Not As I Do

Looking back on today's post now that I've written it, I think that this could have simply said "Partisanship encourages the tendency to deny that the failures of one's preferred party are, in fact, the party's own," and been another entry in The Short Form. I may have gone off on a rant, instead. But, what's done is done, so...

The Week's most recent Saturday Wrap kicks off with its "Controversy of the week; Trump: Demanding the prosecution of his political foes," which offers a quick summation of what various news outlets are saying about it. One of the sites it draws from this week is the conservative National Review.

Trump’s demands of Bondi are an “outrage,” said National Review in an editorial. But “Democrats paved the way here.”

The Week tends to paraphrase things in its wrap-ups, sometimes in ways that obscure the broader meaning, so I went to the National Review's editorial to read it for myself.

President Trump’s weekend social media post pressuring Attorney General Pam Bondi to prosecute his political enemies is an outrage against the Constitution’s guarantees of due process and equal protection under the law.

Sadly, it is also more of the same. Democrats paved the way here with the lawfare abuses on which Trump is doubling down.

One can make the case that American politics only dislikes Whataboutism until it's a useful tool to be deployed against one's rivals and has little risk of being clearly inaccurate, but there's another tendency from American politics on display here: Claiming that "they started it."

Personally, I'm not convinced of the truth of that claim; accusations of lawfare against Donald Trump necessarily come with the presumption that there is no legitimate reason to think that any of the cases against the Mr. Trump had any genuine legal merit. And the National Review's cheerleading is on weak ground here. The only legal case they actually seem to take aim at is New York v. Trump*, which it describes as "an abusive prosecution with no fraud victims in which the absurdly astronomical damage award was recently voided by an appellate court."

Fraud and theft, however, are not the same thing. The National Review is attempting to make the case that lying about one's assets to receive favorable treatment from a lender, or simply to receive a loan in the first place, doesn't count as fraud, so long as the loan is repaid. But that's not how the law works. Sam Bankman Fried is not in prison because he stole money from people... but because he made them take risks that they were not aware of. Now that his investments are being unwound, the investors (or, more accurately, the current holders of those claims... many people, incorrectly convinced their money was simply gone, sold their claims for less than face value) are looking at anywhere from 20%-40% over and above their original deposits. Why should the Trump Organization get off any easier than a fraudster who actually made money for the victims of the fraud? And besides, in the very ruling that vacates the disgorgement portion of the penalty as excessive, the Court notes:

As to the Attorney General’s motion for summary judgment on the first cause of action, Supreme Court found that Executive Law § 63(12) required that the Attorney General prove only that the [statements of financial condition] were false and misleading, and found that defendants repeatedly or persistently used the SFCs to transact business. Supreme Court found that “the documents here clearly contain fraudulent valuations that defendants used in business, satisfying the Attorney General’s burden.”

And this sort of cherry-picking, siting rulings only to the degree that they are favorable to one's case, is common in American politics. Granted, in this case, the lack agreement between the court's five justices lends itself to such selective interpretations.

While it's true that the appelate court voided the high judgement against the Trump Organization, again, in the ruling it says: "Because none of the three decisions garners a majority, Justices Higgitt and Rosado join the decretal of this decision for the sole purpose of ensuring finality, thereby affording the parties a path for appeal to the Court of Appeals."

So while it seems that the court did find the disgorgement order excessive, it was struck down, rather than being sent back to be recalculated, so that the appeals process could move forward. This has been cast as a victory for the President, but it seems more of an administrative matter to me.

The problem with claims of "lawfare" is that the underlying allegation, that court cases are being brought for political reasons, doesn't have a formal process to find fact. When the National Review's editorial notes...

The tension has been resolved over time by the norm that, while presidents guide the DOJ’s enforcement priorities as to subject matter (e.g., more emphasis on border enforcement, even if that means less on, say, public corruption), the administration of justice in individual cases proceeds without political interference — conducted by theoretically nonpartisan prosecutors, applying the law as written and checked by the independent judiciary.

Trump is grossly disregarding this practice.

...They then proceed to insinuate that Democrats had done the same. Whether my own basic research into things refutes that insinuation is left to the reader, but more to the point, if President Trump is "grossly disregarding" the precedent of "the administration of justice in individual cases proceeds without political interference," why does it matter if someone else didn't?

Here I would note that the National Review avoids claiming that either the Biden Administration or the Governor of New York actively sought to push unwarranted prosecutions of Donald Trump. "Former FBI director James Comey" and "New York State Attorney General Letitia James" are not the chief elected executive officers of any federal or state jurisdiction. They did not pressure anyone to bring cases against Mr. Trump. And even if one believes that they were incorrect in their assessments of Mr. Trump, nothing has come forward to say that they were acting in bad faith.

And this (finally) gets me to my biggest gripe with the National Review's take on things. By claiming that "Democrats paved the way here" the National Review absolves President Trump for what is a clear escalation. "The Democrats" did not do what President Trump is doing. President Biden did not publicly lean on Merrick Garland to bring United States of America v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira. Likewise, New York v. Trump was not the result of a pressure campaign by Governor Hochul. This is not a case of partisan business as usual. The President is demanding the targeting of people he feels have wronged him out of personal pique, and a sense that since they are bad people (as is everyone who opposes him) they must be guilty of some culpable illegality.

Claiming "they started it" because people like President Biden and Governor Hochul didn't step in to forcibly quash the proceedings is, in effect, to justify the President's open interference in the workings of the Department of Justice on the grounds that Democratic politicians didn't previously openly interfere in the workings of the Federal and New York Departments of Justice.

While it's commendable that the National Review is willing to risk the ire of Republican members of Congress and President Trump's voter base to come out at say that the President's open political interference in the workings of justice is bad, their inability to seek placing ultimate blame elsewhere demonstrates one of the biggest problems with partisanship; the inability to admit that parties, including the parties one supports, have interests, rather than principles. The National Review's conclusion references "the public’s disdain for lawfare." If such a disdain existed, we wouldn't be seeing this. Republicans not liking it when they believe that Democrats have behaved badly, and Democrats not liking it when they believe that Republicans have behaved badly, does not add up to a broader public disdain for bad behavior. Especially when each group of partisans believes its members can do no wrong. It's simply partisanship. Genuine disdain does not engage in "they started it," or "whataboutism." It simply condemns. And as long as the public of the United States is divided against itself, no such simple condemnation will be forthcoming. And it's disingenuous to pretend that it will. 

* More specifically: People of the State of New York v. Donald J. Trump, Donald Trump Jr., Eric Trump, Ivanka Trump, Allen Weisselberg, Jeffrey McConney, The Donald J. Trump Revocable Trust, The Trump Organization, Inc., Trump Organization LLC, DJT Holdings LLC, DJT Holdings Managing Member, Trump Endeavor 12 LLC, 401 North Wabash Venture LLC, Trump Old Post Office LLC, 40 Wall Street LLC, Seven Springs LLC