Jurisprudence

The Price of No Consequences for Trump

Joe Biden and Merrick Garland are acting like Donald Trump was a crazy dream. But the threat to American democracy will only get worse the longer we ignore it.

Joe Biden with an image of Donald Trump over this shoulder.
Photo illustration by Slate. Photos by Angela Weiss and Mandel Ngan/AFP via Getty Images and Getty Images Plus.

Things are supposed to feel better now—better than they felt during the Trump administration, at least. The Biden administration and the Justice Department appear hellbent on restoring the (appearance of) normalcy, boring us to death, and getting past the days of a citizenry held captive to madcap tweets. That’s why the administration is focusing on infrastructure, COVID relief, economic recovery, and the workaday acts of governance.

Except that alongside these acts of sleepy normalcy we see constant reminders of where we have been and where we are still heading. In the past few days we have learned—among other abject horrors—that Donald Trump’s Justice Department seized metadata records for members of the House Intelligence Committee and their families, whom it suspected of leaking. We learned that Trump supporters have been leveling crippling death threats against state election workers. We learned that White House counsel Don McGahn had been instructed to fire Robert Mueller. We learned that in 2019, Rudy Giuliani, acting in his capacity as Trump’s personal lawyer, pressed Ukraine to announce baseless investigations about alleged Ukrainian meddling in the 2016 election. And yet as Richard Painter and Claire O. Finkelstein showed last week, the Justice Department has worked to stymie investigations and litigation that would unearth at least some of these truths, in a quest to protect institutional prerogatives and values.

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Perhaps this would all be understandable if we had actually turned a page. But this great unearthing taking place in the press right now has also revealed that Donald Trump and some of his (never disbarred) lawyers are presently insisting that he will be “reinstated” as president in August, that several Republican senators who lost in November will be swept back into office with him, that Trump is insisting that “audits” in Arizona and other states are going to trigger a nonexistent mechanism for his return to office. Oh and that huge numbers of Republicans believe him.

In other words, nothing that is meant to be over is actually over. Because nothing was ever really litigated in the first instance. Despite the best efforts of Robert Mueller, two impeachment trials, myriad court cases, House oversight, and a decisive election, we can all see that the worst excesses of the Trump years were pleaded, argued, sometimes proved, and then dismissed. The difference between papering over and closing a case could not be more apparent than it is now. There has been no real reckoning with the broken laws and shattered norms of the Trump presidency, nor with the ostensibly conclusive results of the 2020 election, and certainly not with the violent insurrection of Jan. 6. As Will Saletan observed last week, none of these theoretically discrete phenomena are dead or buried; they are instead not merely informing many people’s present but also rapidly distorting the future:

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Two-thirds to three-quarters of Republicans continue to say that President Joe Biden was illegitimately elected. More than 60 percent say the election was “stolen from Trump.” When they’re asked who “the true President is right now,” most Republicans say it’s Trump. And more than 30 percent of Republicans reject a basic premise of democracy: that “the loser in an election must concede defeat.”

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The problem is that this pile-up of multiple “big lies” about who won the election and how it was “stolen” and why it must be resisted and how Donald Trump will ultimately prevail is not just aimed at the ludicrous (but potentially violent) fantasy of reinstating him. The lies are also right now, today, the predicate for massive vote suppression initiatives in most states, resistance to Senate efforts to protect the vote in 2022 and beyond, and the frothing up of public discourse about violent insurrection. And while expanding the voting rights division of the DOJ is a start, it is an inadequate response to the seriousness of the moment.

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As Saletan further points out, even the events of Jan. 6 remain disputed, and as he explains, “In the latest polls, 21 percent of Republicans insist “the Jan. 6 attack on the U.S. Capitol was justified,” and about 25 percent express a favorable opinion of “the people who took over the Capitol.” People, he notes, especially white people, want to move on. But the impetus to seal those violent and racially charged events into the past and move on not only proved to be the rocket fuel for the GOP obstruction of a Jan. 6 commission, but they also ended up driving a massive push to crack down on lawful protest, a battle against the teaching of critical race theory, and an effort to broadly expand gun rights, among other things.

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When the Boston Globe called last week for a meaningful prosecution of Trump, by the DOJ (as opposed to investigations being carried out in New York or other jurisdictions), their call was not for some accountability for some financial or other misdeeds prior to taking office. It was for a sober reckoning for his “actions during his time in office, especially those after the 2020 election, which culminated in fomenting a full-on, violent assault on American democracy.” It’s not enough that someone somewhere may tag Trump for something, even if they might. The fact that we are seemingly just waiting around for a Josh Hawley or a Marco Rubio to do it all again doesn’t make this moment “normal.” It makes it a crisis. As the Globe pointed out:

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A commander in chief tried his very best to subvert democracy. He attacked his own country. Five people died. Allowing him to go unpunished would set a far more dangerous precedent than having Trump stand trial. To reform the presidency so that the last four years are never repeated, the country must go beyond passing laws: It must make clear through its actions that no person, not even the president, is above them.

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Allowing any of that to be cast as resistance hysteria or backward-looking or vengefulness is not just reckless; it also actively distorts what is happening right now with respect to the vote, to the right to protest, to violent white supremacy. And as well-meaning and pragmatic as its intentions may be, when the Biden administration colludes in the act of minimizing, sidelining, and even covering up what has come before, it is also, if tacitly, inviting more. As David Litt put it last week, referencing Attorney General Merrick Garland’s choice to defend a maximalist Barr-era position in a defamation action, “as we’ve discovered, the independence of the Justice Department is more of a suggestion than a requirement. Going forward, it will constrain Democratic administrations, as well as Republican ones who believe that an independent DOJ is a good idea. But Garland’s decision does nothing to protect us from the real threat—a future Republican administration that is determined to pick up where Trump left off.”

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Pretending Trump was a crazy dream and it’s all normal again is now a bipartisan sport. As David Graham warned last week, the only thing more dangerous than the claims that “this is not normal” that pervaded the Trump years is the thin veneer of “normalcy” that characterizes the present illiberal moment. But what is most bizarre, troubling, and painful about this current attempt to move forward and revert to normal without properly reckoning with what has happened is that the message is emanating from the Biden Justice Department and White House. They are now the folks arguing that everything that happened over the course of the Trump years was an aberration and a one-off, and that the best response to all of that is to ignore, ignore, ignore.

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I don’t have any prescription for how to reason with a radicalized GOP, a post-truth electorate, or a conspiracy-addled former president, nor do I harbor any illusions that tackling the problems of minority rule, racial violence, and weaponized law enforcement head on will allay the problems of creeping illiberalism. But gritting your way through it by pretending it’s not happened or happening will continue to open a bigger and bigger chasm between what we know to be true and what we want to believe. With all due respect to those who would like to continue to lecture us about the mathematically correct ratio of concern to destabilizing danger, we’ve actually done a fairly decent job of understanding that ratio intuitively all along. This is a profoundly dangerous moment, and being told to get over it is just as jarring when it comes from inside the guardrails of democracy as it was when it came from the smirking authoritarians that have been replaced. That’s why it doesn’t feel any better. If anything, gaslighting about ongoing threats to democracy might be even scarier when it comes from the very people who were supposed to protect us.

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