The Trump Precedent: No President Should Be Above the Law Again

The halls of the U.S. Capitol are thundering with demands for President Donald Trump to be held directly responsible, alongside his foot soldiers, for the siege of Congress on January 6. There have already been a couple dozen arrests, and many more are certain to come. There is an active federal investigation of the murder of a police officer at the hands of the pro-Trump mob, and media and political figures have raised the prospect of Trump’s criminal exposure for the bloodshed. There will certainly be convictions and prison sentences.

But it is quite likely that this fate will only apply to those unfamous citizens who joined the mob, not their ideological masters.

When it comes to holding the most powerful responsible for their role in crimes, particularly those committed while holding high office, the U.S. track record is anemic. While Democrats are rightly intent on proceeding with impeachment and other measures against Trump, the reality is that U.S. history is rife with episodes of political elites ultimately deciding to move on “for the good of the country.” It is why so many shameless Republicans are whining about the need to unify the country so it can heal. They know the game.

Listening to many Democrats and some Republicans speak in holy terms about the “sanctity” of the “temple of democracy” being pillaged and ransacked, it is easy to be seduced into believing that this time will be different, that the perpetrators — from top to bottom — will be held to account. But doing so would buck a long-standing pillar of the bipartisan system: When it comes to the crimes of the powerful, we must always look forward.

No senior military official was prosecuted for the torture at the Abu Ghraib detention center in Iraq. No CIA officer went to jail, much less lost their job, for operating a global kidnapping and torture program. No one faced an indictment for the U.S. use of banned cluster bomb munitions in President Barack Obama’s first airstrike in Yemen in December 2009 that shredded a few dozen human beings into ground meat. The failure to hold senior U.S. officials responsible for their crimes ensures that the crimes can and will continue. Look no further than the ascent of Gina Haspel, a key player in the CIA’s torture program and the destruction of videotapes of the abuse of detainees, to become the first woman to head the agency. It was a fruit of Obama’s look-forward-not-backward doctrine. There has rightly been outrage at Trump’s pardons for soldiers and mercenaries convicted of war crimes in Iraq and Afghanistan, but the other side of that coin is the bipartisan refusal to prosecute the masterminds of U.S. imperial crimes in those countries or elsewhere.

The events of January 6 were shocking in only one way: the fact that a violent mob was able to so easily storm and occupy the Capitol. These events were unprecedented in that the most powerful political figure in the United States was the circus master who used incendiary language as he called on the mob to descend on the building. “You’ll never take back our country with weakness,” Trump declared at a rally moments before the siege began. “You have to show strength, and you have to be strong.” Trump’s disgraced lawyer Rudy Giuliani went a step further, suggesting that the mob needed to create the conditions on Capitol Hill for a “trial by combat.”

Among the most serious questions as yet unresolved are: What role did law enforcement and Republican members of Congress play in facilitating the violent takeover of the Capitol? What did Trump administration officials in control of federal forces and the military know leading up to the siege? And did they facilitate it either directly or through deliberate inaction?

No one should pretend that this moment was not in some form predictable.

No one should pretend that this moment was not in some form predictable. Trump has spent four years using lie-filled bile to empower and embolden violent, dangerous, low-information racists and xenophobes to embrace a worldview where their “real America” had been snatched from them by Black people, immigrants, socialists, “abortionists,” and anarchists. Trump has openly encouraged police and other law enforcement to be more brutal toward protesters (and other people they arrest, for that matter); he has offered to pay legal expenses of supporters who beat dissidents at his rallies; and he issued orders in September for the Proud Boys militia to “stand back and stand by” as he waged his preemptive campaign to declare the election stolen. Trump has also sent a clear message that he will use the power of the presidential pardon to rescue war criminals, including U.S. soldiers and Blackwater mercenaries, who murder people. The rioters at the Capitol may have sincerely believed that Trump would absolve them of any actions they took that day in their pseudo-revolutionary war.

Leading up to January 6, the message from the president and his sizable coterie of allies among the Republican Party in Congress was clear: Joe Biden and the radical left are stealing not just the presidency but America itself. In portraying the “resistance” to the certification of Biden’s election victory as the second coming of the American Revolution — their 1776 2.0 — Trump offered a presidential seal of approval for any means necessary to “stop the theft.”

