“No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.”
On August 8, 2022, the Federal Bureau of Investigation (FBI) executed a search warrant on Former President Donald Trump’s residence, Mar-a-Lago, looking for documents related to United States’ national security, including materials on nuclear weapons. The search was conducted as part of an investigation involving the Espionage Act, as well as additional laws and charges. Almost immediately, Trump sought to politicize the event, claiming that he was the victim of a politically motivated search.
What does Trump want to accomplish with his incendiary rhetoric about this search? His efforts to politicize the justice system are more than an attempt to undercut the investigation. Trump wants a deal. One that would avoid any punishment for his crimes, and allow him to continue with his political ambitions. The greater risk here is not simply that Trump will face no consequences, but that a core idea of democracy will falter: political equality. The significance of that deal would delegitimize Roosevelt’s notion that all American citizens are supposed to be equal before the law. Such a bargain would legitimatize threats and violence while diminishing perceptions that the rule of law matters within the US.
The rule of law is a critical component of political equality. As the people of the United States recognize that there is an ongoing crisis in its democratic foundations, the country needs to know that equality remains in place and that the institutions will protect it. Americans need to expect that the legal system will hold all individuals to the same standard and make them accountable for any transgressions. The Department of Justice needs to set the precedent now so that citizens will consider it normal to hold executives accountable in the future.
Undermining the Law
One worrying aspect of the Trump years was the normalization of attacks against the laws of this democracy. Right now, the country is experiencing a continuation of those attacks with this attempted politicization of the search warrant. It is a continuation of Trump’s efforts to undermine the core foundations of US democratic institutions. It is a continuation of events to overthrow the political system.
Unfortunately, the supporters of Trump are trying to frame the warrant in a similar way. They view this search warrant as the “worst attack on this republic in modern history.” Trump’s supporters are pursuing every possible angle, from misinformation to whataboutism with comparisons to former President Barack Obama, to even suggesting that the Espionage Act be repealed.
Whether by undermining the officials’ credibility or making them fear for their lives, the idea is to make examples of the individuals pursuing this investigation. Politicians who see this raid as some politicization of justice are increasing their use of violent rhetoric, which has had an effect on what their supporters are willing to do. After the public announcement of the search, there was an “unprecedented” number of threats directed at the FBI, other law enforcement agencies, courts, and others associated with the government. A Republican Congressional candidate threatened the Attorney General, Merrick Garland, for his role in the search warrant. A version of the search warrant was released with no information redacted, providing the identities of federal agents involved so that Trump supporters could find and share personal information on these individuals. Even the families of FBI agents are being targeted. Supporters will aim to tarnish the reputations of these individuals, such as the judge who signed off on the search warrant, and disrupt their regular lives, even threatening violence against their surrounding communities.
Some threats would remain just that, threats made in online forums. Those threats, when sufficiently credible, must be investigated and, if necessary, punished. Yet, violence will likely occur. A narrative is emerging in various online communities that will create a justification for violence against law enforcement and others. Those might be isolated incidents like the one in Cincinnati or broader, more sustained campaigns. Other attacks may have an association with these events. The rhetoric could even trigger another event like January 6. The country could witness another attempt at insurrection.
The violence that may result from these online threats will come in the form of stochastic terrorism. That is, “terrorism that’s statistically predictable but individually unpredictable.” By throwing around ambiguous language, Trump and his supporters can incite extremists into action but retain deniability about the violence. The lingering threat of violence can generate uncertainty, and that may influence decision-making.
Unfortunately, the threat of violence will likely be a continuous problem. Trump is not going away, nor are his legal problems. There are multiple ongoing investigations, with several criminal probes, and possibly new warrants for this particular investigation. Each one of these investigations presents opportunities for escalation. The question to ask is what does Trump want to accomplish with this rhetoric and an increasing threat of violence?
