Everything we know about Donald Trump indicates that the historic criminal arraignment hitting him today represents but a tiny fraction of the illicit activities he’s engaged in throughout his life. This prosecution, reportedly based on more than two dozen felony indictments related to hush money payments Trump has admitted he authorized to an adult film actress in 2016, comes just days after the 20th anniversary of the start of the 2003 U.S. invasion of Iraq. Trump may be the first former president to face criminal prosecution, but that fact in and of itself is a damning condemnation of the impunity that has long permeated our system of American exceptionalism.
This case against Trump would be a mere footnote of history, albeit a wild one, if the U.S. actually believed in holding presidents and other top officials accountable for their crimes, including those committed in office. George W. Bush continues to enjoy his rebranded life as the nice painter man who can joke around with Ellen DeGeneres and share hugs with the Obamas. He would never engage in the garish behavior of the orange buffoon. Dick Cheney is somehow still alive and popping his head out to remind us all that his dark soul is still lurking. Democratic and Republican elites revere the vile living corpse of Henry Kissinger as an enduring and grand luminary of American greatness and strategic brilliance. The truth is that all of them should be serving substantial prison sentences for directing and orchestrating the gravest of criminal activity: war crimes.
Trump’s prosecution is not evidence that our much-vaunted justice system can actually be applied fairly and evenly to all, even a former president. What it really shows is that it’s possible to prosecute a cartoonish villain, even one who served as president, who publicly brags of his misdeeds and criminal activity and happens to be widely despised by the so-called adults in the room.
When Barack Obama first took office, he assured the CIA that no one would be prosecuted for running a secret global kidnap and torture regime under Bush and Cheney. “We need to look forward as opposed to looking backwards,” Obama famously said. Later, he referred to the heinous program as “we tortured some folks.” Yet he made it a complete nonpriority to prosecute anyone involved with the crime he admitted took place. Previously, House Speaker Nancy Pelosi steadfastly refused to even consider impeachment proceedings against Bush. The system depends on such bipartisan impunity. No prosecutor is reviewing Trump’s rollback of U.S. limitations on killing civilians abroad, and there will be no indictment for the women and children killed under his watch. If he goes down legally, it would be for his tawdry or white collar-style infractions — possibly also for more serious cases including the January 6 Capitol riot or election tampering in Georgia — but not for any war crimes he committed as president. This we do not do. In fact, the U.S. government threatens to use force against any international body that even thinks of doing so.
History has a proven knack for timing, and around the same moment Trump was learning of his impending criminal charges, Russian President Vladimir Putin was hit with a war crimes indictment by the International Criminal Court, or ICC. Putin’s invasion of Ukraine has created an interesting predicament for the U.S. empire on these matters. President Joe Biden said last year that Putin is a war criminal and has suggested he should stand trial for the Ukraine war. But his administration has slow-walked cooperating with the ICC. In fact, the Pentagon has blocked such cooperation for fear that prosecuting Putin would set a precedent that other nations could readily cite to demand equal application of the law to U.S. officials and personnel. For his part, Putin exhibited zero concern about his indictment, essentially taking the position, “I don’t recognize the court, the indictment is a joke, and I need to get going because President Xi just arrived in Moscow for a major public display of how little both of us care about what anyone in Washington, D.C., says.”
Since the end of World War II, the U.S. government has waged a judicial proxy war over its vanquished enemies and less-powerful nations under the banner of international justice. The Nuremberg principles, which governed the trials of Nazi and Imperial Japanese war criminals, represented a powerful framework for holding even the most senior officials accountable for war crimes. But there was a crucial caveat built into the system: These principles were designed never to be applied to the U.S. and its allies.
That’s why the men who authorized and carried out the nuclear bombings of two Japanese cities were hailed as heroes instead of prosecuted as defendants. Since 2002, the U.S., by its own law, will never subject its personnel or those of its allies to the ICC and reserves the right to conduct a military operation inside the Netherlands, where the court is based, to liberate its own accused war criminals. When international prosecutors have even implied that they might be probing American war crimes, the response from the U.S. has been extreme, including imposing sanctions on the offending court officials. The U.S., like Russia and Ukraine, has not ratified the treaty establishing the ICC.
For more than two decades, the U.S. position on international prosecutions has been to oppose a permanent international court that would have jurisdiction equally over all war criminals regardless of their nationality or position of power. Instead, it has encouraged ad hoc tribunals set up to prosecute war criminals from places like the former Yugoslavia and Rwanda and other African nations. The whole purpose of this from the U.S. perspective is to ensure that these laws will never be applied to Americans or their friends. And now that stance is revealing its moral bankruptcy in the face of Putin’s crimes in Ukraine. All of this has made a farce of the notion of international law.
The prosecution of Trump should thus serve as a reminder that the U.S. does not actually believe in holding its most powerful citizens accountable for even the most serious of acts. And that position has real consequences, including in how it can be weaponized by criminals like Putin.
Make no mistake, Trump should be prosecuted for a variety of crimes, committed both as a private citizen and public official. But if we want to claim that our system is exceptional, then the same fate should be brought to bear on the Bushes, Cheneys, and Kissingers of the world as well.