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Damon-If the U.S. government investigates a serious crime purportedly committed by the former President, finds probative evidence of the commission of that crime, but chooses not to prosecute for political reasons, then I don’t know how the government can then avoid the implication (which will be loudly proclaimed by the former President and his followers) that no crime was actually committed, or otherwise the government would prosecute him.

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Aug 15, 2022·edited Aug 15, 2022

Good point! Consider what may be the best scenario: A legally justifiable prosecution proceeds and the accountable politician - Biden - pardons Trump. Biden affirms Trump's guilt, yet jailing him is too divisive. Call it the Ford option.

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It could be that the search of MAL will lead to a very serious charge of treason. I would not put it past Trump to sell, or give, state secrets to an adversary or a supposed friend (Russia and Saudi Arabia). If that occurred, Trump should be tried, and if found guilty, his assets seized, be stripped of his citizenship, and be deported to a really nasty place. If not deported, then thrown in jail for the rest of his miserable life. This would be be a far more serious situation, and if proven, he should never hold any office again. Indicting and trying Trump on any charge will have serious ramifications, but should be done if warranted by the evidence. I would hope that if espionage or treason charges were brought, elected Republicans would finally break with Trump, but I won't hold my breath. Of course, this is speculation on my part, maybe fanciful speculation.

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You're right about the fanciful part. The only people who can be stripped of citizenship are those who wrongfully gain it--for example by lying during the naturalization process. Treason is only applicable if the nation is at war.

It doesn't help anything to be as over the top about TFG's criminality as the MAGAs are about his divinity. He's a scum artist who's been breaking the law for years and skating because the laws he breaks are difficult to prosecute, and because he has the resources to hire armies of lawyers who make it as difficult and expensive as legally possible to go after their client. The best outcome would be for him to choke on a Big Mac, but it's highly unlikely.

I'm in disagreement with Damon in that I think if the Justice Department has a case, they should prosecute it. It would be smart for Biden to pardon the guy prior to the outcome of the case, since the odds are so high that at least one MAGA will make it onto a jury, and even if that doesn't happen, the case is likely to be complicated and a jury may give him the benefit of the doubt. If he's acquitted he will claim TOTAL EXONERATION! A pardon would short circuit this by providing a presumption of guilt, and by accepting the pardon, Trump is acknowledging that Biden is the POTUS. It also puts Trump in Biden's debt since Trump only thinks in transactional terms. The other benefit to the pardon is that it removes the "they're out to get me" story he can tell when running again.

Longer term, the only way out of this mess is for the Republicans to simply get pounded into dust at the ballot box. It will have to happen more than once--I'd say at least 3 elections. They lost the presidency, Congress and the Senate in 2020 but given they added seats back in the House, that may not be enough--so we are looking at having to crush them in '22 and at least 2024.

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I agree a choking Big Mac event is desirable.

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Aug 15, 2022·edited Aug 15, 2022

"by accepting the pardon, Trump is acknowledging that Biden is the POTUS"

That is brilliant! I did a quick check and indeed accepting a pardon is a thing, as are conditional pardons.

If Trump were in real legal jeopardy he would accept a pardon and deny guilt, because of course he would. We know him.

It seems like the least bad of bad options. Pardoning only comes into play if a prosecution proceeds, omitted in Linker's reasoning.

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That's right. It will piss off the Democrats, but imagine the Republicans having their Gestapo talking points taken away. Biden has to wear his aviators and go full Dark Brandon when he's announcing it though. Or...he could go the Diamond Joe route and tell a long, rambling story about waking up in jail and Obama having to come and bail him out.

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I have to point out in the context of this thread; Linker argues against indictment, against prosecution. The pardon power would never come into play.

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And a bunch of people disagreed and said that he should be indicted if there is sufficient evidence he committed crimes. My scenario would only work if he was indicted--pardon would need to happen before any verdict.

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Aug 15, 2022·edited Aug 15, 2022

As a matter of law Trump could be pardoned at any time; before or after indictment, before or after a verdict, before or after sentencing. I see you are sensitive to the risk that Trump would be acquitted by any likely jury.

