Here at The King’s Necktie we are in the middle of a two-part essay about the incoming Trump administration’s horrific plan for mass deportations, but we interrupt our regularly scheduled programming for a bonus blog post.

I rarely devote a whole essay to commenting on someone else’s work, and I’ve never done it before to push back, only to praise. But a recent opinion piece in The New York Times really caught my eye. It was by Tom Goldstein, the highly accomplished attorney and much-respected founder of SCOTUSblog, the premier online journal about the US Supreme Court. It was called “End the Criminal Cases Against Trump” and that title pretty much says it all.

Goldstein writes:

Democracy’s ultimate verdict on these prosecutions was rendered by voters on Election Day. The charges were front and center in the campaign. The president-elect made a central feature of his candidacy that the cases were political and calculated to stop him from being elected again. Despite the prosecutions, more than 75 million people, a majority of the popular vote counted so far, decided to send him back to the White House.

I know, right?

And this was not the usual gaslighting from a Trump bootlicker, like Tom Cotton or Lindsay Graham or Victor Davis Hanson (or Marc Thiessen, or Jason Willick, or Hugh Hewitt….stop me anytime). Goldstein is a Democrat, a deeply experienced litigator specializing in cases before the Supreme Court, and has taught for many years at both Harvard and Stanford law schools. When it comes to Democratic bonafides, he was even second chair (as they call it) for Laurence Tribe and David Boies in Bush v. Gore in 2000. He is held in great esteem in the legal community and among people on both sides of the aisle.

And who am I? Just an regular shmo. My credentials, such as they are, are in other fields.

Still, as an ordinary citizen, I respectfully submit that Mr. Goldstein is dead wrong. Worse, I would contend that his argument represents a dangerous example of voluntary submission to autocracy at the very beginning of (at least) four years in which the rule of law and the republic itself are already in grave danger.

I CAME HERE FOR AN ARGUMENT

Let’s look at some of the arguments in Mr. Goldstein’s brief but explosive piece. He writes:

A central pillar of American democracy is that no man is above the law. But Mr. Trump isn’t an ordinary man. Moreover, the state cases against him invoke legal strategies that had never been used to criminalize the behavior that prosecutors charge. Rightly or wrongly, they carry the stench of politics and, if pursued, could lay the groundwork for political prosecutions of future presidents.

That paragraph covers a hell of a lot of ground, with some Coltrane-like giant steps.

It’s true that Donald Trump is not “ordinary”—and neither was Jeffrey Dahmer. (Or maybe a better comparison would be Trump’s favorite cannibal, Hannibal Lecter, even though he’s fictional.) But since when is that exculpatory? Is Trump’s position as president the thing that elevates him above accountability? That is literally the opposite of what democracy is supposed to be about. I think you’re thinking of a monarchy, Tom.

The novelty of the prosecutors’ approach is also not reason to dismiss the cases, and it’s a rather ironic tack for Goldstein to take, as he made his name crafting cases specifically aimed to reach the Supreme Court and set precedents.

As for carrying “the stench of politics,” that qualifying clause “rightly or wrongly” is doing a lot of work. Stench or no, it matters a helluva lot if the charges have legal legitimacy or are purely political. We can argue about that, and even disagree, but Goldstein jetés over that distinction completely, suggesting that it doesn’t matter if the charges are legit, because they still look bad to some. But there will always be some people who feel that way about any case. By that standard, we could never charge anyone with anything without an overwhelming plebiscite. And even a plebiscite can result in a decision that is unjust and immoral.

The idea that the electorate rendered the final verdict on Trump’s alleged crimes is especially galling. So if—to take a totally random and not at all deliberately pointed example—I stand in the middle of Fifth Avenue and murder someone, but the American people still like me, I should get off? Worked for OJ I guess.

(Side note: that majority of which Goldstein speaks has already been trimmed to a plurality, and is continuing to decline. So as Gil Scott-Heron says, “Mandate my ass.”)

And lastly, we shouldn’t prosecute Trump because some hypothetical future regime might later take that as reason to exploit and abuse the law? Again, by that logic, why prosecute anyone for anything, as that is always a risk?

Goldstein asks us to imagine charges “brought in Texas and Alabama against Joe Biden using novel and untested approaches challenging how he spent money while campaigning,” cases that would be “brought by hard-core Republican prosecutors, before juries and judges in deeply Republican counties.” Gosh, I sure can imagine that, because the new president-elect has all but promised that very thing.

