Criminal “Consequences” and the Threat of Right-Wing Extremism

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18 mins read

Ordinarily, I like each of these blog posts to stand alone, but for this one, I urge you first to read, “Why Democrats Should Not Fight Like Republicans.” This one will build on that.

There is a school of thought out there on social media that says that Republicans keep breaking laws because there have not been enough “consequences” or “accountability.” I’ve pushed for definitions of these words and I’ve learned that they tend to mean criminal punishment.

This person said:

An indictment is only the first step, though. Conviction happens after a trial. But people want an indictment right now.

Indicting a prominent person and getting a “not guilty” verdict will leave you even more frustrated and cynical.

Juries can be unpredictable. It will be hard to get an unbiased jury for the trial of a prominent, political person. The outcome of a trial is never certain. This is particularly true if the prosecution rushes to trial before it has all the evidence.

This tweet was sent by an account with a following of 1.2 million:

Much of what we see on the news as evidence wouldn’t be admissible in court. Journalists often don’t name their sources, which is acceptable for journalism provided the reporters verify their sources, but it wouldn’t work in court. In fact, it’s called hearsay. Getting witnesses under oath is a bit trickier than getting anonymous statements.

Yes, we’ve seen videos of the insurrection, but a video can’t prove the criminal intent of the organizers of the riot. (I did a blog post on the difficulty of proving intent.)

While there is a lot of evidence in the public view, there is also a lot of evidence that prosecutors haven’t gotten their hands on yet. 

Currently, Trump administration staff members are talking to the select committee. 

Even more significantly, a huge tranch of White House documents is the subject of litigation, and very soon (by litigation standards) these documents will almost certainly be in the hands of the select committee and the DOJ. These documents relate to the planning of certain “events” on Jan. 6, including the way Trump developed the disinformation ecosystem that allowed the insurrection to occur.

Want to know what would be super foolish? Rushing to trial without all the evidence.

This person said: 

Actually, what Robert Mueller did was present evidence of crimes. During his testimony before Congress, Mueller clarified that his team did not reach a determination as to whether the president committed a crime

Here’s what that means. Ordinarily, an indictment simply requires that there is probable cause that a crime occurred. Conviction, on the other hand, requires proof beyond a reasonable doubt, a much higher standard. Federal prosecutors have about a 96% conviction rate because they don’t waste court time and resources if they don’t think they’ll get a conviction. They don’t bring charges on probable cause. They bring charges when they think they have enough evidence to convict. My point here is simply to debunk the idea that Mueller wrote a ready-made indictment which (perversely) Attorney General Merrick Garland is refusing to file. Nope. Mueller didn’t actually do that.

Cohen entered a plea bargain. I suspect that the only evidence against Trump would be Cohen’s testimony and Cohen may be fairly easy to discredit. (He lied to Congress. He may be withholding incriminating evidence about himself.)

Want to know what else would be super foolish: Rushing to indict a small crime with thin evidence and risking a not guilty verdict because the evidence doesn’t rise to the standard of “proof beyond a reasonable doubt.”

But people say:

“There are never any meaningful consequences.”

People want action now. They say things like this:

And this:

Sometimes I try to counter the “there are never any meaningful consequences” with facts. I start listing the consequences:

  • People in Trump’s circle who were either indicted, convicted, or pleaded guilty include Michael Flynn, Allen Weisselberg, George Papadopoulos, Rick Gates, George Nader. Paul Manafort was convicted and spent time in jail, as did Michael Cohen. (This is not a complete list.)
  • Most recently, Lev Parnas was convicted on campaign finance charges.
  • The Mueller team indicted or got guilty pleas from 34 people and 3 companies.
  • So far more than 670 people have been charged in the Jan. 6 insurrection.
  • Trump was removed from the White House despite doing everything he possibly could to stay there. This included losing a string of “election fraud” cases in court.
  • Trump was impeached twice.
  • The Trump Organization is under indictment.
  • Trump’s lawyers are being disbarred.
  • The Trumps settled a case in which they were accused of cheating a charity. As part of the settlement, Eric, Ivanka, and Jr. had to take a court-ordered class about why they shouldn’t steal from charities.

This is not a complete list, and investigations are ongoing.

I suggest that it seems to people like there are “never any meaningful consequences” because consequences don’t do what people think they will do.

In 2018, Michael Scherer, writing for The Washington Post, noted that lawbreaking was no longer disqualifying in the Republican Party and had even become a “positive talking point.

The problem isn’t (just) that political leaders are committing crimes. The real problem is that the political leaders committing crimes are being shielded by a major political party and supported by a significant portion of the population.

Richard Nixon resigned when the Senate Republicans stopped supporting him. It took a while, not just because the wheels of justice move slowly but because it took that long for the Republicans to decide not to shield him.

Here’s the problem:

You can’t punish people into changing their political views.

This person said:

From my last video: Democracy is the form of government based on rule of law. Other forms of government have different sources of authority. Republicans are turning to a different source of authority.

Rejecting democracy is a political view, right?

Republicans break laws (and support lawbreaking) for a number of reasons. I talked about this in this blog post. To take two examples, they break laws they don’t like and they break laws that they believe come from an illegitimate government. Many of them believe that what the federal government has become since the New Deal and civil rights movement is illegitimate.

