The Post-Constitutional Order

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The regime has relentlessly dismantled the foundations of our republic.

The regime and its media handmaids have been fabricating news for years, bombarding us with alarmist rhetoric about Donald Trump’s supposed authoritarianism: “Not since the…Civil War have freedom and democracy been under assault here at home as they are today.” But in the wake of the recent show trial verdict of the former president, that rhetoric has shifted. Now we’re told that the successful conviction of Trump represents “a triumph for the rule of law” and a “dramatic barometer of the strength of…our judicial institutions.” “No one,” President Biden assures us, “is above the law.”

It used to be that the jury trial itself, not the verdict, was considered a “triumph” of the rule of law. Today, such a belief is inexcusably naïve. By regime logic, guilty verdicts for its political opponents are the only evidence of a healthy legal system. Thus, the legal system is strong because it convicted Trump. Ditto for Peter NavarroSteve Bannon, and other political opponents of the regime. For the regime, any other outcome is “lawlessness.”

But these prosecutions are the exercise of an awesome and lawless power that is radically unfamiliar to Americans. The regime is so powerful that it exercises near total dominion over the rule of law, easily wielding the legal system as a tool to prosecute its political opponents with impunity, just as it uses many other forms of lawfare to maintain its grip on power.

Indeed, not only is our legal system fragile, weak, and on the verge of collapse, but it is also increasingly obvious that the American constitutional order has been overthrown.

What Hath the Regime Wrought?

The regime has corrupted the legal system, a pillar of our former constitutional order. This is not the same thing as saying that the legal system does not function. It functions properly almost all the time, even though it is corrupt. This is so because the measure of its corruption is a function of how it operates when the courts are used to resolve political disputes. In that context, our legal system serves only the regime’s interests, not the interests of justice.

Put another way, most legal disputes are handled the same way and have the same outcome regardless of whether the legal system is part of a constitutional republic or a tyranny. All governments, including tyrannies, have an interest in stability and order. So it’s not unusual for an authoritarian system to permit its subjects access to the legal system to resolve non-political disputes without interference most of the time. In those instances, the legal system can be said to function properly.

But most legal disputes are not political disputes—or at least they didn’t used to be. Until recently, the regime lacked the power to prosecute its political enemies. Today it has that power. The regime interferes with the legal system’s operation to advance its political goals, corrupting the system in the process, even if the system functions normally when adjudicating non-political matters.

By analogy, the mainstream media is not always lying, but it is always advancing the regime’s interests. If ubiquitous propaganda is the consequence of the regime’s perversion of the media, lawfare is the consequence of its perversion of the legal system. Lawfare is the process by which the regime hijacks the legal system to win political struggles that it would lose in the political arena.

This is exactly what the current regime has done with Trump. The regime understands it will likely lose to Trump in the political arena, so it has recharacterized a political struggle in the political arena as a legal struggle in the legal arena—specifically, within the federal and state criminal justice systems. In other words, the regime has corrupted the criminal justice system by forcing it to resolve a non-criminal political dispute and to do so in a way that advances the regime’s political interests.

As an aside, the conviction of Hunter Biden is consistent with this framework. If our hypothesis is that the regime uses the legal system to advance and protect its power, including its political power, the conviction of Hunter Biden serves the regime because it lends plausibility to the regime’s propaganda that “nobody is above the law.” Surely the regime wouldn’t permit its own elite to be prosecuted, right? Wrong. The conviction of an embarrassing crack addict who frequently jeopardized the regime’s attempts to conceal its unlawful conduct is politically useful: it rids the regime of a meddlesome sideshow who doesn’t matter while distracting normies from the unprecedented weaponization of the legal system, which does.

Who Has the Power?

Notwithstanding this corruption, Trump has obeyed the legal system’s mandates and subjected himself to its processes. Despite this, or perhaps because of it, the regime accuses him of lawlessness. For instance, the regime claims that Trump is an existential threat to “democracy.” At its core, this propaganda is built on the lie that Trump threatens our form of government because he has the power to upend it. But he does not have that power. True, he has the support of tens of millions of Americans, but that support translates into power only within the structured framework of the electoral process—that is, within our form of government, not outside of it. It’s nearly worthless otherwise, and totally worthless in the courtrooms of New York, Georgia, and Washington, D.C. (and, but for Judge Aileen Cannon, who appears possessed of the fortitude to stand up to the weaponized imperial bureaucracy, I’d add the federal district courts in Florida).

Substantively, Trump lacks the power to threaten “our democracy.” This is why he tries to earn your vote while defending himself in court. Trump’s campaigning is relentless even as he spent 18 months and millions of dollars hiring attorneys, filing and responding to motions, reviewing discovery, making interlocutory appeals, attending oral arguments, selecting juries, conducting direct and cross examinations, and making opening and closing statements, all to fight a political struggle the regime removed to the legal system. In both cases (campaigning and trial), Trump tries to earn and to persuade, which is unusual given that he is supposedly a man with the will and power to overthrow “our democracy.”

Regime elites, conversely, don’t bother trying to earn your vote or persuade you of their innocence. Instead, they simply implement their will through the exercise of unrestrained power. Unrestrained power is, of course, lawless power.

They didn’t like the way voters were trending in 2020, so they hacked the election laws of various battleground states. Being indicted would have been inconvenient for Hillary Clinton in 2016, so the now-disgraced former FBI Director James Comey was ordered not to prosecute her. Same goes for Joe Biden, who simply instructed Merrick Garland to close Special Prosecutor Robert Hur’s case. These are examples of raw power flaunting the law: the ability to do things like hack election laws and order your own non-prosecution. Trump can’t do these things, and so he doesn’t. The regime can, and so it does.

