The Good Fight
Should Donald Trump Be Prosecuted?

Should Donald Trump Be Prosecuted?

Yascha Mounk and Damon Linker discuss the arguments for and against prosecuting Trump.

Damon Linker is a Senior Fellow with the Open Society Project at the Niskanen Center and a former senior correspondent at The Week. He writes the "Eyes on the Right" newsletter. 

In this week’s conversation, Yascha Mounk and Damon Linker discuss the odds that a prospective prosecution would be successful; whether it would harm or help Trump’s chances in 2024; and what those of us who want to rescue American democracy can do.

The transcript has been condensed and lightly edited for clarity.

Yascha Mounk: There has been a huge debate in the country for the last weeks and months about whether or not to prosecute Donald Trump—but there are not many people who have a long track record of opposing Donald Trump and who nevertheless have argued that it would be a mistake to prosecute him. You are the most prominent person in that category. Why do you think it would be a mistake to prosecute Donald Trump?

Damon Linker: The simplest way to state it is that I believe that the federal government is engaging in a prosecution of a former president who might run for president again. And this prosecution, being done by an attorney general appointed by a Democrat (the president of the other party), would open a can of worms that we would never be able to shut. It raises very difficult questions about legitimacy and the rule of law. You don't need unanimity when you pursue a prosecution at the federal level, but you do need a kind of base consensus about what is legal, what isn't, and what actions violate that legality. Trump has been such an expert at muddying those waters that you have a significant portion of the American population who will, in effect, never accept the legitimacy of the process. That can poison things quite badly, and it's something we should do our very best to avoid.

Mounk: For those of us who care about preserving American democracy, what then is the best course of action? There's a strong set of arguments that we need to prosecute Donald Trump in order to preserve American democracy: a core element of democracy is that nobody is above the law, and if we can't prosecute Trump because he has so many followers and such power, that means giving up a part of American democracy. The most consequentialist version of that argument says, “If we don't prosecute Trump, it shows that some people are above the law. And if he ever wins power again, he's going to be able to do whatever he wants, and other future presidents are going to be able to do whatever they want.”

What do you say to people who argue that, actually, not prosecuting Trump is a danger to American democracy?

Linker: These are powerful objections. Trump and what he represents are a tremendous threat to American democracy. The problem that I see is that those who make that argument don't spend enough time reflecting on the bad things that would happen by going in the other direction and pursuing a prosecution. You could say that the point of my op-ed in The New York Times on the subject was not so much to say, “We must never prosecute Trump.” It was that if we're going to do this, we better do it with eyes open and think through the consequences. 

What are some of those consequences? Well, I think if Merrick Garland decides to go forward with a prosecution—he arrests Trump, indicts him, puts him on trial, and ideally, from his point of view, convicts him and sends him to jail—through that entire process, Trump will be doing what he does best, which is acting as a classical demagogue. He will be pointing to every bit of evidence that he can think of that this is not a legitimate act; that it’s not the rule of law, but a political witch hunt by other means. Instead of trying to defeat him in an election, [he’ll claim], you have the guy who Mitch McConnell denied a hearing and a seat on the Supreme Court to, who is still embittered about this fact, trying to exact revenge against the Republicans and against the great Donald Trump, the head of the Republican Party.

Mounk: You don't buy that story, but the fact that Trump is able to sell that story effectively is something we should take into consideration?

Linker: Exactly. A large faction of the Republican Party has been increasingly radicalized by a kind of populist demagoguery over these last couple of decades, and it's getting worse. I don't buy that story about Merrick Garland at all, but I think that Trump would say it, and a large portion of the Republican Party would believe it, which would drive them even further outside of ordinary politics, which takes place under a kind of tent of the rule of law that all Americans are supposed to affirm: that whether a Democrat or a Republican is in charge in Washington, we can trust that the law and the legal proceedings will take place fairly. In both cases, Trump would be trying to teach the lesson that this is no longer true—all there is is partisanship. “This is the Democrats trying to destroy me, your champion and hero.” That could be polarizing and poisonous beyond anything that we have yet endured.