The fact that very few of the MAGA warriors who stormed Congress on January 6 attempted to conceal their identities is simultaneously a symbol of their idiocy and their belief that they were operating on orders from the commander in chief. It also served as dramatic evidence of the privileges assumed by the president’s supporters. Violence from Black Lives Matter supporters or antifa is regarded as punishable by death, but when performed by MAGA mobs, you might just deserve the Medal of Freedom like Rush Limbaugh.

WASHINGTON, DC - JANUARY 08: Nora, 24, from Washington, D.C., stands outside of the White House on January 8, 2020 in Washington, DC. Protesters have gathered to speak out against escalation towards Iran following the U.S. killing of Iranian General Qasem Soleimani and Iran's retaliatory missile attacks against two U.S.military bases in Iraq. (Photo by Samuel Corum/Getty Images)

Nora, 24, protests against acts of war against Iran outside of the White House in Washington, D.C., on Jan. 8, 2020.

Photo: Samuel Corum/Getty Images

How we as a society choose to respond to these events is of great consequence to our future. People were killed in this riot, including a police officer who was allegedly beaten to death by a mob whose members spent four years screaming about blue lives mattering. It seems clear that some among the mob spoke of, if not actively contemplated, murdering House Speaker Nancy Pelosi and hanging Vice President Mike Pence as a traitor from a tree on Capitol Hill. Particularly if you watch the videos of the mob attacking police as well as journalists, it would be a grave mistake to dismiss any of this as political disagreement or rhetoric that went too far in the heat of the moment.

It is easy, morally and politically, to join calls for Trump to be prosecuted. He is a cartoonish villain who clearly relishes his crimes. And let there be no doubt, Trump should face prosecution for a wide range of offenses, from his grifts to inciting violent white supremacists, to war crimes. But the most likely scenario, based on history and the current discourse among the elite political class, is that Trump mainly has reason to fear prosecution in New York and possibly other state jurisdictions, largely for financial crimes that predated his presidency. Trump may well be impeached and convicted under a Democratic-controlled Senate. But that is a very big maybe, given the razor-thin margin and the need to convince at least 17 Senate Republicans to vote to convict him. For a variety of reasons, Trump’s most consequential crimes as president will almost certainly go unpunished.

This country made a grave mistake by not prosecuting former President George W. Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and other senior U.S. officials who lied to justify the invasion of Iraq, who trampled on basic international laws and conventions, and whose policies destroyed nations and resulted in the deaths of hundreds of thousands of civilians and thousands of U.S. military personnel. We can recognize that it was and remains unforgivable to forgive Bush and Cheney while still agitating for justice to be served against Trump. In doing so, a precedent could be set that a U.S. president can be prosecuted for crimes committed in the course of their duties.

But that is almost unfathomable to imagine. While Democratic leaders in Congress are eager to impeach Trump, President-elect Joe Biden has indicated, in the words of one of his advisers, that he “just wants to move on.” Another aide told NBC News that Biden is “going to be more oriented toward fixing the problems and moving forward than prosecuting them.” Political elites in the U.S., particularly Democrats, are guided by fear of political blowback. They overemphasize the possibility of Republicans seeking revenge on them and creating a debilitating spiral where no president can govern without constant investigation and threat of prosecution. But that era is already here. The Republicans spent eight years undermining the legitimacy of Obama and moving mountains in an effort to block him from governing. The Trump administration, with support from its Congressional allies, spent four years investigating Obama and Hillary Clinton. And a significant number of these Republicans have endorsed the fantasy that Biden actually lost the election. This weak-kneed game theorizing from powerful Democrats must end. If we cannot hold the president accountable, the crimes will continue unabated.

The principle and the gravity of the crimes should guide our actions, not the personality or particulars of the accused.

