Perhaps he can write his very own Mein Kampf while he’s in prison. It was apparently, after all, his bedtime reading. There’s been a lot of ink spilled already about the indictment of Donald Trump, and plenty more surely will be. Let me offer a few thoughts. Does it matter? Of course it does. This is an historic moment for America, and for the world. The first indictment of an American President?
I want to give you a more thoughtful, considered set of comments than you’ll hear from pundits, hopefully. You deserve that much, and you can be the judge of that.
What’s this case really about? A lot more, I suggest, than many think, even now. The way it’s framed so far — even on the thoughtful side — is the old line about a nation of laws versus a nation of men…people. That’s true, but in a much subtler way than is being talked about.
How do nations fail? How did America get here? What’s really happening to America — right now?
One side — the fascists, basically — abuse their way into power. They cheat, they defraud, they tell Big Lies — “the election was stolen!! Gay people are groomers!! Jan 6th was a peaceful protest!!” On and on it goes.
And then something crucial happens. When they gain power, they begin to rewrite the law. And they’re doing so in increasingly dire and dark and dangerous ways. Take what’s by now the canonical example, Ron DeSantis’s Florida. The law is being weaponized against…everyone. Kids, teachers, parents. Books banned, classes cancelled, words banned. Tip lines set up to “report” on families. Take the Supreme Court suddenly taking basic freedoms away from…more than half of society…women.
We think of “the rule of law” as a static thing. It’s not. The rule of law is dynamic, ever-changing, perpetually in flux. And what fascism does is perverts it. It rewrites the rule of law. Weaponizes it. In a very specific way.
What does the rule of law exist to do in a democracy? It’s there to institutionalize democratic values — certain values, the ones of peace, truth, equality, freedom, justice. It’s there so we can all enact them. Live them, without fear, every single day. And when we enact their opposites — hate, violence, lies, fraud, violence and so forth — at least in different degrees, we are breaking the law. And we are to be punished.
What does fascism rewrite the rule of law to do? To institutionalize anti-democratic values. Not peace, truth, justice, freedom, and so forth — but their polar opposites. Lies, hate, violence, etcetera. Now those values are institutionalized. They are enacted and enforced. The Gestapo — tip lines to report on teachers and families and students. The SS, volunteer paramilitaries of true believers — vigilante forces proposed in Texas and Florida. Book bans, word bans, history rewritten, entire kinds of people criminalized.
The law is not a static thing. And right now, what’s happening in America is an acute phase of fascism. The fanatics and lunatics aren’t just breaking the law. They’re way, way beyond that point of fascist collapse. They’re in power, and they’re actively rewriting it.
Rewriting it to institutionalize anti-democratic values, to make entire states places more reminiscent of Soviet Russia than a modern democracy. Can’t exist as that kind of person, kid, you can’t say that word, teacher, history doesn’t exist, family, you can’t love that way.
Phases of fascism. One, the fascists abuse their way into power. Two, they gain power. Three, they rewrite the rule of law. Four, democracy is broken, for generations. Five, they unleash the cleansing they crave on all their enemies, the hated subhumans, the liberals, the LGBTQ, intellectuals, Jews, minorities, everyone else. America’s at phase three. The fascists are in power, and rewriting the rule of law, building shadow institutions, like little Gestapos, and aspiring SS’s, whose entire point is to make “the law” something that enforces hate, spite, intolerance, rage, bigotry, injustice, lies, violence — not peace, truth, justice, and freedom. That is a bad place to be.
That context needs to be fully, clearly understood. The law is not a static thing. The entire point of fascism is to change it. Think of how the Nazis operated. The Nuremberg Laws expropriated and segregated the Jews. Legally. Now think of DeSantis’s Florida. His entire modus operandi is to make what’s essentially neo-fascism legal. Under the guise of “parent’s rights” and so forth. But of course taking rights away from me is hardly giving them to you — rights are for us all. Fascism operates by rewriting the rule of law to take universal, inalienable rights away — and this is where America is, right now.
That’s really why the indictment of Donald Trump matters. It’s not just about Trump, or Stormy Daniels, or his businesses, or even consequences for an ex President, since nobody should be above the law, or any of that, at least not just about that. It is about the question raised by the dynamic above.
How do you really stop fascism? If fascism is a kind of cancer that eats away at democracy from the inside, by rewriting the rule law so that it’s perverted, what do you do about it? Then democracy must have teeth. You have to defend what’s left of the democratic corpus of the rule of law…before the fascists pervert all of it.
Think of it as a contest. There’s a corpus, a body of law, that’s vaguely democratic, even if, like all such bodies of law, it has plenty of flaws. The fascists are rewriting it, at some accelerating rate, taking rights away, perverting the entire meaning of the rule of law. Now it’s a contest to defend what’s left, from being eaten away, turned inside out, weaponized, used against people, institutionalized in the name of hate, lies, injustice, violence, supremacy, not peace, truth, freedom, equality. Now it’s a race against time, with teeth.