Mounk: What is the outcome we're worried about here? Is it that a large number of Americans are going to say the prosecution of a former president is illegitimate? That's bad, and we want to avoid it if possible, but it doesn't feel like the most important consideration. Are we worried that it might lead to some kind of civic violence? In this kind of context, people are talking about the danger of some significant political violence in the streets, which would obviously be terrible, but is not the same thing as “civil war.”

Or are we talking about a third kind of thing, which is that this makes it more likely for Donald Trump to win the 2024 election, or that it makes it more likely for the MAGA movement to remain in control of the Republican Party. Which of these outcomes are you most concerned about?

Linker: I'm worried about all of it. I agree that “civil war” probably isn't the right way to put it, because it just doesn't make sense territorially. Would you have inner-ring suburbs and cities picking up rifles, shooting at people from the countryside? That just doesn't make sense. Although, I do worry about the rise of January 6th-style political violence metastasizing not only in Washington, but in state capitals around the country—maybe Timothy McVeigh-style attacks on federal buildings and things like that, which in our current context would be, I think, even worse than that single attack was in the 1990s. That's part of it. The other part of it has to do with the shape of the Republican Party and its increasing radicalization. The number of people who are members of the militia movement is very small, yet it exists. And it is widespread. It's in many states. Do we want to engage in an act that could increase that movement, so that people who are now kind of adjacent to them in the Republican Party, who aren't in militias, start to actually be persuaded by their more radical far-right arguments? That, I think, is definitely possible in that kind of a scenario. I worry about that as well. 

When it comes to the question of Trump's ability to win the presidency—that's a bit more complicated. I don't think that Trump getting indicted, convicted, and engaging in this kind of three-ring circus demagoguery for months as this is going on (maybe even running for president from a jail cell)—I don't think that in and of itself would increase his likelihood of winning. In fact, I think it would make it less likely, all things considered, that he would prevail. However, the very act of doing those incredibly civically poisonous things would be terrible for American politics. It would further radicalize the Republicans. And the fact of the matter is (as anyone who lived through 2016 is well aware): if he’s running, he could win. If he wins, you don't want an even more radicalized Republican Party to be taking the reins. 

Mounk: One of the key questions is simply, “Will the prosecution stick?”  

The worst outcome I can think of is that Merrick Garland brings a federal prosecution, and Trump says, “This is completely illegitimate.” Then, in the end, he's acquitted by a jury or there's a mistrial, and he can go to the country and (however insincerely or wrongly) say, “I've been vindicated, I've been acquitted, and I am innocent.” That certainly would not achieve the purpose of showing that Trump is not above the law. It would not hold him accountable for his misdeeds, and it could even put him in the strongest possible position to win the Republican nomination and potentially re-election.

Linker: That would be very, very bad, because he would be able to say, “See? I told you so.” It would convince a lot of the country that it was a politically motivated prosecution all along. And the evidence is that they couldn't make it stick. You know the old line: “If you're gonna come for the king, don't miss.”

If he's indicted and there's a trial, there has to be jury selection. Just think of the problems that are going to be raised by jury selection. The prosecution will have the feeling that Trump voters are unpersuadable, they're so in the tank for Trump, it's like trying to do a murder trial with the victim's closest family as jury members. You're inevitably going to end up with a not guilty verdict or a hung jury, more likely. And then, of course, the defense will raise huge objections: “Trump won almost half the country and all twelve jurors are Democrats who voted for Biden, that's totally skewed. Don't you see? It's a politicized prosecution.” But if they allow roughly half to be Trump voters that raises the possibility that we're going to end up with a hung jury, because one or more of them won't be persuadable. It shows the very difficult situation of trying to enforce the law, which is supposed to be impartial and apply equally to all, intersecting with our political divisions in a way that might short-circuit the legal side of things.

Mounk: My baseline position is: if possible, the way to beat authoritarian populists is at the ballot box. I know that we did that in 2020. But unfortunately, in a democracy you have to be able to do that more than once. Now, I do think that there is also a very strong argument that if you have committed a crime, then you should be punished for it, and it does violate an important democratic principle if we end up saying, “Unfortunately, you have so much support in the country that it would be really divisive if we put you in jail, so we will spare you.”

