Fire Sale at the End of History

Donald Trump is above the law. Defeating him means that we have to admit this to ourselves.

America may not have come to terms with it yet, but you’ve just witnessed the most spectacular and consequential episode of Mythbusters in history, and Adam and Jamie weren’t even there to guide us through it.

To explain:

One of the most important things that the United States is going to have to straighten out and clarify going forward is: Why couldn’t Donald Trump be prosecuted for any of his alleged crimes?

This is separate to the question of whether he is guilty of crimes. If you look back at the past few years and the myriad investigations against the former and future president you’ll notice that the question of his guilt was rarely even brought up. The question in all cases was, from the beginning, “Is this person, by definition, subject to the legal system?”

There were four criminal cases involving Donald Trump. Very bravely and timidly, two of them dared to move ahead at all. The Georgia case into the conspiracy to rig the 2020 election got as far as an arrest and a notorious mugshot, but they lost their nerve about bringing it to court. They kicked that can down the road until it was too late.

Only New York, Trump’s home turf, had the New York sized cajónes to bring one of his cases to trial, at which he was convicted on all counts. However, they too chickened out before sentencing and so here we are.

The trial had no right to be this boring

Everybody involved at all levels in the criminal processing of Donald Trump, from the Attorney General down to the guy who held Trump’s head to stop it bumping against the patrol car, spent the last four years trembling and sweating like Cold War generals standing at a doomsday nuke panel. Because of that, this entire drawn out and expensive farce ended literally as quickly as a CNN presenter could say “Fox has called it for Pennsylvania.”

All those cases will now go away, and the amount of vengeance that everyone involved can expect depends entirely on how thoroughly they go away and how low to the ground they can get during their apology.

Again, why?

There is apparently a rule of law in America. It’s supposed to be pretty sacred as it’s one of the most fundamental things separating a liberal democracy like the USA from the monarchy it was established to escape from. For this reason, even Trump’s most staunch defenders (especially his defenders) absolutely cannot admit that the reason Trump cannot be prosecuted is because there is not, and in fact cannot be, a rule of law.

This is, after all, the first time it has been seriously tested under laboratory conditions. While it’s ludicrous to say that everyone has simply behaved themselves for the past 248 years, they have nevertheless stayed well enough within the boundaries of public acceptability. When they haven’t, someone has always stepped in to shut things down. Gerald Ford pardoned Richard Nixon in ’74 explicitly to stop this from being tested.

Had it been tested then, as it has been tested now, it would have been made clear: The “Rule of Law” is every bit as fake a part of America’s founding mythology as Washington chopping down a cherry tree and being too pure of heart to lie about it. Or as Paul Bunyan’s twelve foot tall blue cow.

There is a lot I still don’t understand about America

And of course it’s fake, when you think about it!

Powerful people can’t be divorced from their power somehow for the purposes of prosecuting or punishing them. Hierarchies are hierarchies, and if your social system comes with a hierarchy (which capitalist liberal democracies do and their advocates viciously defend this) then that hierarchal structure is going to touch everything like a toxin in a closed environment.

It doesn’t matter that Donald Trump falsified business records or smuggled state secrets or even that he raped a woman long before he was president. It wouldn’t matter if he shot someone in the face. You cannot prosecute a current or former president without it being a political act. Why? Because you’re prosecuting a president for god’s sake. Think about how ridiculous the phrase itself sounds.

Yes, Donald Trump is above the law, and obviously so.

Think of how farcical and stupid it was when they marched Former President Donald Trump into a backwater Georgia courthouse and a junior beat cop had to fingerprint him and take a grainy mugshot like he was Bo Duke getting run up for DUI. For Democrats and liberals it was a day of celebration and justice, because he was being treated as though he was a regular criminal. For Trump supporters it was an unforgivable insult and an act of aggression, because he was being treated as though he was a regular criminal. For everyone, it was a purely political act.