Democracy must have teeth if it’s to win this race. It has to punish those who are perverting the rule of law, or else…that rate at which the perversion’s accelerating…the law’s being weaponized to take rights away from innocent people…just keeps rising. Now it’s a contest between two forms of the rule of law: the democratic one, and the fascist one. To win that contest, democracy has to claw back its notion of the rule of law itself. It has to say not just that obeying the law matters, but that this form of law matters. The democratic one, in which laws exist to institutionalize democratic values, not, say, making teachers felons for holding history classes, or investigating families because of who their kids are, and we all know where that road leads.
Does all that make a little sense? This is a contest not between Trump and Bragg. It’s not really about fraud charges or hush money. It is about a contest being played out in America about which kind of rule of law matters. Trump’s and DeSantis’s? The fascist ideal, where the rule of law itself now a captured institution, which punishes people for democratic values like peace, freedom, truth, and equality? Average people, like teachers, kids, families, innocent, normal, peaceful people? Or the democratic rule of law, in which no, none of that’s OK?
This is about a contest between the fascist and democratic rule of law. Is the law there to give people basic democratic rights — or take them away? The law isn’t static. The fascists are rewriting it at light speed. Democracy only wins if it defends its own ideal of the rule of law itself, and that is what this case is really about. I know that’s subtle, and I know that’s a little complex, but I think it’s rarely been truer. This is isn’t just about whether or not justice is done — it’s about what justice is, what form of it prevails in a society: the fascist perversion of it, or the democratic kind.
Now. I know that I tried to really drive that point home. Here’s why.
Already, you can see plenty of the media taking a groan-inducing angle. They’re buying into the line that this will only provoke the far right, the lunatic right, which is, sadly, the only right left, really. Let’s dispense with that red herring immediately.
Will this “make” the GOP more likely to act in vengeance, and come after the next Democratic President, or power figures, and so on? No, because they’re going to do that anyways. Take a hard look at where the GOP is. They’re trying to put teachers and professors and parents in jail. Normal people. They’re criminalizing teaching kids about…history…being gay…being themselves. They’re already coming after average people, and that word, “criminalizing,” is anodyne, so let’s spell it out: the GOP is already perverting institutions to make everything from being a woman to being LGBTQ to reading books against the law. So the idea that somehow indicting Trump is going to “provoke” them into “retaliating” is such a complete absence of reality and truth it’s laughable. “Retaliating”? They’re already the ones who are trying to destroy democracy.
What don’t we do with fascists? Rule number one. Let’s all take a moment to remember. Appease them. Because what happens? History tells us: they walk all over you, laughing, and say it’s your fault for making them mad, in the classic gaslighting pretzel twist of abusers’ logic. Nobody should fall for this line: “Don’t make them mad! They’ll just retaliate!!” They’re the abusers in this situation, not…those of use who believe in democracy and the rule of law.
Now. The basic issue here is actually pretty simple, as you might think it is, and what happens in America is this: simple enough basic issues get clouded, because the media both-sideses them, and the average person, or enough of them, are left in a haze of doubt, when they began with a pretty good degree of moral and political clarity. Don’t let that happen here. The basic issue is as simple as you think it is. Is America a nation of laws — or of people, as the old saying goes? Is anybody above the law, even an ex-President?
We don’t know the full extent of the charges yet — 34 of them, no less — but the general thrust is likely to be what easy enough to imagine. Trump paid off a porn star — and that might not be a Big Deal in any normal context, but this wasn’t one. It was to influence the outcome of a Presidential election, and that is indeed against the law, several of them. Added to that may well be charges about fraud. So this case tests a number of things, in specific, when it comes to the laws-or-men challenge that every democracy must face: are elections sacrosanct? And if you’re powerful enough, can you just get away with…anything, from business fraud, to defrauding the people of a fair, transparent election?
There is an asymmetry here, and it needs to be clearly understood. It isn’t, and that’s a problem. There are two sides here, but they are not the same. One side here is the abuser, and the other side is the abused. I don’t just mean that in a pop-psychological metaphorical sense — I mean it in a literal one, in terms of political and social science.
What is all this really about? This is about abuse of power. It is about whether power can be abused, flagrantly, even violently, over and over again, for decades, in plain sight, culminating in the ascension of Trump to the Presidency, and then Jan 6th — and whether or not there will be any punishment for the abuse of power. This is about whether democracy has any teeth to check the abuse of power.
And in that sense, the indictment of Donald Trump doesn’t just “matter” — it’s the most consequential case in modern American history. Everything hinges on it, really.
Let me go back to the point about asymmetry. When pundits both-sides this issue, it goes like this: “The GOP says it’s an abuse of power! They’re trying to get Donald Trump politically!! And the other side says it’s just following the rules!! Welp, two sides here, can’t tell which is right!” This is as fatuous and stupid as it sounds, if you think about it for even a second.
