Tweet Share Share Comment Any conversation currently happening around legal accountability for Donald Trump is quickly caught up in the riptide of a very different sort of conversation about electoral strategy: Should states be allowed to remove Donald Trump from the ballot, as the plain meaning of the 14th Amendment suggests that it was designed to do? Or will that drive his supporters to commit further acts of vigilante justice in response to being disenfranchised? Should we run our democracy based on such potential threats, and more abstractly: Should judges presiding over the myriad Trump trials that the former president uses to incite stochastic terror and demean the judicial system allow him to speak freely? Or should they make every effort to limit his use of their courtrooms as campaign stops and hate rallies? Should prosecutors in these cases make every effort to have them done and dusted before the presidential election? Or is there something unseemly in the haste to bring about accountability timed to some external political event? Should the judicial system proceed at its own pace, or should it find a way to move faster, with the recognition that it might (only might) be able to do what the other branches of government have chosen not to do, in glacial legal units of time?
The biggest brains in both the legal and political spheres are currently engaged in a near-daily exploration of questions that posit law and the rule of law not so much as ends in themselves, but as tactics—often Hail Mary, last-ditch, desperate-times-call-for-desperate-measures tactics in a presidential contest. We are in an existential battle to save democracy from the single most profound threat it has faced since at least the Civil War. And Americans who have become all too familiar with opening arguments and jury selection and civil fraud and conspiracy law have somehow convinced themselves that the justice system alone can somehow be deployed—or, in the parlance of the insurrectionists, “weaponized”—into becoming the shiny entity that could preserve democracy as we know it. Principally, because nothing else seems positioned to do the trick.
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The asymmetry here is that of course the American legal system is not a tactic, or a strategy, or a party trick, although, sure, any one trial is built on tactical decisions. The American legal system, indeed any legal system, is a search for truth, facticity, conclusion, and resolution. When legal systems are working, they are largely backward-looking excavations of what happened and why. One of the reasons Donald J. Trump has managed to evade legal accountability throughout his lifetime is that this is not his objective: He doesn’t allow the legal system to look backward at facts—indeed, he disputes facts literally as they are happening, and even adjudicated facts, including his sexual abuse of E. Jean Carroll, are perpetually reopened for public appeal. His objective is to use the mechanisms of the legal process as tactics toward a larger end—to make himself richer or more famous, or to vanquish his opponents. And we all know that should he get himself elected as president in 10 months, he will use the law to prosecute Joe Biden, stay in office indefinitely, strip non-Americans of their rights, and do almost anything he wishes to remain in power. For Trump, law isn’t the endgame—it’s just the ladder that gets him somewhere better.
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Here is the problem: When we engage in tactical intramural debates about about how best to deploy the American legal system to stop Trump, we are in a sense engaging in a mirror image of that same Trumpist project. We say we want accountability and findings of fact and conclusions of law and injunctions and gag orders and, ultimately, convictions. But above all, what we want is for him to go away, to stop, to unravel all the harm he has done to the myriad institutions and principles upon which the rule of law once relied. The purists among us argue that in so doing, we will at least have given it a shot. The worriers fret that in so doing, we further rip the country asunder because, uh, what if it doesn’t work out the way the purists had hoped?
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For my part, I worry that we have imported far too much force into the idea that the law itself and law alone will curb Trump’s lawlessness, because no amount of gag orders and conclusions of law and even criminal convictions can stop someone hellbent on using those things as tactics on a tear toward fascism. As Jeff Sharlet put it on last week’s Amicus podcast, “The one thing Trump has made clear is we don’t know yet how to stop Trumpism.” The rule of law may be a component in the war against Trumpism, but if it isn’t plain by now, I will say it here: The rule of law exists not to stop Trumpism. It exists to promote the rule of law.
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For those who note that Trump has the ability to delay, drag out, undermine, and even capitalize on his legal troubles but can’t escape the voting booth, the very existence of the Colorado 14th Amendment appeal at the Supreme Court shows the extent to which the law and the voting both are bound up together, and the degree to which both may be profoundly incapacitated when we expect either to create Cold, Hard Facts in a world that has fundamentally put truth out with the recyclables. Trump’s supporters in the conservative legal movement have been using the law to suppress and subvert elections for years, and they have already amassed literally billions of dollars to do so again. Subverting the vote is a tactic. It is also the single most effective way to subvert the rule of law.
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This is by no means a call to abandon the pursuit of legal accountability for Trump and his supporters in every single forum possible. Of course the law should attempt to impose every last consequence this man deserves, and of course the fact that this makes his cultists angry is never a reason to stop. It is simply a caution to those who have convinced themselves that the law exists to keep Trump from winning the 2024 election. Because the law alone may not suffice.
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Read More Paradoxically, to the extent the law can be usefully deployed as a tactic, the 14th Amendment itself is a tactical enterprise that exists to protect us from tyranny. But we tie ourselves in knots deploring how slow and technical and mincing legal accountability can be. (Consider emoluments! It took eight years to get those numbers reported out! But there is still no accountability!) The challenge isn’t exclusively that law takes too long. The challenge is that, unfortunately for all current citizens of America and quite frankly the world, the law can’t be boiled down to a distillate, reconstituted as a vitamin, then chugged down with a Gatorade to save us from an authoritarian strongman.
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Donald Trump is nothing but an amalgam of tactics with hair. Purposive lying is a tactic, distraction is a tactic, bullying is a tactic, threats of violence is a tactic, running out the clock is a tactic, all with the incredibly simple objective of amassing power. And Trump’s promise to use the law to terrorize and jail political adversaries, to further immiserate those he dislikes, to suppress speech and protest? All of this is about using the law to further an authoritarian agenda.
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Ensuring that Trump is driven from public life requires tactical thinking and execution that involves so much more than the tactical use of legal remedies. It involves structural election reform, expanded voting rights, democracy building, rethinking the way the media covers elections, and a thousand other tactics that protect constitutional democracy and free and fair elections. Law can be weaponized to do all of these things, by the way. But this would require the work of millions of people for thousands of days, pushing every lever. It cannot be readily swapped out for a single victory in a civil fraud trial, as important as such victories may be toward the greater end.
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If the rise of authoritarian strongmen around the planet in recent years proves anything, it’s that the law alone was not designed to restrain authoritarian strongmen. What we grouse about as the slowness of the law is in fact the absence of the fast fix to fascism.
The relevant legal question in the coming months cannot be limited to How do we best use the law to hold Donald Trump to account? Even holding Donald Trump to account will not necessarily save us from electing Donald Trump the dictator—it could be too slow, or too unpersuasive, or totally steamrolled by his own destruction tactics. The relevant question is: Whether we realize in time that the law alone cannot save us, are we directing all our efforts, right now, to doing everything and anything else that will?
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