And I hasten to point out that the charges in Georgia, for example, are not about how the defendant “spent money” but his blatant effort to pressure a state election official into tampering with the vote count, recorded on tape. Obviously, there are genuine banana republic–style pitfalls for an administration that pursues legal action against its predecessor. But when we are dealing with an attempted coup, the greater danger is not pursuing accountability.

POLITICALLY DRIVEN (TO TEARS)

Goldstein comes back several times to the reasoning behind the charges in New York and Georgia (though not the federal cases), and I know he is not alone in that critique.

In both cases, the prosecutors’ legal theories were and are unusual, to say the least. Their premise is that financial shenanigans and political strong arming in hard-fought battles for the presidency are serious felonies that can be pursued by local prosecutors in local courts. But these are fundamentally federal, not state, concerns.

To describe a fascist takeover of the US as a “hard-fought battle for the presidency” betrays a blinkered view of what is going on in the United States, reminiscent of the GOP’s own characterization of an attack on the US Capitol as “legitimate political discourse.” And to begrudge the states any recourse when the federal government is gridlocked by right wing obstructionism feels pedantic and shortsighted to say the least.

Above all, Mr. Goldstein seems to side with those who believe that the prosecutions of Trump were politically driven and without legal merit. (So when he wrote disingenuously of that stench earlier, there was really no “rightly or wrongly” about it, in his view.)

(T)he Constitution trusts the judgment of the American people to decide whether the cases against Mr. Trump, as he has argued, were political and calculated to stop him from being elected. The people had plenty of opportunities to hear both sides, and they have spoken. That judgment is the critical check we have against the possibility of politically driven prosecutions of presidential candidates.

In truth, support for the cases among many Democrats doesn’t seem to be based on confidence in the prosecutors’ legal theories and evidence. Instead, it seems to be driven by politics and hatred of Mr. Trump. That reinforces why they must be dismissed.

You know who disagrees? Twelve impartial jurors chosen from the people of New York, who listened to the arguments in open court and returned a unanimous verdict in 34 felony counts. But Goldstein would have us believe that they are all rabidly consumed with Trump Derangement Syndrome.

Some people will always be convinced that dismissing the charges will let Mr. Trump get away with crimes.

(Uh, that is precisely what that means.)

But the Constitution isn’t concerned with preserving a couple of criminal cases. It is concerned with having a system of government that can hold our democracy together for centuries. So far, it has worked, even if our deep disagreements make that hold seem tenuous right now. Inviting prosecutors of the opposing political party to pursue these kinds of charges in the wake of a presidential election can only make things worse.

“A couple of criminal cases”? A violent attempt to overturn a free and fair election is about the most serious crime of which a head of state can be accused. This week I got a $65 ticket from the city of New York because a rubber gasket on my car’s bicycle rack partially covered a portion of my rear license plate. I’m glad justice is being served!

In all the pending cases Trump’s lawyers employed the Roy Cohn-bred delaying strategy he has used throughout his long, litigious life, which successfully stalled three of the cases against him—forever, it now seems. In the fourth—the Florida documents case, which many national security lawyers saw as airtight—he got his handpicked judicial lackey to dismiss the charges outright. In the most serious federal case he even got the US Supreme Court to protect him with an eye-popping assertion of sweeping, emperor-like immunity that no reputable legal scholar believed possible. At the same time, Trump was also conducting a weapons-grade political campaign of disinformation and demagoguery to regain the presidency, the ultimate safeguard against prosecution and conviction. To reward Trump for all that with a shrug of the shoulders and a cry of “Whaddaya gonna do?” while at the same time perched on the high horse of the Constitution’s broader purpose feels pathetic.

I am quite confident that, armed with all the powers of the US presidency, including some new ones he intends to seize, Donald J. Trump and his nominee for attorney general Matt Gaetz are more than capable of defending him in court. There’s no need for anticipatory obedience by dropping the charges. Indeed, the ultimate refutation of Goldstein’s argument will be when a reinstalled President Trump quashes all the criminal and civil cases against him, including those at the state level in New York and Georgia. Will that be part of “a system of government that can hold our democracy together for centuries”?

