Trump’s Prosecution Is America’s Last Hope

Donald Trump was arrested in Georgia tonight for his role in what prosecutors christened “a wide-ranging criminal enterprise” aimed at overturning the results of the 2020 election. Trump and 18 others—among them, his former lawyer, Rudolph Giuliani, and Mark Meadows, his former chief of staff—have been formally accused of 41 state-law felonies. The case is brought by Fani Willis, the district attorney of Fulton County, Georgia. Willis is not the first local prosecutor to charge a United States president with a felony, but she is the first to accuse one of trying to steal an election.

Among charges such as filing false documents and conspiracy to commit forgery, Trump is personally accused of trying to browbeat and suborn felony acts from high-ranking Georgia officials, including the chief elections supervisor, secretary of state Brad Raffensperger. Officials were pressed by Trump and other “co-conspirators” to take action to “decertify the election” and “unlawfully appoint presidential electors,” prosecutors claim. Together, the charges opened the door for Willis to pile on additional counts of racketeering. Filed under the state’s Racketeer Influenced and Corrupt Organizations Act, the charge would ask jurors to consider whether Trump and other defendants were involved in a single criminal undertaking. A conviction under RICO does not require that the defendants all know one another or be involved at the same time, so long as they’re all working toward a single corrupt goal.

RICO, which can carry up to a 20-year prison sentence, is a powerful and even dangerous legal weapon. Out of dozens of possible crimes, a prosecutor may have to prove only two to gain a conviction. The state is fairly ambiguous about what constitutes an “enterprise.” Jurors, meanwhile, may be shown a veritable tower of evidence and instructed, usually in some narrative fashion, to see a “pattern” in the defendants’ acts; something the human brain is naturally wired to do, even at a subconscious level. For Trump and his team, allowing the case to progress to the point where a jury is actually deliberating RICO is a doomsday scenario.

In addition to the Georgia prosecution, the cases against Trump include one in Manhattan over “hush money” paid to a porn star; a case filed in Florida federal court over his retention of classified documents; and a federal case in Washington, DC, for his role in the January 6 insurrectionist riot at the US Capitol and efforts to overturn the 2020 election. In total, Trump is facing 91 felony charges. He has pleaded not guilty to each one so far.

The indictment is the culmination of a political career that Trump built by ignoring checks and balances, mocking the law and the courts, and cheering on supporters who use violence in his name, including groups rooted in white nationalism and misogyny, prone to spontaneous and premeditated violence. More than 1,100 of his most committed supporters have been charged in the past 31 months with trying to physically stop Congress from certifying the results of the 2020 election. More than 80 of them have pleaded guilty to beating police officers who had ordered them to disperse. More than 140 officers were reportedly injured, and four of those would die by suicide within 200 days of the event.

These are not Trump’s only casualties. Legal experts have long warned that Trump’s personal brand of politics—acrimonious, wielding tools of harassment—while deceptively trivial in the face of actual death, millions in damages, and election interference—is corrosive to the very norms and conventions upon which the electoral process has long relied for stability. Prosecuting Trump may help distinguish lawful challenges in future elections from outright criminal acts. But even alone, his arrest has already made clear what norm-breaking behaviors the public will not condone—not now or in the future, regardless of the courts’ own views.

In a 2018 book, Harvard University duo Steven Levitsky and Daniel Ziblatt put forward two criteria for the foundation of a healthy democracy: “social norms,” or unwritten codes of conduct upon which the people generally agree. The Trump administration, by the end of its first year, had managed to violate both with a quotidian efficiency. Levitsky and Ziblatt’s norms included “mutual tolerance” and “institutional forbearance.” The latter describes the need for politicians to show restraint in the exercise of their authority; not to gain the upper hand and immediately use that power to obliterate one’s rivals. “Think of democracy as a game we want to keep playing indefinitely,” they write.

Nothing in this century has done more to stamp out the mutual toleration of Americans than the presidency of Donald Trump. His strategy of painting political rivals as illegitimate and un-American has—for the better part of a decade—chipped away at social and democratic norms that titans of jurisprudence have—for more than a century—called indispensable to a functioning democracy. By the time President Joe Biden took office, the Washington Post had cataloged a decidedly pathological 30,000 false or misleading claims uttered by his predecessor. The Trump administration’s ever-broadening palette of ethics violations caused Americans to realize, perhaps for the first time on a national scale, that truly there are few if any laws against some of the most basic forms of corruption; that, instead, conventions and norms—an honor system, essentially—is all that stand between presidents and the gross abuse of their power.

