Presumably like many of you, I’ve been preoccupied most by the controversies surrounding the Trump raid and investigation. I’m not thrilled to be writing about this, because I generally think it’s best to not let Donald Trump suck us into his vortex. But he has yet again. His powers are vast.
My first thought when I heard the news was more or less conventional. That’s not necessarily a problem, because sometimes convention is correct. Contrarianism is useful only insofar as conventionally-thinking people are unable to see beyond their ideological blinders. Anyway, I found the Republican response to the FBI’s actions to be absurd. Ron DeSantis, Florida governor and potential future Trump frenemy, immediately took to referring to the Biden administration as “The Regime.” The Biden administration might be many things but it is not a “regime.” Regimes exist in autocracies. To suggest that the U.S. is an autocracy is to do a disservice not only to the English language but also the hundreds of millions of people who live in actual dictatorships.
As much as I try to understand illiberal and right-wing thought as fairly as I possibly can, this tends to be where I get stuck. I understand the ideological pressure that comes from the dominance of the liberal-left in mainstream institutions, but that is different than actual state coercion. Yes, there may be a “deep state” in the non-nefarious sense of simply acknowledging that civil servants are unelected and wield considerable power collectively. But every democratic state has some level of state “depth.”
Of course, the Trump raid and investigation brings some of these Republican preoccupations more fully to the fore, and, despite some of the more hyperbolic and absurd statements from the likes of DeSantis, some of the concerns are legitimate. At the risk of political blasphemy, I would gently posit that sometimes Trump supporters—in their perpetual panic and outrage—actually land on legitimate grievances.
The liberal-left commentary and coverage of Mar-a-Lago-Gate has been predictably disappointing. They are so sure that they are right, and that certainty makes me nervous. There is no reason that Democrats should celebrate this recent turn of events, even if the FBI’s actions are entirely justified. Lamentation would be more appropriate. I don't see any plausible scenario where an ongoing investigation of Trump decreases the existential tenor of American politics. Some might say: so be it. After all, decreasing the existential tenor of politics is only one objective. Accountability and rule of law is another. In this case, they're in tension.
In other words, holding Trump accountable in the name of “reinforcing the rule of law” might be right or just, but that doesn’t mean it is good for American democracy. We can take this one step further. Even if the search of Trump’s residence was meant to reinforce the rule of law, it is likely to fail on its own terms. What exactly is the mechanism through which this strengthens the rule of law? This is simply assumed, but rarely explained. Which results in tautological explanations like “enforcing laws reinforces the rule of law.” It also suggests a complete disregard for the broader context in which the law is understood and perceived. Legitimacy matters. As Damon Linker put it recently: “The rule of law can't be vindicated if half the country thinks the effort to do so is a sham.”
I do find Democrats and liberals’ sudden, unquestioning trust in law enforcement, state institutions, and the FBI to be somewhat bizarre. There is The Law, and then there is the application of the law. These two things are not the same. Prosecutors make subjective calls about who and what is worth prosecuting all the time. That's why we have the phrase "prosecutorial discretion." These are choices, and choices involve imperfect human beings. The law—as it manifests itself in a fallen world—is not free-floating, transcendent, or “disembodied from the state,” as Damir said in our latest podcast episode.
So, yes, hate Trump all you want. You can hope that he gets put in prison (somehow). But this is not the time for jubilation. This is a time to be nervous.