No One Is Above the Law, and That Starts With Donald
Trump
June 24, 2022
By Richard
L. Hasen
Mr.
Hasen is the author of several books about elections and democracy. In 2020, he
proposed a 28th Amendment to
the Constitution to defend and expand voting rights.
In a 2019 ruling requiring
the former White House counsel Don McGahn to testify at a congressional hearing
about former President Donald Trump’s alleged abuses of power, Judge Ketanji
Brown Jackson declared that “presidents are not kings.” If we take that
admonition from our next Supreme Court justice seriously and look at the
evidence amassed so far by the House select committee on the Jan. 6 attack, we
can — and in fact must — conclude that the prosecution of Mr. Trump is not only
permissible but required for the sake of American democracy.
This week’s hearings showed us that Mr. Trump
acted as if he thought he was a king, not a president subject to the same rules
as the rest of us. The hearings featured extraordinary testimony about the relentless pressure to subvert the 2020
election that the former president and his allies brought against at
least 31 state and local officials in states he lost, like
Michigan, Arizona, Georgia and Pennsylvania. He or his allies twisted the arm
of everyone from top personnel at the U.S. Department of Justice to lower-level election workers.
The evidence and the
testimony offered demonstrates why Attorney General Merrick Garland’s Justice
Department should convene a grand jury now, if it hasn’t already, to consider
indicting Mr. Trump for crimes related to his attempt to overturn the results
of the election, before he declares his candidacy for president in 2024,
perhaps as early as this summer.
Although a Trump
prosecution is far from certain to succeed, too much focus has been put on the
risks of prosecuting him and too little on the risks of not doing so. The
consequences of a failure to act for the future of democratic elections are
enormous.
There’s no denying that prosecuting Mr.
Trump is fraught with legal difficulties. To the extent that charges
like obstructing an official proceeding or conspiring to defraud the United
States turn on Mr. Trump’s state of mind — an issue on which there is significant debate —
it may be tough to get to the bottom of what he actually believed, given his
history of lying and doubling down when confronted with contrary facts. And Mr.
Trump could try to shift blame by claiming that he was relying on his lawyers —
including John Eastman and Rudy Giuliani — who amplified the phony claims of
fraud and who concocted faulty legal arguments to overturn the results of the
election. Mr. Trump could avoid conviction if there’s even one juror who
believes his repeated lies about the 2020 election.
And yes, there are political
difficulties too. The “Lock her up!” chants against Hillary Clinton
at 2016 Trump rallies for her use of a personal email server while she was
secretary of state were so pernicious because threatening to jail political
enemies can lead to a deterioration of democratic values. If each presidential
administration is investigating and prosecuting the last, respect for both the
electoral process and the legal process may be undermined.
That concern is real, but if there has
ever been a case extreme enough to warrant indicting a president, then this is
the case, and Mr. Trump is the person. This is not just because of what he will
do if he is elected again after not being indicted (and after not being
convicted following a pair of impeachments, one for the very conduct under
discussion), but also because of the message it sends for the future.
Leaving Mr. Trump
unprosecuted would be saying it was fine to call federal, state and local
officials, including many who have sworn constitutional oaths, and ask or even
demand of them that they do his personal and political bidding.
The testimony from
the hearings reveals a coordinated and extensive plot to overturn the will of
the people and install Mr. Trump as president despite Joe Biden winning the
election by 74 Electoral College votes (not
to mention a margin of about seven million in
the popular vote). There was political pressure, and sometimes threats
of violence, across the board. Mr. Trump and his cronies
hounded poll workers and election officials to admit to nonexistent fraud or to
recount votes and change vote totals.
Wandrea Moss, known as Shaye, a former
Georgia election worker, testified Tuesday about the harassment and violent
threats she faced after Trump allies accused her and her mother of election
fraud. As The Associated Press reported, one of Mr.
Trump’s lawyers, Mr. Giuliani, pointed to surveillance video of the two women
working on ballot counting and “said the footage showed the women
‘surreptitiously passing around USB ports as if they are vials of heroin or cocaine.’”
The “USB ports” turned out to be ginger mints.
It is no wonder that election workers
and election officials are leaving their offices in fear of violence and
harassment.
Former top Department of Justice
officials in the Trump administration testified on Thursday about pressure from Mr.
