The Democratic Spirit

T here is a force undermining our republican form of government, and everybody senses it. The very idea of a government of laws, not of men, is challenged by it. This force is behind all those recent slumped-shouldered warnings that “we don’t want to become a banana republic,” where the winning party tries to imprison figures of the opposition. You can see the face of radio host Mark Levin, through the hole this force opens in our body politic, when he responded to the indictment of Donald Trump last week with a full-throated roar: “There is no law! What’s going on here is a disgusting disgrace. It is war on Trump. It is war on the Republican Party.”

The force acting on and sometimes against our republic is the spirit of democracy. It is a bone-deep belief that haunts us and drives a great deal of strange behavior. It’s behind the crazy talk of lawlessness, it’s behind Vivek Ramaswamy’s sweaty promise to pardon Trump. And it has led us to the current impasse in our politics.

Other republics don’t fear the prosecution of their former heads of state. Nobody in France thinks that the prosecution of former prime minister Nicolas Sarkozy is ultimately a political hit job aimed at delegitimizing all members of his party, Les Républicains. Jacques Chirac, his predecessor, was also convicted of corruption.

But in America we really fear it. This spirt of democracy is partly why James Comey let Hillary Clinton off so easy. It’s why, at every turn, he gave Clinton and the Clinton campaign the widest latitude, even though — at the time — even Peter Strzok was arguing for bringing down the hammer. The spirit of democracy explains why 80 percent of Republicans, in one recent poll, said that President Trump should still be able to get back into the Oval Office, even if he’s convicted in the documents case.

Anybody else who had done what Hillary or Trump has done with that many classified documents would be in prison.

But something strange happens in America. What makes Hillary Clinton and Donald Trump different from the Air National Guardsman who allegedly leaked secrets online? My theory is that once a person credibly submits him- or herself to the judgment of the American people for the highest office in the land, the American people, consciously or not, deem themselves the only qualified body in the land to judge that person henceforward.

It’s not rational or by the book — not at all. But at the bottom of every real operative constitution there is something dark, inscrutable, and mysterious. King Charles recently sat upon the Stone of Scone, which, legend has it, was the stone of Jacob, brought west by the prophet Jeremiah, then used in ancient Tara to crown the high kings of Ireland before it was moved to Scotland. In America’s unwritten constitution, the average voter’s aspirations, his politics, and his legitimacy as a citizen are somehow bound up in his choice for president. And therefore, legal attacks on the president are treated as if they were legal attacks upon the legitimacy of his supporters.

This helps explain why Gerald Ford was so anxious to pardon Richard Nixon. It explains why Democratic partisans felt in some way that Bill Clinton’s soaring post-impeachment approval ratings were the real final word on whether he perjured himself, obstructed justice, or did anything all that wrong at all. It explains why Andrew Jackson got away with violating every rule of propriety in the Washington, D.C., of his time. Ultimately, he had the people behind him. And so there were limits on what his political enemies could ever do to him.

Merrick Garland’s office initially tried to give Trump the same kind of treatment that Hillary Clinton got. Long meetings with his lawyers — offers of assistance to clarify things. But Donald Trump’s great tragedy is that he has understood America’s real constitution better than anyone else. He intuited that “if you’re a celebrity, they let you get away with it.”

But it’s precisely by trying to make the mysterious and magical into the logical and legal that we destroy it. Nobody actually tries to nail down the chain of custody of the Stone of Scone. And so the flagrancy with which Trump violated the Espionage Act and abused the Presidential Records Act was far more provocative, and it finally brought our written laws and unwritten customs for presidents into open conflict.

The rally effect that Trump experiences when he is prosecuted is the response of voters protecting their own prerogative as the great sovereign from the lesser powers that pretend to delimit their choices. I’m not saying it makes sense. It’s just the way we are.