Once upon a time, when all security policy eyes were on Afghanistan, there was an international conference (one of many) on the theme of “Rule of law in Afghanistan” in which legal experts pondered upon what it would take to introduce RoL in Afghanistan. At the Q&R session, someone asked the experts: What law? Traditional Afghan, or Islamist Jihadi, or Western-style? It is not remembered exactly how the experts responded, but the relevance of the question stands tall. Any discourse on the indispensability of Rule of Law in any definition of (liberal) democracy needs – for seriousness – to admit an element of relativity to the subject. As a matter of principle, the importance and significance of Rule of law applies to any legal-constitutional system, since without rules of the game, the game is bound to be wild and dirty. And/or you have a situation where unhinged actors accuse each other of “weaponizing” the (rule of) law, whenever given the power opportunity.
And this, worryingly, is where the US – some fine months before the mid-term elections – finds itself now, in an emerging struggle between “weaponization” and “anti-weaponization”, currently a case of Donald Trump and his collaborators and sympathizers accusing the Biden administration/era of politically “weaponizing” the legal system against Trump himself and followers, hence naming their campaign to roll back and annul these measures by the previous administration “anti-weaponization”, greatly expanding established patterns of action-reaction/restoration as between varying administrations in the past, given the established “spoils system” in US politics.
This opens up the risk that this will be a permanent pattern in future US politics: that the struggle between “weaponization” and “anti-weaponization” will occur whenever there is a shift of governance and Congress majorities, eroding both Rule of Law and constitutionalism in the US and sacrificing these to naked power.
Today’s potentially acrimonious debate of team Trump’s 1.776 B USD (slush) fund initiative, is a compromise solution found by Trumpian lawyers in the various affected departments to the challenge posed by Trump’s extraordinary 10 B USD suit of the Internal Revenue Service (I.R.S) as compensation for an earlier tax leak and damage suffered during the Biden era, the idea being that instead of granting money flow into Trump’s personal pocket (which would be politically dangerous) a sizeable sum (symbolically put at historically relevant 1776) would be allotted to a slush fund from which “victims” of the Biden administration could apply for compensation.
In parallel, a ruling was announced to provide for full immunity for Trump and family/business from any future tax audit, these measures adding to Trump’s earlier policies of pardoning any and all perpetrators of the January 6, 2021 violence, and others. All under the heading of “anti-weaponization”, and clearly a strategy for the upcoming mid-term elections, the remaining Trump time in the White House, and – significantly – the post-Trump era. The account of the background to and implications of the fund, in combination with the pardons and the family immunity, in NYT on May 30, provides for fascinating – and concerning – reading.
According to the NYT team, President Trump justified the fund’s amount and function in social media, saying “I could have settled my case, including the illegal release of my tax returns and the equally illegal BREAK IN of Mar-a-Lago, for an absolute fortune. Instead, I am helping others, who were so badly abused by an evil, corrupt, and weaponized Biden administration, receive, at long last, JUSTICE”.
At issue now is whether and to what extent the “anti-weaponization” fund, based on the DOJ “Weaponization Working Group established by then AG Pat Bondi, will require congressional (GOP majority) approval, given that several GOP voices – most recently former vice president the Mike Pence – have expressed “profound offense” at the prospect of using tax payers’ money for the purpose of benefitting perpetrators of the Jan 6 insurgency, bearing in mind that some 1500 of these, among others, were earlier rewarded by Presidential pardons. It is no wonder that Mike Pence is ready and able to render a GOP voice of disgust at the idea of rewarding persons that assaulted police officers and shouted “hang Mike Pence” with not only presidential pardons but also substantial economic compensation.
But for now, a lot remains unclear, both whether the White House will listen to GOP uneasiness over the fund – and other controversial items of the political agenda (the immunities, the pardons, etc) – as the mid-term elections in some months will expose senators and congressmen to constituency criticisms, or go ahead with enforcement, and if so who exactly will be the beneficiaries. This will determine, in the ongoing battle of narratives, the credibility of the Trump administration’s defining claim that the Biden administration’s governance was essentially a case of corrupt and weaponized power abuse, rather that mere rule of law and constitutionality. Hence the label “anti-weaponization”.
Assessing issues of credibility and truthfulness in this, it is logical to return to the case of the 2020 presidential election, where Trump lost and Biden won, according to the entire legal and constitutional system of the US, in rulings on a myriad of Trump team complaints. So the point of departure to where we are now was an extraordinary situation where the existing legal system, including the Supreme Court, i.e., US Rule of Law, ruled that the elections and the result were legitimate, hence legal, but where the loser, Trump, built a (successful) campaign on a rejection of this ruling, based on non-legal arguments. Not all those who voted for him in the 2024 elections may have necessarily believed in his election fraud narrative, but it is clear that his base in the MAGA movement are true believers.
The chain of impeachments and legal proceedings following the election controversies, including its RoL challenges, further added fuel to the fire of polarized narratives.
The sad and worrying situation now in the US, as regards Rule of Law (and constitutionality) as a necessary ingredient in a Western style democracy, is that the relativity factor (as in the Afghan context above) has come to permeate also the basic question of truth, given the gulf of difference between the competing narratives and hence position radicalization, at the same time that Trump’s policy of revanchism against those seeking to apply the rule of law and political accountability in congress and society takes on drastic dimensions.
In sum, followers and loyalists are rewarded, and perceived enemies are punished, and in this campaign, Rule of law is mortally wounded. When and how to reverse this trend is unclear. Are we to expect an “anti-anti-weaponization” drive after the Trump era?
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No sooner had this text been written when news were broadcast that as a result of widespread (GOP) criticisms of the slush fund idea – and the connected Trump family tax audit immunity issue – the Justice Department had decided to abide by a federal judge’s temporary halt order and “pause” the matter until at least June 12 when a hearing on the fund is scheduled. It was left unclear whether this “pause” indicated a genuine change of heart on the part of President Trump, or merely a tactical retreat pending more enforcement steps against an unwilling GOP, but what is being witnessed could indicate an increasingly problematic relationship – perhaps even a turning point – between the Trump executive and GOP lawmakers concerned with re-elections prospects with the mid-term elections coming closer.