06.06.2024

Another step towards the abyss

Donald Trump is now a convicted felon, but still looks set to win in November. Daniel Lazare warns that some kind of civil war beckons

America’s long-running constitutional crisis rose another notch last week, when a Manhattan jury found Donald Trump guilty of 34 felony counts in the Stormy Daniels hush-money trial.

“The rule of law being applied to Trump is good,” announced Jacobin, the online magazine that our Jim Creegan once described as the closest thing to a “flagship publication” that the Democratic Socialists of America have to offer.¹

The DSA, of course, is the pseudo-socialist outfit that is desperate to become part of the Democratic establishment, even though 99% of elected Democrats will not touch it with a 10-foot pole. A Jacobin seal of approval was therefore expected, since the magazine is still backing Biden in November despite attacking him on a near-daily basis in the meantime.

But it makes zero sense regardless. One reason has to do with the rule of law itself - a hoary old liberal cliché that takes the relationship between law and political democracy and gets it exactly backwards. Since law is something that “We, the people” use to implement and expand their authority, rule of law is no more coherent than rule by any other instrument or tool - shovels or perhaps darning needles. But popular sovereignty does not mean government of, by and for the law. Rather, it means government of, by and for the people, who then create a legal structure for their own purposes.

But another reason is that the US law is a mess even by bourgeois-liberal standards. Supposedly, the American people are sovereign. That is what the preamble - the famous paragraph that opens with the words, “We, the people” - says. But the rest of America’s sacred constitution says the opposite. It nips popular sovereignty in the bud by locking the people into a governing structure that is effectively frozen in time. Back in 1790, thanks to the complicated amending clause set forth in article V, four out of 13 states, representing as little as 9.8% of the population, could block any constitutional reform sought by the remainder. More than two centuries later, the percentage is down to just 4.4, which means that veto power now rests with just one person in 22 or 23.

A complicated governing structure dating from the days of silk knee britches and powdered wigs is thus set in stone. With its chronic gridlock and multiple minority choke points, the system fairly cries out for reform. Yet, the more it deteriorates, the more unlikely reform becomes. Americans are prisoners of a system that is beyond their control.

This is why faith in government, criminal justice included, is plunging. According to a 2019 survey, the number of Americans who say they are very confident in judges, juries, and state and local courts has fallen to between 36% and 38% - a record low. Some 66% think that the courts are too political while 70% agree that they favour the rich.²

That is a damning judgment by two-thirds of the country or more. So, while social democrats are thrilled by the Trump verdict, ordinary voters are less impressed. Indeed, one poll found that the needle had barely budged. “Just over half the country thought Trump was guilty before the verdict,” CBS News reported, “and now just over half think the jury reached the right verdict and that the trial was fair.”³

Instead of striking a blow for justice, the verdict merely compounded the deadlock that is now tearing the country apart.

But there is a third reason why Jacobin’s faith in the rule of law is unwarranted. It is because the hush-money case is so weak. Alvin Bragg, the Manhattan district attorney who brought it, ran for election on a ‘Get Trump’ platform in 2021. Juan Merchan, the judge who presided over it, is a Biden supporter whose daughter, Loren Merchan, heads a Democratic political consulting firm whose clients include such top Dems as Adam Schiff - the congressman who served as chief prosecutor in Trump’s first impeachment trial and is now using the hush-money case to raise money for his bid to become the next senator from California.

“It is a sombre moment, and unprecedented for a former president to be indicted, but his alleged offences are also unprecedented,” moaned the neocon foreign-policy hawk from Los Angeles - a man who gives new meaning to the word ‘oleaginous’.

Securing defeat

As for the charges themselves, they are nothing if not a stretch. The trouble began in 2016, when Trump used personal funds to buy the silence of various individuals claiming to have embarrassing tales to tell in the closing weeks of the presidential campaign. One was a doorman who said Trump had fathered a child out of wedlock. Another was a former Playboy model, who claimed to have engaged him in an extra-marital affair. A third was porn star Stormy Daniels, who claimed to have slept with Trump during a celebrity golf tournament in Nevada in 2006.

Trump paid Daniels $130,000 to keep quiet about an encounter he continues to deny. The prosecution says he then listed the payment in his business records as a legal expense. Even if true, the falsification is a misdemeanour for which the statute of limitations has long since expired. But Bragg was able to get around that obstacle by charging Trump with committing one crime in furtherance of another that was more serious. As Judge Merchan explained to the jury, this was using the money “to unlawfully influence the 2016 presidential election”.

There would have been no problem if Trump had merely used his powers of persuasion to convince Daniels to stay mum. But, because he used money, there was. Ironically, Jack Smith, the prosecutor leading the anti-Trump charge in the federal courts, brought a remarkably similar case against John Edwards - a Democratic senator from North Carolina who in 2004 launched a short-lived presidential bid. Smith charged Edwards in 2011 with using more than $900,000 in campaign contributions to buy the silence of a woman with whom he had had an extramarital relationship and had fathered a child. But the case fizzled out, when a jury found Edwards not guilty of federal campaign-finance violations.⁴

Now Trump has been convicted of essentially the same offence, even though he used his own money rather than campaign funds contributed by others. So, given Bragg’s obvious bias, Merchan’s conflicts of interest and the ‘all or nothing’ feeling among Dems that no trick is too underhand if it helps Biden win another term, it is hard to imagine a more political prosecution.

