In the wake of Donald Trump’s latest indictment, two basic defenses have been offered: He did nothing wrong, and it doesn’t matter that he did anything wrong.
So far, most of his defenders are more comfortable making the latter argument.
Rep. Jim Jordan (R-Ohio) is one of the few exceptions. On CNN, Jordan argued that Trump did nothing wrong by keeping extremely sensitive classified information next to a toilet, among other places, because the president “can classify and he can control access to national security information however he wants.”
It’s based on a theory of presidential prerogatives. But it has at least one fatal flaw: Trump isn’t the president. Jordan, the House Judiciary Committee chairman, sidesteps this point, saying he takes Trump “at his word” that he “mentally” declassified everything before leaving office, even though there’s an actual tape of Trump saying that he didn’t.
Most Republicans don’t have the fortitude for such brazen Stakhanovite defenses of Comrade Trump. After all, even his former attorney general, William Barr, says the indictment is “very, very, damning” and that Trump is “toast” if even half of it is true.
The more widespread argument among Republicans is a variant of anti-anti-Trumpism. Specifically: Prosecuting Trump would be wrong because Hillary Clinton wasn’t prosecuted in 2016 for her email misbehavior or because Joe Biden hasn’t been prosecuted for mishandling classified documents.
Hence, the Trump loyalists insist, we have a “two-tiered” system of justice. This, of course, leaves out the fact that Biden and Clinton (and Mike Pence) cooperated with the Justice Department, while Trump is accused, in full and exhausting detail, of obstructing the investigation.
Still, I think these arguments have some merit. Some Trump defenders often overstate or misstate the facts, but I believe that Clinton’s private email server scheme was outrageous, and it would have been better if FBI Director James B. Comey had recommended that she be charged instead of declining to do so.
Clinton’s behavior and the Comey investigation were examples of institutional failure that laid a lot of the groundwork for the ugly politics of the last seven years, including Trump’s election.
Indeed, the sorry chapter of Clinton’s emails is part of a broader dysfunctional pattern in our political culture. Partisans rarely worry about the effect their behavior ultimately invites in their opponents. Politically, the process by which bad behavior becomes a bad precedent is when the other party says, “Oh, so we can do that too when we’re in power.”
Here’s Sen. Marco Rubio, Republican of Florida, in 2016: “Hillary Clinton’s actions have sent the worst message to the millions of hard-working federal employees who hold security clearances and are expected to … abide by the rules. They don’t take their oaths lightly, and we shouldn’t expect any less of their leaders. … America simply cannot afford any more Clinton drama.”
Now Rubio, the vice chair of the Senate Intelligence Committee, is fine with even worse drama from Trump. He says of Trump’s alleged misdeeds: “There’s no allegation that there was harm done to the national security.” Rubio says Trump should get a pass because indicting him would be “divisive” and invite “attacks” on American institutions.
That’s a standard not for the rule of law but the rule of politics. And the hazard of such thinking down the road is incalculable.
But back to “her emails.” Regardless of GOP criticisms of what Clinton did a decade ago, none of it amounts to an affirmative defense of Trump.
Think of it this way: I believe it is outrageous that O.J. Simpson was acquitted of murdering his ex-wife and her friend. But that doesn’t mean that when I murder someone, I get to say, “You can’t send me to prison! O.J. Simpson got away with it!” The government falls short of ideals and standards all the time. That’s not an argument for getting rid of ideals and standards.
This is the blind spot of Trump defenders. It elides over the very possibility that Trump is actually guilty. If you think that Clinton’s behavior was comparably bad to Trump’s, the reaction can’t be, “So he should get away with it, too.” Yet that seems to be the GOP response now. Because she skirted the rules, they insist, we shouldn’t have rules. Because Trump cannot clear the standard conservatives held Clinton to, we shouldn’t have standards. Where does that leave us?