Unprecedented Times Call for Unprecedented Actions

Erick Erickson, a popular conservative writer and talk show host, made a brief splash within right-wing circles Monday with a National Review op-ed and follow-up monologue about the Right’s alleged departure from limited-government, free-market principles. I don’t know Erickson personally, but he seems to be a smart and decent man, and I have no interest in attacking him personally — or, for that matter, relitigating the internecine conservative debate about markets, economic liberty, and so on. But one of the arguments he made in his monologue stood out to me:

I need you to understand the problem here. If you limit the size and scope of the federal government, it makes it harder for big government to do things. If instead you decide that you want to be in charge of the government and use the government for your purposes, you’re going to set precedents that the other side will use when they come to power, and ultimately, there’s no such thing as a permanent political majority in the United States of America…. When you’re out of power, and the people you don’t like are in power, they’re going to use your precedents and the government you grew, and they’re going to use it against you.

This is a common argument on some segments of the right — not just as a critique of the ascendant populist or nationalist forces within conservatism, but as a protest against the Left’s increasingly brazen and precedent-shattering exercise of state power. This is perhaps most evident in the prosecution of former President Donald Trump: Having amassed dozens of charges across numerous criminal cases, Trump has now been reduced to the unenviable position of having to hope that his most committed opponents are not willing to take his persecution to its logical conclusion. It’s tempting to say that it’s a fate one would not wish upon one’s worst enemy — but if the polls are any indication, it’s precisely the fate that a substantial number (though not an outright majority) of Americans are wishing upon the former president.

In such a bitterly divided moment, the Left’s unprecedented efforts to imprison its most prominent political opponent have been characterized by many conservatives as a crossing of the Rubicon. National Review’s editors described Manhattan District Attorney Alvin Bragg’s Trump indictment as “an unprecedented situation” that will “surely” invite “other, unforeseen consequences, none of which are likely to be good.” Writing on DOJ special counsel Jack Smith’s subsequent case against the former president in Bloomberg Law, John Yoo and Robert Delahunty maintained that “even if Trump is eventually convicted, the Biden administration will have destroyed one more constraint on partisan politics and further damaged the public’s respect for law enforcement.” In the wake of the charges in Atlanta, Ben Shapiro took to X to argue: “Whatever you think of the Trump indictments, one thing is for certain: the glass has now been broken over and over again. Political opponents can be targeted by legal enemies. Running for office now carries the legal risk of going to jail — on all sides.”

It is true that progressive prosecutors, working in conjunction with the federal government, have discarded important precedents and norms in their quest to destroy Trump. It is true, too, that these indictments are obviously political in nature and represent a disturbing weaponization of the American legal system — and an acceleration of the republic’s crumbling constitutional architecture. But, pace Shapiro, it is not true that the consequences of these maneuvers will be felt — or, at least, felt equally — “on all sides.”

By now, this is a familiar choreography in American politics: Progressives flout norms, precedents, legal strictures, and the Constitution itself with impunity, and conservatives respond by gravely prophesying that someday, when the roles are reversed, their opponents will come to regret it. But recent history suggests that the Left has no reason to take the Right’s threats seriously — at least thus far. “Precedents” always seem to bind the Right; they rarely, if ever, bind the Left.

During the first Trump impeachment ordeal in 2019, for example, Republicans and conservatives warned that the Left’s flimsy case against the president would lead to attempted impeachments of a Democratic president on similarly flimsy grounds in the future — opening, in Sen. Mitch McConnell’s words, “the Pandora’s box of subjective, political impeachments.” But in spite of the mounting evidence of Joe Biden’s actual corruption, a Republican impeachment of the president has yet to materialize. The scenario in which “any future president may be impeached for political and policy disagreements” that Republican members of Congress warned of in 2019 appears to be one that Biden is immune to; so much so, in fact, that House GOP leadership has actively worked against its right flank’s efforts to impeach Biden for his policy failures. (Speaker Mike Johnson reportedly doesn’t even “want to discuss the Biden impeachment inquiry any more [sic].”)

The same dynamic was evident during Brett Kavanaugh’s Supreme Court confirmation battle. In an uncharacteristically fiery moment, Sen. Lindsey Graham warned his Democratic colleagues, “If this” — i.e., the use of unsubstantiated allegations to disqualify nominees — “is the new norm, you better watch out for your nominees.” (Kavanaugh himself appeared to echo the sentiment in the heat of the confirmation hearing: “As we all know in the United States political system of the early 2000s, what goes around comes around.”) Less than four years later, an evenly split Senate confirmed Joe Biden’s Supreme Court nominee, Ketanji Brown Jackson, in a conspicuously normal and uneventful process, with three Republicans even crossing party lines to support the left-wing justice. Despite ultimately voting against her confirmation, Graham himself took care to politely note that he had “found Judge Jackson to be a person of good character, respected by her peers, and someone who has worked hard to achieve her current position.”

What should be obvious by now is that the contemporary American system operates on a simple heuristic: There are favored groups that the rules protect but don’t bind and disfavored groups that the rules bind but don’t protect. Many on the right are eager to denounce the “two-tiered standard of justice” on display in the nation’s governing institutions. But their persistent focus on the symptoms rather than the cause of this dynamic suggests that they have yet to fully grasp what is happening to their country — or, worse, that they have internalized it to such an extent that they are no longer capable of imagining an alternative. Erickson is right that Republicans would be foolish to haphazardly expand the federal Leviathan. But the idea that “breaking precedents” would enable the Left implies that precedents actually have the power to shape or inform the Left’s behavior. The past few years of American politics make it quite evident that they don’t.

Scripture tells us that the meek will inherit the Earth. But until the crooked places are made straight and the rough ways smooth, the Right will have to do more than content itself with hollow threats of an abstract future in which the persecutors become the persecuted. The truth is that progressives act with impunity because they can — and, thus far, conservatives have given them very little reason to think they won’t be able to continue acting that way for the foreseeable future. Until that changes, nothing else will.

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