10.08.2023

Closer to the brink

Donald Trump faces numerous legal challenges. Despite that he runs neck-and-neck with Joe Biden in the polls and could well win the next presidential election. Daniel Lazare gives his take on the pending constitutional crisis

First US Democrats used the intelligence agencies to bring Donald Trump down. Now they are trying to use the criminal-justice system. But it is looking less and less likely that they will succeed.

The reason, simply, is that one effort undercuts the other. Four years of a round-the-clock destabilisation campaign aimed at proving that Trump was in cahoots with Moscow undoubtedly served to weaken him and help Joe Biden wrack up an impressive seven-million-vote win in November 2020. But, by failing to come up with evidence to back up their lurid charges, Democrats ended up undermining their own credibility. As a consequence, fewer and fewer voters now believe Democratic prosecutors when they say they are charging Trump with everything from fraud to violations of the 1917 Espionage Act merely because they want to uphold the law. Instead, they believe the real reason they are going after him is to prevent him from winning a second term.

Polls tell the story. After Manhattan district attorney Alvin Bragg charged Trump on March 30 with criminally concealing hush-money payments to porn star Stormy Daniels, a stunning 76% of respondents described the charges as politically motivated. In other words, three out of four believed they were essentially fraudulent. When special prosecutor Jack Smith charged Trump three months later with security violations in connection with 31 sensitive defence documents squirreled away in his Mar-a-Lago home, 62% said the charges were political as well. Where only 43% of Republicans backed Trump prior to the first indictment, his support rose to 55% after the second.¹

Finally, when Smith indicted Trump on August 1 on charges stemming from the January 6 2021 attempted coup d’état, a poll found that he was now even with Joe Biden (43% each) and that his nearest Republican rival, Florida governor Ron DeSantis, was trailing even further in the dust.

“Any time they file an indictment, we go way up in the polls,” Trump told a Republican gathering in Alabama a few days later. “We need one more indictment to close out this election.”

Chances are he will get it, as Atlanta prosecutor Fani T Willis prepares to charge him with election interference. This is based on a phone call he made to Brad Raffensperger, Georgia’s top election official, in January 2021, as congressional certification of the 2020 election was drawing near. “I just want to find 11,780 votes, which is one more than we have, because we won the state,” Trump said. Having lost Georgia by 11,799 votes, in other words, he needed Raffensperger to rustle up that many votes plus one to move the state into the plus column and help reverse Biden’s win.

If Willis does indict (a move that could come within weeks), the upshot is that Trump could face four criminal trials next year - an unprecedented pile-up that could cause the entire system to crash like an overloaded computer. Matt Taibbi, a freelance journalist with a major internet following, describes it as a recipe for “pure chaos”. Last week he wrote:

If not for the fact that the disintegration of American society might be imminent as a result, I’d be laughing harder. Prosecutors keep applying new charges to him like leeches on a medieval convalescent, and news audiences need a CNN case tracker to follow Trump’s charge count (76, with more on the way). The punchline? The man facing death in prison is in the strongest position of the major candidates.²

Quite right. A Harvard law professor named Jeannie Suk Gersen neatly summed up the legal snarl arising from the latest ‘J6’ indictment. She wrote in The New Yorker:

All four counts depend on a basic factual allegation: that Trump understood that he had lost the election, and that his actions were undertaken with that knowledge ... Yet a paradoxical effect of reading through the [indictment’s] grimly repetitive march of person after person who told Trump that he had lost is that it underscores his stubborn refusal to let go of the belief that he had won.³

Legal offensive

Even though Trump sincerely believed that the election had been stolen, according to all outward appearances, Smith faces the difficult task of persuading a jury that he really believed the opposite and that he tried to overturn the results out of pure cynicism and greed.

Gerson notes that, for legal reasons, Smith did not charge Trump with inciting insurrection - the charge for which he was impeached following the Capitol Hill takeover and the one crime that would formally bar him from the presidency. Even if a jury votes to convict, Trump could therefore enter the White House regardless. Gerson says:

The sitting president’s justice department is prosecuting his leading electoral opponent, for interference with the 2020 presidential election - a prosecution that voters who support Trump may interpret as interference with the 2024 election. The most distressing challenge, then, for Smith and for the country, is that, no matter what the outcome, there seems to be no viable path forward that all Americans will see as a win for democracy.

Translation: even if Smith and other prosecutors win in court, it could be at the cost of losing in the political arena, which is the only one that counts. The judiciary is no place for sorting out problems better left to the voters. By hitting Trump with charge after charge, Democrats are confusing matters rather than clarifying them.

Of course, the legal snarl stems from an even greater snarl caused by a growing constitutional collapse. Conceivably, things could have turned out differently if Congress had impeached Trump following the January 6 insurrection - a legal procedure that is the equivalent of a grand-jury indictment - and if the Senate had convicted him as well. Since a conviction on charges of inciting insurrection would also have barred him from holding office, a problem that had bedevilled Democrats for years would have been fixed. With Trump’s political career at an end, attempts to hold him criminally accountable could have proceeded more calmly and rationally in the judiciary.