You know what literally nobody saw that day? The arrest of an ordinary criminal. There was only the pantomime of the arrest of an ordinary criminal. The rule of law, on the very rare occasion it is acted upon, is a performance. It’s a circus lion whose teeth have all been extracted and gets trotted out every now and then for the express purpose of tricking the rest of us into believing the ruling class have been tamed and cannot hurt you.

Donald Trump is above the law. But even his staunch defenders, in a manner that I find infuriating, cannot bring themselves to say it, not in those words. They’ll try to weasel-word their way out of this very simple admission because, despite being the very cornerstone of their defense of Trump, saying it in those words undermines a core belief they have about American cultural superiority.

So you get Trumpist commentators like Matt Taibbi stressing again and again that the cases against Trump are invalid because they are “political,” as though it would be possible to prosecute any president for literally anything in a way that wasn’t.

The closest, of course, that anyone has managed to get anybody of consequence to state that “Donald Trump is above the law” was the landmark SCOTUS case earlier this year, Trump v United States, which clarified that a president is immune to prosecution for acts that would presumably otherwise be criminal but were committed while acting officially as president.

Richard Nixon, two years after his resignation, caused national outrage during his notorious interview with David Frost when he said “when the president does it, that means it is not illegal, by definition.” What it’s taken us this long to come to terms with is that fact that Nixon was telling the one hundred percent God’s honest truth. But even he didn’t grasp the full extent of it—the one crime he was convicted for, the hush money case, was committed before he was president. That conviction, too, is now being overturned on the basis that the president is also retroactively immune from prosecution for any and all crimes committed throughout his life.

And once again, that sounds insane written out, but it’s obviously true when you think about it. It doesn’t matter if Trump turns out to have been the Zodiac Killer. Going after a current or former president, for any reason, for any allegation, is a political act by definition. And we cannot do political prosecutions, because that is Third World Banana Republic Shit.

Ah, but you see it now, don’t you—the paradox. Presidents being above the law is also Third World Banana Republic Shit. But those are our only two options, aren’t they?

One infuriatingly weasel-wordy thinkpiece published by SCOTUSBlog author Thomas Goldstein in the New York Times this week tried also to explain how Donald Trump is above the law without saying “Donald Trump is above the law.” Goldstein’s thesis is that the American people, who were aware of the cases against Trump, still voted him back in as president, which dubiously means they voted away his having done crimes.

Despite Goldstein’s bullshit made up pretend legal argument he weakly deploys in order to avoid these exact words, I agree with his danced-around conclusion that Donald Trump is above the law. I disagree with his thoughts on what should be done about it: Goldstein thinks all the cases should be thrown out immediately for the sake of preserving liberal democracy. I think the idea of preserving liberal democracy is, right now, like somehow preserving a birthday cake you dropped on the floor. I think the courts should do some Third World Banana Republic Shit and throw his ass in the slammer.

Alas, photoshops in Google Image Search are the closest we’re ever getting

But that’s weird, right? Why do all possible ways of handling this situation look like Third World Banana Republic Shit? In my view it’s the political equivalent of the fact that, when you stand at the North Pole, every possible direction you can move is south.

Through the course of the 21^st century, we have come to collectively believe that nothing is, well, really supposed to happen in a liberal democracy. The political philosopher Francis Fukuyama in his book The End of History and the Last Man proposed that liberal democracy is basically the terminus of our political journey as humans as society builders. After the turmoil of the 20^th Century with its grand and catastrophic experiments, the World Wars ended, the Cold War ended, and all of our great enemies just sort of collapsed into this, or something like it.

Now almost every country has a McDonald’s and nothing ever happens.

I don’t think Fukuyama was right about this being the end of history (moreover, neither does he anymore, more on that later) but I do think that’s what we came to believe on some level. We’re complacent about how cozy our lives are past the end of history. As I write this, the Russia-Ukraine war has just further escalated, with the two nations now lobbing ICBMs into each other’s territory, and there’s all this background chatter about World War III being closer than ever, what with Iran escalating the Middle East skirmish at the same time. But does it really feel like that? It doesn’t, does it? We’re not hiding under desks, we’re not even a quarter as anxious as everyone felt in the Cuban Missile Crisis.

