Democracy on trial

Why Trump’s indictment is a chance to renew our commitment to the rule of law

August 4, 2023 5:30 am

A protester holds a Trump flag inside the U.S. Capitol Building on the steps outside the Senate chamber on Jan. 6, 2021, in Washington, D.C. (Photo by Win McNamee/Getty Images)

Once in a lifetime traumatic events have been occurring so often lately we’re all starting to get disaster fatigue. 

In the space of three years we’ve had a global pandemic; the Russian invasion of Ukraine; record setting floods, heat waves and tornadoes, and Jan. 6, 2021. 

The United States managed a peaceful transition of power from 1789 until 2021, an unbroken record lasting 232 years. There were frequent controversies, arguments and disputes, but until 2021 no one attempted to disrupt that process through violent force.

We had a Civil War, but the root cause was slavery, not who won the presidency. Jan. 6, 2021 broke a two-centuries long tradition of peaceful power transitions. And now former U.S. President Donald Trump has been charged in federal court with attempting to overturn the 2020 election which in essence means he’s accused of bearing responsibility for the events of that day.

“For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

– Thomas Paine, American revolutionary

The United States isn’t the first country to ever charge or potentially convict a former president. South Korea has charged five of its former presidents. Most recently former President Park Geun-hye was convicted and sentenced to 20 years in prison, though he was subsequently pardoned by his successor. 

France has charged and convicted two past French presidents, including Nicolas Sarkozy, though he served his one-year sentence at home under house arrest. 

Brazil charged, convicted and imprisoned former Brazilian president Luiz da Silva for corruption.

According to the National Archives, a grand jury had prepared an indictment against former U.S. President Richard Nixon, but the indictment was never issued, and the reasons why remain unknown. 

On Aug. 1, 2023 a federal grand jury issued a four count indictment (his third indictment so far) against Trump.  Now it’s the people versus Donald Trump, though really, it’s the American people versus each other. Former President Trump is the defendant, but democracy itself is on trial.

What I’ve seen in other countries, most notably Iraq and Afghanistan, is that when a large enough group of people no longer believes in the legitimacy of the government, violence and instability are sure to follow. Even if the people who don’t believe in the legitimacy of their government have no real reason for doing so, even if their grievances are imaginary, or largely unsubstantiated, the result is still the same.

Legitimacy means the majority of the people recognize the government’s authority to pass and implement laws and policies which are binding on all citizens. When government legitimacy is lost by a majority of the people, or even by a sizable minority as it was in Iraq and Afghanistan, violence is on the horizon.

For me a key question is, was Jan. 6 the end of something, or the beginning of something?

I had a chance to pose that question to Adrienne LaFrance, who is the executive editor of the Atlantic, during a recent podcast for Veterans for Responsible Leadership, available on Resolute Square.  

The answer, as she pointed out, depends on who you listen to. If you listen to Trump’s supporters, or any of the major platforms on which they regularly broadcast, you would come away with the impression Jan. 6 represented the beginning of something.  Exactly what they won’t specify, but to date at least the string of indictments hasn’t brought the matter to a close the way Trump’s political enemies thought it would. 

Why not? Matt Taibbi offered an answer in his newsletter earlier this week: “The cognoscenti (experts) never figured out or accepted that support for protest candidates like Trump or Bernie Sanders even is rooted in wide generalized rage directed their way. To this day they don’t accept it. They keep thinking they can wish it away, describe it away, or indict it away, and (Trump) voters have already signaled they’ll be unfazed by a conviction.”

If a sizable segment of the American public doesn’t believe the verdict or the process is just, that’s a major problem for the country.   

The heart of the matter is legitimacy. Whatever the verdict, will a majority accept it as just or not?  Will a majority accept the outcome of the 2024 elections, whatever those outcomes may be? 

If the answer turns out to be no to both, then the United States could find itself amid its most serious political crisis since the Civil War. What would that look like? Its very unlikely large uniformed armies would fight each other if things turned openly violent, rather this time there would likely be sporadic attacks scattered across the land at irregular intervals.

Without popular acceptance of the legitimacy of our government and our elections, the potential for social unrest and violence should not be dismissed. The good news is, it’s not the verdict, but the trial itself that may provide a solution that prevents violent unrest. And this trial is about more than the actions of a former president. It’s about the very cornerstone of democratic governance, the peaceful transition of power.

The transfer of power has bedeviled rulers, governments and nations for centuries. Because no matter how good a ruler is, be they king, queen or emperor, eventually they all die.  And when they do, the big question is always who will take over? The answer has almost always involved disputes, and those disputes frequently turned into conflicts. 

After Mohammad died, the dispute over who would rule the community of the Islamic faithful produced a split into Sunni and Shia Islam which has endured to this day. Heirs fighting each other for the throne in kingdoms and empires is one of the oldest stories of humanity. Democracy solves the transfer of power problem through elections. In a democratic system, no single person or leader is irreplaceable, and if a leader dies, elections will provide a new one, a process which can continue indefinitely. 

Family dynasties are not only not needed, they are unwelcome in a democracy. The word democracy literally means rule of the people, since “demos” means the people and “cracy” means the rule of. 

In order to protect the rule of the people, as Thomas Jefferson put it, governments are instituted with the consent of the governed. Because legislators make the laws and they are chosen by the people, the people make the laws which determine how their government works.  That’s what the rule of law is.

The trial of Donald Trump is itself a defense of the rule of law. As Thomas Paine eloquently put it, “For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”  Americans have an ongoing dispute about the 2020 election outcome, and a trial is a way to settle that dispute in court instead of with violence. Americans have always found courtroom dramas captivating, and there is little doubt the trial of a former president will capture the nation’s attention for a good while. 

What they will see and hear is a process culminating with twelve ordinary citizens deciding the guilt or innocence of the defendant. It won’t be lost on much of the audience that rules-based arguments in a courtroom are far more attractive than gun battles in the streets.

That Donald Trump lied about the 2020 elections is not in dispute. Whether those lies combined with official presidential acts constituted crimes is for a jury to say, and I won’t presuppose the verdict. 

But as the process plays out, the American people will have the chance to see that our system of justice is in fact working. It’s not perfect, and no system ever will be. But Americans will be presented with a clear choice: Do they want a violent mob to determine how our government is run? Or do they want to stick with a 200-year old constitutional system that provided the foundations for a nation that tamed a continent, won two world wars, and built the largest economic powerhouse in human history?

Whatever verdict is rendered for Donald Trump will be historic, but even more important is the decision of the American people to abide by our Constitution and the rule of law it protects. The evidence of the past and the present are indisputable; democracy deserves a vote of confidence.

This commentary is republished from Jason Belcher’s Substack, Kentucky Caliber

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