Before I begin, I should warn that I did not vote for Trump. Since long, long before he announced his candidacy, I have found him to be vain, venal, and vulgar, in such depth that it disqualified him from contention. That said, I do not think he is the monster the histrionic claims by his detractors paint him. I don't believe it is necessary to demonize the opposition to disagree with them. So, the chief aspect I find most troubling with discussions about prosecution of Trump for any number of acts while in office comes down to the simple phrase "by any means necessary."

From the moment he won the election, there were numerous and strident calls to remove him from serving, "by any means necessary". I know educated, responsible, Federal employees who marched the very next day, in protest of his winning the election, chanting against him and demanding he be removed "by any means necessary". Senators and congressmen were calling for the same. Newspapers and networks, using the same language. And when he took the oath of office, the vows to impeach him, to remove him, "by any means necessary" became even louder. The guarantee by his detractors to strive to impeach, "no matter what it takes."

Perhaps people don't realize what "by any means necessary" means. Maybe they only use the term hyperbolically, to express the depth of their disdain. But when I hear or read educated, otherwise canny people say "by any means necessary", I take them at their word—and those words are dangerous. There are very few situations where we, as a people in a modern democracy, would actually countenance "any means necessary. By and large, this nation found that approach completely unacceptable when it came to the use of torture in pursuit of intelligence against terrorists. But "by any means necessary" can be invoked against a U.S. citizen seeking office? In office? When members of our houses of Congress, many who are lawyers and all of whom are legislators, incorporate that language in their rhetoric, they invite unrest and, yes, they incite extralegal actions. I did not realize so many actually like the Putin approach, because that's what the term means.

And that is what gives Trump—who by any rational stretch of the imagination has demonstrated utter, unforgivable incompetence in the Presidency—that is what continues to give him cover with his base. Because they heard and they read the words of the opposition, the calls to remove him, to stonewall him, to deny him, to prosecute him, "by any means necessary." They have watched as NY state has launched numerous investigations of Trump's finances and practices—potential violations from long before before his candidacy—only after his oath of office. That goes a long way to making it look like an attempt to remove him, by any means necessary.

His supporters are not idiots. They may lack in sophistication, they may lack in education, they may lack in appreciation of nuance and a long view, but they do have a sense of fairness and they take umbrage at seeing "the political elite" baldly state words that in effect mean "we don't care if your candidate won within the rules—we will demean him, we will deny him, we will destroy him—and anything you think, or feel, or believe is because you're simply deplorable bigots." I borrow that summation from a rant by a PhD friend of mine who voted for Hillary Clinton, and will no longer speak with me because while I dislike Trump as president, I refuse to believe people who voted twice for Obama, then voted for Trump, are racists.

So, the point. If the crimes and misdemeanors committed in office warrant them, then the House had an obligation to pursue them. Lack of political will or convenience does not excuse a refusal to investigate and prosecute. Impeachment was the proper tool, and they botched it. I believe that Trump's foes have done such a fine job of muddying the waters of virtually any accusations against him with their own, oft repeated mantra of "by any means necessary", that they have undermined the ability to provide anything close to a fair-seeming prosecution. Talk of the "need to find some way to punish him for crimes he has committed" rather than "to bring him to account in a proper trial" just sounds like more "by any mean necessary." And that's not helpful.

Trump is intent on undermining the election process and his rhetoric is that of a banana republican despot. Unforgivable. The solution isn't to re-litigate old grievances, but to beat him in November, an utter repudiation of his incompetence. Trump is never going to offer mea culpas. He can not. He is the textbook example of utter incompetence. He will never be the good loser, so we should be satisfied with him simply being the loser. There's no reason to turn him into the walking symbol of a 21st century "Lost Cause".

Expand full comment

Lock Him Up or Not

While the two essayists, Michael Walzer and Norm Ornstein agree that there is a long list of criminality surrounding Donald Trump and his associates, they disagree as to how America should respond.

Trump has repeatedly demonstrated that the only thing which motivates him is the accumulation of political power and wealth. Thus, if the Office of the Presidency does transfer from Trump to Biden on January 20, 2021, it is irrational to assume that ex-President Trump is going abide by historic norms of ex-Presidential political behavior and expect him to quietly retire to life as a private citizen.