Imprisoning a political leader can actually strengthen a political movement. (I am not giving this as a reason to fail to indict or convict Trump. I’m trying to explain that criminal consequences won’t necessarily “neutralize” the dangers the Republicans pose to democracy.)

Hitler was jailed and went on to become a murderous dictator. For that matter, Martin Luther King, Jr., and Gandhi were imprisoned. Do you lose respect for King because he was in jail? Of course not.

Punishing Trump is unlikely to crater his support. It might increase his support from even more dangerous quarters.

This is an interesting Washington Post article about Trump’s new “media company.” (Yes, the one that crashed within a few hours of going live but seems to be making money right now.)

What’s happening is that Trump’s new “brand” (insurrection loving) is attracting new investors. The company has ties to Brazilian president Jair Bolsonaro:

Simply put, major convictions might actually enhance Trump’s prestige with those who would like to overturn the U.S. government. We don’t know who is buying the stock in his company. There may be foreign investors (bad actors) who want to see a right-wing radicalized American media ecosystem or who just want to pump money to Trump.

In other words: The more trouble Trump gets in legally, the more appeal he may have in even more dangerous circles.

Next point:

Punishment doesn’t (generally) deter others from committing crimes.

Some people calling for punishment seem to assume that criminal consequences deter criminal behavior. This is the reasoning that led to harsher and harsher punishments in the 1980s and 1990s. We ended up with a sprawling prison culture and learned that people often emerged from prison more hardened, radicalized, and inclined to commit crimes than before they were imprisoned. This makes sense when you think about it. (There is a lot of research out there about the ineffectiveness of criminal punishment as a deterrent.)

The National Institute of Justice (the research, development, and evaluation agency of the U.S. Department of Justice) has concluded that “sending an individual convicted of a crime to prison isn’t a very effective way to deter crime” and “increasing the severity of punishment does little to deter crime.”

While these are simple conclusions, the issues of punishment and deterrence are obviously far more complex.

So let’s take two recent examples. A judge recently found that “toxic” conditions in the D.C. jail were leading to further radicalization of the insurrectionistsIt was reported, for example, that the Jan. 6 defendants have started their own jail newsletter. I haven’t read it, but I suspect that it isn’t about how they all need to learn to love liberal democracy and multiculturalism.

Another example of how indictments and jail time fails to deter: After more than 600 insurrectionists were charged or sentenced, a Trump supporter said this:

Hundreds and hundreds of indictments didn’t deter this guy from wanting to use his guns. Imagine how these guys will react when they are told Trump is being prosecuted by a government they believe is illegitimate.

I’m not saying don’t prosecute. I’m saying don’t fool yourself into believing that the reason the Republicans are continuing to glorify insurrectionists is because there haven’t been enough “consequences.”

A story: One day my husband realized he’d gotten on the light rail but forgot his ticket. He was nervous until he could get off the train and purchase one. He was terrified of the embarrassment of being asked for a ticket and not having one.

Paradoxically, deterrence works on law-abiding people.

People say, “Well, at least we can heal! At least we can feel that there is justice and rule of law! At least our confidence will be restored!”

Um, be warned. Trials can be harrowing. Judges make rulings you don’t like. The jurors may have you worried, perhaps for good reason. Evidence will be excluded for various reasons. That’s just how it goes. Often both sides end up feeling like they lost because it’s common for neither side to get everything they think they should get.

I can predict this based on what I’ve seen during the past five years on social media. The people now demanding an indictment will be the people shouting that “the system is a failure” each time the judge makes a ruling they don’t like.

I’m often told some version of this:

“If all wrongdoers are not punished, it means there is no rule of law.”

This person said:

It is not humanly or physically possible for all wrongdoers to be “held accountable.” Even the most efficient police state would not be capable of collecting evidence of every crime committed, and trust me: You would not want to live under a government that tried.

Rule of law is the authority underlying democracy. In fact, the democratic requirement of due process often means that wrongdoers escape punishment.

Are we supposed to just be patient?”

I’m commonly asked this on Twitter. This person said:

I’m not asking anyone to be patient. If you want to save democracy, get busy. 

The “are we supposed to be patient” question generally comes from thinking that we are helpless or entitled to sit back and wait for someone else (or something else) to save democracy. The idea often is that prominent Democrats could put an end to the threat posed by Trump and the radicalized right-wing if they would just do it already.

This person said:

It’s possible that person is implying we should use non-democratic means because democratic means are too slow. If so, please see my last blog post on why Democrats should not act like Republicans.

And actually, “talking to people” is how Stacey Abrams is flipping Georgia blue and gave us two more Democratic senators. I’d say her model is pretty effective. She has made herself part of the solution.

Democracy needs you – and it needs true friends, not fair-weather friends.

People say things like this:

It seems to me that “If X doesn’t happen, I will lose faith” comes from the idea that citizens of a democracy sit back and make demands and expect other people to deliver. Nope. Democracy means rule by the people. That’s us.

If you need ideas about how you can contribute, see my list of things to do here.

Just to be clear: I am not saying Trump and other major political figures should not be charged and convicted. I’m saying that it probably won’t be the magic bullet people think it will be — and that rushing to trial before prosecutors have all the evidence may not be the smartest strategy.

#13 on my list of things to do is take mental health breaks. This is from one of my breaks this week. Photo taken from the end of a pier.

Originally published at terikanefield.com here.


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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and CNN.com. Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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