It would be a good thing for Donald Trump to be investigated for all the crimes he committed, including his caught-on-tape demand that public officials overturn Georgia’s election — a situation that seems like a straightforward prosecution in a nation of laws. America, though, is not that nation — rhetoric to the contrary, we are not a society that values “law and order.” We are immersed in a culture of impunity — more specifically, impunity for the powerful to do whatever they want without consequences.
This culture is so ubiquitous that it can be difficult to even recognize at this point. It’s like that David Foster Wallace story about fish asking, “what the hell is water?” — but unlike water, impunity isn’t natural. It is anomalous and artificial, a construct that elites have manufactured and that is particularly pronounced in the political arena.
There, prominent voices have continued to suggest that Trump should be granted immunity in the name of Moving Forward Not BackwardTM.
Those calls for blanket amnesty have been the background noise of this week’s two huge political events — Republicans’ attempt to overturn the national election and the two decisive Georgia Senate races — which are themselves reminders of what happens when society eliminates most deterrents to sociopathic and criminal behavior.
Welcome to the Kleptocracy
The national election itself was a flailing, desperate Hail Mary pass for accountability. After Trump evaded conviction during his impeachment trial, faced no consequences for blatantly using the presidency to enrich himself, and then botched the response to a deadly pandemic, voters punished him with a slap on the wrist: he wasn’t jailed or fined, he wasn’t banished, he wasn’t even de-platformed — he was merely denied the privilege of a second term.
But the culture of impunity is so powerful that Trump and dozens of Republican lawmakers are explicitly trying to overturn even this all-too-modest penalty. And impunity plays a role in their own behavior: they know that the Republican Party base has become increasingly hostile to democratic institutions, and therefore even a gangster-style attempt to overturn a fraud-free election probably will not prompt voters to punish them during the next election. It may even boost their standing.
The Georgia Senate races are a burlesque of the larger trend, as the two Republican incumbents owe their entire careers to the culture of impunity.
Republican incumbent David Perdue was rewarded with a Senate seat after enriching himself running a corporation that racked up thousands of lawsuits “charging the company with gender and racial discrimination, rampant wage theft, failure to provide medical leave and other workplace violations,” according to a Capital & Main expose.
The other Republican incumbent, Kelly Loeffler, was gifted her Senate seat after running a stock exchange that helped create an Enron-esque scandal, and she then got herself appointed to the committee regulating the agency that is supposed to be policing her family’s business empire.
In a “law-and-order” society, the duo would have been promptly ejected from office and into a courtroom to face prosecution.
But we don’t live in “a nation of laws, not men.” We live in a kleptocracy where two white-collar villains managed to force a runoff amid insider trading scandals about pandemic profiteering — and still remain close in the polls. Even if they lose, the fact that they were even competitive in the election tells us how little our society cares about accountability.
“We’re Not Looking Backwards, We’re Looking Forward”
It might be comforting to presume that the situation in Washington and in Georgia are isolated aberrations of a Republican electorate that has momentarily gone batshit crazy. But they are not anomalies — they are picture-perfect reflections of a larger infrastructure of impunity constructed by both parties and by media corporations over many decades.
We are nearly two decades into a costly war that America was lied into and that killed hundreds of thousands of people. We are decades into financial deregulation that caused a global recession and ruined millions of lives. Not only were none of the perpetrators of those disasters prosecuted or even investigated, the very idea of punishing them was portrayed as primitive, dangerous, and antithetical to justice.
“Old Testament vengeance appeals to the populist fury of the moment, but the truly moral thing to do during a raging financial inferno is to put it out,” former treasury secretary Timothy Geithner wrote in 2014 about the notion of jailing bankers who engineered the financial crisis. “The goal should be to protect the innocent, even if some of the arsonists escape their full measure of justice.”
Those arsonists didn’t even have to face social consequences — they were rewarded with riches, fame, political power, and status. Indeed, pro-war, pro-torture, and pro-deregulation politicians have been reelected, and their enablers have been given prominent media sinecures at prestige platforms such as MSNBC, the Atlantic, the Washington Post, and Bloomberg. Wall Street bankers who ruined the economy were given bailouts to pay themselves bonuses and granted get-out-of-jail-free cards.
Even the avatars of all this impunity — George W. Bush and Barack Obama — have been rewarded with sky-high approval ratings, as if nothing happened.
An America that valorized the busting of trusts, the prosecution of financial scammers, and the opponents of concentrated power has been morphed into a society that now indemnifies and holds harmless those who self-servingly pillage the country — and Trump understood that transformation all too well. The guy literally boasted about the kind of power this culture of impunity would give him to abjectly violate the law.
“I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose voters,” he famously said during the 2016 campaign, just before he spent four years turning the White House into a crime scene and faced no real consequences.
And yet, despite the Trump administration’s lawlessness providing a cautionary tale about the effects of impunity, the drumbeat against accountability has persisted.
In “The case against indicting Trump,” Washington Post columnist Randall Eliason recently asserted that “launching criminal investigations into an outgoing president would set a dangerous precedent” — an argument that makes sense, only if you ignore that a precedent of never prosecuting presidents creates a moral hazard that encourages lawless behavior . . . like, say, Trump trying to pressure an election official to overturn an election.
Michael Conway, a former counsel to the House Judiciary Committee that impeached Richard Nixon, took this argument a step further, insisting that Biden should preemptively pardon Trump because “the way forward does not involve relitigating the last four years in federal criminal court.”
