Banana Republic

Do the indictments of Trump signal descent for our country?

I wish to give my sincere thanks, although I’m not sure how pleased he is about it, to @chrisgeidner of ‘Law Dork’ fame on substack. I commented on one of his notes that I was afraid that the indictment of Trump would lead us down the track into banana republic territory.

During our conversation, which included some others, it became evident that there were several definitions and presuppositions which we did not share; and their differences led us to very different thinking regarding how we are, and aren’t, falling into a banana republic. Thus this post.

Presuppositions

1) I believe that every American commits felonies every day. The more powerful you are, the more you commit. This is important to this discussion because it means that a political opponent, especially one who is willing to use the legal process for political purposes, can always find legitimate sources of attack on their opponents

2) I believe that the law is so complex, so convoluted, and so huge that no one can possibly tell all of the felonies that they are committing on a given day. Because there are that many felonies and other crimes on the books.

3) I believe that the powers-that-be are part of a system where there’s an enormous amount of secrecy and a huge number of lawyers, whose job is to keep me from finding out what felonies they are committing. This means that the average person, and even the average political opponent, will not be able to attack these politicians openly and easily over their crimes, it takes someone with the clout necessary to do the digging. And, obviously, if that person is their opponent who now controls the very government which was used to protect the previous leader, they have that power.

4) I believe that the legal issue of ‘standing’, and its coordination with issues of secrecy, mean that many government leaders are able to commit many crimes that the average person will never be able to see and, even if they should guess at them, they will never be able to legally investigate and prosecute them.

4) My personal political views are rabidly anti-Trump, but from the right, thus even more anti-Biden.

5) Our legal system currently exists on a ‘guilty until proven innocent’ basis in many areas. It has been said that a prosecutor can get a grand jury to indict a ham sandwich, and it is incredibly difficult to indict a prosecutor over misconduct, we don’t have trial by jury, but perhaps the largest issue is that getting ruled innocent will never give you back the time, energy, and money that it took to go through the legal process. Just being accused is a punishment in itself.

6) The overwhelming majority of prosecutors and district attorneys and the like are not ‘pure as the driven snow’ neutral arbiters of justice. That, combined with prosecutorial discretion, means that the assumption should be that their prosecutions are politically motivated. This is especially true when they have used the promise of prosecution as political capital.

The result of this system is that the most dangerous person in the world to a politician is a political opponent who isn’t playing the game and who threatens to get into power. Both legal but unpopular and illegal or possibly illegal actions risk being exposed and prosecuted.

Definition of Banana Republic

: a small dependent country usually of the tropics

especially : one run despotically

Miriam Webster https://www.merriam-webster.com/dictionary/banana%20republic

Let’s turn for a moment to the definition of banana republic. First of all I am not talking about the historical definition of banana republic. I am not claiming that the US only exports bananas, or sugar, etc; nor that they are (in the normal sense) a dependent nation.

However when we turn to the web quotes that Mirrian Webster listed when I looked up that definition, we begin to get closer to what I (at least) mean when I say the US is threatening to turn into a banana republic:

What happens if corrupt politicians and powerful judges permanently change America into a banana republic or a police state?

—San Diego Union-Tribune, 8 July 2022

But while the verdict was right in this case, another line has been crossed against the rule of law by political opportunists, which makes our country continue to look ever more like a banana republic.

—Star Tribune, 21 Apr. 2021

No aspersions intended toward an ex-East Bloc prison house or a former banana republic, but that's really embarrassing for Abraham Lincoln's last best hope.

—Star Tribune, 28 Mar. 2021

Clearly, creating an effective blanket immunity for those powerful enough to run for president is truly the stuff of banana republics.

—Luke Thompson, National Review, 29 Sep. 2019

If this is a banana republic with a few very, very rich people and everyone else living in misery, that’s a failure.

—Casey Tolan, The Mercury News, 9 July 2019

Not all of those quotes point exactly in the same direction, but they all have some similar qualities that make me comfortable in proposing a definition of ‘banana republic’ for  use in this discussion:

Banana Republic: noun: A political system where the justice system is largely dependent on the political system, and a change in political leadership is thus dangerous for the previous political leaders.

Several features are necessary for the existence of a banana republic, although these may be present in stronger or lesser forms as the system develops. These include:

 a) A large number of complex laws 

b) Unchecked prosecutorial discretion 

c) A lack of effective jury nullification (which can include not having juries at all, or having browbeaten juries, etc.) 

d) Direct connections between political and judicial changes (including prosecutors etc. as being in the ‘judicial’ realm) 

e) A history of effective politically motivated prosecutions for real or imagined crimes

So when we get back to the issue of Trump being arrested we are particularly focusing on the (e) part of the definition. Are we beginning a ‘history’ of politically motivated prosecutions? Which would involve not only the prosecution being politically motivated, but it being seen to be politically motivated. (We don’t usually speak of something being ‘history’ unless people knew it happened. Or, perhaps, until people knew it happened.)

And then it would involve current politicians ‘learning’ from what happened to Trump and taking action. So, for example, politicians in ‘red states’ might start to prosecute progressives. House Republicans might talk about impeachments… and might even carry them out.

In my view, we have all of the ingredients necessary for this definition of banana republic except (e). In general, in this country, we have tended to avoid politically motivated prosecutions, and have more or less avoided a tit-for-tat history of them.

So my question still remains, “Are we descending into a banana republic?” What is going to happen to Trump, and what will happen afterwards? Will Republicans look back on their opportunity to prosecute Biden and Clinton and bemoan a missed opportunity? Or will they congratulate themselves for staying above the fray? And if they do, what next? Will Democrats merely choose their next target? Or will they pull back from the abyss?

I love comments and debates, especially with intelligent people who disagree with me.