The American republic is decaying in front of us. The precepts on which it was founded – that votes should be respected, that the law must apply evenly, that no one is bigger than the Constitution – are giving way one by one.
Both the conviction of Donald Trump and the reaction to it reveal a country where two sides start with their preferred result and then reason backwards. Process is subordinated to outcome – an attitude that, in the end, is incompatible with liberal democracy.
I’ll come to the defects of the court case in a moment. But first, let me put a question to those MAGA activists who are screaming blue murder about the verdict. Suppose that you were to travel a decade back in time, and say to your 2014 self, “Ten years from now, you’ll be arguing that it’s fine for your candidate to pay off a porn star and then lie about it provided there is no technical violation of campaign finance rules”. How do you think your younger self would react?
Ten years ago, the current levels of polarisation were hard to imagine. Americans were conscious of living in a free country. They understood that this meant occasionally losing. They taught their children to be loyal to the Constitution before party or faction. They had themselves been taught that their nation, born out of a revolt against arbitrary rule, was designed to prevent the concentration of power; that it was, in John Adams’s handsome phrase, “a government of laws and not of men”.
Laws on their own, though, are not enough. A free society rests also on conventions, precedents, unwritten rules. Losers are expected to accept the result, winners to exercise restraint. Supporters of other parties should be treated as opponents, not enemies. Compromise should be valued as a way to ensure national unity, not scorned as a sign of weakness.
At some point over the past ten years, these norms were dropped, and politics became an all-or-nothing affair in which any win for the other side was treated as cataclysmic. To some degree, a similar process has been playing out in other advanced democracies – witness the under-reported rise of the authoritarian Right in Europe. But Trump, as much the catalyst as the beneficiary of the process, has taken it further in the US.
In 2016 and 2020, he declared before a single ballot had been cast that the only way he could lose was through fraud. In a healthy polity, those words alone should have disqualified him from serious consideration. There ought, in a democracy, to be an electoral penalty for being anti-democracy. But that convention, too, has been lost.
What is Trump’s superpower? He is no orator. He never served in uniform. He is toddler-like in his neediness, his self-centeredness, his whiny insistence that he actually won. The stories he tells are best described by Shakespeare’s Prince Hal: “These lies are like their father that begets them – gross as a mountain, open, palpable.”
No, what sets him apart is his readiness to go low. In a crowd, the man who emerges on top is often not the strongest, but the one most willing to fight dirty, to throw punches when others won’t.
As someone who loves the United States, I have reached this conclusion with reluctance, but there is no getting away from it. The attributes that attract Trump’s fans are precisely those that should be the most repulsive: his lies, his boastfulness, his cruelty. These what his supporters have in mind when they talk of his “taking the gloves off” and “saying what others won’t say” and “owning the libs”.
Incredible as it seems to outsiders, Trump’s appeal rests on his character, not his policies. Ron DeSantis contested the Republican primaries offering Trump’s platform, prepared by the same team, but with greater competence. No one wanted to know.
Three times, Republican primary voters have opted for such a man as the Founding Fathers had in mind when they designed their checks and balances, a man they would have clocked for a two-bit Caesarist who subordinates his public office to his private interests. It was up to voters to defend the most basic republican principle of all, namely that their national institutions are bigger than the man passing through them. They failed.
Which brings us to the present crisis. The electorate’s lack of interest in either character or democratic integrity prompted some anti-Trumpsters to resort to lawfare, seeking to win through the courts what they could not win at the urns. The various charges that they have brought against the former president – not just the hush-money case, but also cases involving the alleged improper removal of documents from the White House and the attack on the Capitol of 6 January 2021 – show him in a terrible light. But that does not mean he broke the law.
I wish Trump had been stopped in the primaries, but this conviction is a travesty. The case was brought by a district attorney who had been elected promising to would go after the former president, and was heard by jurors in an anti-Trump part of New York. Trump’s conviction rested on the notion that he paid hush money only for electoral advantage – in other words, that he would not have paid it anyway.
There are, as this case shows, real problems in the American criminal justice system. But here’s the thing. The law must apply equally to everyone. Indeed, it is precisely the bad laws that should apply to the most powerful people in the land, or there will be no incentive to reform them.
Trump’s supporters are not arguing for wholesale reform of the criminal justice system. They are arguing only that this particular case was, in Senator Marco Rubio’s phrase, a “sham show trial” got up by “Marxists and the far Left”.
Well, perhaps it was. But let’s look at what Trumpsters were saying when the shoe was on the other foot.
“She shouldn’t be allowed to run,” said Trump of Hillary Clinton in 2016, fantasising about some case against her. “If she wins, it would create an unprecedented constitutional crisis. In that situation, we could very well have a sitting president under felony indictment and, ultimately, a criminal trial. It would grind government to a halt.”
Trump himself is now not just under indictment, but a convicted felon, and it has, if anything, slightly boosted his opinion poll standing. Far from being chastened, Trump continues to demand that people who cross him be locked up.
Bit by bit, the United States is becoming like some Central American banana republic, where presidents who lose office expect to be jailed by their successors. The problem is not just that its legal system is being politicised; it is that the American people are cheering that process on whenever it is turned against their opponents.
Perhaps we are seeing the impact of the geographical clustering that makes Democrats and Republicans strangers to one another. Perhaps it is the tribalism encouraged by identity politics. Or perhaps we are witnessing the effects of screen addiction, which leaves people grumpier, more credulous and with shorter attention spans.
Whatever the cause, the effect stands before us in plain sight. Americans have lost interest in the institutions that made their country great and free.
“A republic, if you can keep it,” said Ben Franklin as he emerged from the Constitutional Convention in 1787. But can you, cousins? Can you?