Subversion

As a teacher in the early 21st century, when things started getting hot politically, I often argued with my students that the law demanded things be done certain ways. That, although republican operatives subverted the protections of the legal system by disrupting the Bush-Gore count, the Supreme Court ultimately held sway. And while I didn't agree with its decision, it had the final say, and adhering to its findings is what separates the US from, say, the Sudan.

But I didn't expect, and I doubt few did, that fealty to the law could ultimately be used as a cudgel. When he began his campaign, most of us were aware trump paid only lip service to the law and assumed that would undo him. When he assumed office, most of us were aware he could not hold to the strictures of what the law about what he could and couldn't do, and assumed that would undo him.

What we didn't expect, and what Dahlia Lithwick in this excellent commentary only hints at, is the number of people not only willing to look the other way when trump insists others abide by the laws he ignores, but who actively enable his flouting of those laws, who accept his unspoken credo that the law is for suckers. This period of our republic will ultimately be used as an example of how desperate things become when the system operates as if the rules are only used on the public, not for them.



JURISPRUDENCE
The Law Is for Suckers
Donald Trump’s impeachment acquittal proves that they let you do it.
By DAHLIA LITHWICK

FEB 05, 20206:21 PM

“The law is for suckers.” That has been the credo of Donald Trump throughout his personal and business life. James Zirin, in his superb book, Plaintiff in Chief, chronicles the 3,500 lawsuits to which Trump has been a party, a pattern of scorched-earth attacks that include deliberate “delay, counterattack, obstruction, deflection, confusion, threats of ruin, and blanket assertion of attorney/client privilege to avoid accountability.” These were tricks he learned from the notorious Roy Cohn, and they were largely successful in helping him evade legal accountability throughout his business career.

They were, it turns out, the same tricks Trump brought to the campaign trail and later to the White House. It was all, writes Zirin, a dangerous new approach for a president:

Trump is very different. His instinctive litigiousness; his abuse of the legal process to obtain leverage, not justice; his mean-spirited statements and conduct; his overblown damage claims; his many lies, exaggerations and prevarications; his willingness to sue, trash, or discard even those who did him a good turn along the way are abnormal by any standard.

It is a paradox that the most litigious country in the world—a country whose founding documents were largely drafted by lawyers, and whose constitutional true north has long been the constraints afforded by the law—elected a man who has spent the bulk of his life creating a two-tiered system, in which some men are bound by law and others float away from it. We knew long before he was elected that Donald Trump would not be bound by the rule of law, or by the norms of a system dependent on checks and balances. He told us as much. During the campaign he floated the prospect of torturing the families of enemies, and rewriting libel laws, and banning travelers to the United States based on their religion. Sure, it maybe sounded like hyperbole, and it maybe sounded like campaign-speak, and even as some of those efforts were effectuated, including the Muslim ban and family separations, and even as the norms about nepotism and self-dealing and disclosure were brushed away, it still seemed as if a country founded on law would locate some guardrails.

It hasn’t. Just as Zirin promised us, Trump has deployed all of his Roy Cohn strategies to show us that the law is for suckers, and that for great men it serves as a nuisance at most, something to be gotten out of with a squadron of well-paid lawyers, by terrorizing opposing parties and witnesses, by lying fluently and repeatedly, and by declaring victory even when you lost. It should not surprise a soul that he would have brought those tactics to bear as a candidate, as president, and as the subject of an impeachment inquiry. The legal arguments he has deployed throughout this process—that he should have “absolute immunity” from investigation; that he could not be removed from office for crimes; and that he could only be impeached for literal crimes, not high crimes and misdemeanors as the Framers intended—were vintage Roy Cohn. As was the argument, as proffered by Alan Dershowitz, that if the president believed his election interference was in the best interest of the republic, it was both not illegal and also not an impeachable offense. The fact that the Senate and the Justice Department helped him evade accountability, or that White House counsel Pat Cipollone and Dershowitz and Ken Starr served as Roy Cohn mini-me’s, should surprise nobody. Nor should the fact that the “trial” was not a trial and the jurors were not jurors or that a nontrivial number of the jurors voted to acquit him while still acknowledging that what he did was the thing he continues to deny having done.

Nobody should be surprised that in the wake of 3,500 lawsuits, Trump will conclude that he is indeed above the law, that the legal regime exists only for suckers, and also that he can repurpose the machinery of law to investigate, harass, and punish the whistleblowers and the witnesses and those who sought to constrain him. At which point the law won’t just be the thing that applies only to losers and suckers, but also the thing that can be used to put down those who sought justice in the first place. And nobody should be surprised that having invited foreign election interference and having been acquitted for doing so, this president will use the formidable power of his Justice Department to manipulate the 2020 election, and to call into question the results of that election in the courts.

We can debate the wisdom of Adam Schiff and Nancy Pelosi and the ticktock of the impeachment investigation and trial—whether it should have been broader, or gone longer, or relied upon court rulings that never came. But we can hopefully agree that what they attempted to do was use both legal processes and legal arguments to show that when a president abuses the power of his office and denies accountability, it should matter. They were trying to prove that the law isn’t just there to punish asylum-seekers trapped in Mexico or black men in prisons, but that it should apply to everyone, even the wealthy, and even the people who believe it doesn’t apply to them because it never has in the past. Donald Trump staked a decadeslong business career on the bet that if you’re rich, famous, brazen, and unrepentant, the law will let you do it. He staked his presidency on the same. Republicans who deplore the death of “unity” today should remember that this was once a nation unified around at least the hope that the law was for everyone, and that going forward, it will be divided around the certainty that some people don’t answer to the courts or the Constitution. Their president will answer to nobody. All of us now answer to him.