Politicizing the Law

In certain circumstances, there is no alternative.

Last week, we saw history unfold as Donald Trump was indicted by special counsel Jack Smith in a DC courthouse. To say that it was an unprecedented moment is to grossly undersell it. If anything, I don’t think people fully appreciate just how outside of “normal” we really are at this point. Let me explain.

I’m no lawyer, nor am I a close follower of legal affairs, so I’ll try to rely on the wisdom of others on the merits of the case. Here’s the Washington Post’s explainer of the indictment’s four charges. Here’s National Review’s editorial saying the indictment should not stand. Here’s my colleague Ruth Marcus doing a good faith interrogation of the objections to the indictment.

Me, I want to zoom out a little and focus on a meta-argument that seems to be swirling above the fray. And that’s the idea that politics is intruding into the prosecution of Trump.

Republicans are saying that it is. The soft version of this argument is that any prosecution of Trump during an election year will necessarily inject politics into a legal proceeding, and set nasty precedents for the future. The harder version is that all of it is bare-knuckled politics, an attempt to actively sink Trump’s candidacy in order to keep Biden in power—“a corrupt scheme to influence the presidential election—exactly what Trump is accused of doing,” as Andrew McCarthy put it.

Democrats are saying that it’s nothing of the sort. The law is the law, and Trump clearly broke it. And no one is above the law.

If you’ve listened to our two previous podcast episodes with my colleague Jason Willick, you’ll know that I emphatically disagree with the both of the Democrats’ lines. The law is not the law, in the sense that it somehow exists “on high” and outside of the political fray. It’s a set of evolving normative conventions that we as a society choose to sanctify. And the state chooses which breaches of it to prosecute. (A transcendent Law might exist if you are religious, but even then questions of interpretation play an overwhelming role in day-to-day matters. Final judgment is, presumably, before the Final Judge.)

As to arguments like McCarthy’s, which try to equate Biden’s behavior to Trump’s, I’ll just demur by saying that such an allegation is at best impossible to prove.

It’s far more credible to me that Biden and his team are justifying the case to themselves in exactly the terms most Democrats use in public. Trump has engaged in outrageous behavior. He clearly intended to overturn the election, and all his machinations and maneuvers point to that fact. As the indictment itself grants, freedom of speech guarantees that he can claim the election was stolen from him until he’s blue in the face. But that does not exculpate his efforts to reverse the results of the 2020 vote. There’s a crime there, and it must be prosecuted.

But is there a crime? My colleague Ramesh Ponnuru put it pithily:

What was most wrong and dangerous in Trump’s course of conduct was not that it may have run afoul of some federal statutes. It is that he attempted to subvert the constitutional order — a point that he helpfully underscored in December by suggesting that we should terminate the Constitution to reinstate him.

We’ll see if Jack Smith’s case holds up. As Ramesh indicates, it may or may not. Even sympathetic analysts (like Ruth) are clearly wondering if the indictment is bulletproof. And Smith has a history of creative bravura indictments that fail to persuade in court. But he also will have jurors who saw January 6 up close and personal, and who have voted against Trump near-unanimously every single time they’ve had the chance to. So if the legal case “works” it won’t convince me that “the law is the law” and that no one is above it.

Ramesh’s point cuts much deeper than that. What if “subverting the constitutional order” is… outside of the scope of the law? It’s not as outlandish a proposition as it might seem. It immediately brought to mind Carl Schmitt’s discussion of politics at the limit. “Sovereign is he who decides on the exception,” Schmitt famously wrote at the start of his book Political Theology. Schmitt is not out to argue who the sovereign is, but rather to point out that law itself has limits.

As I said, law is a set of norms that are written out—and consistently updated—by a society at peace, to regulate normal times. Violators of these norms are of course prosecuted by the state (selectively) with an eye to maintaining order. But such laws cannot be all-encompassing.

Of course, one can charge revolutionaries seeking to upend the whole order with “sedition” and “treason”. But those statutes require the perpetrator to take arms up against the order, making a clear-cut distinction that the law can grapple with. Anything short of that—“subversion,” for example, as Ramesh has it—and the law is mute.

Schmitt:

The exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like. But it cannot be circumscribed factually and made to conform to a preformed law. [emphasis mine]

In his column, Ramesh goes on to argue that this kind of transgression can only be remedied through a normal political process. He, as many conservatives, says that the first remedy was impeachment. Having failed at that, we can only do justice by letting “the people” reject Trump in free and fair elections a second time. Ramesh, like many others taking what I called the “softer” line, worries that politics being injected into the law will have unforeseen consequences for the republic going forward.

I agree with Ramesh that the solution to Trump is going to have to be political. But I think I disagree with the idea that “normal” politics is still accessible to us. After all, if polls are to be believed, Trump still has a good chance at winning the upcoming election, even as his battle cry is that the entire system he is running against is illegitimate. He may still be hewing to the convention of needing popular legitimacy to re-attain power (in no small part because he, obviously, has no other option). But it’s quite plausible to assume that once he gets that power, he will not be constrained by the existing order.

I, of course, can’t prove what is in Trump’s heart. But that gets at the very point that Schmitt is getting at: “the exception” entails a judgment call that is required precisely at the point where a threat stands outside plausible legal remedy.

[The sovereign] decides whether there is an extreme emergency as well as what must be done to eliminate it. Although he stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety.

The sovereign is the one who decides that the order is being threatened, and who then acts beyond its limits to preserve it.

Now the Biden administration is being scrupulous to show that it is acting within the constitutional order, and is trying to creatively cobble together a set of strictly legal arguments about what federal statutes were transgressed. It’s going through an extensive act of signaling impartiality by having Attorney General Merrick Garland appoint a special counsel in Jack Smith to do the deed. Biden is in no way trying to suspend the constitution in its entirety.

But it’s also clear that Biden has decided to take unprecedented steps. He has chosen to act on the exception. He has chosen to allow his Department of Justice to prosecute criminal cases against his chief political opponent, an opponent who, at time of writing, commands sizable support among the voters.

Make no mistake, there is politics all over this prosecution. And sure, as a result, one can, like Andrew McCarthy, make coherent but presumptuous arguments about Biden’s motives—arguments which are as impossible to prove as are assumptions about Trump’s likely behavior should he win.

But that just goes to prove that we are in the realm of the irreconcilable, the purely political realm, where the “normal” legal proceduralism no longer fully applies.

It’s gonna be quite a ride.

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