Prosecuting Trump would set a risky precedent. Not prosecuting would be
worse.
Are we afraid to test the principle that no one
is above the law?
Matthew Dallek is a professor at George
Washington University’s Graduate School of Political Management. His book
"Birchers: How the John Birch Society Radicalized the American
Right," will be published next year.
February 18, 2022 at 2:05 p.m. EST
When President
Richard Nixon resigned in disgrace, the odds of his standing trial for
obstruction of justice seemed high: His actions undermining the Watergate
investigation had been tape-recorded, and his part in the coverup led to
pressure on the legal system to hold him accountable. In September 1974,
however, one month after Nixon left office, his successor, Gerald Ford,
pardoned him. Ford later told a congressional subcommittee that
the pardon was designed to “shift our attentions from the pursuit of a fallen
President to the pursuit of the urgent needs of a rising nation.”
It didn’t — not in
the immediate aftermath and, in some ways, not ever. Although views later
softened, many Americans at the time saw the pardon as a mistake. Some were
livid. One powerful man had essentially condoned the criminality of another.
The get-out-of-jail-free card exacerbated public cynicism and deepened the
nation’s social fractures. The White House switchboard lit up with calls that
ran 8 to 1 against Ford’s action. The New York
Times captured some of the liberal rage when it described the pardon as an
affront to “the American system of justice.” A president who thought he was
doing the right thing had taken justice into his own hands, casting doubt on a
bedrock idea: Justice is blind; no one is above the law.
Nearly five decades
later, Joe Biden is president, and a pardon for Donald Trump isn’t happening.
But whether Trump will eventually be prosecuted for his conduct in the White
House is more of a conundrum: If the country crosses this inviolate
threshold, all hell will break loose. If we don’t cross it, all
hell will break loose. There will be no “shifting our attentions” by
advocates of either course. And whichever path the nation follows will have
lasting repercussions. One thing is increasingly clear — fear will play a
greater role than facts in determining it.
If Trump were indicted,
he would become the first former president to stand criminal trial.
Prosecutorial threats are multiplying: Bank and tax fraud charges are under
consideration in Manhattan. In Fulton County, Ga., a special grand jury is
investigating Trump’s interference in the 2020
election. In a Washington courtroom, U.S. District Judge Amit P. Mehta told a
convicted Jan. 6 Capitol rioter that he was a pawn in a scheme by more powerful
people, and the legal community is debating whether Trump’s seeming incitement
of the insurrection has opened him up to criminal charges. The National Archives
requested that the Justice Department open an investigation into Trump’s
mishandling of top-secret documents that the government recently retrieved from
his Florida estate. Trump still faces legal jeopardy for obstructing justice
during Robert Mueller’s probe into Russian interference in the 2016 election
(remember that one?). During the 2016 campaign, Trump allegedly orchestrated
hush-money payments to Stormy Daniels (the charges that landed his handler
Michael Cohen in prison referred to Trump as Individual #1). This list is hardly exhaustive
and omits the dozen-plus civil lawsuits and civil investigations Trump faces.
Jan. 6 wasn’t an insurrection. It was vigilantism. And
more is coming.
In some cases,
prosecutors would need to prove “intent” — a high bar. But it isn’t
insurmountable; Trump’s words and deeds have demonstrated that his actions tend
to be intentional. If an ordinary citizen had pressured Georgia’s secretary of
state to “find” votes to overturn the 2020 election; systematically
misrepresented the value of his assets to the IRS and banks; funneled money to
silence a paramour; or put government documents down a toilet, this person
would almost certainly be facing an array of criminal charges. More than a year
after he left office, Trump isn’t facing any such thing yet.
The stakes are
enormous. The rule of law, the notion that we are all equal under our criminal
justice system, is among the noblest of principles but also the ugliest of
myths. The question of putting Trump on trial before a jury of his peers is a
test for a principle of democracy that has often proved out of reach for most
Americans.
