I think Donald Trump can win the Republican Party’s presidential nomination despite or because of being the subject of (so far) two criminal indictments. However, I don’t think he can beat a strong incumbent, like Joe Biden. That said, we need to talk about the foolish notion that the presidency can’t save him. It can.

The notion that the presidency can’t save Trump is diffuse but it came into sharp focus shortly after he was indicted for a second time, this time on charges related to government secrets found at Mar-a-Lago. Hayes Brown, a writer and editor at MSNBC, posted a piece with the following headline: “The presidency can’t save Trump now.”

To Brown’s credit, he never wrote those words. (He said other insightful things that I have come associate with him.) Someone else wrote them.* However, I don’t fault the headline writer. Their job is to write headlines. I fault a culture in which such a headline is seen as truthful and accurate. It is neither. It is dangerously naive. We need to say so.

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I admit that what I’m suggesting is uncomfortable. Most of us want to believe that justice will prevail. We want to believe that the law prevents bad people from doing bad things. It does no such thing. 

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If Trump were to regain the presidency, he could and likely would incapacitate federal investigations of his conduct. I don’t know how, exactly, but I think we can trust in his impunity for morality, democracy and the law. A president can’t directly stop state and local prosecutors, of course, but they would almost certainly stop on their own. As we can trust in Trump’s impunity, we can trust in prosecutors’ fear of damaging their careers by attempting to prosecute a sitting president. 

But what Trump actually does to prevent himself from being held criminally accountable isn’t as important, in my view, as widespread denial of the fact that he can do it, whatever it is, once he regains control of a bureaucracy that administers justice. Denial is usually diffuse, but it often comes into focus, as it did with “the presidency can’t save Trump now.” It can. His campaign is now a vengeance movement. The only thing that can stop him is democratic politics.

I admit that what I’m suggesting is uncomfortable. Most of us want to believe that justice will prevail. We want to believe that the law prevents bad people from doing bad things. It does no such thing. 

To give an untimely and general example, the law does not prevent agents of the state from searching my car, arresting me for reasons that suit them, injuring my social standing or even killing me. The law does not prevent those with police authority from abusing it. What prevents them, if we’re lucky, is fear of democratic politics – of the potentiality of organizing against injustices that are done to me and others like me.

To give a timely and specific example, the law did not prevent Supreme Court Justice Samuel Alito from accepting, in 2008, gifts in the form of luxury travel worth tens of thousands of dollars from Paul Singer. It did not prevent Alito from presiding over cases involving the Wall Street billionaire. It did not prevent Alito from omitting this conflict of interest on federal disclosure forms. “By failing to disclose the private jet flight Singer provided, Alito appears to have violated a federal law that requires justices to disclose most gifts,” according to ProPublica.

The law cannot stop anyone with that much impunity for the law.

The only thing that can stop him is democratic politics.

It’s uncomfortable to suggest, as I am suggesting, that the law is only as good as those who enforce it; that those enforcing it are only as good as those making demands of the enforcers; that those making demands are only as good as the culture in which they practice democratic politics; and that a consequence of democratic politics, if we’re lucky, is justice. We’d rather bask in the bromides of “no one is above the law.” 

But as the case of Justice Aliso suggests, impunity for the law is the rule, not the exception, of the American justice system. It is baked-in. It comes from the very people who tell the rest of us what the law is. The only thing that can stop it is the same thing that can stop Trump from regaining the presidency and saving himself – democratic politics.

If the headline for Hayes Brown’s piece suggests that something is wrong, perhaps edits to it suggest that something is right.

Shortly after going live, the headline changed to reflect more precisely the tenor of Brown’s insightful argument. Someone at MSNBC identified the problem and fixed it, knowing that the fix would be more truthful and accurate than “the presidency can’t save Trump now.” 

That fix is an outcome of normal professional journalism, to be sure. 

But it’s also an outcome of democratic politics. 

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*(In journalism, it’s pretty common for one person to write copy and another person to write headlines. It’s also pretty common these days to see multiple headlines floating around around the internet. I don’t think anything’s wrong with this, per se. I do think, however, that such changes can be read as reflecting trends in democratic politics.) 

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