Lawfare & Warfare (May 31, 2024)
Welcome to Home & Away. Expecting no verdict in the Donald Trump “hush money” trial, I had planned to begin this week with the latest in the other legal saga of the moment, that of Scottie Scheffler, the world’s number one golfer who was arrested and charged with four felonies two weeks ago after he tried to drive into the golf club early on the second day of the PGA Championship. Unsurprisingly, the charges that should have never been brought in the first place were dropped; Scheffler’s behavior did not warrant them and the policeman in question did not follow procedures. The bottom line is that Scheffler is now free to continue making life miserable for other professional golfers, who are having obvious trouble keeping up with him.
But stuff, in this case big legal stuff, happened, enough to warrant an audible, if I may switch from golf to football. Like many of you I would bet, I was surprised by both the speed of the Trump verdict and its substance. The former president is now the first former president to be convicted of a felony, having been found guilty by the 12-person jury of all 34 counts related to his falsifying of business records to influence the 2016 election by covering up his affair with Stormy Daniels. Its unanimity was the opposite of the hung jury I had anticipated. The result is that Trump is now a conviction politician, although not in the sense usually meant by the phrase.
Two questions follow. The first involves the likely political impact of the trial’s outcome. It is unlikely to change the views of Trump’s base or his critics. The real question is whether it affects those on the fence, those debating whether or how to vote. This could matter, as by all counts the upcoming November 2024 election, much like the 2020 election, will come down to a small number of votes in a handful of states. That said, I still believe that the presidential debates, the first of which is scheduled to take place in late June, could have a greater influence on the election. To borrow a phrase from the anti-Vietnam War protesters, the whole world will be watching.
A related but separate consideration is what impact this legal decision will have on American democracy. I am well aware that many are celebrating the verdict, seeing it (for good reason) as a much-needed demonstration that no one is above the law. What is more, the court proceedings were orderly and dignified despite Trump’s claims to the contrary.
But I confess to being uneasy all the same. The vast majority of Trump’s supporters see what happened as a politicization of the courts and legal process at a time when it already faces attacks from the other side of the political spectrum. Increasingly, American democracy will have to sort out deep differences without a legal system widely viewed as legitimate, as an accepted decider of last resort. I worry that this could increase calls to ignore judicial rulings that do not support policy preferences, increase politically-inspired violence, or both.
War Without End
The day will come when the Middle East does not occupy a significant share of this newsletter, but that day is some time off. This week’s major story involved an initially successful, targeted Israeli airstrike that killed two leading Hamas figures in Rafah, but then triggered a secondary explosion that resulted in the deaths of more than forty Palestinian civilians sheltering in a nearby tent camp. The Israeli prime minister was quick to describe it as “a tragic accident,” but he also made it clear that Israel would continue with its offensive in Rafah regardless. Israel’s national security advisor subsequently opined publicly that the war would likely continue through at least the end of 2024. So, what are we to think? And what is the United States to do?
Israel’s justification for its policy is that it is necessary to continue the effort to degrade the military capacity of Hamas. While this position is understandable, there are competing considerations that have been insufficiently addressed and weighed by this Israeli government. First, and as we saw just this past weekend, continued military operations—no matter how carefully carried out—will inevitably result in additional civilian casualties. Second, ongoing fighting makes it that much more difficult for humanitarian supplies to enter Gaza and reach its more than two million inhabitants, many of whom are not getting the food and medicine they urgently need. Since Israel began its operation in Rafah, the amount of aid making it into Gaza has dropped significantly. Third, these consequences will further alienate the Arab world, getting in the way of Saudi Arabia’s willingness to normalize relations with Israel and even setting back long-established ties with Egypt and Jordan. A new generation of anti-Israel militants will likely emerge throughout the region. The already considerable distancing from Israel in the United States and Europe will mount.
What the United States should do now is call for an immediate end to major military operations and the release of all hostages. It can do so not just with words, but by simultaneously introducing a resolution in the United Nations Security Council. Building on its ongoing push to resolve the war through a grand bargain with Israel and Saudi Arabia, the Biden administration should also publicly put forward its specific ideas for postwar governance in Gaza and for a diplomatic initiative that would begin to address the political aspirations of Palestinians so long as they were prepared to meet certain conditions. It can raise the costs to Israel of its continued settlement expansion in the West Bank and its failure to rein in settler violence against Palestinians. The United States can cut off the supply of specific arms if it judges they are being used in a way that violates U.S. policy.
That being said, it doesn’t make sense to hold back delivering precision-guided munitions, since we actually would prefer for Israel to use highly accurate weapons when it goes after Hamas leaders so as to minimize collateral damage. But the Biden administration looks more like Israel’s lawyer than the government of a great power when it argues that Israel's conduct is acceptable because it has not crossed the administration’s own red line, i.e., not employing force in an indiscriminate manner in Rafah. That is something, but it is not everything—and it is not enough.
If the Biden administration shifts its approach, I expect the narrative will grow among this Israeli government’s backers here and in Israel that the United States is ultimately responsible for Israel not finishing off Hamas. But this narrative ignores the reality that military force alone can degrade but cannot destroy Hamas, and that what Israel is doing militarily and not doing politically is feeding the radicalism that fuels groups like Hamas. It is not just that the war has reached the point of diminishing returns; it has reached the point where its costs are far exceeding what it is accomplishing. And Israel is not the only country suffering these costs. The United States has paid a price as well.
All this has left the United States in a terrible position. For eight months now, the Biden administration has largely disagreed with Israeli policy, but its advice has mostly been rebuffed. Meanwhile, there have been few consequences for Israel’s continued reluctance to adopt a policy closer to what the Biden administration has proposed. The net result of the back and forth between the United States and Israel is arguably the worst of all worlds for the president: he is seen as too tough on Israel by its most ardent supporters, and as insufficiently critical in the eyes of many of Israel’s critics.
One last point. Every now and then something specific happens that embodies something more general. This was the case when the much-touted pier constructed by the United States to facilitate the flow of humanitarian aid into Gaza was broken and rendered temporarily useless by rough seas. If anyone needed a symbol of U.S. Middle East policy over the past eight months, this is it. The word that comes to mind, I’m sorry to say, is hapless.
School’s Out
I want to say two things about life on this country’s campuses. The first refers to Harvard’s announcement that henceforth the school will not be making pronouncements on matters that do not concern the university’s core mission, such as wars in the Middle East. This change is overdue but welcome all the same. The job of college and university administrators is not to make, influence, or opine about domestic or foreign policy that does not affect their school, but to provide a quality education in an environment that is safe, civil, and tolerant. At Harvard and elsewhere, any constraints on what can be said or done by students, faculty, and staff ought to be consistently applied.
Second, it is the season of commencement speeches, and, because of the ongoing protests, it has been a difficult one, with some graduation ceremonies or commencement addresses cancelled altogether. Still, a few serious speakers managed to be invited and heard. This speech by Ken Burns at Brandeis, in which he makes a powerful case for American democracy and for voting this fall, is one of them. Although I wish Burns had left it at that and held off including an anti-Trump diatribe, the talk is serious and thoughtful, adjectives not easily applied to what goes on at most campuses nowadays.
Check out The Bill of Obligations: The Ten Habits of Good Citizens