Trump, in collusion with a lower-level department official named Jeffrey Clark,
to issue a letter falsely claiming evidence of significant fraud in the
elections. We heard in Thursday’s hearing that Mr. Trump, in a meeting that
echoed his earlier role as boss on the television show “The Apprentice,” almost
fired the attorney general, Jeffrey Rosen, to replace him with Mr. Clark, who
had no experience in either criminal law or election law.
The confirmation by the Department of
Justice under Mr. Clark of this “fraud” would have served as a predicate for
state legislators, also pressured by Mr. Trump and his allies, to “decertify” Biden
electors and conjure up a new slate of electors supporting Mr. Trump.
The pressure did not stop there. An
earlier committee hearing recounted severe pressure from Mr. Trump on Vice President Mike Pence to manipulate the
rules for Congress to count electoral votes, a plan that depended on members of Congress supporting
spurious objections to the Electoral College votes in states that Mr. Biden
won.
Mr. Trump also whipped up the
Jan. 6 crowd for “wild” protests and encouraged it to join him in pressuring
Mr. Pence to violate his constitutional oath and manipulate the Electoral
College count.
In his testimony on Tuesday before the Jan. 6 committee,
the speaker of the Arizona House, Rusty Bowers, described the intense barrage
coming at him from calls from Mr. Trump and his allies, and from Trump
supporters who protested outside his house and threatened his neighbor with
violence. But Mr. Bowers compared the Trump crew to the book “The Gang That
Couldn’t Shoot Straight” because they failed to come forward with a plausible
plan to overturn the election results in Arizona or elsewhere.
Seeing the group as bumbling, though,
minimizes the danger of what Mr. Trump and his allies attempted and downplays
how deadly serious this was: As Representative Adam Schiff, a member of the
committee, noted, the country
“barely” survived Mr. Trump’s attempt at election subversion, which could have
worked despite the legal and factual weaknesses in the fraud claims.
What if people of less fortitude than
Mr. Bowers and others caved? Consider Brad Raffensperger, the secretary of
state in Georgia, who also testified on Tuesday about pressure from the Trump
team. He described a direct phone call from a man who was then the sitting
president prodding him to “find” 11,780 votes to
flip Georgia from Mr. Biden to Mr. Trump. What if, instead of rebuffing Mr.
Trump, Mr. Raffensperger declared that he felt there were enough questions
about the vote count in Democratic counties in Georgia to warrant the
legislature’s appointment of new electors, as Mr. Trump had urged?
If even one of these officials had
cooperated, the dikes could have broken, and claims in state after state could
have proliferated.
There’s no question that Mr. Trump
tried to steal the election. Richard Donoghue, a top official at the Department
of Justice serving during the postelection period, testified on Thursday that
he knocked down with extensive evidence every cockamamie theory of voter fraud
that Mr. Trump and his allies raised, but to no avail. He testified that there
were nothing but “isolated” instances of fraud, the same conclusion reached by
the former attorney general, Bill Barr.
Mr. Bowers testified that
when he demanded evidence from Mr. Giuliani, Mr. Giuliani said he had theories,
but no evidence. The president appears to have known it too. According to Mr. Donoghue’s handwritten
notes of his conversation with Mr. Trump, when confronted with
the lack of evidence of fraud, the former president said, “Just say the
election was corrupt” and “leave the rest to me” and the Republican
congressmen. The president even talked about having
the federal government seize voting machines, perhaps in an attempt to rerun
the election.
The longer Mr.
Garland waits to bring charges against Mr. Trump, the harder it will be,
especially if Mr. Trump has already declared for president and can say that the
prosecution is politically motivated to help Democrats win in 2024. The fact
that federal investigators conducted a search for evidence at the home of Mr.
Clark shows that the department is working its way ever closer to the former
president.
What Mr. Trump did in
its totality and in many individual instances was criminal. If Mr. Garland
fails to act, it will only embolden Mr. Trump or someone like him to try again
if he loses, this time aided by a brainwashed and cowed army of elected and
election officials who stand ready to steal the election next time.
Mr. Trump was the
45th president, not the first American king, but if we don’t deter conduct like
this, the next head of state may come closer to claiming the kind of absolute
power that is antithetical to everything the United States stands for.