https://amgreatness.com/2023/12/24/will-the-guardians-of-the-narrative-win/
Much that is happening in the spectacle of America’s legal-political life today reminds me of some pages in Johan Huizinga’s great book Homo Ludens: A Study of the Play-Element in Culture (1938). In a chapter on “Play and Law,” Huizinga distinguishes the unfolding of legal proceedings in advanced cultures, where strict adherence to process and abstract notions of right and wrong prevail, from the situation in more primitive cultures, where the ultimate criterion is victory. “Turning our eyes from the administration of justice and highly developed civilizations,” Huizinga writes, “to that which obtains in less advanced phases of culture, we see that the idea of right and wrong, the ethical-juridical conception, comes to be overshadowed by the idea of winning and losing, that is, the purely agonistic conception. It is not so much the abstract question of right and wrong that occupies the archaic mind as the very concrete question of winning or losing.”
In this sense, I submit, Special Counsel Jack Smith, District Judge Tanya Chutkan, New York Attorney General Letitia James, and the rest of the anti-Trump legal confraternity perfectly epitomize the atavistic persistence of archaic impulses in the law. People like me are always going on about “the rebarbarization of civilization.” The peculiar legal assault against Donald Trump is one instance (among many) of that phenomenon.
It’s been going on for quite a while. The 2020 election, for example, took place during the period of eagerly embraced Covid hysteria. That hysteria provided a justification or, more accurately, an alibi for the numerous violations of the law in the conduct of the election. The Constitution of the United States stipulates that state legislatures are in charge of determining voting procedures. But various governors and secretaries of state, from blue states mostly, swept that Constitutional provision aside in their eagerness to assure the appearance of a Biden victory. Such anomalies were noted and commented on at the time but somehow never got traction. Why? Because the media, that great tool of The Narrative, determined that it oughtn’t to get traction.
In subsequent months, the public has been treated to an efflorescence of similar and even more extreme anomalies as Donald Trump can barely turn his head without being indicted for something or other. I do not think that the public at large grasps how bizarre the quartet of indictments, proceeding in tandem in four separate jurisdictions, really is. It is unprecedented, yes, but it is also surreal. It is also a travesty of the legal process. The aim is not justice but the grubby partisan goal of removing a popular political rival from the field. The Attorney General of New York, Letitia James actually campaigned on the promise that she would “get Trump.” How is that OK? What has happened is that the law—or, more precisely, the paraphernalia and accoutrements of the law—is simply the weapon of choice, all else having failed. Those who point out that the effort to transform a political rival into a pariah is tantamount to banana republic tactics are right. But to say that is not yet to do justice the breathtaking situation in which a former president who happens to be, by a wide margin, his party’s favorite for the presidential nomination is treated worse than a common criminal. Common criminals, as a rule, are not subject to gag orders for trying to defend themselves. “Shut up, or you might convince people you are being unfairly persecuted!” What a blow against “Our Democracy™” that would be.