Evan Vucci/AP Photo
Election 2020 Trump
Donald Trump at a campaign rally at Cecil Airport in 2020 in Jacksonville, Florida.
During the Biden administration, there was a years-long debate on the left about whether or how Donald Trump should be prosecuted. On the one hand were people like Ankush Khardori, Elie Mystal, and myself, who argued that Trump must be held accountable, ideally for his attempted putsch on January 6, but by any other possible case that could be drummed up if not. On the other were people like Elie Honig, Lawrence Lessig, Samuel Moyn, and Jonathan Chait, who argued that any legal action against Trump must be handled with extreme diligence and the smallest hint of political persecution must be avoided.
The latter camp largely won out. Biden appointed a milquetoast moderate, Merrick Garland, as attorney general, and as The New York Times and Washington Post reported in detail, he initially refused to prosecute Trump on his globally televised sedition and insurrection, instead attempting a traditional organized crime roll-up that went nowhere and ate up months. It wasn’t until the January 6th Committee made Garland look like an idiot that he finally got moving in November 2022—eighteen months after Biden took office—and it was special counsel Jack Smith who actually put the cases together, relatively quickly. These years of delay allowed Trump’s cronies on the Supreme Court to successfully delay the resulting trials out past the 2024 election.
When Trump repeatedly refused to return classified documents he had stolen from the National Archives, the FBI raided Mar-a-Lago only with extreme reluctance, and did not arrest him. When the Colorado Supreme Court threw him off the 2024 ballot in that state, the national Supreme Court quickly put him back on.
In short, the American law enforcement apparatus, egged on by many prominent liberal and lefty academics and commentators, bent over backwards to provide the appearance of due process—which is to say that Trump got to get away with outrageous things no other defendant would have, like refusing FBI requests during a legal search, or repeatedly violating a judge’s order not to attack the judge’s daughter on social media. (Needless to say, this is the opposite of due process: It is letting a powerful person violate the rules.)
We now see the results of granting Trump his second, third, and 50th legal chances: He is attempting to turn the United States into a fascist dictatorship. Immigrants and other enemies of the regime are being kidnapped off the street by ICE goons with no due process, and stuffed into concentration camps Trump is opening around the country, like the Alligator Auschwitz in Florida, or sent to slave labor camps in foreign countries. Already, people are starting to die in the cramped and unsanitary conditions. Senate Republicans just passed a bill that, among other things, would balloon the ICE and deportation budget up to $175 billion—giving it more money than the Marines or indeed any military save that of China and the U.S., and giving Trump his own gestapo. Now Trump is openly threatening to strip people of their citizenship and deport them, including Zohran Mamdani, the democratic socialist who recently won New York’s Democratic mayoral primary.
As usual under fascism, Trump is also engaged in monumental corruption. He just collected a straight-up $16 million bribe from Paramount, which settled a preposterous lawsuit against 60 Minutes because it wants merger approval from Trump. As the Times recently reported, Trump’s finances (which were quite shaky in late 2024) have since improved greatly thanks to various cryptocurrency schemes—an Abu Dhabi investment firm said it would use Trump’s stablecoin to buy Binance for $2 billion—and hawking crummy products to his devoted followers.
As usual under fascism, Trump is engaged in monumental corruption.
The various arguments made by the accountability skeptics were strange. When the Colorado Supreme Court disqualified Trump from the presidential ballot, based on a straightforward reading of Section 3 of the Fourteenth Amendment, Lessig, Moyn, and Chait all demanded that the Supreme Court reverse the decision. “Keeping Mr. Trump off the ballot could put democracy at more risk rather than less,” wrote Moyn. Chait argued that January 6 wasn’t a for-realsies insurrection, calling it instead an attempt “to secure an unelected second term in office” (an instantly classic line, to be fair), and so Trump shouldn’t be kicked off. “For the sake of the institutional integrity of the Supreme Court, I hope it rejects the judgment unanimously,” wrote Lessig.
The first two arguments are by now patently ridiculous. As for Lessig, it would be hard to imagine an institution with less integrity than the Supreme Court. But the Court indeed did what the skeptics asked for, and later in the term effectively declared Trump a king, immune from legal accountability, in between the ultra-luxurious trips taken by two of the justices that were funded by their billionaire pals with pending cases before the Court.
When the Manhattan DA Alvin Bragg charged Trump with 34 felonies stemming from the Stormy Daniels hush money scandal, Chait cast doubt on the merits of the case, and argued that it would be politically unwise to prosecute it. “The uncomfortable reality is that, while Trump may be a career criminal, he does not deserve to be prosecuted for this particular charge.”
When a jury returned a conviction on every count, Elie Honig sniffed that the “charges against Trump push the outer boundaries of the law and due process.” Chait changed his tune somewhat, arguing that convicting Trump risked prodding him to more extreme action. “Healthy democracies show forbearance—allowing ruling parties to relinquish power without facing persecution—as well as upholding the rule of law.”
Taken together, these arguments give off a strong sense of being reverse-engineered. Sure, we agree Trump is not above the law, but just not this time—which turns out to be any time he is actually within range of a real consequence.