Given the fact that 40% of Americans are willing to jump off a (political) cliff if suggested by Donald Trump and 85-90% of the Trump Party (formerly Republican Party) are loyal to Trump, he will retain an immense amount of political capital even out of office.

If Trump and his co-conspirators are not taken to task for their criminal deeds, it can be expected that ex-President Trump will continue his illegal activities and use his political capital to enhance his personal wealth, while he promulgates misinformation and objective lies so as to create division and chaos in America as a means to regain political power either in his own name or for his heir(s) apparent.

So as to reduce the probability of this bleak future, I suggest that Congress and the Biden Administration enact legislation creating a Truth and Reconciliation Commission (TRC) which is tasked with generating a list of actions taken by Trump (as President or as a private citizen) and his associates which: 

1. would be criminal for any other American citizen or

2. which are a deviation from the historic norms of political behavior that have been adhered to by all recent American Presidents but are not part of our legal code. (e.g.: President Trump’s firing numerous Inspector Generals who had lawfully investigated or ruled against President Trump.)

The work of the TRC would be completely transparent: there would be an explicit prohibition against private testimony, all testimony would be publicly televised, and a report must be completed and published for the public within 12 months. 

After the TRC report is created, there are two options: 

1. pass the report on to the appropriate State and Federal Judicial authorities with instructions to prosecute those individuals which are justiciable or 

2. the list of misdeeds should be presented to ex-President Trump and his co-conspirators in a public forum. They will be asked to publicly acknowledge their criminal behavior and their failure to abide by the “historic norms of political behaviors.” If they refuse to participate in the public forum, refuse to publicly admit culpability, refuse to demonstrate remorse, refuse to assure the American public that they will not engage in similar behaviors, and refuse to desist from all future political activity then the TRC will turn over their report to the relevant State and Federal Judicial authorities with instructions that it is the explicit intent of Congress and the Executive Branch that all prosecutable deeds be swiftly prosecuted to the fullest extent of the law and definitively resolved within one year. In this case, justice delayed is justice for Americans denied.

Clearly, the latter option would better educate America, avoid the specter of sending a former President to jail while still guaranteeing the President retains the legal prerogatives which are granted to all Americans.

America’s democracy now hangs in the balance. We can neither allow the criminals to go unpunished nor do we want to implement a process that may further harm America’s now fragile democracy. A TRC which gives the criminals the option of legal prosecution (with potential jail time) vs public contrition seems like a reasonable alternative and would be in the best interest of America’s democracy.

Hayward Zwerling


Expand full comment

I'm torn. The level of criminality is insane. And still, I feel like codifying all of the norms Trump broke into laws, and strengthening the laws he broke so that there's an enforcement mechanism, would do more to heal the nation and ensure democratic institutions endure. If the state of NY wants to go after Trump, more power to them. If congress wants to continue prosecuting perjury and ignored subpoenas on the part of Trump officials, I'm all for it. But for the Biden administration (should we be lucky enough to have one) to go after Trump directly.... I'd love to see it. But I feel it'd be counterproductive.

Expand full comment

Thanks to both of you for the thoughtful articles. I've been thinking about this stuff for a long time, and I used to be of the opinion that Ford set a precedent that presidents truly are above the law---and that his decision enabled the worst of the Bush/Cheyney/Rumsfeld behavior. If literally the _worst_ consequence is being fired/removed, well, that's not a very significant consequence, especially when you have so much wealth and status that your children's children will never have to work for a living. It's the same calculus that people like Charlie Prince (Citigroup) and Dick Fuld (Lehman) made in the years leading up to 2008: the upside of cheating was enormous (literally tens of billions of dollars of personal wealth), and the downside was an early retirement spread among, say, three luxury properties instead of fifteen. Why not go for it?

I've lately come around to Michael's point, though. If we make the stakes too high, then it just risks tearing the country apart, and there is enough vagueness in the law that it would be easy to harass ex-presidents for the rest of their lives. That said, winning election can't represent lifetime immunity from any and all crimes---even those committed before office. That would be a horrible precedent, since it would make high office even more attractive to people like Trump.

