IN THE
END, THE
MOST
SALIE T
FACT
30 newyork| september14–27, 2020
version is Vladimir Putin’s Russia, where the mafia is the govern-
ment and bribery is endemic.
Mutual toleration means that political opponents must accept
the legitimacy and legality of their opponents. If elected leaders can
send their opponents to prison and otherwise discredit them, then
leaders are afraid to relinquish power lest they be imprisoned
themselves. The criminalization of politics is a kind of toxin that
breaks down the cooperation required to sustain a democracy.
This, along with the misogyny, was what made Trump’s embrace
of “Lock her up!” so terrifying in 2016. He was already using the
threat of imprisoning opponents as a political-campaign tool.
If the government is run by lawbreakers, though, the state faces
a dilemma: Either the principle of equal treatment under the law
or the tradition of a peaceful transition of power will be sacrificed.
It’s hard to imagine any outcome under which the rule of law
survives Trump unscathed.
One of the most corrosive effects of Trumpism upon thepolitical
culture has been to detach the law from any behavioral definition
and to attach it to political identity. As Trump likes to say, “The
other side is where there are crimes.” He has trained his supporters
to understand this statement as a syllogism: If Trump’s opponents
are doing something, it’s a crime; if Trump and his allies are doing
it, it isn’t. The chants, which applied enough pressureto force
James Comey to announce a reinvestigation of Hillary Clinton in
October 20 16,simplytoprotect theFBIfrombeingdelegitimized
byRepublicansafteranexpectedClintonvictory,showedhowthe
fieldhadbeensownforTrumpevenbeforehetookoffice.
It is becauseTrumpviewsthelaw asa morallyempty category,a
weaponforthepowerfultouseagainst theirenemies,that hehas
spenthispresidencycallingfortheprosecutionand/orimprison-
mentofa constantlygrowinglist ofadversaries:JoeBidenand
BarackObama(for“spying” and“treason”),HouseIntelligence
CommitteechairmanAdamSchiff (forparaphrasingTrump’s
Ukrainephonecallina speech),JohnKerry (forallegedlyviolating
theLoganAct),JohnBolton(forwritinga tell-allbook),JoeScar-
borough(forthedeathofa formerstaffer),NancyPelosi(fortear-
inguphisStateoftheUnionAddress),andsocial-mediafirms(for
havingtoomany liberals).Trumphasallegeda varietyofcrimes
againstat least fourformerFBIofficialsandthreeObama-era
national-securityofficials.
Trumphaseagerlyseizeduponthesporadicriotsandlooting
thatfollowedGeorgeFloyd’s murder, butnoactualviolenceis
requiredforhimtoequatehisoppositioningeneralwithillegal
subversionof thestate.“Youdon’t handmatchestoanarsonist, and
youdon’t givepowertoanangry, left-wingmob,” hesaidin 20 18.
“Andthat’swhat theDemocratsarebecoming.” Justastheterm
fakenewsusedtodescribedeliberatelyfalsestorieswrittenby
pseudo-journalistsbutwasrepurposedbyTrumpasaninsultfor
veryrealreportingabouthisadministration,crimeshasceasedto
denoteviolationsofwrittenlawandbecomeinsteada catchall
descriptionforanyanti-Trumpactivity.
Eventhoughit is staringusinthefaceeveryday—orperhapsfor
thatreason—wehavefailedtograsphowprofoundlyTrumphas
underminedtheruleoflawandhowirreversiblethedamage may
be.Hiscontemptforthelaw is notmerelyincidental.He neverput
himselfforwardasa straightarrow. As a first-timemajor-party
candidate,hedepictedhishistoryofdealingwithpoliticiansasa
sequenceofsuccessfulbribes.Hespentyearsrailingagainst the
ForeignCorruptPracticesAct, a law banningbribesofforeignoffi-
cials,andtriedtoweakenitsenforcementaspresident,reportedly
complaining,“It’s just sounfairthat Americancompaniesaren’t
allowedtopaybribestogetbusinessoverseas.” Whenhesoughtto
collecta portionofthefeeforbrokeringthesaleofTikTok,Trump
citedthelong-standingpracticeoftenantspayingoff landlordsto
ge t rent-controlledapartments:“It’sa littlebitlike thelandlord-
about Donald Trump may simply be that he is a crook. He has been
defying the law since at least the early 1970s, when he battled the
Department of Justice over his flagrant refusal to allow Black ten-
ants into his father’s buildings. He has surrounded himself with
mafiosi, money launderers, and assorted lowlifes. His former at-
torney, national security adviser, and adviser, and two of his cam-
paign managers, have been arrested on or convicted of an array of
federal crimes ranging from tax fraud to perjury to threatening
witnesses. He employs the lingo of the underworld: People who
cooperate with law enforcement are “flippers” and “rats”; investiga-
tors pursuing his misconduct are “dirty cops.” To him, the distinc-
tion between legal and illegal activity is merely an artificial con-
struct enforced by sanctimonious hypocrites.
And although President Trump’s opponents have been warning
Americans what will happen to their 230-year-old constitutional
government if our gangster president gets another four years in
office, the truth is much of the damage has already been done. An
electoral defeat in November is, of course, necessary. But Trump
has set off a profound crisis of democratic legitimacy that even a
resounding Joe Biden victory may not completely resolve. It may
not take a fully developed fascist movement to bring down the
Republic. All that may be required is one well-placed criminal.
The prospect of an electorally defeated Trump, though glorious,
would immediately set off a conflict between two fundamental
democratic values: the rule of law and mutual toleration. The rule
of law is a banal yet utterly foundational concept that the law is a
set of rights and obligations, established in advance, that apply
equally to everybody. It is an ideal rather than a lived reality. Black
America, to take one obvious example, has never experienced equal
treatment from institutions like the police and the courts. But this
serves only to illustrate its essential value. The civil-rights move-
ment has consisted in large part of fighting to extend the protection
of the rule of law to Black people.
The experience of Black racial oppression shows that the absence
of the rule of law is a pervasive, terrifying insecurity. A society with-
out the rule of law is one in which the strong prey upon the weak.
The small-scale version is a town where you need the local warlord
or mafia boss to solve any problem or dispute; the nation-state PHOTOGRAPH: (PREVIOUS PAGE) MANDEL NGAN/AFP VIA GETTY IMAGES (TRUMP); HENNEPIN COUNTY SHERIFF’S OFFICE VIA GETTY IMAGES (JUMPSUIT)
