Donald Trump is like a well-greased pig at a US County Fair. Every time the hands of consequence try to grab him, he wriggles free, squealing about witch hunts and victimisation. Despite a posse of prosecutors digging into his tax returns, his handling of classified documents, and election fraud, Trump has now returned to the campaign trail high on his own supply of bluster and bile. Despite his proliferating legal troubles, he's still enthusiastically leading Hilary-baiting 'lock her up' chants at political rallies, seemingly oblivious to the hypocrisy of it all.
If the Republicans had moved on after the 2020 election, Trump would just be an old guy at the end of the Mar-a-Lago bar ranting about what might have been if only they had found a few more votes for him in Georgia. Instead, he's the 2024 presumptive Republican Presidential nominee and the 'Big Lie' is now GOP orthodoxy. As we approach the midterm elections in November, Republican slates in key swing states like Arizona and Pennsylvania are packed with candidates who claim to care about election integrity while barely concealing their glee at the chance to bias future results in favour of Republican candidates.
That is why the next few months could be some of the most consequential in American political history. A Unionist critique of a Scottish IndyRef2 is that the Yes side only needs to win once, whereas the No side needs to win every time to preserve the status quo. The same can be said of would-be authoritarians in a democratic state. Unfortunately, the 'once in a generation' argument used by Unionists isn't available to the defenders of democracy in an American system with legislative elections every two years.
President Biden has repeatedly warned that those who would undermine democracy only need to win once and then rewrite the rules in their favour, a threat driven home by Trump getting Republican crowds to cheer for the 'strong leaders' of China and Saudi Arabia.
You only need to look at the feting of Hungary's Victor Orban by the GOP and Fox News to grasp the playbook. Orban is not a dictator, but over the last decade his 'illiberal democracy' agenda has hollowed out civil society in Hungary by combining populist rhetoric with efficient machine politics. By politicising media regulation, packing the judiciary with supporters, and incrementally making it harder and harder for opposition parties to organise, he has dug himself into power. Having initially won a fair election, Orban has changed the dynamics of Hungarian politics to the point where even a combined and well-organised opposition couldn't dislodge him this spring.
An optimist can find reasons to believe that the democratic levee might still hold in the US. The first, but also the most fragile, is that the American electorate will sober up and vote accordingly. What looked to be a midterm Democratic rout now looks more finely balanced, with a chance that the Democrats may even increase their majority in the Senate. It still seems likely Republicans will take the House, but without the Senate, the upshot will just be two years of legislative gridlock and endless congressional hearings into the contents of Hunter Biden's laptop.
The Democrat's recent bounce in the polls can be attributed to many factors, from inflation beginning to come down to some truly awful Republican Senate and Gubernatorial candidates like TV star 'Dr Oz' in Pennsylvania. There is also increasing evidence – such as the recent referendum in Kansas and a special House election in New York – that overturning Roe vs Wade may be that rare single-issue political unicorn that shapes broader election results.
But if you are concerned about the future of American democracy, your real focus should be on Attorney General Merrick Garland. Garland is an unlikely saviour of the republic. An owlish, cautious jurist, it looked for a while as if his signature moment would be having his Supreme Court seat snatched away by Senate Leader Mitch McConnell in a brazen political flex during the twilight of the Obama administration. But having been appointed AG by Biden, Garland now has the responsibility for deciding whether the fate of Donald Trump should become a legal rather than a political question.
To this point, every attempt to control or sanction Trump has ended up as a political process. From the willingness of primary voters and the 2016 general electorate to brush off his Access Hollywood tape misogyny and a catalogue of other scandals, to Republican Senators' disdain for the merits of the impeachment cases, Trump has body swerved real accountability. But it now appears that the legal walls may finally be closing in, and the greased pig may have no escape route.