As Trump declared at a press conference the day after conviction, “The only way they think they can win this election is by doing exactly what they’re doing right now: win it in the courts because they can’t win it at the ballot box.”

Quite right. Still, what is remarkable about the legal strategy is how badly it is backfiring. Instead of cutting his lead, it is boosting support among voters turned off by the Democrats’ all-too-obvious misuse of the legal system. Voters figure that anyone who earns the enmity of media moguls, Hollywood liberals and neocon warmongers must be doing something right. So they are rallying around a bourgeois rebel whose anti-immigrant tirades are growing more and more fascistic and unhinged by the day.

But that is liberalism’s function in a period of capitalist decline. Instead of fighting the ultra-right, it smoothes the way for its takeover. After endless congressional hearings, a special prosecutor, two impeachments, four criminal indictments, civil judgments for business fraud and sexual abuse, and now a criminal conviction, the only result is that Trumpism is more powerful than ever.

Lawfare

America is hardly the only country in which ‘lawfare’ is leading to disaster. Pakistan’s Islamist opposition got there first by forcing Imran Khan, the cricket star turned prime minister, out of office in April 2022 and then obtaining a legal judgment banning him from ever running again.

Following an assassination attempt a few months later, Khan was again arrested and sentenced to 20 years on charges ranging from corruption to entering into a marriage in violation of Islamic law.⁵ Were the charges trumped up or not? The dysfunctional state of the Pakistani legal system makes it unclear. But there is not the slightest doubt as to the aim. It is to sideline Khan once and for all despite polls showing that he is still the favourite.

Then there is Ukraine, where then-president Viktor Yanukovych put Yulia Tymoshenko, his long-time political nemesis, on trial in 2011 for misuse of public funds. Although Tymoshenko received a seven-year sentence, it is again unclear whether the charges were warranted or not. But Ukraine is such a swamp of corruption, it is hard to believe that anyone’s hands are clean.

Yet the only thing Yanukovych accomplished was to spark a rightwing rebellion three years later that sent him packing, even as it exonerated Tymoshenko and tipped the country in the direction of civil war.

Now the United States is doing the same. While hardly in the same class as Ukraine, the US is subject to many of the same forces. It is awash with corruption, riven by political extremism, geographically polarised, and gripped by a growing social crisis with which it is unable to cope. But that is not all. Like Trump, Volodymyr Zelensky is also an ex-TV star who scored so big with Servant of the people - a hit series about a high-school teacher who is suddenly vaulted into the presidency - that he decided to form a party with the same name and get himself elected president in real life.

Servant of the people boosted Zelensky just as The apprentice boosted Trump. When government is dysfunctional, fantasy takes over and the lines between politics and entertainment grow blurred. In Ukraine, voters ultimately wound up with a Russian invasion as a consequence. In the United States, they are likely to wind up with rightwing authoritarianism, mass round-ups (Trump is vowing to expel 11 million illegal aliens), growing restrictions on abortion, plus other horrors to boot.

Not surprisingly, outraged Republicans contributed $53 million to the Trump campaign within 24 hours of the verdict being announced. Computers crashed as online records were shattered. National Republican leaders condemned the verdict so vociferously that The New York Times said it was now “clear that Republicans across the country would not run away from [Trump’s] newfound status as a felon”, but “would, instead, run on it” - “the base has never been more motivated,” a Texas Republican announced. Trump is “more than just an individual,” Speaker of the House Mike Johnson added. “He’s a symbol of fighting back against this government corruption, the deep state, the bureaucracy and all the rest.”⁶

So civil war is brewing in the US as well. With sentencing set for July 11, it seems unlikely that Merchan will force Trump to do “hard time”. The charge is so petty that prison seems unlikely. But, after being called “crooked ... totally conflicted ... a devil”, it is plain that the judge’s patience with Trump is at an end. So jail is not completely out of the question.

Questions are swirling in response. With the Republican National Convention set to begin in Milwaukee just four days later, will Trump give his acceptance speech from inside a cell? Since he is entitled to Secret Service protection as an ex-president, will armed agents follow him inside, where they may potentially clash with armed prison guards? What happens if he is elected? Will he take the oath of office behind bars? Will he meet with his cabinet in between meeting with his parole officer?

No-one knows. Instead of a bang or a whimper, the US system is ending with the hilarity of a TV sitcom.

1. jacobin.com/2024/05/trump-law-criminal-conviction-presidents. For Jim Creegan’s comments, see ‘Walking the tightrope’ Weekly Worker March 22 2018: weeklyworker.co.uk/worker/1195/walking-the-tightrope.↩︎

2. willowresearch.com/wp-content/uploads/2019/10/Public_Confidence_in_US_Courts.pdf.↩︎

3. www.cbsnews.com/news/trump-verdict-new-york-poll.↩︎

4. news.syr.edu/blog/2024/04/16/pitch-legal-analysis-of-hush-money-trial-facing-former-president-donald-trump.↩︎

5. www.france24.com/en/asia-pacific/20240203-pakistan-s-ex-pm-imran-khan-wife-get-seven-year-jail-term-for-unlawful-marriage.↩︎

6. www.nytimes.com/2024/05/31/us/politics/trump-conviction-gop-reaction.html.↩︎