Signs of ongoing political polarization abound

By Argiris Malapanis and Geoff Mirelowitz

The April 5 grand jury indictment of Donald Trump announced by Manhattan District Attorney Alvin Bragg marks the first time a former U.S. president has been charged with a felony. The decision, prosecutors claimed, reinforces the “rule of law.” Many who oppose Trump welcomed the charges, arguing Trump would finally be “held accountable” for some of his actions.

Many hope it might derail Trump’s campaign for the 2024 Republican presidential nomination in which he is now the front runner. Yet for the moment it appears the indictment has put wind in the sails of the right wing in U.S. politics.

The web site FiveThirtyEight reported April 7, “Trump’s Republican support actually grew following the indictment. In a Yahoo! News/YouGov poll of U.S. adults conducted just as news of the indictment broke late last week, 57 percent of Republicans and Republican-leaners said they would support Trump in a hypothetical head-to-head 2024 Republican primary against his nearest would-be challenger, Florida Gov. Ron DeSantis, who received only 31 percent.”

“Trump’s campaign to hold onto power by subverting the long-established capitalist rule of law… reveal[ed] serious dangers to civil liberties and the interests of the working class,” World-Outlook noted last year in Bankrolling the ‘Big Lie’ of a ‘Stolen Election.’^[1] But the real political peril posed by the failed attempt to overturn the results of the 2020 presidential election will not be checked by legal means through the capitalist courts.

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In fact, Trump’s indictment threatens to undermine established constitutional protections. These include those related to statutes of limitations, the separation of powers between federal and state governments, and provisions of the Sixth Amendment.

“Mr. Trump’s opponents react to his provocations and norms violations by escalating and accelerating the erosion of legal norms,” Jed Handelsman Shugerman, a liberal-minded law professor, argued in the New York Times.

Tennessee and Texas

One day after the Trump indictment, the Republican-controlled Tennessee legislature expelled from that body two Democratic state representatives who are Black, while failing by one vote to expel a third who is white. The three were charged with engaging in “disorderly behavior” and purposely bringing “disorder and dishonor to the House of Representatives” during a protest for gun control on the House floor following a mass shooting at a Nashville school. Like the indictment of Trump, this action too had little real historical precedent.

Yet another day later, a federal judge in Texas invalidated the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, making it more difficult for women across the country to access the medication. Later that same day a different federal judge in Washington state issued a conflicting ruling protecting the use of the same drug in 17 states.

On April 12 the Fifth Circuit U.S. Court of Appeals ruled that the drug could remain available but also further restricted its availability, making access harder for women who need it. Supreme Court Justice Samuel Alito, who oversees the Fifth Circuit, issued an order on April 14 staying both decisions, but only until midnight on April 19. This indicates the full court may act before then.

Connecting all these events, far more than the specific legal issues involved in each one, are sharp divisions within the capitalist class over how to rule the country today. These are driven by Washington’s economic decline as the top world power and a lack of confidence among the rulers in their ability to steer the nation.

These factors fuel the ongoing partisan factionalism apparent every day at all levels of government and in the political discourse between the two capitalist parties. Both Democrats and Republicans increasingly use the institutions of power they control — from the White House and both houses of Congress, to state and local legislatures, to the courts and governmental agencies such as the FBI — against their opponents in an effort to gain temporary electoral advantage.

Both parties claim the other is violating democratic rights. Both are willing, however, to undermine constitutional rights when it suits their political needs. Both do not hesitate to set precedents that can and will be used to target working people and our organizations such as the trade unions.

The indictment and its implications

The New York indictment accuses Trump of falsifying financial records to hide hush money payments by his then lawyer Michael Cohen to Stormy Daniels, a pornographic film actress and director who claims she had sexual relations with Trump. Trump denies he had a relationship with Daniels. Attempting to hide hush money is a crime, the indictment claims, because it was aimed at influencing the 2016 presidential election.

“The 34-count indictment,” wrote Shugerman, a law professor at Fordham and Boston University, in his guest essay in the April 5 New York Times, “was a setback for the rule of law and established a dangerous precedent for prosecutors.”

Shugerman pointed to weaknesses in the prosecution’s case and the dangers it poses.

