Back when I was in law school (shortly after Moses came down with two tablets), we were instructed in the process of judicial appeals: trial courts, intermediate courts of appeal, and the Supreme Court. One wag (NOT me) asked whether there was any appeal from the judgments of the Supreme Court. The professor looked over the rims of his glasses and said sardonically: “Only to the Law Reviews.” It was the legal equivalent of the old truism that “History is written by the winners” and akin to the fears expressed by Trumpians that their efforts to MAGA would be stymied by the “Deep State.”
In thinking about this in the context of the soon-to-be-former President and the recent hubbub about self-pardons, family pardons, Stone/Flynn/Giuliani pardons. He may have the legal power to pardon others (self-pardoning seems to me to be a non-starter). But their only effects will be as narrow and short-term as most of the thinking which has characterized this Administration. Legal exoneration doesn’t protect against social shunning or professional disregard. Who (outside the coterie) would hire Giuliani? How many new “Trump Towers” are likely to attract premium tenants paying for The Donald’s brand cachet? Will Ivanka really be welcomed on society/philanthropic boards?
On top of this, without risk of prosecution, those pardoned will no longer have 5th Amendment protections and are likely to trip themselves up into (unpardoned) perjury charges if they try to wrangle themselves out of difficulties. Not to mention the charges coming from NY State.
The history of the Trump years will be written by the winners, of course. And, as I have noted before, we historians should avoid predicting the future; especially as to who the “winners” will be. All we can do is interpret and extend trends and patterns. Still, it seems pretty likely that those histories will be written by historians: actual professional historians (once we get past the “tell-alls” and “rough-draft-of-history” journalists).
Trump’s problem is that these are people who have an (unnatural) affinity for facts—and evidence. Hmmm. Also, most are likely “liberal,” “lame-stream,” “pointy-headed intellectuals” (George Wallace, 1972), or otherwise members of the “effete corps of impudent snobs” (Spiro Agnew, 1970). Finally, market-driven publishers are more likely to appeal to those who buy/read books who (I suspect) are skewed left, too.
Now, some historians are already rejiggering their lists of Presidents ranked best-to-worst. Despite his aspirations to Mt. Rushmore status, and even if historians of the late 21C find secret merit in Trump’s approach to taxes, China, Iran, or border management, I suspect that his handling of the pandemic and attempted demolition of the democratic body politic seem likely to leave him languishing in the Buchanan-Pierce zone.
The “Deep State” is already reasserting itself more openly, after four years underground (“Deep” underground). EPA staffers are slow-rolling deregulatory changes. The DOJ is investigating potential bribery for pardon schemes. Even ex-AG Barr (no idiot) had disavowed allegations of widespread election fraud (there goes his pardon!). Anthony Fauci is still there (Amen.) and his brilliance (which extends far beyond epidemiology) should earn him a Medal of Freedom (i.e. another one, (since he was already recognized by Bush 43). Republican election officials in Georgia, Nevada, Arizona, and Michigan have stood up for the “process” and the “system.” That’s the thing about institutions; they’re resilient. Not that they can’t be taken down; another Trump term would have done irreversible damage. But, for now, it looks like we have big rebuilding job.
Bigger than we might have thought a week or so ago, given the rampage in the Capitol. Trump’s fostering of that attack mob will be the hallmark of his legacy; appropriate for one who’s view of the world has been sharply narrowed by ego and instant gratification. A Presidential Library…? More likely, NYC will name a sewer after him.
They would never acknowledge being part of the “deep state,” but during the charade in Congress on January 6, the debate on accepting the Electoral College votes featured a statesman-like (!!) Mitch McConnell and a Vice-President who proclaimed his love for the Constitution despite the entreaties of his boss. Yes, while there are those who yearn to pick up the post-Trumpian flag (Cruz, Hawley), even Tom Cotton didn’t ‘cotton to’ this ploy. Loyal lieutenants Chao and DeVos have—suddenly (with 13 days left in their terms!) found conscience, as has Mulvaney. We had to go pretty far to find their limits. Hopefully, the image of Trump-inspired mobs storming the Capitol will scare off even more soon-to-be-former MAGA-ites. The “center” as T.S. Eliot warned, may or may not be able to “hold,” but the right is about to come crashing into itself.
Law journals, historians, the “Deep State”: each has a litany of flaws and failings. Yet, they share a commitment to at least trying to act with intellectual integrity and public service. They take a long view of proposals, policies, and actions. In doing so, they are—in the best sense—anti-democratic. They are a necessary complement to democracy as a core social value.
Plato thought it would be great if the Republic were ruled by a council of educated wise guardians. It’s a nice thought exercise. It’s never worked since the small group designing the education of the wise and selecting the council have always been corrupted (eventually). In the meantime, as Churchill (and others) have said: “democracy is the worst form of government—except for all the others that have been tried.” But pure democracy, as Plato and Aristotle (and Madison and Hamilton) feared leads to its own corruption: the chaos of the French Revolution, the plebiscites of Louis Napoleon, Mussolini, Hitler, the current authoritarian slides of Erdogan, Duterte, Bolsonaro, and Orban, and the constitutional debacle of Brexit.
So, some limits or balance seem to be best. The Deep State and the academy are parts of that. They are hardly infallible, and they can be petty and frustrating; but they provide a stabilizing force. Law journals’ critiques of Supreme Court decisions sometimes work long-term reversals. Historians—while they never resolve anything—give us a long-term perspective. Trump and his pardons will fade—pretty quickly given the large and real issues facing our country/world. Whoever the “winners” are in twenty (or two hundred) years can make up their own minds what kind of history to write.