*Published with the generous permission of Teri Kanefield. Read all of her writing here.
By Teri Kanefield
Yes, Trump was indicted in Manhattan. After the indictment becomes available, I’ll do a reading of it here: https://law-and-politics.online/@Teri_Kanefield, and then I’ll put it on this blog. You can check back midweek.
If you’ve seen any of Trump’s recent rants, you know that they are unhinged and dangerous. If he keeps it up, he might end up with a gag order or even pretrial detention.
In other words, Trump does not appear to be preparing a normal defense, which is no surprise. Instead, his aim seems to be to create as much chaos as possible with the goal of tearing the country apart.
His method is to (1) Fire up his supporters and (2) bait his critics into helping him destroy rule of law.
On ABC, Mike Pence, a reactionary, said:
“At the time when there’s a crime wave in New York City, the fact that the Manhattan DA thinks that indicting President Trump is his top priority I think just tells you everything you need to know about the radical left.“
His comment was an example of whataboutism (a logical fallacy: “but what about violent crime?”) with a factual inaccuracy thrown in: Crime in New York is down.
The way to read his statement, though, is a reactionary call to arms. For what I mean, we need a bit of history about our criminal justice system. (A lot of this will be familiar to you all, but I need to cover the history to make my point.)
Our modern criminal justice system took form after the Civil War when white supremacists found a way around the 13th Amendment, which prohibited forced labor, except in the case of punishment for crimes after conviction. Their solution: Convict lots of Black men, put them in prison, and then put them in chain gangs.
The criminal justice system resembled a conveyor belt: A person (well, a Black person) could go swiftly from being accused of a crime to hanging from a tree. The criminal justice system was basically a vehicle for maintaining the nineteenth-century hierarchy with white men at the top.
This view of criminal law continued until fairly recently. When Republicans said, “We are the party of law and order,” what they meant was, “we want white prosecutors to move quickly to put Black men in prison.”
There’ve been a few changes over the past 100 years.
To begin with, Charles Hamilton Houston, his protégé Thurgood Marshall, Pauli Murray, and others took it as their task to reform criminal procedures to create more fairness.
They understood that the law fell more heavily on Black men. Their idea was not to even things up by making it easier to inflict punishment on white people. Their idea was to make it harder to inflict punishment on anyone. They embraced jurist William Blackstone’s idea that it was better to let ten guilty people escape than to let one innocent person suffer.
Their goal was to turn a conveyor belt into an obstacle course. The idea was that more procedures, regulations, and checkpoints meant less chance an innocent person would be punished.
As a result of decades of work, reformers succeeded in getting the Supreme Court to declare it unconstitutional to do things like beat confessions out of people, stop and search people without probable cause, and arrest people on a whim.
Another change: In a few places, we now have some (but not as many as I’d like) progressive prosecutors. Some progressive prosecutors understand that mass incarceration is a terrible idea that destroys communities, tears families apart, and actually increases the conditions that create certain kinds of crime. Others have different priorities: Instead of going after things like drug use with the goal of filling up the prisons as quickly as possible, they devote their time and resources to financial crimes.
Reactionaries hate these kinds of prosecutors. (For more on that, see this post.)
Finally, a third change: Before the 1930s, it was mostly legal to do things like fix prices, manipulate markets, engage in insider trading, and cheat customers. Unscrupulous white men could (and did) get rich by cheating. (For how the Trump family made its money, see this post.)
Franklin Delano Roosevelt and his New Deal gave us worker protections, social security, and regulations intended to keep people from cheating. Republicans hate those regulations and have been trying ever since the 1930s to roll back the New Deal and dismantle the regulatory agencies. (The reactionary word for ‘regulatory agencies’ is ‘deep state.’)
The Civil Rights movement also brought a wave of regulations designed to create racial fairness. The reactionaries also hate those regulations.
While the criminal justice has improved, there is much work to be done. We need more reforms. We need more good prosecutors. Because prosecutors are either appointed by elected officials or elected directly, elections matter. (For what you can do, see this post.)
When Pence says this:
“At the time when there’s a crime wave in New York City, the fact that the Manhattan DA thinks that indicting President Trump is his top priority I think just tells you everything you need to know about the radical left”
He means this:
Prosecutors should not be wasting time going after crimes like falsifying business records. In the good old days, that kind of thing wasn’t even a crime.
When Pence says, “Radical left,” he means “people who don’t want to go back to the way things were 100 years ago.” I suspect he learned from Trump that throwing in an inaccuracy (about crime levels in New York) will bait his critics and send them into a spin.
Lindsay Graham, another reactionary, echoed Pence’s sentiments when he said:
"How can President Trump avoid prosecution in New York? 🤔
On the way to the DA’s office on Tuesday, Trump should smash some windows, rob a few shops and punch a cop. He would be released IMMEDIATELY!"
