One month before winning the presidency, Donald Trump warned his supporters that this would be no ordinary election. There was more at stake on November 8 than petty partisan concerns — because his rival’s victory would pose a threat to “the very foundations of our constitutional system.”
“What makes us exceptional is that we are a nation of laws, and that we are all equal under those laws,” the Republican nominee explained. “Hillary’s corruption shreds that foundational principle.”
On Tuesday, Michael Cohen told a federal court that he had committed multiple campaign finance violations at Donald Trump’s behest. Such testimony would be more than enough to secure a felony indictment against Trump — if all Americans were actually equal before the law.
The conventional wisdom among legal scholars is that we aren’t. Rather, the expert consensus holds that president of the United States is immune from criminal indictment for as long as he (or, hypothetically, she) remains in office. For this reason, it is safe to conclude that Trump’s political power is the only thing shielding him from criminal prosecution for his hush payments to Stormy Daniels and Karen McDougal.
This is the primary significance of Cohen’s plea bargain. The substance of Trump’s apparent crime is hardly more shocking or outrageous than his typical morning tweetstorm. In post–Citizens United America, “campaign finance regulations” are something close to a contradiction in terms. When billionaires and corporations can pour unlimited, anonymous money into partisan political messaging and organization (so long as they don’t advertise their coordination with political candidates), it makes little difference whether donors honor the remaining limits on direct contributions. The public has an interest in limiting concentrated capital’s influence on elections; it has little interest in ensuring that concentrated capital follows a set of arbitrary rules whilst exercising nigh-unlimited (at least, in legal terms) influence over elections. Separately, the fact that Cohen’s plea deal substantiates the allegation that Trump committed adultery with multiple porn stars tells the “moral majority” nothing that it did not already know.
But if Cohen’s testimony did little to illuminate the nature of Trump’s malfeasance, it did throw the congressional GOP’s complicity in that malfeasance into sharp relief. The president might be immune from criminal indictment, but he is not supposed to be immune from legal culpability of any kind. Rather, Congress is supposed to police the Executive branch’s alleged crimes and misdemeanors. It is now clear that there is probable cause to believe that the president has committed a felony. If we are “a nation of laws,” then Congress must now mount an investigation into Trump’s alleged campaign finance violations — and, if evidence substantiates that allegation, impeach the president so that he can then be held accountable for his crime in a federal court, just as any other American would be.
But Congress (or, more precisely, the GOP majority that controls it) has no intention of doing that. As John Cornyn explained to the Associated Press:
Moments after Donald Trump’s former personal attorney implicated the president of the United States in a felony, Sen. John Cornyn declared “People who do bad things, who break the law need to be held accountable.”
Cornyn, the No. 2 Republican in the Senate, quickly made clear his statement wasn’t aimed at Trump.
This raises the question: Why don’t congressional Republican feel compelled to uphold the principle of equality before the law — a principle that their own standard-bearer described as “foundational” to our “constitutional system”?
I’d suggest two distinct, but related, answers to this query. The first (and most important, and obvious) is that partisan polarization has left Republicans with a strong political incentive to delegitimize and discredit scandals that implicate their party’s president (as opposed to validating and exacerbating them). Put simply, Donald Trump is an immensely popular president — with self-identified Republicans; and in an era when midterm elections are won and lost primarily on disparities in partisan turnout, it is risky for GOP incumbents to do anything that might alienate self-identified Republicans.
The second answer is that the norm against letting powerful Americans escape culpability for crimes — solely because they are powerful — has been dead for several decades now. In fact, at this point, holding Trump accountable for his crimes would actually constitute a violation of our nation’s political norms.
After all, the Trump’s administration’s “Establishment” predecessors escaped culpability for misdeeds far more severe than violating campaign finance law — or even, conspiring to commit cybercrimes with the Russian government. As Vox’s Dylan Matthews recently noted:
In the summer of 1968, as biographer John A. Farrell has demonstrated, Republican nominee Richard Nixon and his aides actively sabotaged efforts by Lyndon Johnson’s administration to negotiate an end to the Vietnam War. They got away with it, prolonging a war that wound up killing more than a million people in the process. It’s barely even on the list of Nixonian wrongdoing that people remember. Henry Kissinger was at the time a Johnson adviser leaking information for Nixon to use in his efforts. Today he remains a broadly respected elder statesman, even in Democratic administrations.
It wasn’t even two decades later that the next Republican administration conspired with a foreign government, namely Iran’s. This time, the actions weren’t just horrendously immoral but illegal as well; elongating the Vietnam War was, alas, not a crime, but funding the Contras with Iranian arms deal money was. So was lying to Congress about it. Fourteen members of Reagan’s administration were indicted, and 11 were convicted.
