How Do You Solve a Problem Like Donald Trump?
Not by indicting him over January 6
With the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol entering its seventh week of hearings, calls for the Department of Justice to prosecute former President Donald Trump are rising. (Here is the latest example.)
I understand why.
Those of us paying close attention to events as they unfolded in the two months following the 2020 election could see that the president was intentionally setting up a constitutional crisis that was likely to reach a boiling point on January 6, when Congress met to fulfill its role of certifying Joe Biden’s victory and preparing the peaceful transfer of power exactly two weeks later. But the committee has added crucial, and damning, details to the story. All of it confirms the centrality of Trump’s role in fomenting the crisis and inciting the insurrection that unfolded on Capitol Hill on the first Wednesday of January 2021.
By this point, there appears to be more than enough evidence in the public record to justify the prosecution of the former president. The question is whether seeking his indictment would be wise—and on that issue, I reluctantly, but firmly, come down on the side of No.
The Blurry Line Between Law and Politics
The most ominous question facing the United States at the present moment is how we will respond to our Donald Trump problem. The head of one of the country’s two parties and the person still in a solid lead to receive that party’s nomination for president two years from now is a man who attempted to orchestrate a coup to keep himself in power after losing a free and fair democratic election.
That puts the country in an incredibly dangerous situation. If Trump runs again and wins outright, we will have elevated a would-be tyrant to the highest and most powerful office in the land. On the other hand, if he runs and loses again, he’s almost guaranteed to attempt another extra-legal power grab. He would be even less likely to succeed this time, since it’s much harder to overthrow a president in power than it is to hold on to the office one already inhabits.
But the bigger danger would be its effect on the social and civic fabric of the country. As I wrote in a recent post, Trump losing and refusing to accept the results could provoke “fights to break out in several states over vote counting, rules for rejecting ballots, certification of vote totals, appointment of electors, and all the other steps required to pronounce a victor whose legitimacy is broadly accepted across both parties and the electorate as a whole.”
That would be very bad. But is prosecuting Trump a way to avoid it?
The case for indicting Trump comes down to the claim that it should be illegal to attempt the overthrow our democracy by disregarding the outcome of an election, and there should be severe legal consequences for doing so. Otherwise Trump himself (and other would-be tyrants to follow) will be emboldened to try it again.
This is a powerful argument. A public trial, presentation of evidence to a jury, conviction, and punishment, with all of it widely viewed as legitimate—this is what justice demands when it’s viewed in the abstract and treated as an automatic process taking place fully apart from politics. If this were realistically achievable, I would fully support it.
But of course this isn’t realistically achievable. The line between law and politics is permeable. Laws are made by politicians, and prosecutors are either elected or appointed by those who are. Moreover, a prosecutor’s decision about whether to seek an indictment is far from automatic. It’s a judgment call, and politics is one factor influencing it. This is especially so when the prosecutor is the Attorney General appointed by the currently serving Democratic president and the alleged criminal is the Republican former president of the United States.
Because of this permeability between law and politics, upholding the rule of law is a tricky business. Any appearance of bias, unfairness, hypocrisy, double standards, favoritism, or animus can do enormous damage, undermining public faith in the distinction between justice and officially sanctioned persecution of political opponents.
Putting the Rule of Law on Trial
One of the many ways in which Trump has demonstrated his skill as a demagogue is in his ability to provoke severe reactions in his political opponents that he then turns around and points to as evidence of their untrustworthiness.
These reporters call themselves journalists, but they’re left-wing activists with press credentials! They’re out to destroy me!
Those members of the intelligence community say they only care about defending the country, but they’re spreading ridiculous lies, calling me a Russian asset!
That prosecutor says he’s just upholding the rule of law, but he’s clearly gunning for me!
You know the drill. We all endured it for four interminable years.
But the thing about this MO is that it works whether or not the person on the other side has done anything unprofessional or unfair. The case against Trump for his actions leading up to and on January 6 looks rock solid. But regardless, he is bound to respond to any indictment by impugning the Attorney General’s motives. Dummy Democrat Merrick Garland is so pissed off that I put Neil Gorsuch in the seat Obama promised him on the Supreme Court that he’s trying to throw me in jail for pointing out that Old Man Biden stole the 2020 election!
The rule of law itself would be on trial in any prosecution of Donald Trump, and I’m not at all sure it would end up exonerated in the eyes of tens of millions of Americans. The additional damage to our capacity for self-government could be considerable.
Trump the Outlaw
And that’s without raising an even more alarming prospect: Trump running for president again—and potentially winning—while under indictment, during a trial, or even after conviction and while serving time in federal prison.
There are ideas floating around about how it might be possible to prevent this from happening, perhaps by invoking Section 3 of the 14th Amendment, which precludes from serving in the government those who have engaged in acts of “insurrection or rebellion” against the United States while holding federal or state office. Attempting to stop Trump with this clause, which was written to prevent Confederate officials from running for office in the aftermath of the Civil War, sounds pretty farfetched to me, and much more so than hopes for successfully impeaching him, which of course failed twice.
Far more likely, I fear, is the prospect of Trump responding to the political system treating him as a criminal while running for the nation’s top job by turning himself into an all-American folk-hero: an outlaw who takes a stand against the corrupt powers that be in the name of the people. This would be a presidential campaign consisting entirely of Trump railing against the courts, any electoral process that would deny him a victory, and every member of the establishment—public or private, Democrat or Republican—who doesn’t join him in lambasting federal law enforcement.
We should be doing everything in our power to avoid such a destructive scenario.
Donald Trump is at bottom a political problem. Which means he can’t be defeated in a courtroom. He needs to be taken down at the ballot box by such a wide and indisputable margin that it’s impossible to mistake him for anything other than a loser. If we can’t accomplish that, then the fact that he’s eluded conviction and a jail sentence will be the least of our problems.
Perhaps a federal indictment is politically difficult, but what about a state indictment such as the ones being contemplated in GA or NY? Also, could blue states, such as CA or NY refuse to put his name on the ballot? There has to be a way to stop him from holding office. Deport him. Anything. The problem with not indicating him is that it appears to put certain people above the law. It would also encourage others to try the same thing in the future. If he's indicted, and then convicted, there would be trouble, but wouldn't we at least get it over with instead of letting it fester? Also, what will be the reaction from the anti-trump camp if there is no indictment? We made a grave mistake in the 1860s by not trying, convicting, and executing the rebel leadership. Let's not make the same mistake twice.
Argh. I want very much to disagree with you, Damon, but all of your points are quite valid, especially in this ultrapolarized environment. I remain undecided as to whether failing to hold Trump accountable under the law will cause longer-lasting damage than prosecuting him will cause near-term harm, but that's not an answerable question. I do worry that the longer we shy away from holding everyone accountable, the less legitimacy our system has. I don't know where the threshold of critical mass lies, but I'm still scared of crossing it.
I wonder if there is a third option involving a Special Prosecutor. Is that a feasible solution to this or will any effort to hold Trump legally accountable have the stink of politicization and therefore be inadvisable?