The regime uses its lawless power routinely. It sent dozens of FBI agents to raid the home of the former president of the United States, and the leading opposition candidate. It then indicted him four times, in four different jurisdictions, on charges that have no legal precedent and that violate two centuries of standing political norms. It also indicted dozens of his advisors and confidants while ruining them in the process. Next, it arraigned him, arrested him, and then booked him, capping it off with a mug shot intended to humiliate him in the process (unsuccessfully, thanks to Trump’s intuitive showmanship). Then, for roughly 18 months, the regime dragged him through the expense and psychological toll of pre-trial litigation. It forced him to attend the first of these show trials. And it obtained guilty verdicts from jurors who had made up their minds before the trial began.

Do not forget how unprecedented all this was. Since we’ve been subjected to 18 months of propaganda designed to normalize the regime’s lawlessness, it’s worth recalling that these events were the most stunning abuses of constitutional republican norms in the entire history of our country. As just one note of comparison, the government of the United States never even brought Jefferson Davis to trial, and he was the President of the Confederacy.

So powerful is the regime that not only does it have the capacity to do the things I just mentioned, but it packages the entire awesome display in a surreal narrative that Trump is the lawless one whose unrestrained power is the threat to “our democracy.” Never mind that he didn’t even try to defy a court order that he sit through the sham trial in New York; that he subjected himself to the humiliation of being booked in Fulton County; that he was helpless to intercede as the FBI raided his home; that several judges gagged him; and a biased jury convicted him.

One might think that if Trump had the power to topple the government of the United States as regime elites and regime mandarins pretend, then he would also have the power to ignore, say, a gag order issued by a municipal court. But Trump is unable to defend himself in any special way. His only recourse is to play by the regime’s rules even though the game is rigged. At least right now. Plainly, these are not the actions of a man exercising unbridled lawless power. They are the actions of a man who is being subjected to it.

If Americans vote for Trump in November in numbers sufficient to overcome the margin of fraud (or, more precisely, the margin wrought by the regime’s lawless election law hacking), his victory will prevent or delay the regime from consolidating its power; but it will not heal our damaged constitutional republic.

Playing for Keeps

Since the conviction, several authors have opined on its legal weaknesses. These analyses range from criticisms of procedural irregularities to outlining possible grounds for appeal. Though insightful and thorough, I’m afraid these analyses miss the forest for the trees.

It is impossible that this lawless prosecution of Trump, the other three lawless prosecutions of Trump, the lawless prosecutions of Navarro and Bannon and Eastman and Giuliani, and on and on, will end in anything approximating justice. Do not think that the regime, after demolishing every longstanding legal and political norm, is going to be waylaid by argument and reason. Now that the first of these show trials is ready for sentencing and appeal, do not expect any leftist appeals court judge to realize the gravity of the regime’s error. This will not happen. True, Trump’s lawyers may maneuver his cases in front of a dwindling number of honest appellate court judges, perhaps even pulling a few legal victories from the jaws of defeat. But these would be pyrrhic victories. In short, Trump’s conviction should be reversed on appeal, but the regime’s lawlessness reaches far, far beyond Trump. It reaches to the core of our civilization. The regime has deformed our constitutional order almost beyond recognition, and it will not be set right through one electoral victory.

Until recently, regime lawlessness was a low-stakes game. Loyalty to the regime was rewarded with each successful election cycle. Conversely, if the regime lost power, its loyal servant class would cycle into the private sector for lucrative four-year gigs where they would await the next election cycle. But things are changing. Now we are playing for keeps.

Americans are growing angry with the regime’s unending train of abuses. Perhaps without intending to do so, Merrick Garland, Jack Smith, Fani Willis, Alvin Bragg, Tanya Chutkan, Arthur Engoran, Juan Merchan, Letitia James, and scores of others have wagered everything—their property, their careers, their reputations, and their liberty—on the regime’s retention of power. They are “all in” as the saying goes. If the regime wins, they will win. But if Trump wins, we should expect that some of the worst perpetrators of the regime’s lawlessness will be held to account. An example will be made. If any of them retain their positions or end up with cushy private sector gigs, you’ll know what you need to know about the regime’s retention of power.

There are now only two paths forward: either the regime will solidify its power in November or Trump will be elected. If the former, we will descend further into the regime’s totalitarian grip. If the latter, unpleasant things will have to be done to hold people to account—people who attacked our constitutional republic by refusing to recognize limits on their exercise of power over us. In this respect, Trump’s claim that the regime is really after you and he’s just “standing in their way” is correct.

The regime has breached so many norms so egregiously and for so long, that those norms have virtually disappeared from the public sphere. Respect for the legal system, as just one example, was earned only following a thousand years of rigorous testing. Generations witnessed its fair and impartial functioning in politically turbulent situations and slowly, reluctantly, came to trust it. Now, however, Americans have witnessed its catastrophic failure in the prosecution of the regime’s numerous political opponents. The hard-earned trust was obliterated in the blink of an eye, or, more appropriately, in a smirk from the man who encapsulates perfectly the regime’s demented nature and its unbridled power.

The regime has effectively destroyed the old American order. Restoring trust in American institutions will require a revolution in values and a massive political and spiritual upheaval among the people.

*****

This article was published by The American Mind and is reproduced with permission.

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