There was a time

We all feel like we’re living in the era of Nothing Serious Really Happens Anymore, and I think that’s why Trumpism took us by surprise and won. We have checks and balances now and everything works like an orderly machine. Even when the fight is vicious, everybody follows the rules.

Donald Trump decided to see what happens if he didn’t follow the rules, and he quickly discovered that there are no downsides to him doing that. It would ruin a lot of other people’s lives and break America in some fundamental and tragic ways, but for someone who doesn’t care about anything whatsoever but his inner story and the size of his impact, good or bad, then absolutely, there are no downsides.

We misled ourselves into believing this fairytale of a “rule of law” (as mythical a deity as its cousin the “invisible hand”) and that there was an impenetrable system of checks and balances that would keep a tyrant from taking over, but what nobody realized was that this was entirely reliant on prospective tyrants also believing that.

For a long time we’ve suspected that powerful people really are above the law, but then every so often the law actually does come down and take one scalp, like a Bernie Madoff or a Sam Bankman-Fried, and we’re tempted to believe that this system really does work as advertised. But no matter how many aberrations or exceptions to the norm, there is still an inescapable reality we have to confront if we’re going to move forward and stop weasel-wording and bullshitting ourselves otherwise:

In our society, there are some people who are above the law, literally, and society functions on the assumption that those people will choose not to take advantage of that. It is a miracle that what amounts to little more than an honor system has lasted cloaked in its own mythology for this long.

As I alluded to earlier, Fukuyama now admits that his theory was flawed and that Trumpism, specifically, proves it flawed. It just wasn’t really clear until now how exactly the seemingly rock-solid institution of an American-style liberal democracy, with its rule of law and three separate branches of government equally accountable to each other, could be compromised.

Trumpism, like every ideology, lays its roots far deeper than its most obvious current incarnation, but we’re coming up on the ten year anniversary of the host of TV’s The Apprentice reality game show coming down a fucking escalator and us spending every god damn moment of the ensuing decade thinking this is where the system kicks in and ends this.

Nobody thought this was going to last any longer than the Kanye announcement

I still clearly remember the exact day the Access Hollywood “grab ‘em by the pussy” tape was released. I remember turning to my girlfriend, who is now my wife of six years, and telling her with enormous relief that the Trump presidential campaign nightmare had just ended. I went to a party that week and we were all talking about the threat of a Trump presidency in the past tense.

Every scandal, every impeachment, every lawsuit, every scandal since that day has triggered steadily diminishing spikes of “we’ve got him now!” exclaimed in ever flatter and less convincing tones.

But we do not, in fact, got him now. What we’ve got is Donald Trump in charge of all three of those branches of government that check and balance each other, and he’s gearing up for his second presidency in which he is both more powerful and more pissed off than he was the first time around.

Now: I do not mean for this to be a pessimistic essay. There is, in fact, a lot of room for optimism once we understand where we actually do stand. I think one of the more hope-inspiring things that has happened this cycle occurred the very morning of me publishing this, and so I’m going to end on a more optimistic note than I had originally intended:

During a horrible week of cabinet-building announcements, Matt Gaetz, the almost-certainly-a-child-trafficker that Trump had selected for Attorney General has stepped down from consideration due to pushback from the Senate, which proves that there are still some processes intact. This is an extremely welcome development that, if nothing else, proves that Donald Trump can’t do literally anything he wants even with unprecedented levels of power.

Gaetz’s appointment was one of Donald Trump’s first acts as president-elect, and he immediately ate shit. This is good news.

It's small, but it’s a crack that you can get your fingertips into and gain some leverage. Use this and fight. We’re going to have to shift and re-evaluate what we’ve taken for granted about our western democracies, but it’s a lesson we have to accept, learn from, and adapt to. But if we do this, then that’s how we win.