We'll Soon Find Out How Brittle-- Or Resilient-- Our Justice System Really Is

Trump-- The Kremlin Investment That Keeps Paying Dividends

Recently, my sister was diagnosed with ovarian cancer. She had surgery and her doctor said she now has a clean bill of health but… he wanted her to go through weeks of daily radiation and chemo. She started the radiation today. But she turned down the chemo. Having gone through chemo myself, I can understand why, even though I think she should do it anyway. Chemo is pretty horrible while it’s happening and the side effects can change your like— and not for the better. Yesterday, Quinta Jurecic prescribed chemo for what ails American democracy.

I’ll come back to chemo in a second. First I want to remind you what’s wrong with American democracy… at least by sharing an outstanding example, unfolding right now, of what’s wrong. In Wisconsin, a state that has given us both the very best senators (Bob La Follette, Bill Proxmire, Russ Feingold) and the very worst (Joe McCarthy, Ron Johnson and racist dog James Rood Doolittle, a Republican who became the first head of the DCCC) we have a fully illiberal, even neo-fascist Republican Party running the state legislature based entirely on egregiously gerrymandered districts.

Yesterday, Reid Epstein reported that Republicans in the legislature are moving forward with impeaching Supreme Court Justice Janet Protasiewicz, elected last April by 11 points over their conservative candidate— 1,021,370 (55.5%) to 818,286 (44.5%). The problem is that the legislative Republicans abhor democracy itself and work full-time to make it irrelevant. They are worried that Protasiewicz, who was seated 5 weeks ago and hasn’t ruled on anything yet, is a threat to their “iron grip on state politics.” Because of her election, the state Supreme Court has a 4-3 liberal majority and is expected to throw out Republican-drawn state legislative maps.

The drama over their threats to remove Protasiewicz raises “questions about democracy and the legitimacy of elections in a state where GOP lawmakers and their allies spent two years disputing the 2020 presidential contest’s outcome. For Republicans,” wrote Epstein, “the liberal Supreme Court majority serves as an existential danger. If the court, as expected, invalidates Wisconsin’s legislative maps, it would strip Republicans of what now amounts to permanent majorities in the Legislature. But removing a newly elected justice could prompt a backlash in 2024 from Democrats and moderate Republican voters who abandoned the GOP during the Trump years.”

And the Republican hatred of Democracy goes beyond just Wisconsin. Epstein noted that Republicans are “seeking to use impeachment as a first line of defense against Democratic officials. In Georgia, Republican legislators have been agitating for a special session to impeach Fani Willis, the Democratic prosecutor who brought a wide-ranging indictment against Trump and others who sought to overturn the 2020 election results. And in Washington, some House Republicans are pushing to impeach President Biden.” Autocratic Republicans in Florida and Texas have been removing Democrats they don’t agree with from elected offices. Now… for the chemo.

Jurecic wrote that the rule of law in America appears both commanding and startlingly fragile. Small scenes at courthouses from Florida to New York underline the ever-present threat of violence. In Fulton County, Georgia, officials set up bright-orange security barriers around the courthouse in advance of Trump’s indictment there. In Washington, D.C., fences and yellow tape surrounded the U.S. district court. Judge Tanya Chutkan, who will oversee the federal case against Trump for his efforts to overturn the election, has received increased protection from U.S. marshals— and perhaps not a moment too soon, as a Texas woman was recently arrested for calling in death threats against the judge. Trump, meanwhile, has been busy attacking Chutkan and other judges on social media, smearing the prosecutors bringing the cases against him as a ‘fraud squad’ doing the bidding of President Joe Biden, and promising to turn the Justice Department against his foes should he win a second term. It’s a grim picture. ‘The next 18 months could further undermine confidence in democracy and the rule of law,’ the Washington Post warned in June. Some commentators, largely on the right, have cautioned that the investigations and prosecutions of Trump might widen cracks in the already-unstable foundations of the American public sphere. Last year, the National Review editor Rich Lowry cautioned in Politico that U.S. institutions ‘are ill-equipped to withstand the intense turbulence that would result from prosecuting the political champion of millions of people.’ Writing more recently in National Review, John Yoo and John Shu argued that even a successful prosecution of Trump for his efforts to overturn the election ‘will leave many doubtful of the conviction and more distrustful of the Justice Department and the criminal-justice system, especially at a time when public trust in our institutions is already in decline.’”

As the threats of violence and attacks on the justice system show, these concerns are not unfounded— far from it. But worrying about the dangers of prosecuting Trump is a bit like focusing on the risk that chemotherapy poses to a cancer patient’s health. The reasoning isn’t exactly wrong; it just begins the analysis in the wrong place. The chemotherapy might be ugly, but it isn’t the source of the problem. It’s the treatment for the underlying disease.

During Watergate, Richard Nixon’s White House Counsel, John Dean, famously told the president that the scandal had become a “cancer growing on the presidency.” Trump’s presence in American politics is similarly malignant. He has made the country meaner, uglier, and more violent. During his first term, he ate away at the protections guarding the U.S. system from authoritarianism, insisting on his own right to absolute power. For prosecutors to have ignored Trump’s provocations would have been to allow the cancer to progress— to acquiesce to his vision of a fundamentally corrupt politics in which the only constraint on power is the threat of vengeance.

Still, that doesn’t mean the prosecutions will be a pleasant experience. Even under the best of circumstances, the country’s first trial of a former president— especially a former president once again seeking office— would have been a high-stakes test of the ability of American political institutions to hold the powerful to account. Trump, though, seems dead set on making the experience as grueling as possible. Already, he may be headed for confrontations with the three separate judges who have cautioned him against using incendiary language and threatening witnesses— which hasn’t stopped him from attacking the prosecutors and complaining on Truth Social that Judge Chutkan is “VERY BIASED & UNFAIR.”

…What would happen if the current disease were to go untreated? What might unfold if Trump continues to push the boundaries of what he can get away with— deciding, for example, to skip out on appearing at his trials? The judges and prosecutors would have to decide whether to hold Trump to the standards they would use for any other defendant and reprimand him for his insouciance— potentially, as incredible as it seems, by jailing him. A decision to hold Trump in custody before a conviction would be a bitter and contentious choice: Trump would be sure to complain about the terrible injustice and persecution he faces, eating away at public confidence in the legal system.

Likewise, there’s been a recent surge of interest in the notion that Trump may be barred from returning to the presidency under Section 3 of the Fourteenth Amendment, a post–Civil War provision that disqualifies onetime government officials who have “engaged in insurrection or rebellion” from returning to office. Any effort to block Trump’s candidacy on these grounds would surely involve a prolonged legal battle— and raise uncomfortable questions about the wisdom, in a democracy, of ruling out by judicial fiat a serious contender for the presidency. It would make for harsh medicine.

Yet this harsh medicine wouldn’t be necessary if Trump hadn’t brought this challenge to American democracy in the first place. And letting the challenge go unanswered would have far more destructive effects. The idea of the body politic, and the risks of its decay, is a very old one. Trump’s actions are the source of its current illness, and though the treatment may seem extreme— and have unpleasant side effects— it’s what’s needed to stop the disease from taking over.