On that point, it is especially ironic that Goldstein seems so sanguine about the sturdiness of the Constitution even as the man he would let off the hook is poised to obliterate that document, and has openly suggested that he will. On the cusp of wielding unprecedented (if usurped) quasi-royal power, Trump has brazenly promised to weaponize the full power of his office and the justice system against his political enemies. Goldstein is worried about setting a bad precedent? Trump doesn’t need a precedent: he has told us bluntly that he intends to go after Schiff, Cheney, Smith, Kinzinger, et al, and maybe even Biden, Clinton, and Obama.

So cancel my subscription to SCOTUSblog. (I am leaving Starlink, too.) It would be unfair to say that, like the Supreme Court itself, that much-admired blog has been captured by the right wing, though this piece sure reads like it has. But with all due respect, Tom Goldstein’s absurd and dangerous argument is a measure of how far the US is slipping into willful submission to autocracy.

HOLD THE BASTARDS ACCOUNTABLE

In my book Resisting the Right, I wrote about the importance of legal accountability, even for high-ranking politicians….especially for them, some might argue. That importance has only increased in the months since I published it, and especially since the events of November 5.

It ought to go without saying that a social system cannot function if it doesn’t hold criminals accountable for their crimes. Is there flexibility and discretion involved? Sure. But since we have done it with rank-and-file seditionists who beat police officers and stormed the Capitol and spread excrement in its halls, it is even more imperative to take on those who spurred them to those deeds. If there are no significant consequences for the leader of an attempt to murder the vice president and sitting members of Congress, it will only embolden the perpetrators of those acts going forward and inspire others. No sane country would let a high-powered group of its citizens attempt a violent coup d’état—led by a deposed head of state no less—without consequences, unless that country was keen to have them do it again.

To the extent that they admit Trump did anything wrong at all, Republicans argue for giving him a pass on the grounds that America needs “unity,” and that holding him accountable will somehow prevent us from “healing” and “moving on.” But such appeals for “unity” usually come from the guilty in an attempt to escape repercussions for their misdeeds. Cries for the Democrats to heal the breach are also ironic coming from the party that plunged this country into some of the most bitterly contentious years in contemporary American history under the thumb of the most hateful, bigoted, and divisive president in modern times, who even now continues to insist that the Biden administration isn’t legitimate, and was readying its hockey sticks and fire extinguishers (and guns) for the next attack on the federal government.

Even some Democrats and independents called for Biden to pardon Trump in the interest of this “national healing,” much like Goldstein now calls for the cases to be dismissed. Earlier in the Biden administration, Michael Conway, counsel for the House Judiciary Committee during Watergate, argued that a pardon would free Biden from allegations of pursuing a partisan vendetta, unlike Trump, who wanted to jail his political enemies and was unable to do so only because they’d committed no crimes (the clever bastards). But Republicans certainly never care about the bad optics of their actions. More to the point, Trump’s fans would cheer a pardon as exoneration, and weakness by the Democrats, encouraging further wrongdoing in the future without fear of consequences.

Trump of course has claimed that he will go so far as to pardon the January 6^th insurrectionists, and he very well might. He might also forget, which he’s been known to do with his promises. Will his Kool Aid-drunk followers forgive that, even the ones sitting in stir, counting on him? They might. That Kool Aid is strong.

The anxious Mr. Conway writes that “American democracy cannot tolerate the prosecution of political opponents.”[i] But it can and should when they’ve committed unconscionable crimes. What American democracy cannot tolerate is looking the other way when violent, sadistic, openly corrupt kleptocrats hijack it, and then sitting on our hands and hoping it doesn’t happen again.

And guess what? It is, by other means.

Andrew McCarthy, a former federal prosecutor turned contributing editor at the pro-Trump National Review, argues that “Other considerations often apply, such as preserving domestic tranquility and institutional integrity.” Yes—two things that immediately leap to mind when one thinks of Donald Trump.

Other advanced democracies have rightly prosecuted corrupt former heads of state without collapsing, including Silvio Berlusconi, the proto-Trump Italian prime minister who was convicted of tax fraud by an Italian court in 2013, or Nikolas Sarkozy, the former French president who was convicted in two separate corruption cases by French courts in 2021. Two of the harshest punishments were in South Korea, which in 2018 convicted and imprisoned two successive ex-presidents—Lee Myung-bak and Park Geun-hye—for various corruption charges, sentencing them to fifteen and twenty-five years, respectively, after having previously convicted two other former presidents. That is not necessarily a model the US wants to emulate, but it is further evidence that other countries do not consider this sort of thing taboo, nor descend into chaos as a result. Peru has a special prison just for ex-presidents, with three of them incarcerated there currently.

