ONE SIDE PLAYS LAW- THE OTHER SIDE PLAYS POLITICS

David Frum asks recently, “Does anyone still remember the Chicago Seven?” I do. As a matter of fact, I was a friend of one of the defendants, Tom Hayden. And additionally, I was around at the time and I knew about their strategy going into court, which he very accurately defines thus:

“They were indicted and prosecuted. And then things went terribly wrong for the government...

“The prosecution thought it was running a trial, a legal proceeding governed by rules. The defendants decided that they would instead mount a new kind of media spectacle intended to show total contempt for the rules, and to propagandize the viewing public into sharing their contempt. The prosecution was doing law; the defense countered with politics.”

The result of that was that regardless of the conviction of the defendants, a significant part of the public believed it was an unjust verdict created by a government prosecution that had the active support of a judge whose independence was nowhere in sight throughout the proceedings. The Chicago Seven “won” their case in the court of public opinion, which is where political movements win or lose.

Frum is correct that “The indictment of Steve Bannon for contempt of Congress is the opening bell of a similar kind of fight over law, justice, and authority.”

Right now, something around 50 million of our fellow Americans - if the polls are right and I think they are - now believe that “the real insurrection was on November 3.” They also believe that Trump didn’t really lose; that the majority in a state legislature has the right to reverse the state’s election results if it does not agree with them; that the vice president can initiate that reversal process if he wants to; that if the vice president balks, kidnapping him and putting a gun to his head until he changes his mind is legitimate; that if the plot fails, any attempt to hold the would-be kidnappers to account is unjust political persecution.

To me, watching American politics since January 6, 2021, is more amazing than what I watched between June 15, 2015 and January 5, 2021. I couldn’t believe Trump would actually run; I couldn’t believe he found support in the public; I really couldn’t believe that people I had known for years, who I might have differed with over some points of political policy, could turn into what I could only consider traitors to the America they claimed they loved. But they did, and on November 4, 2016, I couldn’t believe that the United States of America had just committed the most insane act in the entire history of the country, a history full of plenty of insane acts.

Over the four years of Trump’s time in the White House, at least once a week - and frequently more often - I used to say that if I, as a writer, made a pitch for a work of fiction that involved the event that had actually happened that day, to a studio executive or publisher a week before it happened, they would think I must be crazy to come up with something so improbable.

But it wasn’t improbable! It was reality! And if you study the rise of authoritarian movements and their seizure of state power, a good part of their success depends on their opponents suffering from an inability to conceive that what is happening is in fact “real.” My old friend, the late “Hollywood Legend,” who watched the rise of Hitler, said that the hardest part of the entire event was how hard it was - how impossible it was - to convince people he knew were intelligent and politically aware that what they were seeing was the threat that it was.

We suffer the same thing now. We want to play by the rules as they have come down, while our opponents throw the rule book out the window. We are in the place of the French high command in May 1940, facing the German Blitzkrieg and being unable to comprehend it - and thus being defeated in a matter of days.

Since I was there as a participant back in 1968, I can say that Frum has it exactly right when he says “The attack of January 6, 2021, to stop the lawful transfer of presidential power struck nearer the heart of American democracy than the disorder in the streets of Chicago in 1968.” There was never any remote likelihood of the “revolutionaries” as we pompously styled ourselves, taking power in this country.

There is every likelihood that the “far right radical revolutionaries” we see on the news every day will re-take the White House on January 20, 2025, and that they will truly seize state power this time as they were too incompetent to at the first opportunity.

Watching what is happening with Steve Bannon is both proof that the two sides of the argument are not fighting the same battle, but also a warning that - like the French military facing the tactical and strategic revolution of Blitzkrieg - the side that depends on the system working and the rules being respected by all, faces a profound likelihood of defeat.

The claim by Bannon, Meadows et al that their decision not to cooperate with the 1/6 Investigation Committee is based on the “fact” that the defeated ex-president should permanently enjoy the legal privileges of his former office may be unintelligible as a legal strategy. That’s because it isn’t - it’s a political strategy, intended to discredit a legal and constitutional system that the Trump partisans despise and aim to overthrow.

The enemies of democracy start with huge advantages the movement of the Sixties lacked: there is a large and expanding part of the voting public in their corner - far larger than the antiwar movement ever commanded at its height. Also, they are backed by this country’s most powerful media institutions, including the para-media of Facebook and the other social platforms such as Fox News, OAN, Newsmax, etc. that have far more power and influence over their viewers than the “Berkley Barb,” the “San Francisco Express-Times,” the “Boston Phoenix,” “The Rag” in Austin, or The Village Voice ever had with their readers.

