Now that the Supreme Court appears to be corroborating with former President Donald Trump in his un-American quest for unlimited presidential immunity, the threat to American democracy just got worse.
And Trump’s Manhattan criminal trial, now fully underway, just became more critical to the very survival of the rule of law.
Until the first criminal trial of Trump began two weeks ago — a case that could have been prosecuted and tried some two years agoaccording to the account of insider lawyer Mark Pomerantz — the United States was among those nations worldwide that had never charged or prosecuted a former president.
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Since the 1980s, according toAxios, “around half of the world’s countries have had at least” one leader tried and convicted, “not counting impeachments or coups.” Meanwhile, from the beginning of the 21st century, at least 78 nations have jailed or prosecuted leaders who have left office.
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This type of criminalization of former presidents has also occurred in many democratic-constitutional nations, such as Argentina, Brazil, France, Israel, Italy and South Korea.
Unless one counts the United States v. Jefferson Davis, when former Confederate States of America President Jefferson Davis faced treason, Trump’s criminal trial in Manhattan is unique in presidential history.
Nearly three decades before Davis’ trial, in an 1838 public speech, Abraham Lincoln told a group in Springfield, Ill., that the perils to U.S. democracy would come from within and not from outside: “If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.”
A head-on photograph of Abraham Lincoln taken on November 8, 1863 (Wikimedia Commons)
Of course, Lincoln was not only prescient with respect to Jefferson Davis, but also with respect to our very own insurrectionist-in-chief who served as president from 2017 to 2021.
Like Lincoln, who was also concerned about the Taney Supreme Court particularly around the Dred Scott Decision and the court’s interpretation of his wartime usage of executive power, we, too, should be concerned about the threat to democracy coming from inside the SCOTUS.
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This is precisely what occurred last week when the majority of the justices danced around and failed to address Trump’s attempted coup on Jan. 6, 2021.
At this historical moment, what could be the one and only criminal trial of a former president with the full benefits of due process and equal protection under the law has become critical to the very survival of the rule of law in this nation — especially should Trump return to the White House in 2025.
To not have prosecuted Trump with all of the publicly known evidence against the former president before the 2024 election would be politically akin to the ways in which authoritarian systems of law enforcement work. Think China. Or Iran. Or Vladimir Putin’s Russia, where neither the facts nor the laws have anything to do with criminal justice. Just ask Wall Street Journal reporter Evan Gershkovich, an American who’s been jailed in Russia for more than a year awaiting trial on bogus charges of espionage.
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Thus, the procedure-based evidentiary trial of Trump in Manhattan is critically important to the rule of law because it demystifies how the administration of criminal justice is working — not to persecute Trump, but rather, to prosecute him using standards that apply to all criminal defendants. The same of course should also hold true when the other criminal indictments materialize into trials. With or without convictions of the former president, they would demonstrate why these criminal charges were brought in the first place.
Most importantly — unlike the bogeyman rhetoric of Trump and the assumptions of the Supreme Court majority — these trials would demonstrate that the indictments had nothing to do with President Joe Biden, fake news, witch hunts or conspiracies of a “deep state,” of any kind.
Quite the contrary. They were all the products of Trump’s insidious creativity, the manufacturing of fake news and election interference. Once again we have another case of Trump projecting and doing precisely what he is always accusing others of doing to him.
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As the first witness in the Manhattan trial, David Pecker, revealed during his testimony, the 34 felonies counts brought against Trump were based primarily on a modus operandi of conspiracy, fake news and the fraudulent efforts to interfere with the 2016 presidential election.
Of equal importance, each of the other criminal trials — should they come to fruition, especially before Election Day — will also demonstrate why the former president’s guilt or innocence cannot be left to the majority of the Supreme Court’s justices, three of whom Trump nominated, and a fourth “on the take” justice whose wife is also a MAGA activist.
Nor should Trump’s criminality be left to politics, or whether more votes are cast for or against him in 2024.
Trump’s accountability for his 88 alleged felonies should be exclusively up to juries of his peers.
Regrettably, this is not happening because of the Supreme Court’s prospective obstruction of justice. May they find the wisdom between now and their ruling to do the right thing.
Gregg Barak is an emeritus professor of criminology and criminal justice and the author of several books on the crimes of the powerful, including Criminology on Trump (2022) and its 2024 sequel, Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy.
