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.
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.
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.
"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.
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.
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."
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.
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.
“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.
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.
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.
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.
"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.
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.
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."
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.
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.
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.
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.
“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.