One side is using the rule of law to try and check the abuse of power. The other side is claiming that is an abuse of power. But these two things are not remotely equivalent. They are not “the same.” In fact, they are precise opposites. To equivocate all this is to…fail to think at all. But that’s where too much of the media is on this issue, and so a haze, a pall of obscurity, has already fallen over the affair. Let me say it again, then. One side is using the rule of law to try and check the abuse of power. The other side is claiming that’s an abuse of power. These two things are not the same.
Where’s the real abuse of power? Well, it’s pretty obvious to…the entire world. Trump’s entire time in the Presidency was marked by the serial abuse of power. From “family separations” to ethnic bans to beatings in the streets to…Jan 6th. Abuse after abuse after abuse. That’s not what’s on trial here, of course, but the context, again matters, because we’re not talking about the case, but the political understanding and interpretation and portrayal of it. Checking the abuse of power is not the same as the abuse of power. And in this case, seeing who the real abuser is…is…LOL…about as hard as picking Harvey Weinstein out of a lineup of Smurfs.
Now. This pattern often marks failing states. And it’s correct, in a way, to say, that this indictment marks a new phase in American history. Let me delineate the pattern — again, simple. One party puts a head of state in office. Next election, the other party wins, they try to put the last head of state in jail. Rinse and repeat. On it goes.
Sadly, in America, richer nations, this is often interpreted as “instability.” But even in this pattern, there’s underlying reason and order. One party is often trying to defend and uphold the rule of law. It’s elected, it tries to put the last head of state in prison for having people beaten in the streets, secretly policed, assassinating his enemies, and so forth. The bad guys win again, next election — and they try to to put the last guys in jail out of vengeance, to punish them, to teach them a lesson. What’s that lesson? Don’t uphold the rule of law. How are they teaching it? By perverting the rule of law. By abusing it.
So again, even in the failed states where this oscillating pattern of I’m-going-to-send-your-guy-to-jail takes hold — let’s call it tit-for-tat — it’s not “the same thing” when “both sides” do it. Even there — especially there — one side’s trying to uphold the rule of law, and the other side is weaponizing it, perverting it, abusing it.
Does that make sense? Let me make the examples more concrete. In one country I can think of, a head of state was prosecuted by the following government for…hanging his political opponents. The government that tried to hold him to account — and did, in fact — was then prosecuted by the next one, which was the bad guys again, on mostly fictitious, nonsensical, Trumped-up (heh) charges. But even a child should be able to see that while there were waves of prosecution here, they were different: some were legitimate, meant to uphold the law, democracy, truth, freedom, justice and some were abuses of power. Meant to intimidate and crush and pervert all those democratic values out of existence.
This is a classic pattern, one of the textbook patterns of failing states — tit-for-tat prosecutions of heads of state. Is America falling into it? Yes. Let’s not be coy about this point. But tit-for-tat in this case doesn’t mean “both sides prosecuting each other” are the same thing. More often, it means what I’ve discussed above — one side uses the law to uphold democracy and its values of truth, democracy, freedom, justice, equality, and the other abuses the law, to attack those very values.
I really, really, really want this point to be clear, because right now, it’s not. Both-sidesing the indictment of Trump is already the theme of much of the coverage. But think of Trump’s own life. He’s a master of…abusing the law. Famous for barrages of nuisance lawsuits, meant to silence, intimidate, browbeat. The law, too, is a thing which can be abused — and Trump ascended to power precisely because he knew how to do it, and helped teach his side how to do it. But punishing someone for breaking the law is not the same as abusing it.
And that is what is really at stake here. It’s so simple, and yet American media is abysmally failing the test of explaining this rudimentary point to the people, so let me say it again. Punishing someone for breaking the law is not the same as abusing it. Abuse of power, on the other, is often very much a form of breaking the law — at least until you can’t get away with it anymore. That is what this case is really about. The two sides are not remotely “the same.”
One side abuses the law — from criminalizing teachers and kids and being gay, right down to repeated electoral interference. It does that to try and eviscerate democratic values, freedom, justice, truth, equality — right down to using violence, by now. Think of Texas’s proposed vigilante force, or tips lines to report on…women…teachers…kids…families…think of Jan 6th. The other side is using what’s left of the law to try and check those abuses, and defend basic democratic values. Not the same.
I know I stressed that a lot, but there’s a lot at issue here, and the coverage should be, for God’s sake, better. How do you both-sides a GOP who’s attacking everyone under the sun, right down to kids and teachers, defending them getting mowed down by AR-15s…clearly making a mockery of the rule of law, perverting it, turning it inside out…Gestapos style…and the other side, trying to uphold what’s left of the law, for democracy’s sake?
Does the indictment of Donald Trump matter? My friends, few things in American history have mattered more. Make no mistake, American democracy is still under attack — from the bottom up, this time, not just the top down. The rule of law itself is being perverted, just as the Nazis did, in echoes of textbook fascism. In that context, the fight for justice is lethally real, and it isn’t just about whether or not it’s done — but what form, kind, idea, notion of it comes to win in a society.