Americans typically point to the US Constitution as the pinnacle of their legal system. Many modern legal theorists, and even the nation’s own founders, painted the concept of state authority in a different light. The Genevan philosopher Rousseau considered la volonté générale, or the “general will” of the people, the only legitimate source of state power. American revolutionaries believed that only laws written with the “consent of the governed” could be considered legitimate. Thomas Jefferson once said the only “fountain of power” is the people, and that only “from them” is power derived. Regarding politicians who believe “supreme power” resides in constitutions, early US Supreme Court justice James Wilson suggested they had perhaps neglected to consider, “with sufficient accuracy, our political system.”

Consequently, democratic institutions are effectively incapable of restraining elected autocrats by their own volition. Without robust norms, traditional checks and balances often prove useless. “The tragic paradox of the electoral route to authoritarianism,” write Levitsky and Ziblatt, “is that democracy’s assassins use the very institutions of democracy—gradually, subtly, and even legally—to kill it.” The Georgia case yanks Trump and his associates out of the squishy realm of “norms violations” and drops them into the cold, hard box of criminality. The best argument for prosecuting Trump under RICO is that it seemingly leaves jurors room to consider both.

The prosecutions of Trump will do nothing to cement America’s deep partisan divide, of course. Legal scholars reasonably believe it will only further inflame hostilities and erode trust in US institutions. Republicans have meanwhile launched an aggressive PR campaign based on the notion of “letting voters decide.” But relying on the vote, rather than jurors who are obligated to consider evidence and draw inferences from facts alone, could itself create a new norm anathema to democratic values. Prosecution was not the first choice. But every other lever that might’ve been pulled to stop and counteract the damage wrought by Trump was left in its place; particularly by Republicans, who’ve never actually been deprived of the means or opportunity to hold the de facto leader of their party accountable. Relying on the very system that Trump previously poured tens of millions of dollars into destroying feels otherwise, at best, like a nation fulfilling a death wish.

For American democracy to thrive, or retain any semblance of the legitimacy it has left, the prosecutorial systems, judges, and jurors in New York, Georgia, Florida, and Washington must grind forward. The law may not always prevent people from profiting off the wrongs they commit. But it cannot be denied outright the chance to decide whether they’re stripped of their ill-gotten gains.

Laws are ultimately made “real” by the people against whom they’re imposed, including state officials, who, unlike private citizens, cannot scrape by merely obeying the law. Were judges, legislators, and even presidents to consider only themselves, ignoring the actions of their supervisors, subordinates, and peers, the validity of the legal system—and eventually the system itself—would fall apart. The English legal theorist H. L. A. Hart once wrote that among the "necessary and sufficient” criteria for the existence of a legal system is the requirement that public officials consciously adopt common standards of behavior and “appraise critically their own, and each other’s deviations as lapses.”

For some observers, the concept of “norms violations” during Trump’s presidency became erroneously interlinked with the perceived failures of federal oversight officials, mostly by people unaware they were a phantom bulwark all along. A lack of coherence in the mainstays of democracy during Trump’s initial years left too many too focused on the absence of criminal charges, even though equally essential but far less defensible democratic norms were being whittled into dust. Where criminals have laws and courts to contend with, and are beyond the public’s own power to prosecute, social norms are injusticiable—outside the realm of the law, defined by people, their values, and beliefs.

And it’s no secret. The only fleshed-out directive revealed thus far to be implemented by Trump’s hypothetical follow-up presidency aims to see more than 50,000 bureaucrats and civil servants fired in an effort to insulate Trump from legal scrutiny and shield him from potential prosecution down the line. Groups of lobbyists have, according to Axios’ Jonathan Swan, already compiled their “extensive” lists of individuals believed loyal to the president and who fill those ranks instead. This plan is notably the opposite of the restraint on which Levitsky and Ziblatt place so much significance in the upkeep of a healthy and functioning democracy.