Stephen Marche is the author of The Next Civil War.
The United States took a major step toward civil war this week, and it is unclear how it can take a step back. With the FBI raid on Donald Trump’s Mar-a-Lago, another once-unimaginable scene in American politics played itself out. The Secret Service had to allow FBI agents into an ex-president’s residence.
The event itself, shocking as it is, matters less than what the event presages. Nobody so far knows why exactly the FBI raided Mar-a-Lago, but the Department of Justice (DOJ) had to take the warrant to a federal judge and specify which objects they were searching for and the crimes to which the objects were tied. It’s a safe bet that the FBI would not have risked the raid unless they were preparing to arrest Mr. Trump and that they were confident of a conviction.
An ex-president in jail is an entirely plausible scenario at this point. But even people who have craved that comeuppance since the moment Mr. Trump descended an escalator to the applause of a hired audience should take a deep breath and ask themselves: What will the fallout be? Is it worth it?
For many on the left, this moment is just too sweet not to relish. The Mar-a-Lago raid is the part in the gangster movie where the Feds break through the door, and all the impunity comes to an end. But what is so hard to explain to people on the left about the peril America finds itself in is that the right feels every bit as besieged and desperate as people on the left do.
At the most recent Conservative Political Action Conference, a banner displayed a terrifying motto: “We are all domestic terrorists.” That same conference featured a sort of performance art piece: an actor playing a Jan. 6 rioter in prison clothes weeping in a cell. House Representative Marjorie Taylor Greene came by to comfort him. Whether or not this self-pity is justified hardly matters; they sense themselves to be political prisoners.
Fox News showed its usual restraint about the Mar-a-Lago raid, comparing the FBI to “the Gestapo” and warning of a “pre-emptive coup.” And it’s not just the Trump media ecosystem. Kevin McCarthy, House Minority Leader, described the raid as “an intolerable state of weaponized politicization.”
Weaponization seems to be the Republicans’ primary messaging tactic. Florida Governor Ron DeSantis used it in his response, too: “The raid of MAL is another escalation in the weaponization of federal agencies against the Regime’s political opponents, while people like Hunter Biden get treated with kid gloves,” he tweeted. This is not empty rhetoric, or not all of it anyway: Mr. DeSantis really does believe the federal government is a “regime” and that the FBI is their weapon.
Other countries have jailed presidents before, of course. Israel, France and South Korea have all convicted former leaders. But none of those other countries had court systems in the middle of a legitimacy crisis as the U.S. Supreme Court is now. The country is a complex cascading system. Nobody, on either side, believes that any American legal entity is above politics any more. Once elected, the other side will feel completely entitled to use the DOJ as their weapon. This week’s raid has only advanced the destruction of cross-partisan national institutions, and they are what prevent democracies from sliding into autocracies.
But no matter the consequences, the most sacred principle in democracy is equality under the law. If Mr. Trump violated the law, particularly if he committed treason, he has to go to jail. A democracy that can’t protect itself against illegal abuses of power isn’t worth the name.
And it’s not just some high-minded question of principle at stake. The American right is watching what the FBI is willing to do. The Trump years demonstrated that nothing is stable in American politics; the line of acceptable behaviour shifts often and unpredictably. They are learning in real time what the standards are now, what the rules of the game will be.
The Republicans at state level have set themselves up to invalidate any federal election that doesn’t go their way. They need to know that somebody is fighting for the law, and that violating the law has consequences. They need to fear prosecution. It is no longer accurate to assume that Republican officials will fulfill their duties to the orderly and legal transition of power just because. They need to see that law enforcement will enforce the law.
The U.S. has come to the point where it no longer has good options. If the DOJ doesn’t indict Mr. Trump, they risk destroying the rule of law. If they do indict Mr. Trump, they risk destroying the country. Among marriage counsellors, there’s an old piece of wisdom phrased as a question: “Would you rather be right or be married?” But the truth is there are times to be right rather than married. This may well be one of them.
In its glee at a possible Trump arrest, the forces that believe in American democracy should not confuse this moment with the system working or normalcy returning to political life. It isn’t. The arrest of an ex-president is a catastrophe – a necessary catastrophe, perhaps, but a catastrophe nonetheless.
The left should recognize the situation it finds itself in. Nearly half of their country no longer believes that equality under the law is as important as their own party controlling the machinery of government. And their response to any law enforcement that opposes their partisan interests is increasingly violent and vengeful. They can either live in a functional democracy or the United States, but not both. The time for choosing is coming sooner than anybody expects.
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