But, clearly, we are not vindicating the principle that everybody's equal before the law by trying Donald Trump and failing to convict him because parts of the jury are working in his favor. I'm struck by how little of our public debate has considered this important question.

Linker: I agree. My feeling is that a lot of the people who are most in favor of prosecution are so convinced that he's guilty that they almost presume that any fair presentation of the evidence will end in a conviction. They don't think that he could get off, because he's so obviously guilty. I think that it's much less clear than that. 

But I think there was really no choice but to try to impeach him after his behavior on January 6th, and I don't think impeachment raises the same kinds of issues that concern me about a trial, because it isn't really a legal proceeding, it is a political proceeding. It involves laws (and if he broke laws, that's further evidence for why he should be convicted in the impeachment), but an impeachment trial is a kind of political statement of whether we're going to declare you anathema. It's somewhat parallel to a no-confidence vote in a parliamentary system. I do think that that was a valid proceeding that had to go forward after what happened. Think of how good it would have been for American democracy to convict him after those actions. It wouldn't have taken all Republicans—just a group, a substantial group of Republicans—to join with Democrats and make a bipartisan statement that these actions of Donald Trump are beyond the pale; they are a violation of his oath of office and he must be declared anathema in that way, especially if the actual conviction could have been worded in such a way that he was precluded from ever running for high office again. That, in a way, would have been the happy ending. It’s no longer an option.

Mounk: If the point of an impeachment or a point of a trial is to say, authoritatively, “We, the House and the Senate of the United States, find this person beyond the pale,” well, you better be able to get it through. I certainly hope that if the attorney general goes ahead with a prosecution, they’re pretty confident that they are going to be able to make the prosecution stick, because the outcome of a failed prosecution, symbolically as well as practically, would be quite disastrous.

Linker: Yes, I certainly agree. The only thing I would add is, I even think that when it comes to the Mar-a-Lago business of the confidential documents, I would hope that Merrick Garland will not pursue a prosecution for obstruction of justice, alone. There have been some articles and news sources over the last few days pointing to the fact that that's really the main thing they think he might be guilty of. Ideally, you would prosecute someone, including Trump, for it. The problem is, if you or I are falsely charged with a crime, and we fight it by trying to thwart the investigation because we think we're innocent, that is an example of obstruction of justice. If that's the only charge, I think Trump would be very effective in saying, “You're trying to charge me for the crime of defending myself against the BS charge that you've raised against me. You're not actually charging me with having violated any other laws. Of course I tried to defend myself!” Legal terms are one thing—it is a crime and so, technically, he should be prosecuted for it if he's guilty of it. But in political terms, it would backfire, I think, quite badly.

Mounk: Let's widen the lens a little bit here to consider what the potential prosecution of Trump and the debate about it says about the United States at this moment.

Without going back to whether or not we should prosecute Trump, what do you think are the basic scenarios here? What would it look like for things to get much worse, and are there scenarios in which things do get better? Is there a way through this where, five or ten years from now, we might breathe a sigh of relief that the worst is over?

Linker: Those are great questions and hard ones to answer. I am a Democrat. I've voted only for Democrats for about two decades now. I almost have a principle that I will not vote for a Republican, because I think the party is in such a bad way. I don't want to give them power at any level. And that speaks to the path forward, to something like the best possible outcome: which is Republicans losing. They have to lose for pulling this crap. The problem is that they've been doing remarkably well despite their extremism and demagoguery. And as long as that happens, they have no incentive to change course. Whether we're talking about the Labour Party in the UK, [their experience] under Thatcher and her successors in the Tory party; or in this country, when Reagan was president, and then the first Bush and the moderation of the Democrats that came with the rise of Bill Clinton in 1992—you see lessons learned by elective parties. If you lose again and again, there's a big incentive to change something. Until the Republicans actually have the lesson that they won't be rewarded for this kind of crap, they are not going to change course. 

In fact, Trump opened the possibility of a winning coalition for right-wing populism. I actually think someone like Ron DeSantis could potentially win a lot more votes than Trump, simply because he won't be hated by as many people. Trump is uniquely polarizing. His voters love him, but much of the country can't stand him and will never vote for him, so he has a very hard ceiling, which tends to keep him below his Democratic opponent at the level of the national vote. Another right-wing populist who isn't quite as negative could actually do better. That's a scary prospect—I don't think quite as scary as Trump. But that's something else we could debate. 