He explained fabricating business records is a misdemeanor, a minor offense, in New York, and the legal argument that it rises to a felony is highly questionable.

The statute of limitations for such an infraction — five years in New York state — has run out since the hush money payment was made more than six years ago, he added. Bragg may claim the statute was “paused” because the defendant was absent from New York while he occupied the Oval Office between 2017 and 2021.

Only the federal government has jurisdiction over federal election campaign law violations, Shugerman explained. Bragg charged Trump over allegations the U.S. Justice Department has declined to prosecute. This challenges the separation of powers between federal and state governments outlined in the U.S. constitution. It opens the door for other local prosecutors across the country to target political opponents in a similar way.

“The case appears so weak on its legal and jurisdictional basis that a state judge might dismiss the case and mitigate that damage,” Shugerman wrote. “More likely, the case is headed to federal court for a year, where it could lose on the grounds of federal pre-emption — only federal courts have jurisdiction over campaign finance and filing requirements. Even if it survives a challenge that could reach the Supreme Court, a trial would most likely not start until at least mid-2024, possibly even after the 2024 election.

“Instead of the rule of law, it would be the rule of the circus.”

Shugerman continued: “Mr. Trump and the public still know shockingly little about the case —  not which particular statute he allegedly violated nor whether it is a state or federal campaign crime, a tax crime or something else.” This, he added, “seems like a systemic infringement of a New Yorker’s right to know ‘the nature of the charges and evidence against you,’ per the Sixth Amendment.”

Bragg built Trump’s indictment on Cohen’s 2018 conviction, which the government obtained without a trial. After the FBI raided Cohen’s offices, prosecutors bludgeoned him with an array of accusations, most unrelated to the hush money case. They then threatened Cohen with decades in prison to force the lawyer to accept a plea bargain and testify against his client in exchange for serving only three years in jail.

Plea bargaining is the bread and butter of prosecutors. They use it routinely to avoid being compelled to prove their accusations before a jury. According to the St. Francis School of Law, “more than 94% of successfully prosecuted state criminal cases, and 97% of federal criminal cases, now end in plea bargains.” This systematic use of plea bargaining undermines the Sixth Amendment’s provisions to face one’s accusers in front of a jury of one’s peers.

The practice of increasing the number of charges well beyond the number of actual alleged criminal acts allows the courts to impose longer and harsher penalties. It too is routinely used against many defendants. Bragg is using it against Trump as well, which explains how one sum of hush money somehow becomes 34 felonies.

The Clinton impeachment precedent

“No matter how tawdry the charges and whether true or false, making a sexual encounter between two consenting adults the focal point of a criminal indictment or an impeachment strikes most Americans as an abuse of power and a distraction,” said Ralph Reed, a political strategist who speaks for Christian conservatives, according to an article in the April 8 New York Times.

Reed has a point. But he and many other Republicans did make such charges the focal point of an impeachment when it suited their purposes 25 years ago, just as Democrats are doing now with the charges against Trump.

In 1998 the Republican-controlled U.S. House of Representatives impeached then President Bill Clinton over accusations that he committed perjury and obstructed justice in connection to statements he made to a grand jury about his affair with former White House employee Monica Lewinsky. In February 1999 the U.S. Senate acquitted Clinton after a five-week trial.

There was nothing politically positive for working people in that 1990s saga over a sex scandal that threatened Clinton’s presidency. Ultra-rightists and conservative Republicans used impeachment — the form of indictment for a sitting president — in the same way Democrats are using the Manhattan grand jury now. They too argued they were holding Clinton “accountable” for lying under oath and seeking to obstruct justice. But impeaching Clinton, fundamentally for lying about his conduct, only served to place scandalmongering and the politics of resentment front and center in U.S. politics.

Another precedent, largely forgotten, are the charges against John Edwards, a former senator from North Carolina who ran for vice-president on the Democratic Party ticket in 2004 and then sought the presidency in the 2008 Democratic primaries. Edwards, who was married at the time, subsequently admitted to arranging hush money payments of nearly $1 million to a woman with whom he had an affair. He went to wealthy donors to his campaign to arrange for them to make the payments.

