The Case Against Prosecuting Donald Trump
He needs to be taken down at the ballot box, not the courtroom.
This is the second in a two-part series debating if the Department of Justice should prosecute Trump for his actions related to the January 6th attack on the Capitol. The previous installment by Jed Shugerman and Alan Rozenshtein was published earlier this week.
Calls for the prosecution of former president Donald Trump have been growing louder in recent weeks. After months of testimony, the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol has compiled considerable evidence of Trump’s central role in the horrifying events of that day. Meanwhile, Attorney General Merrick Garland has initiated a separate criminal investigation into Trump’s handling of classified documents since his departure from the White House.
Put these two investigations together and the case for prosecution can seem obvious and indisputable, with more than enough evidence in the public record to justify indictment of the former president. The question, however, is whether seeking Trump’s indictment would be wise—and on that issue, I reluctantly, but firmly, come down on the side of No.
The Blurry Line Between Law and Politics
The most ominous question facing the United States at the present moment is how we will respond to our Donald Trump problem. The head of one of the country’s two parties and the person still in a solid lead to be the Republican nominee for president two years from now is a man who attempted to orchestrate a coup to keep himself in power after losing a free and fair democratic election.
That puts the country in an incredibly dangerous situation. If Trump runs again and wins outright, we will have elevated a would-be tyrant to the highest and most powerful office in the land. On the other hand, if he runs and loses again, he’s almost guaranteed to attempt another extra-legal power grab. He would be even less likely to succeed this time, since it’s much harder to overthrow a president in power than it is to hold on to the office one already occupies.
But the bigger danger would be its effect on the social and civic fabric of the country. As I wrote recently, Trump losing and refusing to accept the results could cause “fights to break out in several states over vote counting, rules for rejecting ballots, certification of vote totals, appointment of electors, and all the other steps required to pronounce a victor whose legitimacy is broadly accepted across both parties and the electorate as a whole.”
That would be very bad. But is prosecuting Trump a way to avoid it?
The case for indicting Trump comes down to two main claims—one based on substance, the other on principle.
The first holds that it should be illegal to attempt the overthrow of our democracy by disregarding the outcome of an election—just as presidents should be prevented from absconding from the White House with highly sensitive documents—and there should be severe legal consequences for doing either of these things, let alone both. Otherwise, Trump himself (and other would-be tyrants to follow) will be emboldened to try one of them again.
The second argument appeals to the rule of law—especially the principle of equality under the law. Refusing to prosecute Trump when he’s clearly engaged in illegal acts would be to place him above the law that is supposed to apply equally to all Americans. Doing so would be incredibly corrosive to our political and legal system.
These are powerful arguments. A public trial, presentation of evidence to a jury, conviction, and punishment—all of it widely viewed as legitimate—is what justice demands when it’s viewed in the abstract and treated as an automatic process taking place fully apart from politics. The same can be said for the ideal of upholding equality under the law. If it were realistically possible to achieve these goals, I would fully support the drive to prosecute Donald Trump.
But of course, it isn’t realistically achievable. The line between law and politics is permeable. Politicians make the laws and sometimes appoint the prosecutors responsible for enforcing them. Moreover, a prosecutor’s decision about whether to seek an indictment is far from automatic. It’s a judgment call, and politics is one of the factors influencing it. This is especially so when the prosecutor is the Attorney General appointed by the currently serving Democratic president and the alleged criminal is the Republican former president of the United States.
Because of this permeability between law and politics, upholding the rule of law is a tricky business. Any appearance of bias, unfairness, hypocrisy, or animus can do enormous damage, undermining public faith in the distinction between justice and officially sanctioned persecution of political opponents.
Putting the Rule of Law on Trial
One of the many ways in which Trump has demonstrated his skill as a demagogue is in his ability to provoke severe reactions in his political opponents that he then turns around and points to as evidence of their untrustworthiness.
These reporters call themselves journalists, but they’re left-wing activists with press credentials! They’re out to destroy me!
Those members of the intelligence community say they only care about defending the country, but they’re spreading ridiculous lies, calling me a Russian asset!
That prosecutor says he’s just upholding the rule of law, but he’s clearly gunning for me!
You know the drill. We all endured it for four interminable years.
Unfortunately, this MO works whether or not the person on the other side has done anything unprofessional or unfair. The case against Trump for his actions leading up to and on January 6, including his handling of classified documents after leaving the White House, looks rock solid. But regardless, he is bound to respond to any indictment by impugning the Attorney General’s motives. Dummy Democrat Merrick Garland is so pissed off that I put Neil Gorsuch in the seat Obama promised him on the Supreme Court that he’s trying to throw me in jail for pointing out that Old Man Biden stole the 2020 election!
The rule of law itself would be on trial in any prosecution of Donald Trump, and I’m not at all sure it would end up exonerated in the eyes of tens of millions of Americans. The additional damage to our capacity for self-government could be considerable.
And that’s assuming Trump ends up convicted. Will he be? Jury selection for a trial is going to be grueling in a country where 47 percent of the electorate cast a ballot for the defendant, and a substantial number of those voters tell pollsters they trust him more than key government institutions. Even aside from this difficulty, there are also some trustworthy analysts who worry, based on publicly available evidence, that proving Trump’s guilt beyond a reasonable doubt could be a considerable challenge.
Now imagine a trial that ends in acquittal, giving the former president a vindication far more sweeping than either failed impeachment. Trump would be able to proclaim before all the world that the case against him was fraudulent from the start, ginned up by his political enemies, and that he proved it in a court of law.
Trump the Outlaw
Then there’s an even more alarming possibility: Trump running for president again—and potentially winning—while under indictment, during a trial, or even after conviction and while serving time in federal prison.
There are ideas floating around about how it might be possible to prevent this from happening, perhaps by invoking Section 3 of the 14th Amendment, which precludes those who have engaged in acts of “insurrection or rebellion” against the United States while holding federal or state office from serving in the government. Attempting to stop Trump with this clause—which was written to prevent Confederate officials from running for office in the aftermath of the Civil War—sounds pretty far-fetched to me, as does impeaching and convicting him, which already failed twice.
Far more likely, I fear, is the prospect of Trump responding to the political system treating him as a criminal while running for the nation’s top job by turning himself into an all-American folk hero: an outlaw who takes a stand against the corrupt powers in the name of the people. This would be a presidential campaign consisting entirely of Trump railing against the courts, any electoral process that would deny him a victory, and every member of the establishment—public or private, Democrat or Republican—who doesn’t join him in lambasting federal law enforcement.
We should be doing everything in our power to avoid such a destructive scenario.
Donald Trump is at bottom a political problem. Which means he can’t be defeated in a courtroom. He needs to be taken down at the ballot box by such a wide and indisputable margin that it’s impossible to mistake him for anything other than a loser. If we can’t accomplish that, then the fact that he’s eluded conviction and a jail sentence will be the least of our problems.
Damon Linker writes the “Eyes on the Right” newsletter at Substack. He is a senior fellow in the Open Society Project at the Niskanen Center and a regular participant in the weekly “Beg to Differ” podcast at the Bulwark.