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Jack Smith Changed My Mind On Prosecuting Trump
The former president’s alleged crimes are egregious, and prosecution is an important deterrent.
Since at least the first impeachment proceeding against him in 2019, and accelerating after January 6, 2021, the country has been considering whether Donald Trump ought to be prosecuted for various misdeeds. I have always been skeptical about prosecutions related to purely political matters, mainly because the court of public opinion renders its own judgment. Now Special Counsel Jack Smith has changed my mind, with the stunning 37-count indictment of Donald Trump in the classified documents case.
On the one hand, the rationale for prosecuting seems straightforward. The rule of law requires that no person be above it. Ordinary federal employees are routinely imprisoned for even inadvertent mishandling of classified information, and Trump’s puzzling refusal to follow the rules was egregious.
On the other hand, until now there have been good reasons to be wary about prosecuting Trump. Political and legal accountability are to some extent substitutes. The public will have its own say about any candidate for public office, and there is genuine risk should the legal system become involved in routine prosecution of political candidates.
Not every minor violation of law needs to be prosecuted, because there is a real temptation to weaponize the justice system in politics. This was certainly my reaction when Trump himself introduced his 2016 campaign slogan of “Lock Her Up.” Political candidates carry the hopes of millions of supporters, who may become disillusioned with the process—and even be motivated to commit violence—if their heroes are prosecuted for trivial matters. We really do have slightly higher standards of prosecution for politicians, and given the dangers involved, we probably should.
Then there is the pragmatic argument. Until now, each prosecution has seemed to strengthen Trump, suggesting that he can only be defeated through losing at the ballot box. From this point of view, the indictment by Manhattan District Attorney Alvin Bragg, re-litigating the 2016 election seven years later with a charge of falsifying business records, does not look particularly wise, and would not convince a Trump supporter to change her mind. (Charges related to January 6 would be more appropriate, since that reflected an attempt to overthrow core democratic processes, but even then, Trump’s words probably didn’t amount to incitement under existing First Amendment law. Criminal charges here appear to be a long shot.)
At first glance, the classified documents case looked a bit like the charges in Manhattan—small potatoes that wouldn’t change anyone’s mind, and where the risks of prosecution may outweigh the benefits. The United States government classification system is notoriously overbroad in classifying documents, and some things marked “top secret” would hardly appear to the ordinary layperson to be so. If all that Trump had kept were letters from Kim Jong Un, for example, it would hardly seem to be worth prosecuting.
Now we learn that the documents included highly sensitive information related to national security planning—the kind of thing that really should be top secret. The indictment alleges that he kept top secret information related to United States nuclear programs and war plans. He showed documents to guests, explaining that they were both secret and classified. He stored the documents in publicly accessible places at Mar-A-Lago. When his own lawyer tried to account for them to comply with a subpoena, Trump ordered his aide Walt Nauta to move them so the lawyer could not find them.
All these actions are so egregiously brazen and willful that they distinguish the case from Hillary Clinton’s email server, or the fact that both Joe Biden and Mike Pence were found to have classified information in their homes. While Biden and Pence immediately and fully cooperated with the government, Trump seems to have willfully misled it, which helps convince me that Smith made the right call.
No one knows why Trump kept these documents—perhaps, like Citizen Kane, he is sentimental. But in resisting repeated demands from the National Archive for a year, Trump and his team were the keystone kops. They openly traded messages about what they were doing, and lied about their clumsy treatment of the documents. (Note to self: if I ever commit a crime on my own property, be sure to turn the security cameras off.) The evidence is so overwhelming—and potential penalties so high—that prosecution in this case seems almost mandatory.
The country is now entering a period of great uncertainty. If Trump manages to win his case, perhaps through jury nullification, the government will look foolish, and his claim of victimhood more powerful. If he is convicted or pleads guilty and does any part of the jail time normally associated with a crime of this magnitude, he’d likely be running for office from jail. If Trump then wins the election, we face the bizarre prospect of a self-pardon. And every other Republican candidate will have to take a stance on whether they would issue Trump a pardon, just as they have all been forced to squirm in reaction to the indictment. Perhaps Trump will come through the charge unscathed. As the old expression goes, “kill one man and you are a murderer, kill millions of men and you are a conqueror.”
But while no one should be under any illusion that core Trump supporters will change their minds, the marginal supporters who are needed to actually win an election may be growing exhausted. In this case, legal and political accountability may be aligned.
And whether or not Trump is ultimately able to stay above the law, the legal system will gain credibility with a crucial audience: Trump’s inner circle. These are the people whose support Trump needs to undermine constitutional democracy. A second Trump presidency would be constrained by the fear of those in his orbit that, should they go along with egregious illegality, they will find themselves in the dock. Jack Smith built his case deposing lawyers and close staffers of Trump, who face perjury charges and disbarment if they do not cooperate. People like Walt Nauta will think twice the next time Trump asks them to do something they know is wrong.
For that reason alone, Jack Smith has done the country a great service.
Tom Ginsburg is the Leo Spitz Professor of International Law at the University of Chicago.
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The views expressed are those of the individual writer and not necessarily those of Persuasion.
Legal actions related to sexual assault are a different story because they have individual victims.