Federal prosecutors charged Edwards with violations of federal campaign finance laws. “After a six-week trial,” reported the Washington Post on April 2 in a review of these events, “a North Carolina jury balked at the case, acquitting Edwards of one count and failing to come to a verdict on five others, leading the Justice Department to drop the matter.”

The Post interviewed David Recchion, jury foreman in the Edwards trial, and observed, “Recchion and other jurors cited weaknesses in the case that could crop up in the case against Trump as well, including confusion over the exact requirements of campaign finance law, discomfort with using the law in an unusual way to punish a candidates’ personal misdeeds and concerns with the credibility of a key witness.”

The Edwards trial — and the Justice Department decision to drop the charges — did not provoke the hue and cry the Trump indictment has today. Any concern over the failure to hold Edwards “accountable” then did not reach the furor many have expressed over holding Trump accountable now.

Just as Republicans hoped to get rid of Clinton and tarnish the Democrats, Democrats today hope to get rid of Trump and weaken the GOP as the country heads towards the 2024 elections. Trump faces other potential prosecutions that could result in more serious charges. Time will tell what the exact nature of such charges may be and what laws they rely on.

‘Corrupt intent’ to obstruct official proceedings

Meanwhile federal prosecutors have charged hundreds of people with “obstruction of official proceedings” as a result of the January 6, 2021, rightist mob attack on U.S. Congress. Some have already been convicted of “seditious conspiracy.”

Those who acted illegally to force their way into the U.S. Capitol to prevent Congress from ratifying the vote of the electoral college in the 2020 presidential election should be tried for their actions. But in these cases, as well, the government is using the broadest possible charges that run the risk of criminalizing future legal protest activity.

“The charge of obstruction of an official proceeding, which carries up to 20 years behind bars, is among the most widely used felony charges in the Jan. 6 cases,” the Associated Press reported.

On April 7, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed a lower court ruling that dismissed a few of these charges. But in doing so the judges who signed the majority opinion felt compelled to recognize the civil liberties issues at stake.

“At the heart of the conflict,” an article on the website Politico explained, “is how to measure whether Jan. 6 rioters acted with ‘corrupt intent,’ a central element in the crime of obstructing an official proceeding. The judges noted that the requirement of ‘corrupt intent’ was meant to avoid inadvertently criminalizing traditional protest or lobbying activities that have been a feature of civic engagement throughout American history. Any decision on the meaning of corrupt intent would have to separate those legitimate activities from potential criminal conduct.

“But Judge Florence Pan, who wrote the majority opinion,” Politico continued, “said it was the wrong time to decide that broad question because the three defendants whose cases were before the court were all also charged with assaulting police. There’s little question that those who assaulted police that day acted with ‘corrupt intent.’ But in Jan. 6 obstruction cases that don’t involve assault, determining ‘corrupt intent’ is much more complicated, she said.”

At some point Trump himself may face such obstruction charges. That could pose the question as to whether his words on January 6, and before, constitute “obstruction of an official proceeding.”

The broad interpretation the Justice Department would like to give to “corrupt intent” could easily be applied to others who may demonstrate at the Capitol while Congress is in session, but who do not break any laws — other than “obstruction” as defined by prosecutors.

When we begin to see more working-class resistance to the attacks by the employers, including more strikes and picket lines, it is likely there will be more violence as cops respond. That was clear in the 2020 protests against police brutality. We see it again in France today as working people have taken to the streets to oppose plans to raise the retirement age. The danger is that prosecutors will target workers who are resisting and seek to hold them responsible for whatever violence occurs.

Chickens come home to roost

Highlighting these dangers in prosecutorial conduct does not signify any political defense of Trump, any more than criticizing the Republican efforts to impeach Clinton 25 years ago amounted to politically defending him.

The fact is Trump’s legal troubles are in part a case of the chickens coming home to roost.

This should be clear to anyone who remembers how raucous chants of “Lock her up!” directed at Democratic presidential candidate Hillary Clinton in 2016 became a prominent and recurring theme of Trump’s 2016 campaign rallies.

“Hillary Clinton should have been prosecuted and should be in jail,” Trump said to consistent cheers and applause, over Clinton’s use of a private email server for official communications while she was U.S. Secretary of State. He told Clinton in a televised debate that if he were president, “You’d be in jail.” At a later debate he added “she shouldn’t be allowed to run.”

