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Culture War Roundup for the week of June 5, 2023

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I've been ruminating on a question about Trump's prosecution. One of the common arguments I've come across is that prosecuting Trump is improper because it's just political retaliation falsely disguised as a neutral and dispassionate application of the law. In support of this argument, you could cite the fact that the apparent mishandling of government records occurs fairly regularly by similarly-positioned politicians (Clinton, Biden, Pence, etc.) and yet its enforcement appears to be selectively doled out. This is potentially also supported by the fact that, speeding tickets notwithstanding, no other US president (former or sitting) has ever been charged for anything before. The fact that US institutions chose to break such a long-standing norm at this particular moment seems a bit too much of a coincidence to believe it was done with honest motivations.

Assuming all of the above is true, are there any limiting principles? Until something happens for the first time, it remains by definition "unprecedented", so if your rule is based solely on precedence then nothing would ever be allowed to happen unless it has already happened before which doesn't seem workable. Another consideration also is just because something hasn't happened for a very a long time, it doesn't mean it accidentally created an inviolable precedent that can never be broken now. For example, the crime of piracy is one of the few specifically mentioned in the Constitution and it used to be regularly prosecuted way back in the day but there was a very long lull before the feds dusted it off to go after some Somalis.

I don't think anyone would agree that a permanent bar was created, because that would bestow elected officials and political candidates the extra benefit of potentially perpetual & absolute immunity from all criminal liability, including for conduct that happens after they leave office. In its most absurd implementation, this hypothetical system would allow any criminal a "get out of jail" card just by declaring election candidacy.

So if the longstanding norm against prosecution can indeed be broken, then under which circumstances? For Trump's supporters, I suppose one possible answer is that he has been the target of such a relentless and unprecedented avalanche of (presumably bad faith) lawfare — Russiagate, impeachments, etc. — that trust in the system has been depleted to the point that all action against him should be assumed to be ill-disguised political retaliation as a rule. Assuming that's true, then what? Should the rule be that other politicians can be prosecuted but that Trump should have a carve-out in consideration of the unusually aggressive persecution he had to endure? If so, how serious of a crime would this cover? How long should this immunity last for? Should everyone who faces relentless persecution be afforded similar benefits?

I think the answer is ‘if you’re going after trump, maybe you should go after one of the dozen odd similarly ranking officials who has also done this same thing, instead of just the main general election opponent for the sitting president who both has a 38% approval rating and who is one of those dozen’.

In general I don’t think democrats should be prosecuting republicans for this kind of thing, and Vice versa(that is, things politicians do all the time and usually don’t get prosecuted for). But I suppose bipartisan investment in good governance is too much to ask.

That means for example, you can give a governor tons of cash in a briefcase to get his favor generally and have him lobby other state officials on your behalf, as long as you don't specifically have him sign something for you using gubernatorial powers.

You want to be careful with this though. It is a fact that you can not get elected to any position of significance without having a large network of supporters and, to be blunt, donors. And pretending these people would support you because they like your haircut and your honesty is both delusional and, frankly, defeats the whole point of democracy, where people elect representatives to enact policies they'd like enacted. Criminalizing this means either pushing it to the underground, or exposing any candidate to constant threat of prosecution - which inevitably will be wielded as the weapon of influence and intimidation. Living in an environment where public officials are constantly investigated is not healthy for the society too - it promotes a cynical outlook that everybody is corrupt anyway, and the prosecution is based on who has the power. And that outlook may also be completely correct.

Third, you need to massively beef up disclosure laws.

And thus, open people - especially small and medium-size donors that don't have FU money - to the threat of intimidation and cancellation. Donated to a wrong politician/cause? You are fired. Supported a group which supported a group which stood next to a group which once had a member who is now unperson? Congratulations, you are now unemployable and a social pariah. This makes the whole politics insanely toxic, because you can't just support some cause anymore - you have to wage the war of elimination against the opposition, otherwise they would eliminate you.

massively increase the salaries of the most senior government officials

How massively you're talking about? So massive that any crime committed while seeking the post is worth it, because the prize is worth the risk? If you observe billionaires, you see many of them working tirelessly at increasing their wealth, and their influence, and some of them are not above corruption to facilitate that. Obviously, making each government official a billionaire is not enough. How much would be enough - trillions? Quintillions?