Lock Him Up?

Prosecuting Trump would damage democracy, argues Michael Walzer. Not prosecuting him would be even more dangerous, responds Norm Ornstein.

Prosecuting Trump Will Make Peaceful Transitions of Power Less Likely in the Future

By Michael Walzer

I have been getting ahead of myself these last few days, thinking about Donald Trump after he is defeated in the November election and, by whatever means, removed from office. There will be a lot of excited lawyers and District Attorneys waiting to press charges—and a long list of tempting cases, some actually justiciable.

Even though Trump has, so far, succeeded in concealing the evidence, it is likely that he has been cheating on his taxes for a long time. His philanthropic foundation was a fraud. His “university” took students’ money and provided little or no education. As president, his public and private lives, his politics and his business, have been hard to distinguish; his foreign policy seems designed not to protect our national security but to promote his own re-election. He has used campaign funds to pay hush money to cover up sordid and exploitative affairs. His endless lies must at some point have crossed over into outright defamation.

We will have a lot of reasons to lock Donald Trump up. Let’s not do it.     

In a democracy, it is a bad idea to win an election and send your opponent to jail—even if the jail sentence comes after a formally apolitical “course of justice.” I made this argument years ago when many of my friends wanted to indict George W. Bush, Dick Cheney, and Donald Rumsfeld for the crime of torture. Without a doubt, these three violated the law, and it was important to repudiate their crimes. It was also important to send them home. It is, no doubt, unfair to let people off because of their political position, but prison should never be the consequence of losing a democratic election. Otherwise, we raise the stakes so high that it becomes very dangerous to lose. And who would, then, agree to accept defeat? Politics would become even more cut-throat that it is today—or, better, politics would simply be cut-throat, the metaphor transformed into literal description.

To sustain themselves, democracies need to accomplish a crucial task: No office-holders want to be rotated out of office, and yet they need to submit to a peaceful transfer of power. What makes this arrangement possible is the right of opposition: I don’t expect to be prosecuted because I am or have been your opponent, and I won’t prosecute you because you have been mine.

A certain kind of mutual toleration makes democratic politics possible. It doesn’t preclude fierce disagreements about policy, nor does it imply that such disagreements can’t be fiercely stated. But it does preclude making disagreement criminal—even if the policies with which I disagree really are criminal.

OK, someone is sure to say, we won’t prosecute defeated politicians for “acts of state,” including those that are criminal in nature. But surely the same argument doesn’t apply to the more common crimes that you and I would never get away with—crimes for which ordinary Americans are sent to prison all the time. How can it be just to give a pass to the political bigwigs?

The answer is as stark as it is simple: It isn’t just. But it is the price we pay for keeping the stakes in the democratic struggle for power at a level that does not threaten the survival of the democratic system. We want people fighting for office and for the policies they believe in; we don’t want people fighting for their life or their liberty. When political leaders do bad things, elections, not prosecutions, are the appropriate remedy.

Campaigning against Hilary Clinton in 2016, Trump encouraged the chant: “Lock her up!” Civilized Democrats won’t allow anything like that in this campaign. Nor should they heed the temptation of punishing Trump for his crimes if they win. For the sake of our democracy, sending Donald Trump home, defeated and powerless, will have to be satisfaction enough.

Michael Walzer is Professor Emeritus at the Institute of Advanced Studies and Editor Emeritus of Dissent.

Letting Trump Off the Hook Will Give Future Presidents Impunity

By Norm Ornstein

A peaceful transfer of power is the fundamental feature of a genuine democracy. No matter how fierce the campaign, or how vitriolic the rhetoric, the belief that opponents are adversaries rather than enemies is a prerequisite for the system to work. It is in autocracies—or in societies that are descending from democratic governance into authoritarianism—that those who are in the opposition, or have just lost power, run the risk of being imprisoned, exiled or executed.

That reality makes the dilemma that America faces if Joe Biden wins in November very difficult to resolve. Many thoughtful people have recoiled at the thought of retribution against Donald Trump or others in his administration. Some have suggested more creative solutions, like a Truth and Reconciliation Commission. Coming from somebody who can hardly be accused of harboring secret sympathies for Trump, Michael Walzer’s article is an especially strong case for why abstaining from prosecuting Trump is the best way to preserve America’s democratic institutions. But I do not agree that his is the right way out of the dilemma.

We have never had a president or a presidency so corrupt or so blatant about its corruption as Donald Trump. Start with some of his many violations of both emoluments clauses in the Constitution: Openly advertising his goods and properties from official presidential venues. Doubling the exorbitant initiation fee at his Mar-A-Lago resort and inviting all who pay the fee to mingle with the president and overhear his conversations—including Russian and Chinese agents. Asking his Ambassador to the United Kingdom to exercise pressure to move the British Open to his golf course in Scotland. Using the government to enrich his children and businesses after lying about ceding complete control.

Add some of the blatant violations of the laws and norms that undergird ethical conduct in the presidency: Abusing and misusing the Vacancies Act to put unqualified cronies into positions to bypass Senate confirmation hearings. Firing Inspectors General when they start to investigate him and his Cabinet officers. Holding political rallies on White House grounds. Using his official position to try to punish businesses, like Goodyear, that criticized him. Trying to enrich others, like My Pillow, that praised him. Pardoning cronies to keep them from turning on him or to reward them for doing his dirty work. Lying to Robert Mueller.

Finally, consider the corrupt acts of those who surround the president: Cabinet members using their positions to benefit themselves and their family members financially. Key staffers like Kellyanne Conway violating the Hatch Act on an almost daily basis. An Attorney General acting as a presidential consigliere, not as a law officer protecting the United States. A son-in-law negotiating in the Middle East while his family solicited loans for their troubled real estate business.

Many books could be written about the Trump administration’s violations of the law and the longstanding norms that make our democracy work. But what is clear is that all these violations are far more frequent and serious than those of which other administrations in American history have been guilty.

If Trump does leave office without being held accountable for illegal actions that he and his associates have committed, it would establish a frightening precedent. The argument his lawyers are already making—that a president cannot be prosecuted for misdeeds either while in office or after they have returned to private life—will then seemingly be vindicated.

It will, no doubt, prove very difficult to find a fair and legitimate way to hold Trump and his accomplices to account for their criminal acts. Whatever prosecutor or tribunal investigates him will need to be above reproach—something that is virtually impossible in our tribal political system. Even then, whoever is selected for that thankless task will immediately face character assassination from Trump’s acolytes and their allies in the media.

But difficult though it may prove to hold Trump to account, we will need to find some way to punish Trump for crimes he has committed. For the alternative—to let him go scot free after he brazenly violated laws that are necessary for the maintenance of democracy—would be even worse.

Norm Ornstein is a Resident Scholar at the American Enterprise Institute and a Member of Persuasion’s Board of Advisors.