As an April 1 Washington Post headline accurately observed, “Trump ceded the moral high ground on presidential indictments long ago.”

“He has advocated for the prosecutions of each of the last four Democratic presidential nominees — every single one since 2004,” the Post wrote. “In two cases, he did it during the campaign, even suggesting they should be ineligible to run.”

In a recent New York Times interview, former Trump White House chief of staff John Kelly explained: “He was always telling me that we need to use the FBI and the IRS [Internal Revenue Service] to go after people — it was constant and obsessive and is just what he’s claiming is being done to him now.”

Nor can one ignore some of the reactionary content Trump and some of his supporters utilize in defending him from the New York grand jury charges. A notable example is the suggestion of antisemitism that hangs over the frequent references to George Soros. Manhattan DA Bragg “was ‘handpicked and funded by George Soros,’ the former president declared on Thursday [March 30] as news of his indictment was breaking,” reported the New York Times on April 4.

Soros, a Jew from Hungary who survived the Holocaust has become “one of the single largest funders of democracy promotion, anti-Communism and liberal education around the globe,” according to the Times.

“The descriptor ‘Soros-backed,’” the Times continued, “was attached to Mr. Bragg’s name by Ron DeSantis, the Florida governor and potential White House rival of Mr. Trump; Representative Elise Stefanik of New York, a member of the House Republican leadership; Senator Rick Scott of Florida, the last head of the Senate Republican campaign arm; and Representative Marjorie Taylor Greene of Georgia.”

“We understand that when someone makes comments about ‘Soros-backed prosecutors,’ that on its own is not necessarily antisemitic,” Jonathan Greenblatt, chief executive of the Anti-Defamation League, told the Times.

“But when a person or a political party repeatedly and relentlessly makes wild claims,” Greenblatt continued, “such as that there is a ‘cabal of globalists backed by Soros destroying our country,’ that is invoking a classic anti-Jewish conspiracy theory, and it should be condemned. Mr. Trump and his allies have singled out Soros for years, Mr. Greenblatt added.”

Distinguishing friends and enemies

The sharp and enduring factionalism between the two capitalist parties has become a constant feature of U.S. politics. Such factionalism does not prevent them from agreeing and acting together against the interests of working people, as the broad consensus in imposing an anti-labor contract on the nation’s rail workers in December 2022 showed.^[2]  But with increasing frequency they cannot agree on much in the daily business of running the country.

Both parties cloak themselves in demagogic claims concerning the rule of law, defending the constitution, and protecting “U.S. interests,” which they falsely allege are shared by the entire population irrespective of the class divisions that characterize U.S. society. Each party blames the other for the deteriorating economic and social conditions that working people face. Each claims conditions will improve under its leadership, despite the reality that conditions have worsened under both.

Meanwhile, working people have no political party that speaks for our interests and could cut through this demagogy to point the way toward working-class political action independent of the two parties of the wealthy. With each new issue or controversy, we are told to choose between, and stand with, the Democrats or Republicans. So it is with the legal moves against Trump today. So it will be with future moves that will be taken in response, as the divisions among the capitalist parties continue to play out.

Decades ago, Russian revolutionary leader Leon Trotsky expressed an idea that remains relevant today. “Under the conditions of the bourgeois regime,” Trotsky wrote, “all suppression of political rights and freedom, no matter whom they are directed against in the beginning, in the end inevitably bear down upon the working class, particularly its most advanced elements. That is a law of history. The workers must learn how to distinguish between their friends and their enemies according to their own judgment and not according to the hints of the police.”

Neither the Democrats nor the Republicans are friends of the genuine interests of working people. Hints about how to defend our rights or hold politicians of either party “accountable” coming from either side of the capitalist factional divide are not trustworthy. Working people need to come to our own conclusions about all the issues we face.

NOTES

[1]  “Bankrolling the ‘Big Lie’ of a ‘Stolen Election’”, published in two sections, Part I and Part II, reported on the background to the congressional hearings on the Jan. 6, 2021, mob attack on the U.S. Capitol aimed, unsuccessfully, at overturning the results of the 2020 presidential election.

[2] For more information see Rail Contract Shows Unions Need New Leadership; Workers Need Our Own Party.

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