I have talked with a prosecutor about this. Jury questionnaires are pretty open. Jurors could be asked whether they feel there was significant fraud in the 2020 election, etc. He has asked jurors about their favorite movie! He was confident good lawyers could sniff out MAGA people and keep them off the jury.

I'm not mentioning this because I think a pardon after conviction is best, I see pardon timing as a hard question that needs much thought. Instead I am putting it out there that an actual conviction is not necessarily far-fetched if the legal case is solid.

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Jenn makes a good point. If Trump is found to have have seriously jeopardized national security in an easily provable way, you must prosecute -- as you would if he shot someone on Fifth Avenue. The argument that his minions' mania means we're no longer a nation of laws and thus should refrain, doesn't hold in the most clear and extreme cases. If we did refrain, we'd no longer be a nation, full stop. And I do like the suggestion that Biden should then pardon -- a clever jiu-jitsu move.

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Yes, and a pardon is not a suggestion from outer space - Ford pardoned Nixon! And Ford was not unadvised. It was in line with mainstream interpretations of the constitutional order. https://www.nybooks.com/daily/2022/07/22/the-attorney-generals-choice/

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Very good points. Trump is guilty; Biden pardons him.

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"Until he is defeated at the ballot box by such a convincing margin that even the most passionate of his supporters have to recognize him as a loser, Trump will be a threat to American democracy."

All well and good, except that he lost by a fairly convincing margin at the ballot box the last go round as most Republicans, if you gave them truth serum, would readily admit. In response, he cooked up the Big Lie and all but a brave few of his fellow Republicans, truth be damned, signed on to it because they fear his base. When that didn't work to get swing states or the courts to decertify votes or declare rampant fraud, he conspired to create the events leading up to the January 6th coup (as the House Committee has ably demonstrated). His speech that day was downright Triumph of the Will.

So, let's say Trump runs again and loses by a Walter Mondale-like margin (not likely in this highly partisan age, but let's just pretend). What makes you think he would accept the results and concede admitting he lost? What makes you think wouldn't pull the same stunts he pulled in 2020 all over again screaming fraud and crying that he's been cheated? But this time, he'll have loyalists in positions to make decisions about which votes count. Plus, the ultra-right Supreme Court may well have ruled that the Independent State Legislature Theory is now the law of the land, granting Republican legislatures far greater power to upend the will of the voters. So, this time around, despite losing big, Trump might have enough power and sway with the GOP base and an effective enough institutional structure in place to get the results overturned. Trump will only stop being a threat to democracy when he chokes on the proverbial Big Mac and heads off for that big golf course in the sky.

Am I hysterical? After watching the events of the last several years unfold, I don't think so. Your mistake is in thinking that the Republican Party operates like a normal political party.

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Michelle, I agree with you completely. Even if Trump is defeated, his followers will not be. They weren't the last time and they are the real danger. Do I think it is an exaggeration to call them terrorists; maybe but they are definitely authoritarians who want a nationalistic, Christian country and will do almost anything to get it: lie, cheat, attack the capital, etc. And it will not matter if Trump chokes on that Big Mac; his followers both in office and just plain voters will still be there, looking to destroy our democracy. And THAT is truly terrifying.

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Damon, I salute you. You have convinced me. Actually, you convinced me some weeks ago when I first heard you verbalize this argument in conversation with Mona and Bill on the Beg To Differ podcast. My entire body & brain immediately understood the truth of what you said, tho my mouth rails against it. My pride and my core righteous person wants a dramatic type of “justice” and I can’t seem to shut up about the need to exact punishment.

I find myself faced with my own words and the challenge: do you love your country more than you love your Hollywood movie endings (think: Wyatt Earp in Tombstone)?

Do you know who I think agrees with you? Liz Cheney. She has put into action and words the *political* solution required to deal with the problem at hand. She & the Committee have used the most powerful tools available to chip away at the cement-encased alternate reality in which half the country resides - by choice. To put this country back together, the cement wall must crumble under its own weight before we even begin to assess the damage and figure out how to rebuild. Liz Cheney I suspect knows prosecution is unlikely and even unwise… why she plans to haunt trump in a primary bid, the goal of which is to use the madman as a textbook to teach and re-teach civics to an ignorant and radicalized nation.