It seems to me that a reasonable norm would be: you need to be impeached and removed before crimes committed in-office can be prosecuted. That way, there's the protection of the political system, while an accountability mechanism still exists, even if it failed in this particular case. We still have to suck it up and accept that Trump got away with crimes in-office, but in theory, the presidency isn't a carte blanche opportunity to act criminally.

I'm a bit more torn on the crimes committed _before_ office. One compromise position there would be for Biden to blanket pardon Trump in the style of Ford. Doing so would still leave the state prosecutors free to go after him but keep the federal government (and the Biden administration) out of it. Do you all think that would be a reasonable middle path?

Expand full comment

Briefly--go bigly after Trump for "crimes" committed BEFORE January 20, 2017, and there are a lot of them. (Thank you Southern District for starting the ball rolling!) That will keep Donald busy for a long while. And in the process, "Stuff" can come up committed after January 20, 2017 that could be successfully prosecuted. Keep Biden out of it, he will have enough to do to clear up the mess and move us forward.

Expand full comment

One might argue that "electing known criminals to high office damages democracy", thus somewhat mooting the discussion of what to do with one after serving. But as Jason already noted, the only sane route may be to allow for non-federal, local officials continue to pursue justice for acts committed.

Expand full comment

I think Michael Walzer makes a strong and important case, but to be fully convincing I think the case has to be made concrete and specific: what actions does he suggest follow from his general conclusion? Should Biden pledge to pardon Trump--or not pledge but just do it? (He's said he wouldn't pardon him.) Even if Biden pardons him, Trump can still be prosecuted for NY state crimes and Biden can't pardon him for that? Perhaps Walzer would say such crimes would be less connected to his presidency and so not entail the risks he (rightly) warns of, but I'm not sure it's so easy to make that case. If Walzer thinks the Justice Dept should have a policy against prosecuting presidents for any acts while in office, I hope he'd agree that 1) they should still investigate somehow, no matter what, if they find evidence of a crime and 2) such a policy should come from Congress (though if passed as an explicit law, that would have the effect of encouraging law breaking to some extent no? and that too must be taken into account).

Unless I hear more concrete details from Walzer as to how his non-prosecute proposal would be made a reality, here's where I stand: until Trump's handling of the pandemic killed people, I might've argued Biden should have pardoned Trump if he had been prosecuted for other crimes for the reasons Walzer suggests. And even despite the pandemic, I don't think Biden or Democrats in Congress should actively prosecute the case against Trump after he leaves office, for the reasons Walzer gives. But if the federal Justice department or local and state officials prosecute Trump according to their standing policies and directives, I don't think Biden or other executive officials should intervene to stop that at this point.

Expand full comment

I really enjoyed this style of two articles addressing the same topic. Thanks to both Michael and Norm. A+ work.

Expand full comment

Perhaps I'm naive, but surely the aim is not to fear Presidents hanging on to power to avoid prosecution, but to make Presidents act in a lawful manner, in matters of state as well as their personal interests? I don't see any grey here at all.

Expand full comment

He can and should be censured, but in the court of public opinion. If he loses, there will be a tsunami of shame and shaming rolling across the US. That should have a healthy effect, probably more sound for the country than processes in court - which would open consitutional wounds. Forgetting Trump - pushing him out of the limelight - would probably be the best punishment

Expand full comment

I think it is vital that presidents are accountable to the law, as we all are. It’s hard enough keeping a democracy together when landmass gets a vote so the popular will is constantly thwarted. But when elites can commit crimes with impunity, we are in real trouble. We already see a difference in the way poor and rich people are treated when they commit crimes. We really must stop this. Now. If the justice system had been doing its job all this time, Donald Trump would never have become President. Letting the rich and powerful get away with crimes is only going to further erode the trust we need to keep our nation together. If anything good comes out of the Donald Trump presidency, let it be that we decided we have to get serious about reversing all the ways our system is failing to live up to its promise.

Expand full comment