The Case for Prosecuting Donald Trump
Nobody is above the law, not even the former president.
This is the first 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. A counter-argument will be published on Friday.
Recent reports suggest that the Department of Justice is ramping up its investigation of former President Donald Trump’s criminal liability for the January 6th attack on the U.S. Capitol. The FBI search of Mar-a-Lago for classified documents has opened up a different legal front against the former president, but it is important not to lose sight of this summer’s earlier revelations that increase the chance that Trump will be prosecuted for his efforts to overturn the election and for the violence at the Capitol.
Some commentators have questioned the wisdom of prosecuting Trump for the January 6th events. Before July, we were also skeptical of prosecuting Trump, particularly for his inflammatory remarks at the “Stop the Steal” rally preceding the attack on the Capitol. We thought that Trump’s public speech on that day was clearly protected by the First Amendment: “We fight like hell. And if you don't fight like hell, you're not going to have a country anymore ... So we're going to, we're going to walk down Pennsylvania Avenue ... And we're going to the Capitol.” We were concerned that an indictment based solely on this speech would have been an unhealthy mix of politics and hindsight bias. We also worried that aggressive prosecutors could abuse such a precedent to charge other political leaders or activists for similar rhetoric if any of their followers turned to violence.
But evidence from the January 6th Committee hearings—especially the revelations of Cassidy Hutchinson, a former aide to Trump’s Chief of Staff Mark Meadows—changed our minds. Hutchinson testified that Trump ordered his staff to take away the metal detectors to allow more supporters to attend his rally. Hutchinson recalled Trump saying something along the lines of, “I don’t f***ing care that they have weapons. They’re not here to hurt me. They’re not here to hurt me. Take the f***ing mags [magnetometers] away. Let my people in. They can march to the Capitol from here.”
As we’ve argued in Lawfare, such an order is not political speech of the sort protected by the First Amendment. American law regularly distinguishes “material acts” or “overt acts” from mere speech. For example, conspiracy convictions require more than just talking; they also require an overt act towards committing the crime. Trump’s order was just that: an overt, material act by which he intended a concrete change that would make the crowd immediately around his stage more dangerous. The order, along with the additional evidence of Trump’s state of mind, creates a clear distinction between protected political speech and incitement. Ultimately, our view is that Hutchinson’s testimony establishes a case for incitement to riot, obstruction of Congress, and, potentially, insurrection or seditious conspiracy.
Even so, there is more to bringing a prosecution than having a legal and factual case. Our society grants prosecutors enormous power, and the responsible exercise of that power requires immense discretion. What this means in practice is that a federal prosecution, even if supported by the facts and the law, would be inappropriate according to internal DOJ guidelines if “(1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.”
While we agree with skeptics that the prosecution of a former president—and likely future presidential nominee—would raise enormous challenges and risks, we nevertheless think that there are three dimensions that solidly militate in favor of indictments if the DOJ’s investigation confirms the basic facts presented by the January 6th Committee.
First, it would help preserve the legitimacy of the American judicial system. A prosecution would signal to the American public that the criminal justice system is willing and able to act evenhandedly, even to the point of holding accountable someone who was previously the most important person in the country. Critics have argued that a prosecution would be viewed as a deep-state witch hunt by his supporters and would further lower their trust in the government. That may be true, but Trump’s most hardcore supporters may already be beyond convincing—for many of them, it seems that nothing short of declaring the 2020 election invalid and installing Trump as president would be sufficient.
By contrast, there is a wide swath of Americans whose faith in American democracy has been sorely tested by Trump’s repeated misdeeds and the inability of the political system, via the impeachment process, to hold him accountable. If the DOJ refuses to prosecute Trump despite the evidence that exists against him, it may convince Americans—a majority of whom support criminally prosecuting Trump—that the rule of law simply does not apply to the most powerful in American society.
Similarly, a failure to hold Trump accountable would create a terrible legal precedent: that presidents and former presidents are held to a lower standard than other Americans. And the problem goes even deeper, because the DOJ’s failure to indict Trump would add to a bizarre legal landscape whereby presidents are immune from indictment, presidential candidates are effectively safe from investigation (and are thus incentivized to run to avoid criminal liability), and former presidents do not get indicted even when public testimony has already established the criminal case.
This de facto immunity for former presidents is especially inappropriate because the Constitution itself specifies that anyone who is impeached and removed “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” a clear recognition that a president could be prosecuted after leaving office. The Supreme Court has noted that a sitting president is subject to a criminal investigation, implying that a former president could also be subject to criminal prosecution. Even the executive branch, which has generally sought to expand presidential power, has conceded that a former president can be “indicted and tried for the same offenses for which he was impeached by the House of Representatives and acquitted by the Senate.”
Second, while there are legitimate concerns about any DOJ going after a sitting president’s rivals and potential challengers, the January 6th Committee has saved this DOJ from setting such a problematic precedent. In the absence of the Committee’s work, there would have been good reasons to rely on state and local investigation to avoid the appearance of a conflict of interest by the DOJ. But Rep. Liz Cheney and the January 6th Committee have done the heavy public lifting to legitimize these potential indictments, providing credibility that the DOJ would have otherwise had difficulty establishing.
Third, it’s important not to overestimate how much anyone—whether they’re in favor of prosecution or against it—can truly predict the second-order consequences of indicting Donald Trump. We have arguably been in uncharted territory since Trump descended the escalator and announced his candidacy in 2015, and certainly since November 2020, when Trump spent months undermining public confidence in the presidential election. A prosecution of such conduct would be similarly unprecedented, and a criminal trial of Trump would be simultaneously among the most consequential and controversial actions in the DOJ’s history. No one should pretend that they know how such a trial would end, either in terms of Trump’s culpability or the knock-on effects to American democracy. Given this uncertainty, the DOJ’s best course of action is to act on principles of evenhanded law enforcement.
How such a trial would unfold is impossible to say. But at this point, if one fears further democratic backsliding or even violence because of a criminal trial, one should also fear more violence if our justice system fails to punish and deter insurrectionists. In the face of such uncertainty, the DOJ should remain committed to the basic principles of liberal democracy. And there is no more basic principle in our society than that no one, not even the president, is above the law.
Alan Z. Rozenshtein is an associate professor of law at the University of Minnesota and a senior editor at Lawfare.
Jed Handelsman Shugerman is a professor at Fordham Law School and a visiting professor at Boston University School of Law, working on a book “A Faithful President: The Founders vs. the Unitary Originalists.”