It didn’t matter. Before leaving office, President George H.W. Bush pardoned six people involved, all high-ranking policy officials like Secretary of Defense Caspar Weinberger, National Security Adviser Robert McFarlane, Assistant Secretary of State Elliott Abrams, and CIA covert ops director Clair George…Abrams, whose far worse transgressions in the Reagan years involved his support for El Salvador’s brutal military dictatorship and his efforts to cover up the El Mozote massacre, worked as a senior National Security Council official for the entirety of the George W. Bush administration.
Neither Trump’s hush payments to Stormy Daniels — nor his hypothetical complicity with Russia’s cyber-attack on the DNC — got hundreds of thousands of people killed. Nor did they involve secretly arming right-wing militias whose affinity for butchering civilians had already alienated the U.S. Congress, or abetting the cover-up of historic war crimes in El Salvador. Without question, if the president colluded with Russian intervention in the 2016 election, then he is guilty of undermining the integrity of American democracy for political gain. But so were Nixon and Reagan. And the latter’s assault on both rule of law and democratic integrity in the U.S. weren’t lost on his contemporaries. In 1991 The New Yorker’s Mark Danner wrote the following elegy for the American republic:
Perhaps the most disquieting legacy of Iran-Contra, in which extremely serious political crimes were exposed and then left largely unexorcised, is a kind of pervasive moral lassitude, in which charges that the integrity of the 1980 Presidential election was compromised with the help of the Iranian government evoke an almost bored reaction. It now appears that the charges will be left to linger, unanswered and uninvestigated, because no one with any power sees it to be in his personal political interest to confront them. The dictum that we live in a nation of laws can also be understood ironically-that ours has become a nation only of laws. For laws without the will to enforce them and confront the consequences remain simply words on paper.
Trump’s immediate Republican predecessor reaffirmed Danner’s insight, by overseeing the systematic violation of both domestic and international laws against military torture — while Trump’s immediate Democratic predecessor did so by refusing to bring any of that criminal conspiracy’s masterminds to justice.
This culture of elite impunity has not been confined to the political realm. America’s economic elites avail themselves of its benefits even more routinely. The 2008 financial crisis revealed myriad acts of financial and foreclosure fraud — almost none of which was criminally prosecuted. Barack Obama’s Justice Department explicitly endorsed the principle that some individuals and institutions are simply too economically powerful to be bound by criminal law, when it decided not to prosecute HSBC for laundering hundreds of millions in drug money.
Meanwhile, America’s garden-variety plutocrats escape punishment for white-collar crimes on a daily basis, and pay only a small fraction of the taxes that they owe Uncle Sam. Our government has responded to this well-known phenomenon by spending orders of magnitude more on punishing misdemeanor immigration offenses than policing white-collar felonies, and making international cooperation on combating tax havens one of its lowest diplomatic priorities (far below, say, making life-saving pharmaceuticals more expensive for people in the developed world).
All of which is to say: If we actually lived in a country where the principle of equality before the law was sacred — and the norm against elites flouting that principle was consistently enforced — congressional Republicans might have a hard time putting partisanship before the rule-of-law.
But we don’t.
The American public has long understood and lamented this fact. The Trump campaign’s “lock her up” chants were fueled by partisan mania and misogyny — but also, an earnest belief that Hillary Clinton was escaping responsibility for serious crimes because she was politically powerful. Right-wing media is largely responsible for disseminating that fiction; but our culture of elite impunity helped to lend it credibility.
In 2015, a Gallup poll found 75 percent of American respondents agreeing that corruption was “widespread” in their government. One year later, 75 percent of voters who cast early ballots in the 2016 election told Reuters/Ipsos that they were looking for a “strong leader who can take the country back from the rich and powerful.”
Ordinary Americans are divided on a wide range of issues. But no mass constituency in either party believes that the government should prosecute working-class people for evading hundreds of dollars in taxes, while allowing the superrich to stash hundreds of millions worth of taxable income in the Cayman Islands — or that Uncle Sam should serve life sentences to small-time crack dealers, while looking the other way when megabanks launder nearly $1 billion worth of drug money, or pharmaceutical companies engineer opioid epidemics. The American elite does not owe its extralegal privileges to a democratic mandate, but to the inability of American voters to unite around their common disgust with the criminals who run this country (an inability founded, in no small part, on a failure to agree about who, precisely, those criminals are).
So long as the American electorate remains polarized along lines of race and region instead of class — and by its disparate views on Colin Kaepernick rather than its near-unanimous ones about superrich tax evaders — white-collar criminals (who don’t get ensnared by the odd special counsel investigation) will continue to go free.
Which is to say: It would be perfectly normal for Donald Trump to escape accountability for his crimes by exploiting partisan divisions – all the plutocrats are doing it.