Graham, like Pence, was saying that prosecutors shouldn’t be wasting time and resources going after white men who cheat when there are more serious crimes to deal with.
The best explanation for Pence, Graham, Trump, and their supporters was offered by Richard Hofstadter, who calls theirs the “paranoid style of politics.”
Those embracing the paranoid style of politics believe that unseen satanic forces are trying to destroy something larger to which they belong. According to Hofstadter, the “something larger” to which they belong is generally phrased as the American way of life. They feel dispossessed and that America has been largely taken away from them and their kind.
They are “determined to repossess it and prevent the final act of subversion.” They, therefore, adopt extreme measures. They will stop at nothing to prevent what they see as an impending calamity.
Reactionaries defend Trump’s lawbreaking because he is breaking the laws that they don’t think should exist. They will use Trump’s indictment to incite a cultural war because that is how they see it: They see an indictment of Trump as radical prosecutors going after white men for stuff that shouldn’t even be crimes instead of using the criminal justice system for how they think it should be used: maintaining a hierarchy with them on top.
About a month ago, someone on Mastodon told me this:
“People don’t want a police state until something goes wrong, then they want a police state.”
This particular person was in favor of a police state on the grounds that democracy can’t work, so because democracy will always dissolve into authoritarianism, you may as well have a police state governed by a dictator who embraces your politics.
I think about that comment when I get complaints like these on social media:
I get so many of these comments that I have a FAQ page, and I just refer people there. (If you’re new to my blog, check it out here.)
This week, someone on Mastodon showed me the news that DeSantis said he would refuse to extradite Trump. He then demanded to know why DeSantis wasn’t immediately arrested. I tried to explain why this wouldn’t (and shouldn’t) happen.
When he pushed back, I sent him to my FAQ page. He came back and showed me this headline:
This is from the article:
The office of New York County District Attorney Alvin Bragg on Friday urged House Republicans to withdraw a demand for information on its case against former president Donald Trump, again rebuffing what it characterized as “unlawful political interference” in an ongoing criminal case.
He again demanded to know why all of the people engaged in “unlawful” behavior were not immediately arrested. I tried to explain that not everything “unlawful” carries criminal consequences, and even if there is unlawful behavior, there are procedures and standards, and nothing he showed me indicated that those standards had been met.
He accused me of wanting to keep rich white men above the law.
I’m sure some people like him simply prefer a police state where arrests happen swiftly and need only the word of someone in power. They probably also believe that swift, harsh punishment will actually solve the problem of right-wing extremism.
Many of the people who have spent two years demanding indictments probably believe that swift, harsh punishment would have solved the problem of right-wing extremism. They will remain frustrated and angry no matter how many indictments are brought and no matter how much punishment is inflicted because when right-wing extremism continues, they will say it is all the fault of the prosecutors who “delayed” so long and didn’t immediately arrest them all.
Another person on Mastodon said this to me:
"I find it so hard to swallow that Biden isn’t on the TV every damned night using this pro-treason anti-life nonsense to democracies full benefit.
If I was president I’d be dropping the f-bomb on their shit like the military bought too many of them with their inflated budget."
When Trump spent much of his time watching cable news and trying to be in the spotlight so that he could land blows on his enemies and call them names, many of us were horrified and thought it was ridiculous. We thought he should be working on behalf of the American people.
In fact, one trait that distinguishes a fascist leader from a democratic leader is this: Democratic leaders spend their time trying to make lives better for their constituents. Fascist leaders spend their time landing blows on their “enemies.” They try to cultivate an “us and them” mentality.
Now people who evidently hated Trump, want Biden to act like Trump.
Why do people who claim to embrace liberal values turn around and embrace authoritarian tactics?
A few possibilities:
Here is an example of how easily Trump baits his critics into helping him attack the prosecutors who are after him:
The disappointment that there was no actually an indictment enraged the anti-Merrick Garland and anti-Alvin Bragg people:
What is interesting is that the person who played her was Trump.
As we are entering the indictment phase, which will move Trump back into the spotlight, the more reactionary Republican leaders will rally around Trump because they are reactionaries, and they see the indictment as another salvo in a cultural war that is eroding their own power.
Meanwhile, as Trump finds himself adjusting to the reality of being a criminal defendant, he will try to bait his critics into helping him attack the “system” that he wants to dismantle.
His goal will be to create chaos, keep people spinning, and get everyone fighting. The solution is not to take the bait.
Someone left a lengthy comment, which I will summarize briefly and put here:
Maybe you should stop working overtime to keep people in a passive, wait-and-see mode that is extremely disempowering and deflating. You need to stop minimizing the extent of the problem.
The threat is real. Trump is dangerous. Right-wing extremists are dangerous. However, the way to combat authoritarianism is not with more authoritarianism.
For how to save democracy using democratic means, see this post.
Someone asked where JJ is this week. I was so tired when I finished writing this, I didn’t even have the energy to ask him to make a statement.