked for 30 years.

The only certainty following Tuesday’s arraignment in New York is that the process will intensify