That was an echo of top Democratic leaders.
According to aides, president-elect Joe Biden — the author of the most punitive criminal justice bill in modern history — says he “just wants to move on” from questions about prosecuting Trump for blatant crimes, all as Republicans are promising to continue their politically charged Trump-era investigations against Biden and the Democrats.
Meanwhile, even after the infamous Georgia telephone call, House Democratic Caucus chairman Hakeem Jeffries insisted that “we’re not looking backwards, we’re looking forward.”
“A Violence to the Social Order”
If these West Wing–esque refrains pitting the future against the past seem familiar, that’s because they were coined by Obama, who justified his refusal to investigate the crimes of his predecessor on his “belief that we need to look forward as opposed to looking backwards.”
Like most things in politics, the argument makes sense if you think about it for five seconds, and then seems insane if you consider it for more than that. After all, the entire function of a criminal justice system is to evaluate events that happened in the past, and then to mete out punishment as a way to enforce the law and deter future violations.
“The House literally has an oversight committee to look at what has happened,” wrote Demand Progress’s Daniel Schuman in response to those suggesting Trump should be absolved. “Until time travel is invented, all accountability is retroactive. We don’t punish criminals for the crimes they will commit, but we sure do look at what they did.”
That’s true for most people, but it is no longer true for the power elite. Justice is not blind for them — we no longer look at what they did and require them to face legal, political, or even social consequences for their transgressions.
Today, a Republican political consultant who brags about installing right-wing extremists and opponents of voting rights on the Supreme Court is given an MSNBC platform to suddenly cosplay as a liberal hero defending democracy and the republic as he vacuums in millions of dollars from credulous liberals who are more than happy to reward a longtime political opponent with cultural cachet.
Today, a right-wing propagandist who pushed America into a war based on lies can get himself thanked for his service to the country by a prominent liberal columnist in the pages of the Washington Post.
Today, a Wall Street executive-turned-governor who presided over one of the worst COVID-19 outbreaks and a terrible economy after helping her finance industry friends loot her state’s pension fund can be billed by beltway media “as a rising star in her party” and a top candidate for a cabinet job.
Today, elites who pushed horrific budget austerity and supported destructive fossil fuel development haven’t been ostracized — they have been granted top posts in the new presidential administration without so much as apologizing for or even acknowledging their past behavior.
Even the act of simply reporting on the past financial dealings of such nominees is now scandalized, as if it is outrageous that powerful people might have to explain — or face any consequences from — their career decisions. Indeed, you can now literally get nominated for secretary of state and secretary of defense while being financially connected to a private equity firm that is promising investors it will profit off government contracts obtained through political connections, and you can get celebrity cheers for giving paid speeches to Wall Street banks that lobby the federal agency you’ll run.
Today, a Democratic governor can mug for the cameras in front of a mountain of preventable COVID-19 deaths that happened after he shielded nursing home executives from legal liability — and he can not only remain in office with solid approval ratings, but get an Emmy for the macabre performance just before his megalomania undermines the effort to deploy vaccines.
That point about legal liability is important — America’s culture of impunity has become so pervasive that public officials have lately tried to bake it into the law itself.
The Federal Election Commission is deadlocked, so it can’t enforce election rules.
The Justice Department hands out deferred- and non-prosecution agreements to criminal corporations and ignores political corruption — even as research suggests that the impunity has created the conditions for an endless cycle of white-collar crime recidivism.
And yes, Congress, governors, and state legislatures have spent the pandemic considering — and at times enacting — proposals to preemptively shield corporations from legal consequences if and when their business decisions massacre workers, customers, or patients during the virus outbreak.
You could chalk each of these examples up as proof that well, life isn’t fair — but this is way beyond random, natural inequity. This is an entire architecture of impunity built upon a particular worldview that was best articulated by Obama when he rationalized his administration’s decisions to avoid prosecuting Wall Street moguls for their roles in the financial crisis.
“Nationalization of the banks, or stretching the definitions of criminal statutes to prosecute banking executives… would have required a violence to the social order, a wrenching of political and economic norms, that almost certainly would have made things worse,” he wrote.
The question, of course, is: Worse for whom?
The answer is obvious: for the wealthy and powerful, who have made sure accountability is now considered a childish fantasy.
In this ideology of impunity, the priority is not fairness or justice. It is protecting an unfair and unjust social order that offers destitution and law-and-order punishment for the many, while providing riches and impunity for a select few.
Every so often, we get events like the 2020 presidential election or the Georgia Senate races that offer chances for some shred of accountability — or at least a primal scream of protest. These are fleeting, but important, moments in which the public gets to weigh in from underneath a barrage of television ads, mailers, and evening news sound bites — and sometimes villains get tossed out and policy changes.
But tweaking a few laws and replacing a few monsters is no match for the norms and worldviews that comprise a whole culture that fortifies a social order of lawlessness, corruption, inequality, and elite privilege.
That social order means Republican autocrats will almost definitely not face any consequences for trying to dismantle the electoral process.
That social order means it is unlikely that Trump or any other monster like him would ever be prosecuted — just as it meant that no bankers were indicted after the last financial collapse, no Iraq War proponent was ever shunned and no budget austerian will ever be barred from yet another top government gig.
It means there will not be systemic change until we start valuing justice for all — not just as an aspiration or a slogan in our pledge of allegiance, but as an ethos.