How to Prosecute a Former President

Trump must be charged. But here’s why Biden should rule out prison.

 The January 6th Committee meets for its final session on Capitol Hill on December 19, 2022. (Photo by Matt McClain for The Washington Post via Getty Images)

The wheels of justice are turning mercilessly against former president Trump. Congress’s January 6th committee has asked the Justice Department to prosecute him for the attempted coup he helped to plan and instigate. The four charges suggested by the committee carry combined sentences of up to 25 years. A special counsel is poring over that matter, in addition to what appear to be clear violations of laws about handling sensitive government documents.

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Good. For too long, Trump has evaded legal accountability for his misdeeds in and out of office. His followers still believe that they did nothing wrong by, for example, storming the Capitol and attempting to overturn an election. The country has a powerful interest in righting this upside-down narrative and ending Trump’s seeming grant of impunity. We cannot allow the presidency, much less the ex-presidency, to shield flagrant behaviors that would land any ordinary American in jail.

Yet the prospect of putting Trump behind bars makes millions of Americans wince, and rightly so. The spectacle of a former president facing prison time would mark a perilous milestone, one without precedent in American history. It would inflame the country and, among Republicans, inspire a thirst for revenge that could deform our politics for a generation. The mere possibility of criminally sanctioning an ex-president makes many believers in the rule of law view his prosecution with deep concern—as I confess I do.

When former president Nixon was faced with criminal prosecution, President Ford pardoned him. That helped to end what Ford called the “national nightmare” of Watergate. Pardoning Nixon was the right thing to do, although it may have cost Ford the 1976 election. A couple of years ago, I favored pardoning Trump for similar reasons. Now, however, it is clear that his malfeasances far exceed Nixon’s. To let them pass would be to bless them, which would tempt him and others to even greater future misdeeds. Trump, being Trump, has pushed our democracy beyond its limits of toleration.

So do we face a no-win choice between impunity and prison for Trump? No, because there is a middle way. President Biden can announce that he will use his commutation power to guarantee that Trump, if convicted of a federal crime, will never serve a day in prison. The president should make this announcement soon, before indictments are handed down and legal proceedings begin. He should emphasize, in keeping with his previous pledge, that in no respect other than commuting a jail sentence will he or the White House take part in decisions about investigating, prosecuting, or sentencing Trump, or about Trump’s eligibility to run in 2024.

To my knowledge, no president has preemptively committed to commuting a sentence. Why make an exception for Trump?

First, removing the shadow of imprisonment would reduce the severe—perhaps crushing—stress that Trump’s indictment and trial would place on the legal system. Knowing they might be sending a former president to prison, participants in the process will be tempted to make special allowances for Trump, whether by behaving vindictively toward him or, more likely, by bending over backward for him (we already saw one federal judge create a controversial exception for him). Trump, to be sure, will never be a normal defendant, both because he is an ex-president and because he is Trump; but with criminal penalties off the table, prosecutors, judges and juries would feel free to treat him at least somewhat more normally.

Then there is the fact that Trump is running for president (partly, many believe, to complicate efforts to prosecute him). He will, of course, campaign all-out against the legal process, posing as a martyr and claiming that Biden and the Democrats are seeking to hold power by throwing him in jail instead of by winning the election. He will make out the courts to be in on the plot. The Republican Party will amplify his charges and tens of millions of Americans will believe them. The thought of conducting a presidential election under those conditions should make anyone blanch.

How the initiation of criminal proceedings against Trump might affect the 2024 campaign is anyone’s guess. It would certainly be deeply polarizing, and would likely swamp other issues. The political ramifications are not the basis on which the Justice Department or the courts should decide how to treat Trump. But the sense of a terrible sword hanging over our politics would at least be reduced by Biden’s promise to keep Trump out of prison.

Finally, setting precedents is one of the most important things presidents do, and prosecuting Trump but ruling out a jail sentence is a good precedent to set. Currently, apart from the Nixon pardon, there is no template for handling a former president accused of serious crimes. Jailing a former president has seemed too extreme a measure to contemplate, a fact that Trump has counted on to shield himself from legal accountability. With the promise of a commutation, Biden would reinforce the norm that American leaders do not imprison their predecessors, but he would also establish that presidents—including himself—are not above facing charges if they break the law. Given the available choices, that seems like a good balance to strike.

A preemptive commutation will be a bitter pill for those who believe that no one, not even a former president, is above the law. Prosecution without prison may seem an odd exercise, which in fact it is. In Trump’s case, however, extraordinary stakes and sensitivities are in play, and his confinement would serve no purpose. Should he be found guilty of crimes, accountability should come in the form of the judgment against him. That is appropriate, and it is sufficient.

Jonathan Rauch is a senior fellow at the Brookings Institution and the author of The Constitution of Knowledge: A Defense of Truth.

This article represents the individual views of the author, not those of Persuasion.

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1. On Thursday, separate revelations of documents found in a former office of President Biden’s, which his aides have since returned to the National Archives, and at his residence in Delaware prompted Attorney General Merrick Garland to announce the appointment of a Special Counsel to investigate Biden’s handling of sensitive information.