This thing was a long time in the making. There are no quick or easy solutions. Trump is not the primary problem. But he can and will remain the chief arsonist if we are not wise enough and mature enough to deprive him of oxygen rather than throw a bunch of books at him - books that half the country burned some time ago.

All of that said, I do not know if anything can be done at this point to control events going forward. I am grateful to you for your valiant, astute, priestly counsel. We need so much wisdom right now - and it must be based on reality not some fantasy of a polity which does not exist.

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I don't think we know Liz Cheney agrees that Trump should not be prosecuted. Certainly she has not said that.

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True, I don’t know. What I’m trying to communicate is that she understands the political realm and is battling mightily within it, for the long game. I do think it’s safe to say she’d agree that the political realm is the only place where trumpism can truly be defeated.

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Like many others, I am not convinced by Damon's position. One of the reasons for this is that I worry about potential loss of trust among all the many millions of citizens (including me) who have been opposed to Trump from the start, who are appalled by his varied travesties, and who consider accountability is necessary--which is not the same thing as revenge (not all of us who oppose Trump seek revenge or think in hyperbolic terms about our opponents). If accountability doesn't come, there is a very great risk that this large sector of the society (seemingly larger than Trump's supporters if the popular vote is any indicator) will lose trust in what we often call "the system"--and then what? Trust is essential for the running of a Liberal Democratic order and its rule of law as I understand that (see below).

We know that Trump's followers have no trust in the system--but they appear to be a minority who don't make very clear what they actually do want, apart from endless airing of grievances, punctuated by violence here and there (and probably don't include all Republicans, most of whom are afraid to speak their minds). Why should they be catered to at the expense of everyone else?

I know that the "intellectuals" who have supported Trump (like Michael Anton and the crowd at the Claremont Institute) think that everything needs to be torn down and built up anew--but how, and to what end? The so-called Catholic Integralists (like Patrick Deneen) deplore Liberalism and its lack of virtue--but they, too, are unclear about what they want to take its place.

What guides my thinking here, is that for all its many flaws, I still support Liberal Democracy as seemingly the best system for a modern complex society--and then working on reforms of the flaws. My understanding of the rule of law, which is a part of this political order, is that it has two basic components: (1)-Equality before the law (except for high officials who may get temporary allowances while in office - and - (2)-the law is not arbitrary, but comprised of known and knowable features that operate apart from the whims of any strong man.

Meanwhile--Damon has a kindred spirit of sorts in the person of legal scholar Aziz Huq who just wrote this today--for anyone who is interested to read it: https://www.politico.com/news/magazine/2022/08/15/a-narrow-pardon-for-trump-00051859 ("A Narrow Pardon for Trump? Why a targeted pardon for mishandling classified documents might just ultimately strengthen the rule of law — and help peel more mainstream Republicans away from Trump’s lawless brand of populism."

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The citation from Politico is great

https://www.politico.com/news/magazine/2022/08/15/a-narrow-pardon-for-trump-00051859

I don't see Aziz Huq and Linker as kindred spirits. Yes, they both see the downsides of prosecution and punishment, but Huq explicitly states the pardon power is the appropriate tool to use. Linker wants prosecutors to decline to prosecute.

Huq and Linker share concerns but their prescriptions dramatically diverge. Huq makes the better case.

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To tomtom50--Yes, you are right. Damon and Aziz Huq are not identical in their thinking. I only linked them for the very subjective position, held not only by me but by many in my sphere of things, that both of them advise something less than what I (we) think should be done. Huq is a step closer to the thoughts of my circle. But in any case, I will repeat that I am worried about the many people like me losing trust in the system.

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Aug 16, 2022·edited Aug 16, 2022

Yes, after I made my comment I reconsidered. Linker and Huq are kindred spirits on the level of feeling; they both worry greatly that prosecution/conviction will rend the country, possibly irreparably.

Yet their prescriptions vary dramatically. I wish Linker would address the proper role of the pardon power. So far it is completely missing in his analysis.

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author

It's been a busy day for me, but it's wonderful to see so many of you commenting on this post, debating, and building a community of conversation.

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Aug 16, 2022·edited Aug 16, 2022

I used to read history to understand the present. Now the present helps me understand history.

