Donald Trump
Credit: The White House/Flickr

Over the weekend, David Atkins wrote a piece titled, “To Save Democracy, Democrats Must Hold Trump Officials Accountable.” He ended by noting that “people have to go to jail for what has happened, or there probably won’t be a democracy worth saving for long.”

Reaching a similar conclusion, Jonathan Chait has a piece in the latest edition of New York Magazine titled, “Lock Him Up? For the Republic to survive Trump’s presidency, he must be tried for his crimes. Even if that sparks a constitutional crisis of its own.”

Trump’s reversals of Obama-era police reforms and his open contempt for the law send a signal about whom the law constrains and whom it protects. The fashioning of a more equal society means sending a different message: The rule of law must bind everyone, just as it protects everyone. A world where the power of the state can be brought to bear against a person who was once its most famous symbol of wealth is one where every American will more easily imagine a future in which we are all truly equal before the law.

Even with that conclusion, Chait raises important considerations. One of them is that, along with everything else, Trump has politicized crime. As Chait suggests, “crimes has ceased to denote violations of written law and become instead a catchall description for any anti-Trump activity.” That provides the kind of closure mechanism the president’s supporters use to not only wall themselves off from facts, but reinforces the narrative of Trump being the victim of lawbreakers out to get him. It must, therefore, be taken as a fact that approximately 40 percent of the population will view prosecution of Trump and members of his administration as political payback from the opposition, regardless of its grounding in evidence.

That leads to the major dilemma Chait outlined.

The prospect of an electorally defeated Trump, though glorious, would immediately set off a conflict between two fundamental democratic values: the rule of law and mutual toleration. The rule of law is a banal yet utterly foundational concept that the law is a set of rights and obligations, established in advance, that apply equally to everybody…

Mutual toleration means that political opponents must accept the legitimacy and legality of their opponents. If elected leaders can send their opponents to prison and otherwise discredit them, then leaders are afraid to relinquish power lest they be imprisoned themselves…

If the government is run by lawbreakers, though, the state faces a dilemma: Either the principle of equal treatment under the law or the tradition of a peaceful transition of power will be sacrificed. It’s hard to imagine any outcome under which the rule of law survives Trump unscathed.

This president’s criminality means that we will be forced to choose between two foundational principles of democracy: the rule of law or mutual toleration. Chait makes the case that protecting the rule of law is more important, recognizing the threat that poses to a peaceful transition of power.

What I appreciate about Chait’s analysis is that he takes what would otherwise be the unintended consequences of his position into consideration. Those are the kinds of difficult choices that, more often than not, don’t present us with clear options of right vs wrong or good vs evil.

But given that both Atkins and Chait frame their arguments in terms of what will be required to save democracy, it is important to also recognize that, should Biden win in November, prosecuting Trump and members of his administration will be necessary, but not sufficient to complete the task.

Many of the ways that Trump has corrupted our democracy don’t constitute crimes that can be prosecuted in court. Some of those could be addressed for the future by passing new laws, such as requiring presidential candidates to release their tax returns and a more complete requirement for divestment from business interests.

Others, however, involved the breaking of norms that have developed over decades and don’t lend themselves to legal remedies. As an example, one of the major contributors to the erosion of the rule of law is the breakdown of independence between the president and the attorney general. Even cases that could be prosecuted have been covered up by Bill Barr, such as Trump’s obstruction of justice in the Mueller investigation.

It becomes difficult to imagine how that wall can be constructed via legislation, and yet the way that expectation has been destroyed over the last few years threatens the rule of law even more profoundly than it would be if Trump isn’t prosecuted after leaving office. When the attorney general turns a blind eye to a president who violates the Constitution, this country is in serious jeopardy.

Of course, we might not even be having this discussion if Republican senators hadn’t dismissed the evidence against Trump that was produced during the impeachment trial. Having a major political party that is willing to embrace lawlessness in order to stay in power is perhaps the biggest threat to democracy that we face today. There is no easy remedy to that one.

The rather pessimistic conclusion therefore, is that, even if Biden wins and the Trump administration is held legally accountable, our democracy will remain imperiled. It always has been. It’s just that we can now see how.

Nancy LeTourneau

Follow Nancy on Twitter @Smartypants60.