Historically, White
and wealthy citizens have sometimes managed to avoid the consequences of their
criminality. For decades, White mobs lynched and terrorized African Americans
with impunity, and this legacy of a racist justice system, separate and
unequal, looms over the debate about charging Trump. The system remains deeply
unfair, biased against Black people and favoring the wealthy who are able to
afford the best lawyers. Nonviolent drug offenses for the poor have resulted in
decades-long prison sentences, while hardly any bankers stood trial for reckless and probably
illegal activities that helped trigger the 2008 financial crisis.
With Trump in the
White House, his friends and allies already had their own system of justice:
Trump-loving Dinesh D’Souza (campaign finance violations), Trump-whisperer
Roger Stone (witness tampering), Trump’s first national security adviser Michael
Flynn (lying to the FBI), Trump campaign chairman Paul Manafort (tax fraud) and
Trump son-in-law’s father Charles Kushner (tax evasion and witness tampering)
are all convicted felons who received pardons from Trump or had their sentences
commuted by him. Three of those convictions occurred during Trump’s presidency.
Now this unequal
system of justice faces a crossroads. Any decision about prosecuting the former
president centers on two conflicting fears: Inaction mocks the nation’s
professed ideal that no one sits above the law — and Americans might wonder
whether our democracy can survive what amounts to the explicit approval of
lawlessness. But prosecuting deposed leaders is the stuff of banana republics.
The fear of the
banana republic is hardly an idle one — and here Trump is a central figure,
too. He has boasted of his willingness to go that route: In 2016, he ran by
pledging that he intended to use the power of federal law enforcement to help
his friends and pay back his enemies. His rallies routinely erupted with chants
of “lock her up,” directed at his opponent, Hillary Clinton. When as president
he told then-FBI Director James Comey that he should be “letting Flynn go,” he
was doing as he had promised, using the presidency to try to save an ally from
criminal investigation. Trump sees the law and law enforcement as a weapon: He
wielded it to protect himself and rout his foes, as when his attorney
general William P. Barr ordered
the violent breakup of peaceful Black Lives Matter demonstrations near
Lafayette Square. Trump has said that if he gets a second term, he would pardon hundreds of
violent insurrectionists charged in the attack on the Capitol. More recently,
his remarks about the investigation his administration began under special
counsel John Durham suggest that he is still game to go after foes by wildly
accusing them of crimes. Trump continually mischaracterizes the Durham
investigation as having shown that Clinton’s aides “spied” on his campaign and
his presidency, and he issued a statement saying that “in a stronger period of
time in our country, this crime would have been punishable by death.”
This was “treason at the highest level,”
he said.
Of course, there’s
also an appearance of impropriety when a Democratic elected official
investigates Trump, lending a whiff of credence to the notion that politics
sway prosecution decisions regardless of which side is doing it. Biden himself,
before he was elected (and before Trump committed some of his most egregious
misdeeds), said that prosecuting him would be a “very unusual thing and
probably not very … good for democracy,” although he also promised to leave any
decisions in the hands of the Justice Department. Indicting could trigger
violence, spark a cycle of retribution once Republicans take back power, and
erode yet another democratic norm.
But the far graver
peril in this situation is inaction, a paralyzing refusal to hold Trump criminally
liable for his behavior. The country has seen what happens when lawlessness
triumphs; when some citizens feel they can do pretty much what they want with
impunity. As historian Eric Foner has pointed out, in 1873, in reaction to the
election of a biracial government in Colfax, La., a White mob assaulted the
county courthouse, murdered a group of African Americans and seized control of
the town government without substantial consequences. In 1874, in New Orleans,
a white supremacist organization known as the White League tried to topple the
state government (U.S. troops at least suppressed this riot). In 1898, long
after Reconstruction, armed Whites overturned a duly elected biracial
government in Wilmington, N.C. Because there was no law enforcement, no
accountability and no consequences, such violence was condoned, sanctioned by
the state and some leaders — which thus empowered anti-democratic forces for decades
across the Deep South and elsewhere. (One of the impeachment charges against
Andrew Johnson said he had fomented post-Civil War white supremacist violence
in New Orleans and Memphis.)
