When A Constitutional Crisis is Just the Beginning

From the Center

Every savvy promoter knows that building anticipation with preliminaries is a smart way to increase the interest of the audience leading up to the main event. That’s why theaters show movie previews before the feature film, and why concert bookers have a lesser-known band play before the headliner. It’s the reason that JV teams play before the varsity takes the field.

Special Counsel Jack Smith is not a showman by any stretch of the imagination. But he certainly understands the strategy of building a crowd. As historic and as tumultuous and as earthshaking as the 37-count indictment he filed against former President Trump last week will be for all of us, it actually is just the prelude for an even more cataclysmic legal and political battle that will soon follow.

There is no precedent in American history for even a single federal indictment to be leveled against either a former president or a presidential front-runner – let alone more than three dozen – and so it is impossible to predict the tests our country will face as the case against Trump progresses. It’s clear from the first analyses of the allegations against Trump that extraordinarily sensitive national security intelligence may have been compromised.

But given the historic nature of these charges, little attention is being paid to the other investigation that Smith is leading, which is also likely to result in additional criminal charges against the former president. And legal action against Trump for his role in the January 6 Capitol riots is likely to be even more explosive.

The confidential documents that Trump took with him from the White House are undoubtedly of enormous military and diplomatic import. But even though their potential impact on the nation’s safety is tremendous, that possible danger has not yet been realized (at least to our knowledge). So the impact is still theoretical and therefore less tangible for most of us. The violence of January 6, on the other hand, has left a much more visceral imprint on the country’s psyche, and although many of Trump’s most loyal supporters now dismiss the import of the events of that day, most of the American public does understand the nature of the threat that was posed to our government by those who stormed the Capitol. 

The feelings on both sides of this fight are much deeper and rawer. Trump’s critics see January 6 as a fundamental assault on our democracy and the attack as an act of sedition against the United States. His defenders echo his claims that those who came to the Capitol on his behalf were patriotic Americans protesting an unfair decision against their candidate. By the time Congress voted to ratify Joe Biden’s election, long after midnight, the violence, the death and the destruction had left a permanent stain on our national psyche. 

By contrast, this current battle is about… paper. Important paper and top-secret paper, but paper nonetheless. The potential damage that could occur should any of the confidential information stored at Mar-a-Lago have fallen into the wrong hands is catastrophic. But at this moment, the consequences of Trump’s recklessness with those documents are still unknown. On the other hand, the harm done by the mob that invaded the Capitol is something that most Americans have seen and felt. For most of us, those scars have never fully healed, and a prolonged public clash over Trump’s culpability for the events of that day will reopen those wounds.

Because emotions run so much more deeply over the January 6 assault, those legal charges will lead to an even more divisive political brawl than the one that has just gotten underway. As hard as it might be to believe, this current fight is merely the undercard for the even more bruising one to follow.

It’s impossible to predict when Smith might move on this second front. But in the not-too-distant future, we’re likely to see indictments regarding January 6 that will open an even uglier chapter in an already wrenching saga. We moved beyond any plausible precedents some time ago: this is uncharted political and societal landscape.

We are about to be put through a test of our country, our Constitution and ourselves the likes of which we have never faced before. I am confident that we will meet this challenge, but there will be plenty of bumps and bruises and blood in the water before we get there. But this is just the beginning.

Want to talk about this topic more? Join Dan for his webinar "Politics In The Time of Coronavirus." Or read more of Dan’s writing at: www.danschnurpolitics.com.

Dan Schnur is a Professor at the University of California – Berkeley, Pepperdine University, and the University of Southern California, where he teaches courses in politics, communications and leadership. Dan is a No Party Preference voter, but previously worked on four presidential and three gubernatorial campaigns, serving as the national Director of Communications for the 2000 presidential campaign of U.S. Senator John McCain and the chief media spokesman for California Governor Pete Wilson. He has a Center bias.

This piece was reviewed and edited by Isaiah Anthony, Deputy Blog Editor (Center bias).