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Politics Foreign Affairs Culture Fellows Program

Well Then, Another Indictment

“What is the penalty for being late?” and “What is the penalty for rebellion?”

Celebrity Sightings In New York City - August 10, 2022
(James Devaney/GC Images)

Chen Sheng was a Chinese army officer during the Qin dynasty. He and his fellow officer Wu Guang were ordered to lead their soldiers to Yuyang by such and such a date, but they were delayed by heavy rainfall. It soon became clear that they would be late to the rendezvous. 

So, Chen is said to have asked Wu, “What is the penalty for being late?”

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“Death,” Wu said.

“And what is the penalty for rebellion?” Chen asked.

“Also death,” Wu said.

“Well then…” Chen said.

This became known as the Dazexiang uprising—I would note Dazexiang can apparently be translated as “Swamp Town”—and, while it failed, it began a period of instability that led to the fall of the Qin. 

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When he is not napping, Joe Biden is the president of the United States. Donald Trump did not in fact succeed in any alleged interference with the 2020 election or alleged attempt to overturn its results. He left the White House peacefully. So did his appointees throughout the federal government. As it became clear that the Bush-Gore style legal disputes and reviews were going nowhere, we did our jobs to ensure as smooth a transition as possible. Indeed, while the riot on January 6 made all of D.C. tense, it was Covid, and the federal overreaction to it, that made the actual transition weird and cumbersome; with no career bureaucrats on site to facilitate the handoff, at least at the EPA we simply put our equipment and official effects in boxes and left them on our desks or mailed them back to headquarters.  

Important Democrats, and permanent residents of Swamp Town, and other members of American officialdom, would very much like former-President Trump to go to prison. That is not the subtext of what is happening this election cycle. That is the plain text in now four indictments against him, with the addition of Monday’s Georgia document, charging more and more people along with the president. I am not a lawyer, and I do not pretend to know how strong any of these cases are in terms of the current legal and judicial environment and the jurisdictions of the prosecutors—that is, how likely they are to win. I won’t say “but,” however, as I express my opinion of their significance as nakedly partisan intimidation, since criminal charges against a former president or his appointees are the sort of thing any American citizen has a right to an opinion about. Far too much gets left to the lawyers as it is. 

While, at 77 years old, any significant prison sentence would be a death sentence for Donald Trump, let us stick to the present facts. A president who wanted to remain in office left the White House, moved away from the capital (unlike his predecessor), and gave space for a new administration to assume office and to govern for two and a half years now faces prison time. He may prove to be, legally speaking, a president who, as alleged, conspired to do none of these things, convicted of criminal behavior related to his contestation of the results. But even then the bottom line or lesson sure to be learned—if not by him now running for a second term, then by someone else—remains: You can go to jail for losing. 

“What is the penalty for contesting election results?” 

“A cell.” 

“And what is the penalty for an attempted autocoup?” 

“Also a cell.” 

“Well then…” 

Alea iacta est. Not to seven hills we go, but to uncharted territory. Whatever the details of this case, the precedent it sets remains disastrous for what is left of the American republic. Of course, the third and fourth indictments allege that while claiming to only be doing the first thing above, President Trump in fact was knowingly doing the second. Thus the true blue believer, brain still fogged by derangement syndrome and long Covid, will not see the point I am attempting to make here; they do not see the election controversies of 2000 and 2020 as even on a spectrum, but rather as things totally different in kind, with one seen in hindsight as regular lawfare and the other clearly guilty as sin. Unfortunately, we appear beyond the point of persuasion on the edges, and arguments like this can only appeal to the reason of some American middle more concerned for the stability of the country than about orange man bad. How large that middle is we may yet get to see, but by taking this to the courts partisans seek to take this out of their hands. 

Even if you think Trump is guilty of some portion of the allegations, consider the gravity of this situation. Consider not Trump, then, but the people he represents, and what this prosecution means to them. As the New York Times acknowledged Monday, these indictments, supposedly about 2020, shape perceptions of the 2024 election for both parties and are shaping the election itself. Trump’s polls are up, in part due to what the Times calls an “indictment effect,” which its reporters blame, condescendingly, on “years of conditioning of millions of Republican voters.” More than half of all Republicans (including 77 percent of self-identified MAGA Republicans) see the indictments and investigations as an attack on people like them, and 83 percent of “non-MAGA” Republicans see this, rightly, as about trying to stop Trump’s campaign, according to a CBS News/YouGov poll that followed the third indictment. The Times reports that seven in ten GOP primary voters believe the party should support Trump in the face of the investigations, “including nearly half of voters who are planning to support a candidate other than the former president.” And an ABC News/Ipsos poll found that more than 80 percent of Republicans believe the third indictment’s charges are politically motivated.

After the chaos of the 2020 election, the Biden administration, Democratic party leadership, the corporate media, and our political establishment could have focused on reassuring the American people that every effort is being made to ensure our elections are free and fair, as efficient and transparent as possible going into 2024. They could have appealed to the national middle, made an attempt to persuade, confident of repeating their electoral victory. But, reckless, rather than bind up the nation’s wounds, they transform our country into a place where it appears to be: Win, at all costs, or prison. Well then…