“Probably not the best time to give up your AR-15. And I think most people know that.” With those words, delivered the night The New York Times broke the news that a grand jury in Manhattan had indicted Donald Trump, Fox News host Tucker Carlson signaled the next, dangerous phase of Trump’s assault on the rule of law. We began to see a repeat of the circumstances leading up to the violent attack on the Capitol on January 6, 2021.
It continued. Former Fox News host Glenn Beck said Carlson that he predicted America would be “at war” by 2025, “we will have a currency collapse and live in a virtual police state.” The Bill of Rights is “gone,” Beck said.
Vivek Ramaswamy, a Republican businessman and presidential candidate, was fired a video statement saying that America is “skating on thin ice as a country right now” and that “we may be moving toward national separation.”
Perhaps the most disturbing response came from Florida Governor Ron DeSantis, which is second only to Trump in the primary polls. Just after news of the indictment broke (and without seeing the indictment), he tweeted that the indictment was “un-American” and then ominously stated that “Florida will not assist with an extradition request” for Trump.
DeSantis’ statement was an assault on our constitutional order. Governors do not have the constitutional authority to block extradition requests from other states. Article IV of the Constitution contains a extradition clausedeclaring that if a person accused of a crime is “found in another state,” he or she “shall” be “delivered” and “removed” to “the state having jurisdiction over the crime.”
Federal Statutes And Authority of the Supreme Court require the state’s “executing authority” to “ensure” that the defendant is “arrested and secured”. In all likelihood, Trump will voluntarily surrender to New York authorities, but if he doesn’t, the Constitution and federal statutes apply and DeSantis can’t block Trump’s arrest.
Moreover, all these immediate reactions come afterwards Trump himself warned of “possible death and destruction” before the indictment and briefly posted an image of him holding a baseball bat next to an image of Manhattan District Attorney Alvin Bragg. Trump also posted, “Our country is being destroyed while they tell us to be peaceful.” The implications are clear.
To fully understand the Trumpist threat to the rule of law, it is necessary to discuss what the rule of law means. A nation truly governed by the rule of law will not have a perfect legal system – no human system can be perfect – but it will have a double check against injustice. The rule of law depends on both substance and process, just laws and just processes, and respect for the rule of law depends on peaceful compliance with the legal process, even if you are fully convinced that the underlying legal accusation is false.
Indeed, without that understanding, social peace is impossible. We simply cannot delegate to defendants and their supporters the decision of whether or not to comply with legal processes. AR-15s are not part of US case law.
This all sounds painfully obvious. There are reasons why criminal defense attorneys’ outright response to charges is usually something like, “My client is looking forward to defending himself in court” rather than, “My client is glad the public is arming.” But Trump and his movement have put enormous strain on even the most sacred and fundamental American legal processes.
For example, after the 2020 election, he attempted to force both an unjust content and an unjust process on the American public. His legal arguments for overturning the election were frivolously and rightly rejected by every court that heard them. Frustrated with the courts, Trump’s gang subsequently withdrew completely from legal proceedings and stormed the Capitol. They refused to respect the contents until they were forcibly evicted or the process of US law.
I haven’t seen the indictment against Trump yet. I have expressed my doubts on the wisdom of the case based on publicly available information about the nature of the investigation. But I also know that we must wait for both the indictment and supporting evidence to make a final decision on the merits of the allegations. Informed speculation is still just speculation, and there is a chance that things will differ materially from what we expect.
Regardless of whether the case is as weak as I fear, Trump’s commitments are perfectly clear. Yes, he can certainly dispute the allegations publicly. That is his right. But his ultimate route to challenging the prosecutor’s claims is through the courts, not the streets.
However, with their apocalyptic rhetoric, Trump and his defenders goad his supporters into rejecting the rule of law root and branch. The allegations are considered unlawful, unseen. As with the election challenge, there is only one acceptable outcome: Trump wins. Anything else is seen as evidence of the decline and fall of American democracy. And we know beyond a shadow of a doubt after January 6 that if you tell a sufficient number of Americans that the country is on the verge of destruction, they will take matters into their own hands.
Essentially, the American rule of law depends on the actions of both prosecutors and defendants, and even if (and when) prosecutors fail to fulfill their responsibilities, defendants cannot opt out of the trial. Indeed, the failure of the prosecution ensures a fair trial more important, no less. Donald Trump will have his day in court, and then we’ll really learn about the justice of Bragg’s accusations.
The rule of law is now in Republican hands. If they choose the course they took during the election challenge, history will remember them – not the Manhattan district attorney – as the instruments of American destruction. Responsible leaders push for peace. Responsible leaders respect the legal process. We know what Trump has said. DeSantis has already indicated that he will defy the law. Who in the GOP will have the courage to contain the anger of the Trumpist mob?
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