Lessons from
overseas also paint a bracing picture: Refusing to hold officials accountable
for crimes emboldens them. Putting someone above the law is simply
unsustainable for any mature democratic system. In the 20th century, Mexico’s
long-time ruling Institutional Revolutionary Party refused to prosecute senior officials for
corruption, choosing what three political scientists called “stability” in the
political system over “accountability” in the legal one, and corruption
became endemic. These scholars
argue that nations transitioning toward democracy sometimes do better when they
don’t prosecute former leaders and instead allow “democracy to take root.”
But the United
States claims to be an advanced democracy. The costs of not prosecuting Trump
have already been significant — and they’re already grounds for fear. Trump
continues to stir up violence; he acts as if he remains untouchable. He praised
the anti-public-health trucker convoy that shut down a key bridge linking
Detroit to Ontario and has wreaked havoc in Ottawa: “I see they have Trump
signs all over the place and I’m proud that they do,” Trump bragged to “Fox
& Friends,” before suggesting that the truckers do the same in the United
States, an even greater “tinderbox.” Trump’s
acolytes take his cue. Sen. Rand Paul (R-Ky.) expressed his hope that
the truckers would bring their mayhem inside America’s borders, while the
Republican National Committee defended the police-beating armed rioters at the
Capitol who sought to block Biden’s electoral certification by Congress as
engaged in “legitimate political discourse.”
Although Trump has
long sanctioned violence among his supporters — calling white supremacists in
Charlottesville “fine people”; ordering
the Proud Boys to “stand back and stand by”;
urging a crowd to “march” on the Capitol and “fight like hell” to
overturn the allegedly stolen election; tweeting “liberate Michigan” to
followers a few months before a plot to kidnap and murder the state’s
Democratic governor, Gretchen Whitmer, was discovered — the failure to
prosecute Trump for any crimes he himself commits empowers him to do it louder.
Writing in the
Atlantic, David Frum asked: “Will the politics of violence be accepted in the
United States — or will it be punished and discredited?” Trump’s supporters are
watching. After years of his burn-it-all-down oratory and above-the-law
governance, they are emboldened. Like him, they see themselves as answering to
an ideology, not to the laws. Like him, they claim to be fighting for freedom,
even if their acts intimidate, harm and harass.
Not prosecuting
Trump has already signaled to his supporters that accountability is for suckers.
“The warning signs of instability that we have identified in other places are
the same signs that, over the past decade, I’ve begun to see on our own soil,”
political scientist Barbara Walter wrote in “How Civil Wars Start.” The signs include a
hollowing out of institutions, “manipulated to serve the interests of some over
others.” Trump’s continued ability to manipulate institutions to serve his
interests and his supporters’ interests has eroded yet another democratic norm.
“I have an Article II, where I have the right to do whatever I want as
president,” Trump told the conservative organization Turning Point USA when he
held the office. Until the criminal justice system stops him, he will continue
to believe that.
Let history, not partisans, prosecute Trump
Ford’s pardon of
Nixon was noble in its intentions: He was trying to unite the country, and he
expended political capital to issue it, ultimately losing his 1976 campaign
largely as a result. And in fact the pardon never rehabilitated Nixon. Unlike
Trump, Nixon left office severely weakened. His approval rating stood
at 24 percent; comparatively few Americans were clamoring for him to make a
comeback bid in 1976, and most Republican officials had abandoned him. He was
never invited to another Republican convention. The “big lie” — that Democrats
stole the election from Trump — has far more traction now than
any Nixon-was-robbed sentiment had then. But Ford’s pardon still did damage:
Nixon never had to face a jury, never had to pay for his crimes. In his
post-presidency, he published books, made television appearances and consulted
with other presidents.
These days, it’s
fashionable to say the system worked after Watergate. But that’s not quite
right. The system forced the president to resign his office, but it also protected
the disgraced ex-president from criminal punishment. In 1974, Americans viewed
the pardon as a blow to the rule of law. It’s not too late to learn from Ford’s
mistake.