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.
This is a situation where there is no good answers. The Trump issue underscores a reality that is hard to square with the liberal democratic principle that no person is above the law. The President largely is, at least while in office, above the law, and apparently after leaving office, too, if sufficiently corrupt and popular. But charging him and losing, either in court and/or in outcome (headline : “Convicted felon Trump wins re-election!”) would be destabilizing. Happy Monday.
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?
Linker's post spends a lot of time exploring various scenarios that could occur, and, like most speculations on the future, it raises as many question as it answers. I could but won't elaborate on various other plausible paths the future might take. Prudence calls for humility, we aren't very good at predicting the future. Generally we shouldn't make decisions based on speculation when more straightforward methods are in place.
To his credit Linker doesn't explicitly claim Garland or other DA's should follow his speculative process coming to a decision, but he comes too close:
"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."
Surely we want Garland to be wise.
I am reminded of Jim Comey's bank shot political speculation he used to justify his re-opening of Hillary Clinton's emails right before the last election. His rationale was plausible at the time, but events did not transpire as predicted, to say the least. He needed to spend less time imagining the second bounce of the cue ball and more time doing his job. In that case DOJ policy was that you should avoid an action that can tip an election unless there is a compelling reason. Worrying the FBI would be perceived as pro-Clinton was not a compelling reason.
Garland and other prosecutors should do their job, and it isn't their job to consider various scenarios about how the politics might play out. In this case the DOJ is cross-pressured. A foundation of the rule of law is that no one is above it. At the same time prosecution of a former president is perilous because the justice system must not be used to mete out political punishment.
Garland and the DOJ must be doubly self-critical before proceeding, examining and re-examining their motives to ensure political retribution is not biasing a charging decision. If they determine a strong case can be made under the applicable laws and the severity of the violation merits a prosecution, it is then their duty to proceed, full stop. A core DOJ value is independence from the politicians, they do not take their orders from the president, they do their job as apolitically as they can manage. Trying to anticipate the third bounce of public opinion as the politics play out is antithetical to their job.
We set up an independent judiciary for good reason. Now DOJ lawyers must make the most critical decision of their careers and we want them to think like politicians? Isn't it better to trust the system, we set up and let them do their job? We ask the DOJ and the Attorney General to make decisions based on the law and uphold the principle that all are equal under the law, and now we ask them to do otherwise? Doesn't expecting Garland to base his decision on his read on the politics itself undermine the independence of the DOJ?
The decision is less fraught for a State DA like Fani Willis. She too should examine her motives, but she does not report to the winner of the last election.
Is Linker correct in his read that prosecuting Trump will likely play out poorly? I honestly don't know, but I think Linker should make it clear that his path coming to his conclusion is an inappropriate path for Garland and other district attorneys to take.
Excellent article at The New York Review covering whether the it is the Attorney General (decision to indict) or the president (pardon power) who should make a call about the is good for the country.
Last's reasoning at least as solid as Linker's, and he makes an entirely different call. It lines up with what I care about: who makes the decision? As my earlier comment makes clear, I think it is important that political decisions be made by politicians accountable to the voters and the DOJ should limit itself to lawyerly judgment.
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.
This is a situation where there is no good answers. The Trump issue underscores a reality that is hard to square with the liberal democratic principle that no person is above the law. The President largely is, at least while in office, above the law, and apparently after leaving office, too, if sufficiently corrupt and popular. But charging him and losing, either in court and/or in outcome (headline : “Convicted felon Trump wins re-election!”) would be destabilizing. Happy Monday.
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?
I've been on the fence on this issue, but this piece, unfortunately, persuades me. Well argued.
Linker's post spends a lot of time exploring various scenarios that could occur, and, like most speculations on the future, it raises as many question as it answers. I could but won't elaborate on various other plausible paths the future might take. Prudence calls for humility, we aren't very good at predicting the future. Generally we shouldn't make decisions based on speculation when more straightforward methods are in place.
To his credit Linker doesn't explicitly claim Garland or other DA's should follow his speculative process coming to a decision, but he comes too close:
"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."
Surely we want Garland to be wise.
I am reminded of Jim Comey's bank shot political speculation he used to justify his re-opening of Hillary Clinton's emails right before the last election. His rationale was plausible at the time, but events did not transpire as predicted, to say the least. He needed to spend less time imagining the second bounce of the cue ball and more time doing his job. In that case DOJ policy was that you should avoid an action that can tip an election unless there is a compelling reason. Worrying the FBI would be perceived as pro-Clinton was not a compelling reason.
Garland and other prosecutors should do their job, and it isn't their job to consider various scenarios about how the politics might play out. In this case the DOJ is cross-pressured. A foundation of the rule of law is that no one is above it. At the same time prosecution of a former president is perilous because the justice system must not be used to mete out political punishment.
Garland and the DOJ must be doubly self-critical before proceeding, examining and re-examining their motives to ensure political retribution is not biasing a charging decision. If they determine a strong case can be made under the applicable laws and the severity of the violation merits a prosecution, it is then their duty to proceed, full stop. A core DOJ value is independence from the politicians, they do not take their orders from the president, they do their job as apolitically as they can manage. Trying to anticipate the third bounce of public opinion as the politics play out is antithetical to their job.
We set up an independent judiciary for good reason. Now DOJ lawyers must make the most critical decision of their careers and we want them to think like politicians? Isn't it better to trust the system, we set up and let them do their job? We ask the DOJ and the Attorney General to make decisions based on the law and uphold the principle that all are equal under the law, and now we ask them to do otherwise? Doesn't expecting Garland to base his decision on his read on the politics itself undermine the independence of the DOJ?
The decision is less fraught for a State DA like Fani Willis. She too should examine her motives, but she does not report to the winner of the last election.
Is Linker correct in his read that prosecuting Trump will likely play out poorly? I honestly don't know, but I think Linker should make it clear that his path coming to his conclusion is an inappropriate path for Garland and other district attorneys to take.
Excellent article at The New York Review covering whether the it is the Attorney General (decision to indict) or the president (pardon power) who should make a call about the is good for the country.
https://www.nybooks.com/daily/2022/07/22/the-attorney-generals-choice/
Jonathan Last at the Bulwark speculates that the best outcome for the country is for Garland to indict followed by a Biden pardon.
https://thetriad.thebulwark.com/p/democrats-will-be-punished-for-republicans
Last's reasoning at least as solid as Linker's, and he makes an entirely different call. It lines up with what I care about: who makes the decision? As my earlier comment makes clear, I think it is important that political decisions be made by politicians accountable to the voters and the DOJ should limit itself to lawyerly judgment.