Facing Merrick Garland are two separate prosecution decisions. The one that has dominated the media over the last month has been the question of Trump's mishandling of classified documents. Non-partisan experts think Trump is in serious legal jeopardy under various federal statutes. Charges could be directly related to possession of the documents themselves, but also obstruction of justice, as there seems to have been persistent lying about what documents he had in his possession. Although the appointment of a 'Special Master' to review the documents could delay the process, this case could end up being Trump's equivalent of Al Capone's indictment for tax evasion. Under the Federal Code, 'wilfully and unlawfully' removing Presidential records carries a penalty of up to three years in prison and the defendant 'shall be disqualified from holding any office under the United States'.
Despite what the statute says, even a conviction on these charges may not eliminate Trump from the Presidential race. The Constitution itself makes no mention of a federal conviction being disqualifying, and indeed there are plenty of precedents for convicted felons running for President, from socialist Eugene Debs in 1920 (who was convicted under the Espionage Act) to Lyndon LaRouche, a perennial Presidential candidate despite multiple convictions for tax fraud. Unless a documents prosecution puts Trump in a jumpsuit that matches his complexion, he might wear his conviction as a badge of honour on the campaign trail and ramp up his rhetoric around the 'deep state' trying to interfere with the will of the people.
The more important question for Trump's political future is what Garland decides to do about the avalanche of damning evidence coming out of the ongoing January 6th Congressional investigation, particularly if the committee makes a criminal referral in its final report, which is due by year end. In Trump's second impeachment trial the single charge was 'incitement of insurrection', but no witnesses were called, and the defence argued that there was no evidence directly connecting Trump to the planning of the riot.
Yet during the committee's public hearings, we've now seen compelling evidence that the riot was not a spontaneous event, that there was a concerted multi-stage effort to overturn the election result, and that those orchestrating the effort knew full well that it was illegal. After conducting more than 1,000 interviews, the carefully choreographed hearings have built a strong and multifaceted case that both Trump and his advisers were illegally trying to overturn the result of a fair election.
There are multiple Federal crimes that Trump could be charged with based on that evidence. One would be 'obstructing an official proceeding with corrupt intent' and the argument that Trump truly believed the election was stolen wouldn't hold water as the prosecution could claim 'wilful blindness' given how many people around Trump were telling him it wasn't true.
Another potential charge could be 'conspiracy to defraud the US', which the Supreme Court has defined to include 'obstructing a government function (such as certifying an election) by deceit, craft, trickery, or dishonest means'. Finally, there could be a case for wire fraud given that after the election Trump raised a $250m 'Election Defence Fund', yet there is no evidence that any of that money was ever used to contest the results.
The question is why wouldn't Garland just pull the trigger and prosecute given the deluge of evidence that has emerged? One argument might be fear of the political violence that could ensue and the precedent of prosecuting a former President. But another is that the Department of Justice has an unwritten rule effectively barring any law enforcement actions that could impact voting intentions within 60 days of an election. Of course, the FBI clearly didn't adhere to that rule when it publicly speculated on the content of Hillary Clinton's emails mere days before the 2016 election. Also, Trump is not on the ballot in November, doesn't hold any formal position in the Republican Party, and is unlikely to declare another run for the White House till after the midterms.
The phrase 'to grasp the nettle' goes back to the English Middle Ages and counsels that quick, bold action is less painful in the long run than tentative engagement with a thorny problem. While it is clearly not in his nature to take risks, now is the time for the Attorney General to reach for the prosecutorial weed and show that no-one in America is above the law, that not everything is politics, and that actions (even Presidential ones) need to have consequences.
If Garland baulks and Trump wriggles free again to contest the 2024 Presidential election, it isn't hyperbole to fear that, not only might that election not be free and fair, but that a second Trump term could usher in an era of 'illiberal democracy' that America may not recover from in our lifetime. So, with the clock ticking down towards another Trump Presidential run, now is the time for America to finally corner the pig before the country comes down with a potentially fatal case of swine fever.
Alan McIntyre is a Trustee and Patron of the Institute of Contemporary Scotland