From Jamelle Bouie's newsletter:

"Last year, I wrote about a time in American history when state and federal authorities allowed powerful elites and their violent supporters to run roughshod over the rule of law. In former Confederate states like Louisiana and Mississippi, vigilantes attacked and harassed Black and white Republican voters while wealthy elites worked to undermine Reconstruction governments, inciting mobs, bankrolling paramilitary groups and even participating in violence themselves. In 1874 a White League went as far as to seize control of the Louisiana statehouse in New Orleans, as well as the City Hall and arsenal. They aimed to depose the sitting Republican governor and install his Democratic opponent from the election in 1872.

If not for the timely arrival of federal troops, it would have worked. Instead, the White League slinked away, its leaders free to organize another attack. And two years later, they did just that."

Over the following years the public lost its stomach for sending federal troops to fight white supremacist terrorism in the south. To settle the disputed 1876 Tilden/Rutherford election the Republicans gave up and 90 years of one-party tyranny followed in the South. Consider the price of that 'peace'.

A similar context surrounds prosecution/conviction of Trump. We can probably achieve peace by losing enough to satisfy the enemies of liberal democracy. We are in a position where Republicans dominate the Judicial and Legislative branches, with Democrats forced to break 54% in a wave election to occasionally gain power, combined with a withering of liberal institutions. This is the plan, partially executed, with further consolidation the threshold can be raised to 55 or 60%. It is why the Republican Party has consolidated behind Trump, repulsive he is but he has shown them the path to power.

It is a mistake to imagine declining to prosecute/convict Trump buys us peace. It is but one round in a long contest.

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Aug 16, 2022·edited Aug 16, 2022

Obviously no one in this back-and-forth is a jaded/experienced trial lawyer. The chances of not having even one hold-out in a "jury of his peers" is pretty much nil.

Before we even get to a DeSantis pardon, we'd have to get Trump convicted. And, that will not happen.

In just about any jury pool you can muster in America, there will be, at least, one hold-out -- and, we'll have a hung jury after all the sturm and drang.

And, the probability of success or failure is something that every prosecutor takes into account.

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My cousin was a prosecutor for years and is now in criminal defense. He has tried many many cases.

I have asked him about this and he says the jury selection process and the jury questionnaire are flexible and the attorneys a re given a lot of leeway (for example he has asked potential jurors to name their favorite movie). Absolutely the lawyers could ask questions about whether they think the 2020 election involved fraud, etc. He is confident MAGA people can be flushed out in jury selection, lawyers are good at this.

Yes, a random sample of twelve US citizens is likely to have a few MAGA people who cannot weigh evidence, but that is not how the courts work. A good juror is a person who dispassionately weighs evidence (the anti-definition of a stop-the-steal nut) and the judge will favor and approve smoking those people out. Theoretically a highly sophisticated MAGA-head could outfox the legal team with clever and insightful lies, but that is by no means likely.

I'm not mentioning this because I think taking Trump to trial is a good idea, that is a hard question. But conviction is not far-fetched provided the legal case is solid.

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I respectfully disagree with your cousin. He probably has no experience/knowledge of charismatic autocrats and what they do, emotionally, to their followers.

This situation is not your run-of-the-mill jury selection -- where things you mentioned can be successful.

Look to Chavistas, Peronistas, Fidelistas -- heck (I hate to say this) -- look at Nazi Germany. Once a political fervor attaches to a particular politician/personality it leaves the realm of rationality (where law and jury selection reside) and enters the arena of power, the sheer power of political "charisma" and "autocratic magnetism"....and, that is a whole other beast.

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Aug 16, 2022·edited Aug 16, 2022

The question is not whether a large percentage of the population is infected with an authoritarian virus. My cousin and I agree with this.

The question whether infected potential jurors can be detected in the jury selection process. Once detected they do not get seated on the jury.

My cousin is confident they can be detected. I am also. They share various (crazy) opinions about all sorts of things and they give themselves away quickly. There are a lot of MAGA people at my work. They can tell I am a liberal and I can tell they are MAGA. We do not need to discuss politics.

