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Fear of public violence is hobbling the Justice Department's reactions to the former president's actions.

SCREENSHOT: BBC NEWS - Images from England's BBC News channel, as the Jan. 6, 2021, siege of the U.S. Capitol became international news. A columnist fears former President Trump will use the threat of violence to stave off criminal prosecution. The FBI's search of Donald Trump's Mar-a-Lago estate angered many Republicans. Missouri Sen. Josh Hawley, for example, called the FBI's actions "an unprecedented assault on democratic norms and the rule of law."

According to Trump, the search exemplifies America's free-falling descent under the Biden administration. "These are dark times for our Nation," he warned.

The former president's rhetoric is bound to escalate dramatically as the FBI's investigation unfolds. At a Texas rally in January, Trump brazenly threatened prosecutors investigating him in various jurisdictions. "If these radical, vicious, racist prosecutors do anything wrong or corrupt," he said, "we are going to have in this country the biggest protests we have ever had."

Trump is thus actively organizing an alternative to legitimate government power — a large, violent mob mobilized to intimidate government officials and thwart their objectives. Sound familiar? The Jan. 6, 2021, mob of Trump insurrectionists that stormed the United States Capitol may have been merely a precursor to something bigger and more consequential.

This threat goes to the core of American democracy. The government's monopoly on the use of force is, indeed, an essential precondition to civilized society. As political scientist Ezra Suleiman wrote in his book, "Dismantling Democratic States," when a government loses its monopoly on force, it ceases being a state, and "its form of organization becomes indistinguishable from other types of organization."

And as Joshua Horwitz and Casey Anderson put it in "Guns, Democracy, and the Insurrectionist Idea," a "state must be able to enforce its judicial or administrative rulings: if it is outgunned by individuals or factions, it is not functioning as a democratic state (in fact, it is not functioning as a state at all) and is reverting to a pre-governmental society where might makes right and political equality is at best an abstract ideal."

This is exactly what Trump has been threatening — to use a violent faction to outgun prosecutors investigating his conduct.

And it might just work. Prosecutors have vast discretion to decide whether or not to pursue a matter and nothing requires them to bring a case, even if crimes have clearly been committed. In this instance, fear of large-scale violence could be the difference between initiating proceedings and declining to prosecute.

Indeed, whether to prosecute Trump will inevitably be a close call. On the one hand, the government has probable cause to believe that Trump violated the law. The FBI's Mar-a-Lago search warrant would not otherwise have been approved by a federal judge. On the other, seeking a guilty verdict from a jury — which must be unanimous — in a country where Trump has historically high approval ratings among Republicans is a bold objective. No prosecutor wants to lose to Trump in court.

Concerns about the reactions of Trump's millions of supporters will weigh heavily in the Department of Justice's analysis. Trump knows this. And he knows how to whip his supporters into a frenzy of anger and violence. The violent rhetoric has, indeed, already begun. In a pro-Trump

online forum one person posted: "I'm just going to say it. Garland needs to be assassinated. Simple as that." Another person posted: "kill all feds."

We don't know, yet, the detailed basis for the FBI's Mar-a-Lago search. We do know, however, that the search feeds the long-held narrative among many Trump supporters that the federal government (the "Deep State") is unfairly targeting their champion.

On Jan. 6, 2021, Trump organized a mob to try and physically prevent the orderly transfer of executive power. We should expect him to mount a similar initiative regarding his intensifying criminal investigations. The rule of law in America — already teetering on the ragged edge of a breakdown — hangs in the balance.

William Cooper is an attorney and the author of "Stress Test: How Donald Trump Threatens American Democracy." His writings have appeared in The New York Times, Wall Street Journal and San Francisco Chronicle, among others. He lives in Northern California and has practiced law in Portland.


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