There's a dynamic to this having to do with negative partisanship. In the worst case scenario—as opposed to the happy ending of the Republicans losing, learning a lesson from it, and then moderating—the Republicans keep winning, in part, by provoking the Democrats to move ever further left, which convinces people to hold their noses and say, “I hate Donald Trump, DeSantis, and Kari Lake, but I'm more scared of the Democrats, so I guess I'll just vote for those right-wingers anyway.” This could occur at the same time as the Republicans are becoming more aligned with the extremists in the militia movement. You might see further centrifugal dividing from the center, with each extreme provoking the other to ever greater extremism. One of those two is always going to win, and whichever one wins then ends up provoking the other side to potentially be even more extreme in the next cycle. That's sort of the nightmare scenario that keeps me up at night.

Mounk: It's always tempting to say that the most important election is the next one. But in 2024, there's a good case for that. If Donald Trump is running for a second term, and he manages to win the Republican nomination, that would be very worrying. Jonathan Rauch has a very good piece in The Atlantic on what a second term by Trump might look like. Perhaps it'll take until 2028 for Democrats and (hopefully) Republicans to be in a place to redefine themselves, if we've somehow made it through and have somewhat free and fair elections afterwards, which is an uncertain prospect.

Let me ask you this as a last question. The question about whether or not Trump should be prosecuted is probably quite influential, and I'm sure that people who make some of those decisions are, in fact, following these debates. But these discussions are ultimately appealing to a few decision makers. What does that leave the rest of us to do? What advice would you give those who are deeply worried about Donald Trump and right-wing populism, who perhaps are in danger of reacting in short-sighted ways? What are some principles we should try to follow over the coming years to save the American republic?

Linker: Keep your heads. I know how hard it is, especially on social media where you’re provoked all the time and marinating in so much ugliness. But I do think the best thing for Democrats—and people who want to see Trump go down and who want to see the Republican Party regain its senses—is to do everything we individually can to not give the political right evidence to confirm its conspiratorial demagoguery about us; to show that we recognize that our Trump-voting fellow citizens are fellow citizens, and not an invading force from some foreign country or planet. They are our fellow citizens, and we have to learn how to get along with them; to not in any way accept their caricature of us and what we stand for, but when we respond to actually respond with as much levelheaded substance as we can, to show that, if anything, we're just sort of boring, earnest people who want to do what's best for the country. We're not these lunatic people that you imagine on the left (some of whom are there), but we actually just want crime to be down, the economy to grow, jobs to be created, and people not to be put in bankruptcy by a medical condition—just basic “kitchen table” issues, as we Americans like to say.

When I was a columnist at The Week, one of my colleagues was Michael Brendan Dougherty, who now works for National Review. He wrote a great column right around the time that Trump won in 2016, predicting that he would effectively break the mainstream media because he would so provoke them into these kind of apoplectic spasms of loathing that they would stop adhering to the strictest journalistic standards, rather than striving for a kind of journalistic objectivity that, even if it never actually was achieved, was the ideal. Dougherty predicted that the media would hate everything that this guy did for the next four years, and that its status in the minds of Americans overall would drop precipitously. I think he was right.

The most ominous bit of public opinion that I can think of these days is the Gallup poll about confidence in American institutions, which continues to fall lower and lower. Many of our institutions—the presidency, the courts, Congress, the media, scientists, the medical establishment—are drifting lower and lower. Some of them are now in the single digits of public confidence. It's within that context that a Donald Trump or a Ron DeSantis-style demagogue actually can gain traction; by people not trusting in the rule of law, or not trusting in the Justice Department of a Democratic administration, to try a law-breaking Republican president. Anything we can do to buoy and to raise up that confidence—that we're not actually crazy and we do mean well, and we're your neighbors—will contribute in some small way to helping.

The views expressed in this piece reflect those of the speakers, and not of Persuasion.

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Podcast production by John T. Williams and Brendan Ruberry. Podcast cover image by Joe O’Shea.

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The Good Fight
The podcast that searches for the ideas, policies and strategies that can beat authoritarian populism.