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Opinion Lindsey Graham’s vile ‘riots’ threat gives away Trump’s game

Sen. Lindsey O. Graham (R-S.C.) during a Senate Appropriations Subcommittee hearing on May 25. (Ting Shen/Bloomberg News)

“If there’s a prosecution of Donald Trump for mishandling classified information,” said Sen. Lindsey O. Graham on Fox News, there will be “riots in the streets.”

The South Carolina Republican’s quote has been relentlessly skewered as a blatant threat of retaliatory political violence ever since he offered it Sunday night. And it is that: Everyone knows the old mob-speak trick of cloaking threats in the guise of faux-innocent “predictions.”

But there’s a more pernicious danger here that shouldn’t escape notice. Underlying Graham’s threat is another attack on the rule of law, one that more Trump propagandists will resort to when their man’s legal perils deepen. It’s an effort to discredit the idea that the law can be applied to the former president at all.

Sen. Lindsey O. Graham (R-S.C.) on Aug. 28 said that there will be “riots” if former president Donald Trump is indicted on a charge of mishandling classified information. (Video: Fox News)

Trump endorsed Graham’s threat by posting video of it on Truth Social. And Trump himself had already unleashed a volley of deranged hints that the FBI search of his Mar-a-Lago compound is the stuff of banana republics and FBI leadership is riddled with corruption.

All this comes after release of the redacted affidavit for the Mar-a-Lago search warrant has deepened our understanding of Trump’s potential crimes and strengthened the case that the search was premised on reasonable law enforcement grounds.

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Some Republicans have quietly shifted from objecting to the search to questioning the search’s timing. That’s silly: The timing reflects evidence amassed by federal agents that Trump still had highly sensitive documents as late as June. But this shows how hard defending Trump has become.

Not for Graham, apparently.

“Most Republicans, including me, believe that when it comes to Trump, there is no law,” Graham seethed in that Fox appearance. “It’s all about getting him.”

Graham then called the 2016 FBI investigation of Hillary Clinton’s email practices a “debacle.” Graham predicted “riots in the streets” if Trump is prosecuted precisely because she was not prosecuted, which would constitute an unfair double standard.

And when Graham’s interviewer suggested treating Trump and Clinton “the same” would mean refraining from prosecuting Trump, Graham emphatically agreed. Trump himself is arguably the architect of this idea: He has raged that rank-and-file FBI agents should be in revolt about this unfair double treatment, an entirely baseless claim.

So the argument is this: Clinton was not prosecuted, therefore prosecuting Trump would constitute unequal treatment before the law. (Another variation holds that not only should Trump be spared prosecution; Clinton was not prosecuted but should have been.)

We can’t let this go unchallenged. It contains a sleight of hand that will become more widespread.

As you’ll recall, former FBI director James B. Comey announced in July 2016 that an exhaustive investigation had failed to produce evidence to make a criminal case against Clinton. The Justice Department inspector general subsequently found no grounds for questioning that decision.

In other words, Clinton was not charged because the facts did not merit it. We don’t yet know whether Trump will be criminally charged. But if the Justice Department decides in this case that the facts do merit charges — which of course should be the foundation of any determination to charge — the disparity in charging decisions cannot by itself constitute unequal treatment.

Indeed, in both cases, the facts would be dictating the outcome. That might seem obvious on its face. But it’s precisely the point that Trump and propagandists such as Graham want to obfuscate.

Let’s be clear: Their argument, effectively, is that equal treatment constitutes refraining from prosecuting Trump regardless of whether investigators conclude that the facts add up to evidence of crimes that prosecutors believe would sustain a conviction!

The goal here is to erase the very idea that the law can be applied to Trump in a neutral and legitimate way. All law enforcement activity directed at Trump is inherently politically motivated.

Graham said this straight out: When it comes to Trump, “there is no law.” That’s what Trump and his propagandists want the public (or at least Trump’s base) to come to believe, so Americans tune out the facts and conclude prosecution cannot be legitimate.

But if we can’t acknowledge it forthrightly when one set of facts justifies prosecution and another set of facts does not — if law enforcement must reach equivalent prosecution decisions regardless of what the facts dictate, simply because the two cases involve opposing politicians — that itself makes a mockery of the rule of law.

“Investigators, prosecutors, judges, and juries need to apply the law impartially in each case,” political theorist Jacob Levy, who has written extensively on the foundations of the rule of law, told me.

“The idea that Trump can never be prosecuted for any of his crimes because the FBI concluded Hillary Clinton didn’t commit any isn’t impartiality at all,” Levy continued. "It’s mindless balancing. It badly undermines the rule of law.”

None of this means prosecuting Trump would automatically be the right decision — again, we still don’t know whether charges will be brought. Nor is it to say we can be certain the investigation is perfectly proper. In retrospect we might conclude it wasn’t, though that’s not now in evidence.

Rather, it’s to say that Trump and Graham cannot be permitted to advance the idea that applying the law to Trump cannot be done neutrally or legitimately by definition. Graham is not just threatening political violence. He’s also providing an invented rationale for it that is deeply dangerous.