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.
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".
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.