This could be a moment for reflection about the dangers of unchecked executive power and the crimes that stem from it. But it won’t be. Even if the unthinkable happens and Trump is somehow prosecuted for his high crimes, it will almost certainly be treated as an anomaly rather than a precedent. The unstated conclusion will be that Trump’s crimes pale in comparison to those of the Bushes of the world, that his actions were more abominable than those of the men who authorized two nuclear bombings of Japan in 1945, incinerating more than 130,000 people in an instant and many more after. Trump will be painted as the one president — the only one — we cannot allow to get away. This too would be a disservice to justice. The principle and the gravity of the crimes should guide our actions, not the personality or particulars of the accused.

There are ample dangers present in the aftermath of the siege. On the one hand, there may be more mobs, more violence, more attacks. There are indications that Biden’s inauguration and the days preceding it could become the next theater for the MAGA warriors. In his first remarks in front of reporters since the siege, Trump on Tuesday defended his incitement and ominously warned Pelosi and Chuck Schumer that trying to impeach him is “causing tremendous danger to our country, and it’s causing tremendous anger.” Much as the Hosni Mubaraks of the world directed their unofficial gangs of thugs after defeat in elections, Trump has his irregular army, and he seems dedicated to unleashing them again.

But among liberals, there have been disturbing undemocratic trends emanating from the crisis. Some have called for an expansion of the no-fly list; others have questioned why police didn’t gun down the rioters. There are calls for expanding surveillance capabilities and authorities through new domestic anti-terrorism legislation.

Advocating the banning of right-wing figures on social media could lead to a popular mobilization toward a broader limiting of speech in this country.

And there is a real danger that advocating the banning of right-wing figures on social media could lead to a popular mobilization toward a broader limiting of speech in this country. We have to be able to rely on principle rather than passion in determining the path ahead. There are dire consequences to ceding to Silicon Valley the decision-making on who is entitled to core liberties. One can believe that Twitter was right to shut down Trump’s account because of its role in inciting violence while also holding extreme concern over how far such bans will go and how much power we as a society bestow upon the tech monarchies.

Even German Chancellor Angela Merkel — no fan or friend of Trump — criticized Twitter’s banning of Trump, labeling it a violation of the “fundamental right to free speech.” As the Financial Times reported, Merkel believes “that the U.S. government should follow Germany’s lead in adopting laws that restrict online incitement, rather than leaving it up to platforms such as Twitter and Facebook to make up their own rules.” The political dynamics and Constitution in the U.S. suggest that European laws, such as the German statute that criminalizes Holocaust denial as an act of incitement, would be widely opposed as violations of free speech. But Merkel’s broader point about who makes the rules in an increasingly monopolistic social media environment is an important one.

History has taught us over and over that in the aftermath of crises, the government uses popular fear and outrage to push through far-reaching policy changes that ultimately serve as howitzers blasting away the liberties of the many. That is what happened after 9/11 with the Patriot Act, which most members of Congress didn’t bother to read, and only one senator, Democrat Russ Feingold, opposed. It was this dynamic that led the country into a state of perpetual war with the veneer of legitimacy offered by a law signed nearly 20 years ago, the Authorization for Use of Military Force. There was just one member of Congress, Rep. Barbara Lee of California, who recognized this danger. With incredible bravery and her voice shaking, she took to the floor of Congress just days after the 9/11 attacks with an urgent warning.

“There must be some of us who say, let’s step back for a moment and think through the implications of our actions today — let us more fully understand their consequences,” Lee said. “We must not rush to judgment. Far too many innocent people have already died. Our country is in mourning. If we rush to launch a counterattack, we run too great a risk that women, children, and other noncombatants will be caught in the crossfire.” She concluded her remarks by describing how difficult it was knowing she would be the lone voice ringing the alarm bells. “I have agonized over this vote. But I came to grips with it in the very painful yet beautiful memorial service today at the National Cathedral. As a member of the clergy so eloquently said, ‘As we act, let us not become the evil that we deplore.’”

Lee’s sentiments are an important reference point for the moment we now face. As the country debates the fate of Trump, the legislative response to the Capitol siege, and the role that the Silicon Valley moguls play in deciding what speech is acceptable, it is vital that we view them all through the lens of the precedents that will be set and the consequences that they will enact.

The post The Trump Precedent: No President Should Be Above the Law Again appeared first on The Intercept.

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