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Investigating Trump and the Prospect of Civil Unrest

Justice Department officials are urged to tread cautiously in the investigation and possible prosecution of Donald Trump for a smorgasbord of offenses lest they agitate Trump partisans whose rhetoric about armed resistance to federal law enforcement must be taken seriously. Citing historical precedent ranging from George Washington's amnesty for Pennsylvania's Whiskey Rebellion to Abraham Lincoln's postwar plans for amnesty and reconstruction and Gerald Ford's pardon of Richard Nixon, some commentators suggest that Trump be given a pass on any but the most egregious transgressions in the interest of preserving civil order and domestic tranquility. Even pundits who reluctantly conclude based on what is known at present that DOJ and the FBI had no choice but to proceed with the search at Mar-a-Lago counsel maximal restraint. These are individuals who voice concern in good faith, not partisans at the extremes, which is to say, the mainstream of the Republican Party establishment, whose rejection of any and every investigation as politically motivated amounts to holding that the former president is above the law.

The concern is well founded. Armed confrontations between the Bureau of Land Management and antigovernment activists in the West during the past decade, notably the standoff at the Bundy ranch in 2014, the occupation of the Malheur National Wildlife Refuge in 2016, and the occupation of the Capitol on January 6, 2021, demonstrate the readiness, even eagerness, on the radical right to defy government authority and legitimacy. Evidence produced by the January 6 committee points to the role of armed antigovernment groups in the assault on the Capitol. Troubled individuals are radicalized or pushed over the edge by the violent rhetoric of online warriors, a fair portion of whom may well be windbags and blowhards, political operatives rousing the rabble for political benefit, or grifters out to monetize antigovernment sentiment. Their words and actions are nonetheless destructive of the social compact whose alternative is a Hobbesian state of nature where life is "solitary, poor, nasty, brutish, and short." For Bannonite nihilists and their kin whose aim is to tear it all down this appears to be what they are after.

Divides within law enforcement at both the federal and local levels present additional confounding factors. Writing at Politico Magazine, Steven Simon and Jonathan Stevenson are explicit on this point:

A spiraling confrontation between the state and its adversaries also poses the risk of fracturing federal law enforcement itself. While it’s well known that local law enforcement, whether municipal police departments or exurban sheriffs’ offices, often identify with radicalized far-right movements that oppose federal authority, some members of federal law enforcement are also prone to empathize with the other side. Anecdotal evidence points to tensions within the FBI itself over the Mar-a-Lago raid. (The Real Fallout).

The authors have experience and expertise in this area: Simon is a former senior director for counterterrorism at the National Security Council, presently the Robert E. Wilhelm fellow at the MIT Center for International Studies, Stevenson a senior fellow at the International Institute for Strategic Studies (IISS) and managing editor of Survival. They judiciously weigh "the potential incendiary effect of the Mar-a-Lago search" and risks associated with aggressive actions taken to quell unrest. As an alternative they cite approvingly the example set by US response to right-wing militancy behind the bombing of the Oklahoma City federal building in 1995 and efforts to neutralize illegal armed groups, including the Provisional Irish Republican Army, at the end of the Troubles in Northern Ireland: "In both cases law enforcement agencies were required to walk the line between proactive enforcement and calibrated forbearance to ensure that political violence would be neither tolerated, on the one hand, nor incited, on the other."

This was not easy, and, they assert, "political conditions in each place were even less conducive to political violence than they are in the contemporary United States."

Their foreboding conclusion is fine as a matter of general principle but offers little in the way of practical guidance:

only a resolute law-enforcement approach to counterterrorism, mounting the effort one search warrant and indictment at a time and resisting escalation, has a prayer of staving off wholesale civil conflict in this country. The FBI was right to serve the warrant. It was also right to do so in an unassuming manner, after exhausting all other means of enforcing the law. Now, it is incumbent on federal agencies to enforce the law without galvanizing a far-right movement primed for violence against the state.

The Republican Party establishment occupies a charred landscape marked by fundamentalist zealotry, naked opportunism, and lust for power whose roots can be traced to the rise of Newton Leroy Gingrich in the 1980s and before that the emergence in the 1960s of a radical right financed by wealthy individuals who did not like paying taxes or being subject to pesky government regulation that might deter them from doing whatever the heck they want with their wealth and the power it bestows. Prominent Republicans are with few exceptions little disposed to push back against that far-right movement primed for violence against the state because they fear alienating the base. Reaction to the search at Mar-a-Lago is the party's blueprint for response to any effort to hold Trump accountable.

The call for DOJ and the FBI to resist escalation and to enforce the law in an unassuming manner is well and good but fails to address the prospect that no manner will be sufficiently unassuming to escape resistance and the prospect of violence. The effort to minimize the risk of violence carries its own risk that deference to those willing to resort to violence will enable them to dictate when and in what circumstances we continue to live under rule of law.

Conservative columnist Gary Abernathy insists that "the vast majority of Trump voters are not interested in invading federal buildings or overthrowing the government. They’re interested in going to work and church and soccer games, taking care of their families and voting in the next election" (Stop insulting Trump voters). Fair enough, up to a point. While acknowledging that Trump lost him with his actions after the 2020 election, Abernathy appears untroubled by Trump voters' sincere belief that the election was stolen and bristles at any suggestion that they bear responsibility for bringing to power a would-be tyrant who laid waste to principles and norms of constitutional governance and continues his effort to overturn the 2020 election and reclaim power. It is, says Abernathy, his "unscientific conclusion that about half of Trump’s supporters will go to their graves believing the election was stolen. The other half can be persuaded otherwise, but only by time and reflection, like accepting a death. Shaming will never work."

Here he is right in part. Shaming does not win over hearts and minds. Mea culpa. I am under no illusion that the vitriol, invective, and what passes for humor unleashed in this space on occasion are conducive to persuading anyone wearing a MAGA cap. I try to rein myself in. Sometimes things get to me. On the other hand, casual acceptance that half of Trump's supporters will go to their graves believing the election was stolen is is a pretty major problem in its own right. Only a fraction need to be willing to light the powder keg. Much damage can be done while that other half is waiting to be persuaded.

The customarily affable Abernathy lectures us Marxist liberals that we should accept the modern Republican Party for what it is: "Instead of constantly reproaching Republicans for their choices, everyone should stipulate the following: The Republican Party has some lingering conservative leanings, but it is now the populist, Make America Great Again party of its modern leader, Donald Trump" (To help the U.S. heal). In this formulation Abernathy is right in slantwise fashion and categorically wrong on the crucial point. We should recognize the Republican Party for what it is. It does not, however, follow that we should passively accept a party that takes Donald Trump as its leader as anything but a grave danger to the republic.

Memo from the Editorial Desk. After this piece was published, a minor edit was made at the end of the last sentence in the paragraph beginning "The call for DOJ and the FBI to resist escalation".


Abernathy, Stop insulting Trump voters and their concerns. Talk to them, Washington Post, July 22, 2021

Ryan Lenz, Mark Potok, War in the West: The Bundy Ranch Standoff and the American Radical Right, July 10, 2014, Southern Poverty Law Center

Colleen Shogan, The History of the Pardon Power, The White House Historical Association

Steven Simon, Jonathan Stevenson, The Real Fallout From the Mar-a-Lago Search, Politico Magazine, August 19, 2022

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