32 newyork| september14–27, 2020
president does something, it’s not illegal. The reforms put in place
after Nixon, such as establishing the offices of inspector general and
walling off the attorney general from political prosecutions, are in
ruins. Trump adviser Roger Stone has a massive tattoo with Nixon’s
likeness on his back and revels in crookedness. Stone gave Trump a
campaign back channel to the stolen Clinton emails, then openly
promised not to “roll” on the boss and was duly pardoned.
Had Nixon faced prison, rather than walking away a states-
man, would Stone have set out to help elect a crook to the high-
est office in the land? And would that president have gleefully
mimicked so many of his crimes? If Trump isn’t prosecuted,
what will his successors do?
To think about a society in which Trump’s gangster-state logic
prevails, consider Russia. Putin is one of the richest people in the
world, having amassed a net worth believed to range up to $200
billion. Obviously, one doesn’t make that kind of money honestly
while spending decades in public service. Putin’s political network
is honeycombed with criminals, whose impunity is a direct function
of their ties to him. The way you can tell whether wealthy Russians
have fallen out of favor with the regime is that they’re charged with
crimes. While Americans tend to think of Putin as an autocrat, it’s
more accurate to see him as the boss of a criminal syndicate that
gained control of a failing state. Even in a second Trump term,
Americawouldbemanystepsremovedfromanoligarchy like
Russia’sbutstillseveralstepscloserthanit hadbeena short
whilebefore.
TrumpdeeplyadmiresPutin.(Thisis,infact, themost innocuous
explanationforthesubmissivedevotionhegivestheRussian presi-
dent.)Usingthetoolsavailabletohim,Trumphastriedtoreplicate
a versionofthePutinapproachtocriminaljustice.He haslavishly
usedthepardonpowertoex oneratea widearrayofcriminals loyal
tohimorhisparty: JoeArpaio,ScooterLibby, DineshD’Souza, Rod
Blagojevich(who,notcoincidentally, is thehighest-rankingDemo-
crat toendorsethepresident),andStone.Trumppromisedpardons
toofficialswhowouldviolate thelaw onhisbehalf.
LegalscholarandSocialDemocrat Ernst FraenkelfledGermany
in 1938 andthreeyearslaterpublishedTheDualState:A Contribu-
tion to the Theory of Dictatorship. The “dual state” describes the way
in which Nazi Germany continued to operate under theformal,
democratic legal apparatus that had predated Hitler, while running
a parallel state that violated its own laws. Legal impunity for the
ruling party is the key pillar in a system that can destroy the rule of
law even while retaining laws, judges, and other formal trappings
of a working system.
Trump hasn’t created a dual state, but he has laid the groundwork
for it, not only in his rhetorical provocations but also as a kind of
legal manifesto. In a series of letters, Trump’s lawyers have argued
that he enjoys almost complete immunity from investigation by law
enforcement or Congress. “The President not only has unfettered
statutory and Constitutional authority to terminate the FBI Direc-
tor, he also has Constitutional authority to direct the Justice Depart-
ment to open or close an investigation, and, of course, the power to
pardon any person before, during, or after an investigation and/or
conviction,” they wrote in 2017. Last year, the president and his law-
yers described impeachment as “illegal,” “unconstitutional efforts to
overturn the democratic process,” and “no more legitimate than the
Executive Branch charging members of Congress with crimes for
the lawful exercise of legislative power.” One of his lawyers, Alan
Dershowitz, wrote that Trump could not be impeached even if he
handed over Alaska to Russia.
Trump’s incredible claim to be both the sole arbiter of thelaw and
beyond its reach was on vivid display at his nominating convention,
a festival of televised lawbreaking. The Hatch Act, passedin 1939,
prohibits using government property to promote any candidate for
office. It has been observed continuously, often in exacting detail.
Political scientist Matt Glassman recalled working as a staffer at the
lowly Congressional Research Service, where he had to remove old
political memorabilia, like a 1960 Kennedy poster and an 1884
Blaine-Logan handkerchief, lest those items be mistakenby pass-
ersby as endorsements for a living candidate.
Trump has smashed the Hatch Act to bits, to the point where he
turned the White House into a stage for his party convention. It isn’t
that he was simply willing to pay the price of breaking the law in
order to get the best backdrop. Trump’s aides told the New York
Times he “enjoyed the frustration and anger he caused by holding a
political event on the South Lawn of the White House, shattering
conventional norms and raising questions about ethics-law viola-
tions,” and “relished the fact that no one could do anything to stop
him.” Unashamed legal impunity was itself the message.
A democracy is not only a collection of laws, and norms of behav-
ior by political elites. It is a set of beliefs by the people. The convic-
tion that crime pays, and that the law is a weapon of the powerful,
is a poison endemic to states that have struggled to establish or to
maintain democracies. If the post-election period descends into a
political crisis, having all the relevant prosecutors promise immu-
nity for Trump would be the most tempting escape valve. Yet the
price of escaping the November crisis, and simply moving past
Trump’s criminality by allowing him to ease off to Mar-a-Lago, is
simply too high for our country to bear.
Gulag, Anne Applebaum’s 2003 history of Soviet concentration
camps, argues in its conclusion that the failure to come fullyto terms
with the crimes of the old regime had “consequences for the forma-
tion of Russian civil society, and for the development of the rule of
law ... To most Russians, it now seems as if the more youcollabo-
rated in the past, the wiser you were.” This observation, written in
the early years of Putin’s regime, captures a cynicism that pervades
Putin’s now-almost-unchallenged autarky.
Ziblatt likewise suggested to me that Spain’s handling of the post-
Franco era has soured in retrospect. In the immediate wakeof Span-
ish democratization, letting many of Franco’s fascist collaborators
walk away scot-free seemed like a masterstroke. But over time, a
“growing resentment of a collusive bargain between elites”discred-
ited the system and fueled the growth of extremism.
Before 1945, the international norm held that deposed rulers,
however crooked or abusive, should be allowed exile. Kathryn Sik-
kink’s The Justice Cascade: How Human-Rights Prosecutions AreThe prospect offitting the orangeman for anorange jumpsuitwould createne w problems ofits own.