Pact Seeking
Elites that committed transgressions do not want a new government to hold them accountable for those crimes. The current office-holders must decide how to approach those crimes, with one option being impunity. There are generally three ways to achieve unconditional amnesty for the criminal activities of the old elite. First, the old elite could achieve impunity by engaging in a self-pardon at the end of their term. Trump likely considered this option, at least at some point prior to January 6, but did not pursue it. A second option is for all democratic participants to agree on immunity for individuals who participated in a regime. That option seems implausible given the amount of public support for the current investigation.
The third option is the one that the country currently confronts: impunity from a bargain struck between the old elite and the current elite. These types of bargains do not have to be explicit contracts. These arrangements can be reached informally, with an implicit understanding of the terms that the parties will abide by. As a result, investigations may never happen. The reports could be limited in scope, with information withheld or redacted. Overall, such a bargain would ensure that the current government does not hold the old elites accountable for their crimes.
The violence that his followers might commit is one of Trump’s bargaining chips. Consider the message that Trump sent to Garland via an intermediary: “The country is on fire. What can I do to reduce the heat?” On the surface, the statement sounds like an offer to help. It is likely a threat directed at the continuing investigation. Trump has implicitly signaled that he controls the thermostat; he has heated his base and can cool them down. He has stated that “because the temperature has to be brought down in the country… If it isn’t, terrible things are going to happen.” By inference, Trump is implying that he could let things burn or even turn up the heat further.
The statement is also an attempt at bargaining. If Attorney Garland responded with a specific action, Trump could answer with an acceptance, but include some conditions. One condition could be ending the investigation. By stopping the investigation, Trump would lower the temperature and encourage his supporters to remain calm. It would effectively grant Trump impunity, as long as the DOJ did not investigate.
The bargain might reduce the chances of violence, but would offer no change to the current political situation. It would not alter his behavior or his intention to continue to control the Republican Party while seeking a return to the presidency. Trump would not be giving up his influence, his goals, or any continuing use of misinformation. Certainly, he will not relinquish the thermostat. The benefit to the DOJ would be the reduced tensions in the country, especially those targeting the FBI and other actors involved in the investigations. The costs, however, would simultaneously legitimatize the threat of violence and delegitimize the idea of democratic political equality.
Conclusion
To preserve political equality, the federal government should pursue all charges without regard to the fact that Trump was once president. If the evidence suggests that a criminal act has been committed, then they should follow the procedures set forth in the system. The federal government must demonstrate the full extent of criminal behavior, from the most technical to the most insidious.
The federal government should not focus on just the highest charges to demonstrate the worst of Trump’s crimes. That would have no positive effect on either Trump supporters or those who want to uphold the notion that no one is above the law. The former will say that the charges are a ‘witch hunt,’ political persecution directed at the former president. Those with higher ideological commitments will continue to vote for their preferred candidates, even with likely criminal violations. On the other hand, support for the investigation of Trump remains at half or greater of the population in surveys conducted. Those who support the investigation might be dismayed by the normative shift to no one is above the law… for the worst crimes committed.
The threat of violence is meant to break the creed: no one is above the law. If law enforcement backs down, then those who threaten will learn that they too are above the law. It will serve to embolden those who believe that their ‘threat’ worked. That group would decide who is, and who is not, accountable to the laws. That would undermine a core component of political equality within the United States.
To preserve the idea of political equality, the US has the opportunity to demonstrate that not even its former presidents are above the law. The path ahead will be difficult, but ultimately, no one is above the law.
Dr. Anthony Marcum is a Lecturer in the Program in International and Comparative Studies at the University of Michigan. His research interests broadly focus on post-conflict reconstruction and democratization.
Suggested citation: Anthony Marcum – Trying Executives During Trying Times, JURIST – Academic Commentary, August 31, 2022, https://www.jurist.org/commentary/2022/08/marcum-anthony-trying-executive-during-dying-times/.
This article was prepared for publication by Viraj Aditya, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
