Donald Trump is reportedly obsessed with the possibility of a perp walk in handcuffs if he’s arrested. In private conversations, he’s said to have “mused openly” about whether he “should smile for the assembled media.”
I hope the arrest happens. Current and former presidents shouldn’t be above the law. If Trump exceeds the speed limit on his way home to his residence in Mar-a-Lago, he should be issued a ticket. If he never pays it, he should spend the same night you or I would in Palm Beach County Jail. But it’s obscene that Trump is facing the possibility of arrest for paying hush money to a porn star while war criminals like George W. Bush walk free.
Iraq and Stormy Daniels
We just passed the twentieth anniversary of the invasion of Iraq. At this point, only a few neoconservative dead-enders would argue that this invasion was a good idea. But mainstream American discourse has been slower to absorb the decision to invade wasn’t just a “mistake” (however tragic or catastrophic) but a crime. I don’t just mean a moral crime—although it was certainly that. An entire nation was cluster-bombed, invaded, and occupied for years against the will of the bulk of its populace because of claims about “Weapons of Mass Destruction” never supported by any meaningful evidence.
And even if there had been any reason to think Iraqi dictator Saddam Hussein had “WMDs,” the idea that he was planning to share them with his mortal enemies in Al-Qaeda was always fantastical on its face. If you knew someone who came home the United States in a flag-draped coffin because of this transparently absurd patchwork of lies, George W. Bush, Dick Cheney and the rest of the war-planners did something to you that can never be redeemed.
It was also a “crime” in the strict literal sense of that word. The Nuremberg Tribunal set up to try captured Nazis after World War II declared “aggressive war” to be a war crime in itself. Such wars were then strictly prohibited in the UN Charter—to which the US is a signatory. And US Constitution gives foreign treaties the US enters the “full force law.”
So: How does that crime compare with paying hush money to Stormy Daniels? Bush’s crime led to hundreds of thousands of deaths and dismemberments, millions of people becoming “external” or “internal” refugees, and waves of chaos and bloodshed that washed over the region for decades, directly feeding into fresh horrors like the rise of ISIS. Trump is accused of, well, paying hush money to Stormy Daniels.
The Ford and Obama Precedents
The dangerous signal sent by Gerald Ford’s unconditional pardon of Nixon in 1974 was that former Presidents are above the law. When Barack Obama came to office in 2009, he reinforced that signal by announcing that, since he wanted to “look forward, not backward,” his Justice Department wouldn’t touch the blatantly illegal use of “enhanced interrogation” (i.e. torture) under George W. Bush. These decisions were hailed by centrist commentators who fretted that incoming administrations prosecuting outgoing ones would amount to “politicizing” the justice system and making the United States more like a “banana republic.”
But these concerns always got things exactly backward. The justice system is politicized precisely when powerful people are exempted from prosecution because they’re too politically important to be put in handcuffs. A nation of laws has the same laws for everyone. So I’m all for throwing the book at Trump. But if we do that without holding George W. Bush or Dick Cheney—or, say, Henry Kissinger—to account, what does that say about our society?
The Deeper Double Standard
Trump supporter Sohrab Ahmari writes at the American Conservative that he does not “know” or “care” if Trump broke the law when he paid hush money to Stormy Daniels because the crime is so inconsequential compared to those committed by other Presidents. I disagree. Exempting current and former Presidents from prosecution for even comparatively petty crimes should be offensive to our sensibilities as free people.
But he’s certainly right that other Presidents have done worse and not been indicted. Bush is just one in a long line of law-breaking Presidents who haven’t faced justice. Richard Nixon, for example, passed on through Henry Kissinger to the Pentagon the notorious directive “anything that flies on anything that moves” during Nixon’s illegal bombing of Cambodia.
Nixon was never held to account for this—and couldn’t have been held to account, given Ford’s sweeping pardon for “all crimes” Nixon might have committed for President—and Kissinger is to this day treated as a respected elder statesman. Ahmari also could have added—and might have, if he weren’t a Trump supporter—that Trump himself committed worse crimes than any of the ones for which he’s currently under investigation. For example, Trump dramatically increased the rate of drone strikes, even though such strikes frequently kill civilians living in nations with which the United States isn’t at war.
But if Trump is perp-walked in front of snapping cameras, it won’t be for murdering teenagers with drone strikes in Yemen. And no one’s ever going to slap handcuffs on George W. Bush—whose “adorable” friendship with Michelle Obama is celebrated by mainstream media outlets.
As bad as it is that Presidents and former Presidents have never been judged according to the laws that bind the rest of us, the deeper and more disturbing double standard is just this: Foreigners don’t count. Or at least not the kind of foreigners who live in distant, poor, and geopolitically unimportant countries.
No matter how many Cambodian villagers burned to death when napalm was dumped on their villages, or how many grandmothers were ripped apart when cluster bombs were dropped on crowded neighborhoods in Baghdad, neither our legal system nor our political culture can bring ourselves to think of any of that as a “crime.” The people who died? They might as well not be people at all.