Trump Indictment Is Still a Matter of the ‘Rule of Law’

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Author Joan Didion famously wrote that “...we are well-advised to keep on nodding terms with the people we used to be, whether we find them attractive company or not.”

Modern conservatives would do well to heed this warning, after spending the last seven or eight years forgetting “the people we used to be” and reverse-engineering our values to fit within the narrow confines of the Trump era.

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I’ve tried hard to follow Didion’s counsel, and it strikes me that the indictment of Donald Trump is a good time to pay a visit to the person I used to be. Take the noise out of all of it. How would the young conservative that I used to be feel about this development?

Twenty-something me had strong opinions about the impeachment of Bill Clinton; I was all for it. Clinton betrayed the trust of the nation and lied under oath. Young me would have supported his removal from office, as well as him facing any legal consequences commensurate with his crimes.

About a decade later, the question was whether George W. Bush and others in his administration should be prosecuted for war crimes involving “enhanced interrogation.”

My general take was that, right or wrong, the Bush administration made a tough call, and its motivation was attempting to prevent another 9/11 attack. I reasoned that going after Bush now was a slippery slope whereby every future president would be subject to legal retribution (think of all the drone strikes Obama ordered, for example). Mainstream Democrats, to their credit, agreed.

One interpretation of these two events would be that at the time, I was more likely to support punishing a Democratic president than I was a Republican president for acts committed while in office.

But I think it’s more complicated than that. As a young conservative, I believed in the rule of law and felt it was important to hold powerful people accountable (presidents are not monarchs). But I also feared that criminalizing politics and second-guessing elected officials’ judgment calls set a dangerous precedent that could spiral into a pattern of personal retribution.

The tension between these two fears is, if anything, more acute right now. The thing that both Clinton and Bush had going for them was that their political futures were already over by the time these questions arose (Clinton was a lame duck and Bush was already out of office).

Trump is running for president again, which only raises the stakes.

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If it’s dangerous to set a precedent where a president could be retroactively punished, imagine using this power to derail a current presidential campaign. (Trump likely rushed his 2024 presidential announcement precisely because he understood this.)

Young me would be worried about this. Middle-aged me is, too.

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However, it’s not like Trump will go quietly into that good night if all charges against him are dropped. Imagine the mayhem that could ensue if he skates and realizes that he is completely above the law.

To be sure, it is unclear to me whether the indictment coming from Manhattan’s district attorney, presumably regarding falsification of business records, should result in the first indictment of a former president.

But Trump faces multiple indictments, which is to say that these strategic considerations are subordinate to the fundamental question regarding the wisdom of indicting a former (and quite possibly future) president.

Once we reconnect with the people we used to be—once we strip partisanship out of it—we are still left with the tension between America becoming (a) a banana republic where every petty offense results in a president being impeached and removed (and possibly prosecuted) and (b) a nation where presidents, like kings, are above the law.

I am sure that both versions of me agree that the danger of deciding that Trump is above the law is greater than the danger of a possible slippery slope leading us to a banana republic.

My guess is that most Republicans who are reflexively defending Trump today would agree with me if a Democrat had committed the same alleged crimes.

After all, other developed nations have punished corrupt leaders without descending into chaos and losing their democracy.

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In a continuation of the quote I opened this column with, Joan Didion warns that if we forget the people we used to be, “…they turn up unannounced and surprise us, come hammering on the mind’s door at 4 a.m. of a bad night and demand to know who deserted them, who betrayed them, who is going to make amends.”

For many modern Republicans, that 4 a.m. visit from the Ghost of Conservatism Past may be inevitable.

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