Chait’s argument about forbearance is particularly odd. If Trump had accepted defeat in 2020 like every losing presidential candidate since (arguably) 1876, then we could at least have an argument about letting him off the hook to appease him. But he already hadn’t done that! He cooked up a conspiracy to overturn the election and end constitutional government! It was on TV and everything!
It is also not true that healthy democracies let their heads of state do some small crimes as a precautionary measure. As Mark de la Iglesia details at Freedom House: “Forty-three percent of the world’s freest countries have seen their presidents or prime ministers charged with crimes since 2000,” he writes, including France, Austria, and Germany. A lot of these were corruption cases quite similar to the one that ended in Trump’s conviction, and we haven’t seen any of them fall to dictatorship.
And this makes some sense. After all, half the point of criminal penalties is to provide an incentive to not do crimes. Indeed, for heads of state in particular, one could imagine a norm whereby if someone tries to seize total power for themselves, they are swiftly and brutally punished by whatever method is closest to hand.
Take an extreme case: fascist Italy. Unlike Trump, Mussolini really did get no due process whatsoever. He was summarily executed by partisans on the side of the road and his corpse was strung up by the feet at a gas station. A brutal and ignominious end if ever there was one.
Italian democracy has its flaws, and voters did repeatedly elect the proto-Trump Silvio Berlusconi. But those elections were fair, and in terms of Chait’s proposed mechanism—namely, prime ministers trying to seize power by force to avoid a potential Mussolini-style fate—this has not happened in Italy since il Duce, not once. One might begin to suspect that the fate of Mussolini serves as a salutary example. Perhaps, rather than heads of state considering seizing power to avoid his fate, they do not seize power because they are afraid of meeting the same end.
Furthermore, summary justice for Mussolini had the additional benefit of getting rid of Mussolini specifically. To be clear, I am not calling for violence. My point is that people who would carry out a putsch don’t tend to be the type to carefully and rationally calculate probabilities. They tend to be megalomaniac gamblers who will ignore all laws, not to mention norms, for any desperate chance at total power. Such people—and Trump could not be more obviously such a person if he started growing a toothbrush mustache—simply must be removed from the political chessboard by hook or by crook, like for instance by putting them in prison for attempting to overthrow the government, or for some clumsily obvious business crimes if that one gets tied up in court.
All this is frankly obvious, and previous American generations understood it well. The danger of demagogues obsessed the Founding Fathers; maybe half the Federalist Papers are about how the Constitution will be designed to prevent one from rising to power. In a letter to the Marquis de Lafayette, George Washington wrote that he joined the Constitutional Convention in part to prevent a government “dictated perhaps by some aspiring demagogue who will not consult the interest of his Country so much as his own ambitious views.”
For Franklin D. Roosevelt, a major motivation for his New Deal program was that the Great Depression had provided a great opportunity for would-be autocrats, which he was determined to forestall. “History proves that dictatorships do not grow out of strong and successful governments, but out of weak and helpless ones” he said in a 1938 fireside chat. “If by democratic methods people get a government strong enough to protect them from fear and starvation, their democracy succeeds; but if they do not, they grow impatient.”
Donald Trump is obviously a product of America’s decadent culture of elite impunity. He discovered somewhat by accident that he could do anything he wanted, including attempt to overthrow the government, and the opposition party would be too timid and fearful to fight back aggressively. Getting away with January 6 is the logical culmination of “if you’re a star, they let you do it.” And it didn’t start with Garland and Biden. It was Barack Obama who refused to prosecute any of the Bush-era torturers, saying he wanted to “look forward as opposed to looking backward,” who failed to prosecute any of the senior Wall Street executives for an epic spree of crimes before, during, and after the 2008 crash, and who sat on the news about Russian hacking in 2016 when Mitch McConnell threatened to raise a stink.
Open the door to criminals, and sooner or later one will walk through.
Incidentally, this rotten, corrupt culture is a relatively recent development. After all, none other than the George W. Bush Justice Department successfully prosecuted two of his largest campaign contributors, Ken Lay and Jeff Skilling, for their spectacular crimes at Enron.
But fundamentally, any country that completely gives up on accountability for its political class will eventually produce someone like Trump. Open the door to criminals, and sooner or later one will walk through.
It remains to be seen if Trump will be able to consolidate a dictatorship. Throwing millions of people off their health insurance and devastating the hospital system is certainly not how Vladimir Putin did it. But thus far many core liberal institutions have shown a familiar lack of spine, including corporations, law firms, and elite universities attempting to capitulate or strike deals with Trump, after which he invariably comes back for more.
Trump might just succeed, as usual in spite of himself, if nobody with real power ever fights back. But even if he fails, if this fussy regard for norms and procedures—camouflaging a cowardly desire to avoid conflict, hoping the voters stop him at the ballot box at the next election so liberal elites don’t have to do anything—persists, then eventually he or someone like him will succeed. A democracy must be willing to defend itself from the enemies of freedom if it is to survive.
