In an arresting 1996 book, George Steiner drew a famous distinction between the Tolstoyan and Dostoyevskian visions of life. Tolstoy “saw the destinies of men historically and in the stream of time”; Dostoyevsky was always “advancing into the labyrinth of the unnatural, into the cellarage and morass of the soul”. Interpretations and representations of America now fall along the same lines. News entities like CNN, the New York Times and the Wall Street Journal are on the Tolstoyan beat. They report the context, both present and historical. But the truth of what is happening in America now really lies in the “labyrinth of the unnatural”. Vladimir Putin, the ex-KGB man, is, no doubt, and to some extent, accurately taking America’s measure through the Dostoyevskian peephole.
Just days after Joe Biden pardoned his son, Hunter, for felony convictions on gun and federal tax charges after publicly vowing that he wouldn’t, the CEO of United Healthcare, one of the country’s largest health insurance companies, was shot dead on a busy midtown Manhattan street. Rumours began to fly that the assassination, by a seemingly professional killer who used a silencer and fled on a bicycle into Central Park and has so far eluded capture, was retaliation for some heartless act on the part of the healthcare behemoth. That is to say, Donald Trump’s cry of “Fight! Fight!” upon rising to his feet after surviving an assassin’s bullet months ago, and Kamala Harris’s appropriation of that in her concession speech following Trump’s victory – “the light of America’s promise will always burn bright, as long as we never give up and as long as we keep fighting” – both seem to have arisen out of, and perhaps contributed to, an atmosphere of Wild West revenge. The media’s stream of reporting on the Manhattan shooting, in which rumour has now evolved into documented complaints about United Healthcare refusing coverage to patients, has unwittingly created an atmosphere in which the shooting was, indeed, a sort of Western-type revenge of good against evil.
But, then, cancel culture itself has been the American version of the more explicit culture of vendetta that still thrives in places Americans consider uncivilised. What America is experiencing now is an upheaval of centuries of organised ethics and morality. In the Oresteia, Aeschylus wove an elaborate myth about how vengeance evolved into the rational administration of justice. Jesus’s exhortation, in the “Sermon on the Mount”, to do unto others what you would have them do unto you, was a radical refutation of vengeance as a guarantee of social order. Kant’s precept of treating people as ends not means secularised the Christian turn away from revenge. In modern America, however, where people have become inured to the countless ways in which late capitalism, with ingenious subtlety, ennobles the pathology of using people as instruments of your desire – they call it “kindness” and “caring” nowadays – there has been a motion from justice, and humane restraint, back to revenge.
The very act of forgiveness has now become, to use the American media’s term of art, “weaponised” as its reverse. For at least two years leading up to Trump’s victory in November, liberals self-satisfyingly wrung their hands over what they considered the abhorrence of Trump planning to pardon the 6 January rioters in the event he returned to the White House. This had the incredible effect of making liberals, true advocates of generous social policies, look like devout enemies of mercy, while making Trump, already Christ-like in the eyes of his followers on account of the mind-boggling volume of his legal persecutions, the very embodiment of self-sacrificing love.
It was left to Joe Biden to reverse centuries of moral, intellectual and spiritual progress and turn mercy, in the form of the presidential pardon, into a wholly original type of vengeance against his enemies. Biden’s declaration, in his public statement justifying his pardon of Hunter, that “there has been an effort to break Hunter… in trying to break Hunter, they’ve tried to break me…”, was an extraordinarily intimate thing for a president of the United States to say, a naked admission that he was acting on the axis of a personal fury, and only in his own self-interest. Biden’s defiant statement was barely a degree removed from president-elect Donald Trump telling a crowd, in March 2023, “I am your justice… I am your retribution,” except that in this case, the justice, and the retribution, in the sense of retaliating for what Biden perceived as Republican machinations, was all Biden’s own.
There are now reports that Biden is discussing with his aides the possibility of issuing a blanket pardon to various public figures, such as Liz Cheney, who could be targeted by Trump once he is in the White House. But the “leak” of such discussions might cynically be seen as a way to fold the intensely personal nature of Hunter’s pardon into a general, principled policy, and thus to spare Biden’s legacy. Pre-emptive pardons are, after all, absurd. You cannot truly pardon someone who has not been convicted of a crime. As for issuing clemency to people for any crimes they may be accused of, as Biden is contemplating, you might well be granting immunity to people who, at some point in their lives, did commit a grave crime. Those Democrats who loudly condemned the US Supreme Court for giving partial immunity to Trump when he was president risk making themselves look ridiculous when they support a similar immunity for their side. In any case, in one way or another, the law is being more and more narrowly customised to personal needs.
So much in American life has been psychologised, interiorised, if you will, that the law itself was bound sooner or later to break the cultural blood brain barrier between objectivity and subjectivity. Populism is, after all, first and foremost, the reduction of politics from a realm of contested ideas to a space of pure, personal feeling. Curiously, though, it was intellectual trends that finally undermined the authority of the intellect and prepared the way for the rise of populist feeling.
In the 1970s, left-wing critical legal theory (CLT) argued that the law, rather than reflecting objectivity and impartiality, was an instrument of power wielded by one dominant social group or another. In this view, the law was merely a competing series of subjective narratives. Convincing a judge or jury by weaving a narrative had always been the conventional strategy of every trial lawyer. Now the nature of justice itself was redefined as the property of whoever controlled the story of whatever facts were at issue. Obstreperous congressional hearings on Supreme Court nominees like Robert Bork and Clarence Thomas further discredited the authority of the law by reducing jurists to their prejudices, or to their personal behaviour. The Clinton/Lewinsky scandal, in which the truth resided below the belt, provided background music. In our time, the 1619 Project replaced historical fact with the ego-gratification of rewriting history as a form of moral heroism. The American right responded with rewrites of the present, in the form of claims of stolen elections and “deep state” cabals. The right’s reduction of science to narratives competing for power is an uncanny echo of the left’s reduction of law to the same.
After the left’s subjectivising and relativising of history and law, you can understand the right’s claim that the legal pursuit of Donald Trump was not the product of an impartial search for the truth, but, along the lines of CLT, a warping of the law to serve political purposes. In this view, the liberals were merely practising what they had been theoretically preaching for so long. And even for those, such as myself, who regard the Capone-besotted Trump as operating just this side of criminality, the legal pursuit of him seemed to rest on the flimsiest and the most trivial of legal premises – classified files stored, in a distracting fit of hubris, in a bathroom; giving a porn star money to be discreet: these were capital cases? How could politics have not played a role in the legal pursuit of Donald Trump? Again, defining the law as the manipulation of facts to suit power’s purposes is what the left-liberal practitioners of CLT have always insisted upon.
It is beyond strange that Joe Biden’s pardon of his son is now being criticised, on the left and the right, as the anti-democratic and unconstitutional product of a rational actor. Only months ago, Biden was being beseeched to step aside for Kamala Harris on account of his failing mental faculties. It seems more accurate to see Biden’s unpardonable pardon as a faltering mind’s revelation of what had always driven Biden’s “idealism” in the first place: pure feeling, no less self-centred and impulsive than what drives Donald Trump. On both sides of the political aisle, and everywhere in between, “if it feels good, do it” is now the law of the land. And “eye for an eye”, from an assassin in midtown Manhattan to the outgoing and incoming American presidents, offers a distinctly contemporary pleasure.
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