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. It is an ideal rather than a lived reality.
Black America, to take one obvious example, has never experienced equal treatment from institutions like the police and the courts. But this serves only to illustrate its essential value. The civil-rights movement has consisted in large part of fighting to extend the protection of the rule of law to Black people.
The experience of Black racial oppression shows that the absence of the rule of law is a pervasive, terrifying insecurity. A society without the rule of law is one in which the strong prey upon the weak. The small-scale version is a town where you need the local warlord or mafia boss to solve any problem or dispute; the nation-state version is Vladimir Putin’s Russia, where the mafia is the government and bribery is endemic.
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. The criminalization of politics is a kind of toxin that breaks down the cooperation required to sustain a democracy. This, along with the misogyny, was what made Trump’s embrace of “Lock her up!” so terrifying in 2016. He was already using the threat of imprisoning opponents as a
political-campaign tool.
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.
One of the most corrosive effects of Trumpism upon the political culture has been to detach the law from any behavioral definition and to attach it to political identity. As Trump likes to say, “The other side is where there are crimes.” He has trained his supporters to understand this statement as a syllogism: If Trump’s opponents are doing something, it’s a crime; if Trump and his allies are doing it, it isn’t. The chants, which applied enough pressure to force James Comey to announce a reinvestigation of Hillary Clinton in October 2016, simply to protect the FBI from being delegitimized by Republicans after an expected Clinton victory, showed how the field had been sown for Trump even before he took office.
It is because Trump views the law as a morally empty category, a weapon for the powerful to use against their enemies, that he has spent his presidency calling for the prosecution and/or imprisonment of a constantly growing list of adversaries: Joe Biden and Barack Obama (for “spying” and “treason”), House Intelligence Committee chairman
Adam Schiff (for paraphrasing Trump’s Ukraine phone call in a speech),
John Kerry (for allegedly violating the Logan Act),
John Bolton (for writing a
tell-all book),
Joe Scarborough (for the
death of a former staffer),
Nancy Pelosi (for
tearing up his State of the Union Address), and
social-media firms (for having too many liberals). Trump has alleged a variety of crimes against at least four former FBI officials and three Obama-era national-security officials.
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