Greetings,
I loath Donald Trump. I have followed politics fairly closely my entire life. My first job out of college was as a Senate staffer. I have moderately strong political beliefs of the lapsed libertarian variety with a healthy dose of realist internationalism. There are a lot of politicians with whom I have strongly disagreed, but Donald Trump is the first American politician that I have truly hated.
On a personal level, he is a moral catastrophe. He’s openly bragged about the joys of sexual assault with impunity, has followed through on that fantasy multiple times, and is a serial adulterer. He lies relentlessly. His business dealings have been laced with dishonesty, hucksterism, and a healthy dose of incompetence. His political instincts are basically vicious, a cocktail of xenophobia, undisguised fantasies of authoritarianism, fiscal profligacy, crude protectionism, a poorly thought out isolationism, and an uncanny ability to exploit and exacerbate the deepest fissures in American culture. He’s a scofflaw who is eager to exploit the law against his enemies but contemptuous of its demands on himself. Possessed of an undoubted talent for self-promotion, he is ignorant and incurious about the world, two characteristics that are exceedingly dangerous when coupled to great power. There is no person, community, or institution whose interests he will not subordinate to his own monstrous ego. His claim that the 2020 election was stolen rests on equal parts cynical desire to hold on to power regardless of the consequences and an infantile inability to face up to the basic reality that he was the loser. In short, he’s personally repulsive, his policies – to the extent that he has any – are largely pernicious, and his unconquerable narcissism is manifestly a danger to the Republic and our constitutional order. Under no circumstances is he fit to be President of the United States.
None of this is new or even interesting at this point.
Since 2016, Americans of various political stripes who share my fear and loathing of Trump have longed for some deus ex machina that would save them. In these fantasies, lawyers always play the role of hero. Between Trump’s election and his inauguration, a number of progressives suggested that there was a constitutional loophole: the Electoral College could become a deliberative body and vote to install Hillary Clinton as president, because she won the popular vote so state and federal election law could be…hand waving…dealt with. The next heroic legal maneuver was the Mueller investigation. The special counsel would find evidence of skullduggery by Trump, say the magic lawyer words before other lawyers, and Trump would be disposed of. With impeachment and removal impossible given the politics of congress, another legal gambit for which my fellow Trump haters longed was removal via the 25th Amendment. Designed to deal with the physical incapacity of the president, it can be triggered by high government officials without having to go through the morass of politics. The officials don’t have to be lawyers, but most of them are and the 25th amendment option has all of the hallmarks of the attorney hero’s journey: An obscure and technical rule invoked outside of the ordinary political process that creates the dramatic hoped for results.
Since leaving office, legal hopes have fixed on criminal prosecution of Trump and we now have four pending cases against him: A New York case on hush money payments and business documents, a Florida case on mishandling of classified materials, a DC case on efforts to overturn the election, and a Georgia case on efforts to corrupt Georgia state election officials. I’m no criminal lawyer, but looking at these three cases, I think that the Florida case is by far the strongest. Next, is probably the Georgia case, although Georgia law is a little weird and I certainly don’t understand it fully. The DC case is, in my opinion, a bit of a stretch: plausible but not a slam dunk. I think that the New York case is very weak, a transparent political stunt. For at least the Florida case and the Georgia case, I support the indictments. I think that Trump is a criminal who violated serious criminal law. I think that he deserves to spend time in prison. I think that it is important that powerful people be held accountable for their crimes. I think that the New York case undermines the integrity and credibility of the criminal justice system and shouldn’t have been brought. I think that the DC case was brought because we have a prosecutor who wants to get his man not because he’s looking for a political scalp but because he’s a relentless prosecutor and this is what they do. I’m not convinced of the legal and political wisdom of the case, but frankly, Trump is a loathsome pustule on the body politic. I’m fine if an aggressive prosecutor wants to roll the dice.
None of these cases, however, is going to solve the basic problem of Trump in American politics. That problem doesn’t have a legal solution because it is fundamentally a political problem. The most recent iteration of the lawyers to the rescue scenario is a detailed paper by Will Baude and Michael Stokes Paulsen arguing that Trump is disqualified from being president by the 14th Amendment. Baude and Paulsen are serious people. They are both excellent scholars. I might even find all of the history and case law chopping in their analysis persuasive as a legal matter. But at a deep level I think that it is a fundamentally unserious project, not because it isn’t good scholarship but because it continues the fantasy that lawyers can save us from Trump.
If we accept their argument as a way of dealing with Trump, then we are imagining a future in which state election officials, federal officials, judges, and others will independently decide that an untested constitutional argument authorizes them to exclude Trump from the ballot. It also imagines that the resulting political outcome can command widespread legitimacy among the population, a substantial minority of whom are ardent Trump supporters. Do we seriously think that lawyers magically saying the right lawyer words to other lawyers can somehow make this happen? That strikes me as a ridiculous idea. (With apologies to Will and Michael, both of whom I like and respect.)
To me, there is something juvenile about the hope that through some deus ex machina attorneys can rescue us from politics. The idea is firmly implanted in the American political psyche through some cocktail of a litigiousness, the continuing idea of constitutional law as quintessentially a matter of technical lawyering, an immensely powerful U.S. Supreme Court that has always been an odd outlier among liberal democracies, and the popular image of the lawyer as the hero in our quest for justice. All of these myths, I will note, have been cultivated assiduously by the U.S. legal profession for years. But they are myths, fairy stories that lawyers tell themselves to add a bit of glamor to lives mostly devoted to greasing the wheels of commerce. They are also children’s myths. They imagine that someplace there are grownups who will arrive on the scene, make the bully stop, and dole out prizes with juice and pretzels.
Trump is powerful because there is a large segment of the population who supports him. Unless that support goes away, he will continue to be powerful. The only way of eliminating that power is persuading people – lots of ordinary people without law degrees – that he is unfit to be president, that he is unfit to occupy any important position in our public life. That is hard. For many of his supporters, it is impossible. But there isn’t any alternative.
Lawyers cannot save us.
Until next time,
Nate