David Moscrop is a writer and political commentator. He is the author of Too Dumb for Democracy and a Substack newsletter.
American history is replete with unprecedented moments, with the response being shock and surprise. If the indictment of Donald Trump while he campaigns for a return to the White House stands out among them, it is because it was reasonable to be surprised by the state’s vigorous pursuit of a former president.
This is the first time any U.S. president, sitting or former, has faced charges, and so it is a shock in a justice system that can be unjust. A long history of the asymmetrical application of the rule of law, of segregation, and of power and influence shaping outcomes ought to give any observer who has bothered to observe the U.S. system’s machinations reasons for skepticism.
But now, a grand jury has determined that, despite his wealth and power, there is sufficient evidence against a former president to proceed with charging him with more than 30 counts of fraud stemming from payments made to hush up an affair ahead of the 2016 presidential election. This is a good thing for the United States as a democratic republic.
For democracy to function, the rule of law must apply equally to each person – not just in a formal, theoretical sense, but also in a practical, applied sense. That means no one ought to be exempt from a fair, conscientious application of the law because they enjoy a position of wealth or power, or because applying the rules to their case might lead to unpalatable outcomes.
And indeed, what also makes Mr. Trump’s indictment so extraordinary is that it, and any further legal actions, are clearly risking terrible, or even violent, outcomes. Some political actors on the right have claimed the indictment is partisan and poisonous, though it’s their veiled (or not-so-veiled) threats and warnings that are the real threat to democratic peace.
To back down from a fair and rigorous application of the law in the case of Mr. Trump, despite the possibility of backlash and violence, would be to take another step down the path to elite impunity and corruption – a path already well-trodden in countries such as Brazil, but also in the U.S. itself.
In September, 1974, president Gerald Ford pardoned his predecessor Richard Nixon for any crimes related to the Watergate scandal. In his remarks on the pardon, Mr. Ford noted “my primary concern must always be the greatest good of all the people of the United States whose servant I am.” The utilitarian calculation of the moment, implicit and explicit in the remarks, was that allowing proceedings against Mr. Nixon would prolong America’s “long national nightmare.” But while the pardon was legal, it set a dangerous precedent, further politicizing justice beyond its already-politicized boundaries, and confirming in so many minds at the time that the powerful get to play by a different set of rules. Sustained, state-supported legal action against Mr. Trump, and the likely refusal of President Joe Biden to pardon Mr. Trump, will be a step back in the right direction.
For their part, both Democrats and Republicans in positions of authority across the United States ought to retain a perspective that counsels forbearance above all. To extend the application of justice for partisan reasons alone, or to go hunting for “justice” for the sake of partisan advantage, would be to enter a death pact that would further erode the foundations of a shaky republic. The law ought to be applied rigorously and, in the case of Mr. Trump, to the maximum extent. But it should go no further than the limits of justice.
In Robert Bolt’s play A Man for All Seasons, the young English lawyer William Roper asks the elder statesman Sir Thomas More if he would extend the devil the benefit of the law. The self-righteous jurist says he would “cut down every law in England” to get to the devil; More tells him he would not. “This country is planted thick with laws, from coast to coast,” he says. “And if you cut them down … do you really think you could stand upright in the winds that would blow then?” More concludes that he would “give the Devil benefit of law, for my own safety’s sake!”
Mr. Trump ought to face justice despite the concerns about what it might mean in the streets, at the ballot box, and beyond. To let him off the hook would be to abandon the law and whatever decent bit is left of the republic. But in the process, no one ought to forget why that law exists in the first place: for Americans’ safety’s sake.