Thus, because of the disinformation and media advantage, the Trumpists have no need to convince anyone of anything. Fact-checkers can destroy every statement made by any of the Far Right Conservative Entertainment Complex, to no avail. No minds will be changed. It doesn’t disturb the followers of Trump partisans that their “facts” are a conglomeration of contradictions. They can say that nothing happened on January 6, and that if something did, everything done that day was totally justified; that Trump is innocent of doing anything, and that Trump was and is totally entitled and justified to have done it.

The Trumpist political argument has no need of making sense; their believers don’t care if it does or doesn’t make sense. Trump’s supporters support him because he has given them permission to disregard and despise the legal rules that once bound U.S. society.

That’s the game - demonstrate the illegitimacy of the current political system. That is what Bannon & Co. are doing now.

Bannon understands the political power of ridicule and contempt; he demonstrates it every day on his podcast. He won’t go to trial willing to play by anyone else’s rules. If he eventually does appear before the committee to testify about January 6, he won’t play by the rules then, either - just like Abbie Hoffman and Jerry Rubin didn’t when they were hauled before HUAC. (For those not born yet at the time, that’s the House Un-American Activities Committee - the enforcer of McCarthyism)

In the face of this strategy, to prevent if from working, it’s important to anticipate it and be ready for it, unlike the French at Sedan on May 13, 1940, watching the Germans on the other side of the Meuse river start building their pontoon bridges to allow the tanks to cross into France.

We must recognize the limits of criminal prosecution to deal with political crimes. As Frum points out, “Many things are wrong without being illegal—and certainly without being provably criminal. The criminal law rightly demands overwhelming evidence. Convicting people unable to recognize they were doing wrong can be very difficult.”

The Mueller investigation of Russian intervention in the 2016 election demonstrates clearly the inadequacy of using criminal process in a political context. We needed to know from Mueller whether or not Donald Trump - acting in his roles as a businessman, candidate for office, and president - was involved in improper activities with Vladimir Putin. Instead of making that political determination, Mueller sought proof of a criminal conspiracy according to the legal definition. Unfortunately, being a businessman who involves himself with shady people around a foreign dictator in hopes of getting a giant payday such as Trump Tower Moscow is not a crime. Being a businessman who lies in public about his dealings with shady foreign characters is not a crime. Receiving damaging information about a political opponent from a foreign source is not a crime. Publicly asking the dictator to please release that information is not a crime. After the lapse of the statute of limitations, money laundering is not a crime.

We all hoped through all the long months of the Mueller investigation that it would end with Donald Trump being led out of White House in handcuffs. Every rumor of what was happening was pored over like religious revelation on every anti-Trump media platform. “Mueller is coming” was the prayer of the days. And it led to a failure to develop a political movement of resistance, since such would not be necessary when the system worked and the perpetrators were punished. Only that was never going to happen because Mueller was never coming, since both Robert Mueller with his sense of personal rectitude, and the Trump toadies in the Trump Department of Justice had defined the work of the investigation that did not allow him to look at the things that mattered most: the intelligence risks, not the criminal charges; the financial transactions that cast light on the story and the activities of members of both Trump’s immediate family and his campaign in their dealings with Russians and other foreign actors, even if they did not break the law. What was needed was a political explanation of political acts, and that was specifically not allowed to happen.

During the investigations, Trump’s consigliere Michael Cohen testified that Trump does not use computers or e-mail, or leave a paper trail. Like a Mafia Don, he does not speak direct orders. Like Don Corleone, he signals what he wants, and then leaves it to underlings who know him to use their knowledge and figure out how to please him. It would be truly amazing to find that Trump didn’t follow his lifetime habits in the events leading up to January 6. He’s had a lifetime to figure out how not to get caught by the system, and it’s worked every time.

The battle between the supporters of a constitutional political system and the legal system that underlies it, versus Trump and his believers who consider it all illegitimate will always be an asymmetrical fight. The fight to uphold the rule of law cannot be won by the law itself; the value of law in the face of violence is what is at stake.

The fight we are in - like it or not, believe it or not - is a political fight. It will be won by the side that can assemble the larger and more mobilized, more united, coalition.

The enemy understands this. Those defending legality and democracy need to be equally aware.

It is only somewhat alarmist to point out that between an antiquated Second Amendment and rules against domestic military activity, along with a disturbing MAGA presence in law enforcement, in addition to a broken Congress, a regimented justice system not up to the task, and a politically motivated judiciary from District Court to the Supreme Court, that our system, against the intentions of the founders, includes the means to end itself. We are uncomfortably close to that happening.

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