PARDON ME, BOY

We’ve been here before, of course. When Gerald Ford pardoned Richard Nixon in 1974, the reasons he gave had to do with healing the nation and sparing the country further trauma and damage. (Try that logic the next time you’re on trial for bank robbery.) I humbly submit that far from allowing us to move on from our “long national nightmare,” Ford’s excusal of Nixon’s crimes, even if well-intentioned—and it’s not clear that it was—did grievous harm. It told America that you were a sucker if you played by the rules; that if you were rich and powerful enough, the laws didn’t apply to you; that there was one set for those folks and another for the rest of us. It was a giant “fuck you” to ordinary Americans who were expected to obey the rules and could bet their bottom dollar that Johnny Law would come after them if they didn’t.

In fact, Ford missed a tremendous opportunity to reinforce the rule of law, as it would have been Nixon’s own party punishing him, rather than the opposition. Instead, Richard Nixon walked off into a well-feathered retirement distinguished by expensive homes in San Clemente and Upper Saddle River, lucrative book deals, and banquets thrown in his honor by his reactionary admirers. He never once admitted his crimes. 

(Decades later, it emerged that Ford also acted out of what he told Bob Woodward was his friendship with Nixon, saying, “I looked upon him as my personal friend, and I always treasured our relationship, and I had no hesitancy about granting the pardon….I didn’t want to see my real friend have the stigma.” So much for the “national healing” theory.)

It will be even worse if we let Trump slide on crimes that make Nixon look like a jaywalker.

If Nixon had been prosecuted and punished for his crimes, how might it have altered the trajectory of the post-Watergate GOP? We can never know. But we do know that just six years after Nixon departed the South Lawn in Marine One, an even more right-wing Republican won the presidency, ushering in a conservative counterrevolution that continues to this day.

Sound familiar?

Absent prosecution, the GOP was able to portray Nixon—at worst—as an unfortunate aberration rather than its natural result. Since then, the Republican Party has carried on with its unabashed grift of the American people, and has even been rewarded for its efforts.

We can go back even further, if we wish, to the 1869 decision not to proceed with trials of Jefferson Davis, Robert E. Lee, and thirty-eight other leading secessionists for fear of public furor, and concerns that the defendants would not be found guilty in the Southern states where the trials were scheduled to take place. This abdication created, as the Civil War historian Elizabeth R. Varon writes, “the myth that the southern cause had been so noble that even the conquering northern armies had been forced to recognize it.” It is little wonder that Trump’s apologists are making the same Br’er Rabbit argument now about the risks of prosecuting a former head of state. 

The New York Times quotes former US Representative Tom Perriello of Virginia, who was a special advisor for the war crimes tribunal in Sierra Leone, that countries that have suffered national trauma and “skip the accountability phase end up repeating 100 percent of the time—but the next time the crisis is worse. People who think that the way forward is to brush this under the rug seem to have missed the fact that there is a ticking time bomb under the rug.”

But there is another kind of accountability, a more abstract and intangible one. In their 2020 book Surviving Autocracy, Masha Gessen recounts the early years of post-Soviet Russia, under Boris Yeltsin, when the country deliberately avoided a reckoning with the crimes and trauma of the USSR in that same sort of misplaced interest of healing, as well as reluctance to deal with the practical implications such a reckoning would unleash. The result was that within a decade a new autocrat came to power. We didn’t even take that long, nor bother with a new one when the old one was still around and eager for an encore.

“The goal of reckoning,” Gessen writes, “is moral restoration.” The Back Row Manifesto’s Tom Hall made that same point to me in the immediate aftermath of Trump’s departure from office in January 2021: “After years of gaslighting and the demolition of belief in the ability of our institutions to stand up to their debasement at the hands of Trump, we need more than just the truth,” he told me. “Without a fundamental agreement about the impacts of Trumpist criminality on the country, and on us as a people, the will and pretexts for justice become impossible. How will we ever tell the truth about the past and build a future if there is no priority given to really grappling with trauma, with using every avenue to tell the story of what happened truthfully? That is the narrative that can deliver justice.”

Preach. What will not deliver justice by any definition is the idea that we should let the most criminal president in American history get away scot free just because lots of people don’t care, or because he might behave badly in seeking retribution.

This just in: He’s gonna behave very badly indeed, regardless.

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