Outside The Law
The danger of extralegal action
When Donald Trump turned himself in for booking (and a mugshot and fingerprinting) in Atlanta, Georgia, for charges related to a conspiracy to steal the 2020 presidential election, it marked the latest chapter in a legal drama that has engulfed him and will shape the future of the nation in unknowable ways.
We — as a country, as a people — have never seen anything like this. But for all that is unprecedented in a former president (and current candidate for the office) facing dozens of federal and state criminal charges, there is also a lot that is familiar about the spinning wheels of justice.
The law is, by definition, governed by rules that dictate how those involved are permitted to act: prosecutors, law enforcement agencies, judges, defendants and their counsel, and so on. There are rules for evidence, rules for testimony, and rules for juries. There is a well-trodden process for booking defendants, setting trial dates, hearing pre-trial motions, and the trial itself.
Our courts are ideally places of rationality and decorum, where justice is free from intimidation and administered without bias. Of course, the judicial process is ultimately an exercise performed by human beings and thus shaped by our inherent frailties and shortcomings. The rules are intended to limit the outside forces of prejudice, terror, and street justice from influencing the workings of the court. And yet that sometimes proves impossible.
As the trials of Donald Trump unfold, it will be vital that the nation keeps its eyes on both the action taking place inside the courtroom and that outside it. Because even while Trump’s lawyers will be presenting legal arguments before judges and juries, you can bet the former president will be seeking to defend himself in ways that lie far outside the traditional boundaries of our legal system. He’s done this his entire life, especially during his time as president and after his defeat in 2020.
In the wake of that election, Trump’s lawyers pursued all possible legal avenues to challenge its result, and they lost, everywhere. But at the same time, Trump was summoning his supporters to steal the election. It is for these actions — phone calls, tweets, and exhorting the mob directly on January 6 — that he finds himself indicted in both federal and state court. Trump was eager to use whatever means he could — legal or otherwise — to destroy America’s constitutional order. To what lengths will he go when trying to keep himself out of prison?
As president, Trump always used speeches, interviews, phone calls (like the one pressuring Ukraine), and social media to whip up passions and serve his naked self-interest. He has shown no compunctions about embracing bullying, divisiveness, intimidation, lying, and even the threat of violence. This has long been the playbook of autocrats. But it has also been the approach of mobsters seeking to avoid the reach of the law.
It is portentous that Fulton County District Attorney Fani Willis is using the RICO law to go after Trump and his co-defendants in their alleged plot to steal the election in Georgia. This has been a favorite approach of prosecutors to bring mafia kingpins to justice. In essence, Willis is saying that Trump’s election team had a lot in common with other kinds of criminal enterprises.
With this context in mind, we should consider the long and sordid history of crime figures and extremist political groups eschewing traditional legal defenses in favor of “extralegal” ones: intimidating witnesses, spreading lies to pollute the jury pool, and even resorting to violence against those seeking to hold them accountable. We have already seen credible threats against judges and others involved in the Trump case. And that leads to an important question: How much of this turmoil has been encouraged by Trump’s defiant and antagonistic lie-filled rhetoric?
With most criminal defendants, judges can threaten punishment like fines or jail time for the kinds of things Trump regularly says about law enforcement, members of the court, and witnesses. But in Trump’s case, they have to tread with care lest they turn him into even more of a martyr — a role he is eager to play. And there are also legitimate First Amendment considerations for a leading candidate for president. In his case, the legal and the political are inextricably intertwined.
Trump knows this and will eagerly push the boundaries of what he can get away with. He also knows he will almost assuredly have the backing of the Republican Party no matter what he does. Just look at all those who raised their hands on the debate stage to say they will support him as their party’s nominee even if he is convicted. It’s craven. And it’s dangerous.
Violence against the rule of law and violence against a peaceful political process are two sides of the same coin. They have combined at some of the most dire moments in the history of our nation. In a recent column in The New York Times, Anthony Michael Kreis, assistant professor of law at Georgia State University, noted the historical context of Reconstruction after the Civil War — including in Georgia — for Trump’s fourth indictment.
The democratic failures of that era shared three common attributes. The political process was neither free nor fair, as citizens were prevented from voting and lawful votes were discounted. The Southern Redeemers refused to recognize their opponents as legitimate electoral players. And conservatives abandoned the rule of law, engaging in intimidation and political violence to extinguish the power of multiracial political coalitions.
At bottom, the theory behind the Fulton County indictment accuses Mr. Trump and his allies of some of these same offenses.
Kreis succinctly states:
When authoritarians attack democracy and lawbreakers are allowed to walk away from those attacks with impunity, they will try again, believing there are no repercussions.
We should not make those mistakes again.
As we reckon with the uncertainty and the peril of our moment, we can recall the words of James “Jem” Coughlin in the Irish mob film “The Town.” Says Jem, “If we get jammed up, we’re holding court in the street.” Trump already showed us he feels the same way.
Trump has a long history of winning court cases through bullying and the use of extralegal techniques. The least we can do is to be alert for them, recognize them for what they are, and stay determined that the verdict on him — whatever it may be — will be decided inside courtrooms, not by a power play outside them.
In a democratic republic, governed by the rule of law, we cannot allow extralegal methods, for anyone. And least of all for a would-be autocrat desperate to return to power and escape accountability for his actions.
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Very well said. The court must not be intimidated into letting him go free. I also think media must rethink coverage of his actions. Way too much time is given to him. Yes, we need to be informed. But our President has done so much to move this country forward. I’d like to see that covered extensively.
I think all our earlier presidents, all of them, would be shocked at the lengths Trump has gone to and continues to go in the pursuit of a 2nd term. Two impeachments, 91 indictments, three marriages, serial philandering, and multiple bankruptcies all speak to the man inside. I still have a problem witnessing that there are millions of my fellow Americans who want to give him another chance to govern. Is a kleptocracy really the highest and best form of government the US offers up to the world?