In jury selection ask about guns. Ask about the constitution. Ask about the Civil War. Ask about Critical Race Theory. Ask about white privilege. Ask about OJ Simpson. Ask about what kids should be taught in school. Ask about the 2020 election. Psychologically sophisticated people have made jury selection their life's work. These people deeply understand the authoritarian mindset.

Take a look at https://www.washingtonpost.com/news/wonk/wp/2016/02/01/how-your-parenting-style-predicts-whether-you-support-donald-trump/

In social science it is an old finding that questions about child rearing accurately reveal an authoritarian mindset. How many MAGA people know this and also know the answers they need to give to fool the questioner? The jury experts will go far deeper than this example.

In jury selection the lawyers can give cause why they have eliminated jurors, but they also get peremptory challenges where they need give no reason.

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Aug 17, 2022·edited Aug 17, 2022

I believe that in cases of a "cult of personality", the magnetism of the leader casts a much more widely felt aura. Those who are willing to demonstrate the traits you list are just the tip of the iceberg, they're obvious. But, there are enough of them who are staying quiet, who do not join in the verbal & external shows of "allegiance to the cult", but would nevertheless vote to not find him guilty. The "charismatic power" of these "big men" is almost physically palpable -- it would be even worse if Trump is in the courtroom, in person.

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And, these folks who would not be able to bring themselves to send him to prison would not necessarily vote for him in an election, but they would also not be able to vote to convict him if he was sitting across from them in a courtroom. What this magnetism is...well, it's the "It" factor for autocrats...and the subject of countless writings (esp. post ww2, not so much recently) trying to decipher what constitutes "charismatic power" in autocrats and autocratic personalities.

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I note a bit of goal post shifting. First no one was a "jaded/experienced trial lawyer", but my cousin absolutely is, and then we need someone who understands the "it" factor of autocrats.

Leaving that aside, I agree that it is harder to convict charismatic people. Look at either Johnny Depp or OJ Simpson. I am sure good prosecutors would take that into account before deciding to go to trial. Are autocrats impossible to convict? It doesn't happen much, but that is because autocrats typically either die in power (Mao) or don't survive their downfall (Musollini). By virtue of them being autocrats the rule of law is extinguished, that is another barrier.

Fortunately Trump is a failed autocrat. The rule of law has not been killed. He never actually assumed the dictatorial powers he wanted. So even if autocrats are somehow inherently unconvictable that would not apply to Trump.

I would find your position more credible if Trump had ever been really popular. Most people would have formed an emotional bond that might be hard to break even after they have become disillusioned. But that isn't Trump. He has always been a minority taste. I see PT Barnum where perhaps you see Fidel Castro.

You refer to post-WWII writings. After Trump was elected I went through a few months where I obsessed about the allure of authoritarians, read a few books and papers, etc. Your proposition, that people who do not like a leader, would not vote for him, nonetheless fall under a spell in the physical presence and could not convict - that is new to me.

What I read, that there is a latent potential for authoritarianism in a large segment of the population that can be activated under the right conditions, is both adequate to explain Trump and falls short of your suppositions.

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Aug 17, 2022·edited Aug 17, 2022

I really hope you're right, but I fear I am. I've worked consulting re: jury selection, but this job I would not want.

Axios cited this study today on differences between public & private opinions that may speak to an aspect of this issue: what beliefs are closely held and not voiced.

https://populace.org/research

While traveling to visit family in Florida & the Midwest (Michigan, Iowa and Ohio) and hearing the pro-Trump inanities, I thought of social contagion, kinda like St. Vitus dance (lol):

https://abcnews.go.com/Health/ancient-dancing-outbreak-believed-case-social-contagion/story?id=13929552

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Excellent David Frum article regarding the political ramifications of the Mar-a-Lago search.

https://www.theatlantic.com/ideas/archive/2022/08/trump-republicans-fbi-search-2022-midterm-elections/671154/

Not I think what Linker would have predicted.

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“in seasons of insurrection or rebellion, there are often critical moments, when a well timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.”

Alexander Hamilton

Asking if Trump should be prosecuted is the wrong question. The only valid question is whether he should be pardoned.

If Garland has a case that meets normal standards (serious offense, reasonable likelihood of conviction) he must proceed. Doing otherwise is outside his authority.

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