The GOP goes rogue

CAMBRIDGE: In 2017, just when the Ringling Brothers and Barnum & Bailey Circus closed after almost 150 years, the political extravaganza of Donald Trump’s presidency became the “Greatest Show on Earth” – or at least the hardest to ignore. And now the criminal fallout of Trump’s political high-wire act has become the new must-see spectacle.

The most recent episode came on August 8, when the FBI executed a search warrant of the former president’s 58-bedroom “winter palace”, Mar-a-Lago. There they found more than 20 boxes of documents – 11 containing files classified as “top secret” – that should have been turned over to the National Archives. The evidence suggests that Trump may have violated not just the Presidential Records Act but also the Espionage Act.

With Trump claiming that his home is “under siege”, his Republican Party minions immediately leapt to his defence, arguing that the raid was politically motivated. But Trump was subpoenaed for the additional documents – some of which are rumoured to pertain to nuclear weapons – this spring, and one of his lawyers claimed, in writing, that all classified documents had been returned. After months of trying to secure the Trump team’s cooperation in returning the documents, the Department of Justice was forced to resort to a more direct method.

Now, media outlets and some Trump supporters are demanding the release of the affidavit that the Justice Department filed to justify the search, and prosecutors are objecting on the grounds that this might compromise an ongoing investigation. The story has many bewildering features, but the Republican response remains the strangest. Though it claims to represent “law and order” and to be committed to national security, the party has increasingly made a mockery of the rule of law (especially with recent Republican demands to “defund the FBI”) and apparently has no problem with state secrets being compromised.

The Republicans have managed to pull off this feat of contortion thanks partly to conservatives’ peculiar view of what constitutes “rule of law”. For decades, conservative thought has been increasingly influenced by a jurisprudential approach known as “law and economics”. A product of the University of Chicago Law School, the law and economics movement refracts questions of law through the lens of economics, which results in their being stripped of all moral content. Law is reduced to a means for economic ends and instrumentalised for the sake of that goal, rather than representing an ethical commitment on the part of society.

The Nobel laureate economist Ronald Coase was an exemplar of this school. The perspective of economic efficiency embodied in the “Coase Theorem” implies that how property rights are allocated doesn’t matter, so long as they are clearly assigned and subject to negotiation.

If you have an upstream factory that is polluting a river and a village that depends on that river, the party that values its own rights most will buy the other out. If the amount that the villagers are willing to pay to eliminate the harm is less than what it would cost the factory to avoid the harm, the pollution is economically justified. But if the pollution-related costs borne by the villagers are greater than what it would cost the factory to stop polluting, both parties will find some mutually beneficial financial agreement to resolve the dispute.

As this school of thought gained influence in political and legal circles, law lost its moral import and became a kind of shadow price mechanism. Indeed, whereas legal theory traditionally invoked deep – even divine – moral roots for itself, the law and economics position hollowed out this normative core.

So, as legal compliance became a matter of monetary costs and benefits, rather than right and wrong, the law was transformed into a wholly amoral enterprise. Law-breaking no longer demands contrition but merely that a bill be settled. Rights become just another tradable commodity, to be acquired by whichever entity accords them the highest economic value.

In this world, everything is for sale, and everything has a price, including, apparently, the US presidency. Thus, the law and economics movement created ideal political conditions for Trump’s turn in the White House. Trump treats the rule of law with the same “dealmaker” brazenness that Wall Street showed toward regulation in the run-up to the 2008 financial crisis. Law is a game in which committing fouls is a winning strategy and paying punitive fines is just a cost of doing business.

Trump has boasted about how “smart” he is for not paying taxes. While in office, he turned the White House into a branch of his own business empire; and now he is facing roughly a half-dozen legal investigations (both civil and criminal), all of which power his permanent fundraising operation. Far from being blind to this vulgar spectacle, the Republicans are going along with it, because they recognize Trump’s approach for what it is: the culmination of their own agenda.

A circus offers spectacles that seem spontaneous and stunts that produce the illusion of suspense by concealing the years of training and meticulous planning that went into staging them. The GOP’s political pageantry is no different. The party is not simply under the spell of its current ringmaster; rather, it is pursuing a premeditated attempt to undermine the rule of law and supplant the democratic state. The public must not fall for its faux moral outrage, cheap tricks, and chicanery. It is time to send the circus packing.

Antara Haldar is Associate Professor of Empirical Legal Studies at the University of Cambridge.

Copyright: Project Syndicate, 2022.

www.project-syndicate.org

For feedback: contact the Editorial Department at onlinefeedback@gleanerjm.com.