But the US constitution requires a two-thirds majority for conviction - a barrier that is all but insurmountable - and Trump thus got off scot-free. After mounting an all-out Russiagate offensive aimed at driving him out of office during his first term, Democrats felt obliged to follow up with an all-out legal offensive aimed at locking him up prior to his second.

The process moved forward as if on autopilot. Beginning in June 2022, a special House committee, consisting of seven Democrats and two anti-Trump Republicans, held a series of televised public hearings, whose clear aim was to manoeuvre the Biden justice department into filing charges. Biden added to the pressure by letting his inner circle know in late 2021 that he thought attorney general Merrick Garland should prosecute Trump as a threat to democracy - sentiments that were sure to reach Garland himself.⁴

Eventually, the AG got the message and instructed Smith to begin assembling a case. Temperatures then rose when Smith sent as many as 40 FBI agents to raid Mar-a-Lago in search of missing documents last August.⁵ They rose again when Republicans took back the House in November and vowed to use their victory to launch a retaliatory investigation into influence-peddling by Biden’s son, Hunter. Now they are rising even more, as Smith adds a slew of January 6 charges to the mix.

Instead of a one-off affair, the January 2021 uprising was thus the start of a protracted breakdown. The upshot is that 2024 is shaping up as less a democratic election than a bar-room brawl, in which members of Congress, candidates and maybe even the militias all grapple desperately to assert control.

Trump victory?

Who will win? With crime up more than 50% since the mid-2010s, homelessness reaching epidemic proportions, and a president and vice-president who are both personally unpopular, it is looking more and more like it will not be the Democrats. Indeed, if you toss in inflation and a faltering counter-offensive in Ukraine, Democratic fortunes look even worse.

Conceivably, the party could turn things around by easing Biden out of the way, and bringing in Democrats from outside Washington who are younger and more dynamic - people like California governor Gavin Newsom or Michigan governor Gretchen Whitmer. But Biden is stubborn, even though he is so decrepit at the age of 80 that he is practically a second Konstantin Chernenko. The upshot is a Trump-Biden rematch that Trump might very well win.

It is all too clear what will happen if he does. With Trump vowing to pardon hundreds of J6 insurrectionists now languishing in jail, the effect will be to retroactively vindicate an uprising that was a direct assault on free elections. Even though the outward forms might linger on, just as they did in Italy for three or four years following Mussolini’s 1922 March on Rome, the outcome will be the same: American democracy will be finito. After issuing his own presidential pardon, Trump will then launch a purge of the ‘deep state’ - otherwise known as the FBI, the CIA and the rest of the ‘intelligence community’ - for their role in Russiagate. As he has made clear, he will go after a long list of enemies: not only Hillary Clinton and the Bidens, but small fry like Adam Schiff - the California neocon whom Republicans despise for leading the ‘Russia, Russia, Russia’ charge in the House.

Many, it not all, could wind up in the dock, as Trump does unto others what others spent years doing unto him. “If you go after me, I’m coming after you!” Trump wrote (all in capitals) on his personal social-media platform last week. With Republicans cheering him on, there is every reason to take him at his word.

A Trump victory also means that the police will be unleashed, racism will rise, and harsher measures will be brought to bear against everyone from homeless drug-users to women in need of an abortion and desperate migrants trying to make their way across the border. The ‘Texasisation’ of America will be complete. With Trump now inveighing against ‘leftists’ at every turn - “they are communists, they’re Marxists, and they’re people that don’t get it,” he said of the Biden forces last week - there is little doubt that socialists will also get it in the neck.

Internationally, the results will be no less pronounced. John Bolton - national security advisor until Trump fired him in September 2019 - recently warned that Trump will pull out of Nato if elected, leaving the alliance as little more than a hollow husk.⁶ But, even if he does not, rightwing nationalism will still surge, as Poland, Hungary and the Baltic states take a tip from the United States and institute mini-MAGAs (‘Make America Great Again’) of their own. France, Germany, and the rest of the European Union will have little choice but to follow suit.

As Trump moves to settle the Donbas war on terms favourable to Russia, the upshot will be to reduce Ukraine to an embittered neo-Nazi rump state - further destabilising a region already suffering from overload. Criticism of Israel will cease, Netanyahu will have more of a free hand than ever, while relations with Iran will plunge to a new low. The outlook is less clear for China, since Trump tends to tread cautiously when it comes to the People’s Republic, despite his tough-guy rhetoric. But, given that the United States is already on a collision course with the PRC, there is no reason to think that imperialism will reverse course. A clash seems inevitable.

If Biden ekes out a victory, on the other hand, the day of reckoning may be forestalled. But it is only a matter of time until the imperial-constitutional collapse resumes, since the process is essentially unstoppable. When a global hegemon breaks down, no corner of the globe is left untouched.