Wit the following words, spoken the night The New York Times broke the news that a Manhattan grand jury indicted Donald Trump, Fox News host Tucker Carlson signaled the next, dangerous phase of the Trumpist assault on the rule of law.
“Probably not the best time to give up your AR-15. And I think most people know that.”
Now we begin to watch a replay of the circumstances that led to the violent assault on the Capitol on Jan. 6, 2021.
It continued. Former Fox News host Glenn Beck told Carlson that he predicted that by 2025, America would be “at war,” “we’ll have a currency collapse, and we will live in a virtual police state.” The Bill of Rights is “gone,” Beck said.
Vivek Ramaswamy, a Republican businessman and presidential candidate, put out a video statement saying that America is “skating on thin ice as a country right now” and that “we may be heading on our way to a national divorce.”
Perhaps the most disturbing reaction came from Florida Gov. Ron DeSantis, who is polling second to Trump in primary polls. Just after the indictment news broke (and without seeing the charges), he tweeted that the indictment was “un-American” and then ominously declared that “Florida will not assist in an extradition request” for Trump.
DeSantis’ statement was a shot at our constitutional order. Governors don’t have the constitutional authority to block extradition requests from other states. Article IV of the Constitution contains an Extradition Clause, which declares that when a person charged with a crime is “found in another state,” then he or she “shall” be “delivered up” and “removed” to “the state having jurisdiction of the crime.”
Federal statutes and Supreme Court authority require the “executive authority” of the state to “cause” the defendant “to be arrested and secured.” In all likelihood, Trump will voluntarily surrender to New York authorities, but if he does not, then the Constitution and federal statutes apply, and DeSantis cannot block Trump’s arrest.
Moreover, all of these immediate reactions came after Trump himself was warned of “potential 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 that “Our country is being destroyed as they tell us to be peaceful.” The implications are obvious.
To fully understand the Trumpist threat to the rule of law, it’s necessary to discuss what the rule of law means. A nation truly governed by the rule of law isn’t going to 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 complying peacefully with the legal process even when you’re utterly convinced the underlying legal charge is wrong.
Indeed, in the absence of that understanding, social peace is impossible. We simply cannot and do not delegate to the defendants and their supporters the decision as to whether to comply with legal processes. AR-15s are not a component of American jurisprudence.
All of these sounds painfully obvious. There are reasons the rote response of criminal defense lawyers to indictments is typically something like, “My client looks forward to vindicating himself in court” rather than “My client is pleased the public is arming itself.” But Trump and his movement have placed even the most hallowed and fundamental American legal processes under immense strain.
After the 2020 election, for example, he attempted to force both unjust substance and unjust process on the American public. His legal arguments for overturning the election were frivolous and rightly dismissed by every court that heard them. Frustrated by the courts, Trump’s mob then opted out of legal processes entirely and stormed the Capitol. They refused, until cleared out by force, to respect the substance or process of American law.
I have not yet seen the Trump indictment. I’ve expressed my doubts about the wisdom of the case based on publicly available information about the nature of the investigation. But I also know that we need to wait on both the indictment and the evidence supporting it to make any definitive decision about the merits of the charges. Informed speculation is still speculation, and there is a chance that the case is materially different from what we expected.
Regardless of whether the case is as weak as I fear it might be, Trump’s obligations are perfectly clear. Yes, he can certainly publicly dispute the charges. That is his right. But his ultimate path to contesting the district attorney’s claims runs through the courts, not the streets.
With their apocalyptic rhetoric, however, Trump and his defenders are priming his supporters to reject the rule of law, root and branch. The charges are deemed illegitimate, sight unseen. Just as with the election challenge, there is but one acceptable outcome — Trump wins. Anything else is taken as proof of the decline and fall of American democracy. And we know, beyond a shadow of a doubt after Jan. 6, that when you tell a sufficient number of Americans that the country is on the verge of destruction, then they’ll take matters into their own hands.
In a very real way, the American rule of law depends on the actions of both prosecutors and defendants, and even if (and when) prosecutors fail in their responsibilities, the defendants don’t get to opt out of the process. Indeed, prosecutorial failure renders a fair process more important, not less. Trump will have his day in court, and that’s when we’ll truly learn about the justice of Bragg’s charges.
The rule of law is in Republican hands now. If they choose the course they took during the election challenge, history will remember them — and not Manhattan’s district attorney — as the instruments of American destruction.
Responsible leaders urge peace. Responsible leaders respect the legal process. We know what Trump has said. DeSantis has already signaled he’ll defy the law. Who in the GOP will have the courage to check the rage of the Trumpist mob?
