This does not deny that Trump’s behavior since the November 2020 election was monstrous or that it will permanently ruin his reputation. But not every offense, even a very serious one, is a crime. The quest to find a theory of breaking the law in Trump’s “Stop theft” campaign and use it for dubious prosecution will further discredit the justice system in the eyes of many Americans, constitute a violation of the norms of the country, and most likely will fail. on their own terms and possibly support Trump politically.
If you think that indicting the most likely candidate to run against Joe Biden in 2024 by the president’s own justice department would be considered anything but a politicized travesty by about half the country, you weren’t paying attention.
Our institutions are not in good health and ill-equipped to withstand the violent upheaval that would result from the prosecution of a political defender for millions of people. The case is expected to drag on for years, possibly with multiple appeals reaching the Supreme Court. It would provide political and legal melodrama that would keep Trump in the spotlight even if he decides to retire and lead a quiet life playing golf in Mar-a-Lago.
Harvard law professor Jack Goldsmith argues that that Garland’s conflict of interest in such a politically sensitive case may require the appointment of special counsel. If the Attorney General goes down that path, given the speed at which the Special Counsel’s investigations are progressing, we can expect Trump to be indicted in 2023, when he could very well be the declared presidential candidate. How will it play?
In the communications battle over Jan. 6 and the 2020 election, Trump is steadily losing ground, but the indictment will allow him to move from obsessing over imagined injustices against him in the past to fighting perhaps real injustices against him in the present.
The ongoing very public lobbying campaign against Garland will also add to the feeling that he has succumbed to political pressure.
Then, there is what the prosecutor’s office would say about our country. An orderly transfer of power has a number of components. One obviously loser, admitting defeat and not trying to reverse the outcome. The other is a loser who has not been legally prosecuted since leaving office. This is why we honor the wisdom of statesman Gerald Ford in pardoning Richard Nixon, and why it was wrong for Trump to play with the idea of prosecuting Hillary Clinton after 2016.
January 6 was indeed, as many have pointed out, an event worthy of a banana republic, but the same can be said for the prosecution of the former president.
If you live in a country where a former president is on trial or in prison, that’s a sign of such a lack of social cohesion or deep corruption that you might want to move somewhere else. The United States should not seek to adopt this practice for the first time in history.
Of course, Trump himself led us down this path, and no one should be above the law. But, again, this does not mean that he committed a crime.
One of the most discussed possible criminal offenses is obstruction of Congress. This requires corrupt intent, meaning that Trump did not believe his own claims and lied about massive voter fraud.
The January 6 committee drew a lot of attention to Trump, especially then-Attorney General William Barr, telling him that his allegations of fraud were false. This does not mean that Trump trusted these advisers. In fact, he vehemently disputed their analysis.
After Trump has spent his adult life exaggerating, distorting and hiding the truth to suit his own interests and ego, it is almost impossible to tell his legitimate self-deception from his deliberate deceit. On top of that, he is naturally prone to conspiratorial thinking. No one can ascertain his state of mind with certainty, and my guess is that he could pass a lie detector test by making all his various allegations of fraud, even if they contradict each other.
Further, the fact of the matter is that most of Trump’s allegedly illegal actions were carried out on the advice of lawyers and, indeed, in the company of lawyers, including infamous call to Georgian Secretary of State Brad Raffensperger.
This call highlights how standards change when the question shifts from whether an act is reprehensible to whether it is criminal.
In layman’s terms, Raffensperger’s call was outrageous and insulting, as the incumbent was imposing force on a government official to get his desired election results.
From a defender’s point of view, things are different. Trump goes on and on about various categories of allegedly rigged votes, adding up to a victory of “at least” 400,000 votes. When he delivers his famous line, “I want to find 11,780 votes”—one more than Biden’s margin of victory—the context suggests he’s talking about literally finding them, rather than fabricating them from a huge pool of unsuitable ballots.
Specific requests during the call were made by Trump’s staff and lawyers for an exchange of information and a meeting to review in detail the Trump team’s allegations of fraud.
Toward the end of the call, Trump’s lawyer named Kurt Gilbert adds that the four categories of allegedly improper votes add up to 24,149 votes, enough “to change or question the results.” He says the Trump team thinks the numbers are accurate because three or four experts have looked at them, but they want to check them with the secretary of state’s office. “We would like to meet with your office,” he says, “and we can do this for the purposes of compromise and, as with this phone call, just to deal with this limited category of votes. And if you can establish that our numbers are inaccurate, then fine.”
The conversation ended with an agreement that Raffensperger’s lawyers would contact Trump’s lawyers.
Now, you might say that this interpretation of the call overlooks the forest for the trees and is too legalistic, but it is precisely the kind of careful reading that comes to light in a criminal trial.
Once political wrongdoing is framed as a crime, it moves into a realm where subtle issues of law and intent are paramount. And the trial is not like the January 6 committee, where any Trump supporters can present evidence without objection in an extended prosecution record. As a figure in the political realm, Trump is no longer in doubt; as a defendant in a criminal case, he is entitled to one.
Our system has a mechanism to punish misdemeanors that are serious abuses of power, but not crimes. It’s called impeachment.
In many ways, as my National Review colleague Andy McCarthy has pointed out, the January 6 committee hearing is a belated impeachment hearing that makes up for the fact that the House of Representatives did not hold extensive hearings ahead of Trump’s second impeachment. The timing was unfavorable. It is possible that Trump would have been impeached and convicted if a vote had taken place on the night of January 6. As it turned out, the process was too hasty, while at the same time it was too late to react to Trump’s behavior while he was still in office and catch a very short window of shocked outrage among Republican elected officials.
The January 6 committee is now trying, in effect, to charge Trump with a crime deserving of impeachment.
However, the prosecutor is not the House of Representatives or the US Senate. The task of the law enforcement system is not to belatedly impose punishments for constitutional outrages or the president’s failure to fulfill his official duties. One side using prosecution as a tool of political accountability or revenge (depending on your point of view) only provokes retaliation from the other side and escalates the spiral, which would not be good for our politics or the law.
Trump’s ultimate jury is those Republican voters who are not Trump’s hard base, but are never Trumpers either. The people who should be convinced it’s time for him to leave voted for him twice, like him, despise his enemies, distrust the media, and are deeply grateful that he got rid of Hillary Clinton and appointed three conservative justices of the Supreme Court. . Anything that pushes them towards Trump serves his purposes, and anything that moves them away from him diminishes his power.
I thought that the January 6 committee would have no chance of getting through to this cohort. Instead, by revisiting the post-election frenzy and forcing Trump to respond, the committee appears to have increased Trump-weariness among those voters, at least the marginalized. It is possible that an indictment against Trump will have the same effect, but it is more likely that it will push the Republicans sitting on the fence towards him in response to a prosecution that they consider unfair and insulting.
The audience of the committee on January 6, consisting of one person, must refrain from fire.