This is not to deny that Trump’s conduct after the November 2020 election was atrocious or that it will blight his reputation forevermore. But not every wrong, even a highly consequential one, is a crime. Stretching to find a theory for a violation of the law in Trump’s “Stop the Steal” campaign and using it to pursue a dubious prosecution would further discredit the justice system in the eyes of many Americans, represent a breach of the country’s norms, likely fail on its own terms, and perhaps boost Trump politically.
If you believe that an indictment of the most likely candidate to run against Joe Biden in 2024 by the president’s own Justice Department would be considered anything but a politicized travesty by about half of the country, you haven’t been paying attention.
Our institutions aren’t in robust health and are ill-equipped to withstand the intense turbulence that would result from prosecuting the political champion of millions of people. The case would presumably drag on for years, with perhaps multiple appeals reaching to the Supreme Court. It would ensure a political and legal melodrama that would keep Trump front and center even if he decides to retire to a quiet life of golfing at Mar-a-Lago.
Harvard law professor Jack Goldsmith argues that Garland’s conflict of interest in handling such a politically momentous case might require the appointment of a special counsel. If the attorney general went that route, given the pace at which special-counsel investigations move, we might be looking at an indictment of Trump in 2023 when he very well could be a declared presidential candidate. How is that going to play?
In the communications battle over January 6 and the 2020 election, Trump has been steadily losing ground, but an indictment would allow him to shift from obsessing over an imagined injustice against him in the past to combating an arguably real injustice against him in the present.
The ongoing, very public lobbying campaign directed at Garland will also increase the sense that he buckled to political pressure.
Then, there’s what a prosecution would say about our country. The orderly transfer of power has a number of constituent parts. One, obviously, is the loser conceding defeat and not trying to overturn the result. Another is the loser not getting hounded legally once out of office. This is why we honor the statesmanlike wisdom of Gerald Ford in pardoning Richard Nixon and why it was wrong for Trump to play with the idea of prosecuting Hillary Clinton after 2016.
January 6 was indeed, as many people remarked, a banana republic-worthy event, but the same would be true of a prosecution of a former president.
If you live in a country where the former president is sitting in the dock or in jail, it is a sign of such lack of social cohesion or deep corruption that you might want to move elsewhere. The United States shouldn’t be eager, for the first time ever, to adopt this practice.
Of course, it is Trump himself who started us down this path and no one should be above the law. But, again, that doesn’t mean he committed a crime.
One of the most discussed possible indictable offenses is obstruction of a congressional proceeding. This requires corrupt intent, meaning that Trump didn’t believe his own claims and was lying about massive voter fraud.
The January 6 committee has made much of people around Trump, especially then-attorney general William Barr, telling him that his claims of fraud were bogus. That doesn’t mean that Trump credited these advisers. In fact, he vehemently disputed their analysis.
After Trump has spent his adult life exaggerating, twisting and obscuring the truth to suit his interests and ego, it is almost impossible to distinguish between his legitimate self-delusions and his deliberate deceptions. On top of this, he is naturally prone to conspiratorial thinking. No one is going to be able to establish his state of mind with any certainty, and it’s my guess that he could pass a lie detector test making all his various allegations of fraud, even if they contradict one another.
Then, there’s the matter that most of Trump’s allegedly illegal acts were carried out on the advice of lawyers and, indeed, in the company of lawyers, including the notorious call to Georgia Secretary of State Brad Raffensperger.
That call underlines how the standards change when the question shifts from whether an act is blameworthy to whether it is criminal.
From a layman’s perspective, the Raffensperger call was outrageous and damnable, a sitting president strong-arming a state official to get the election results he wanted.
From a defense lawyer’s perspective, it is different. Trump goes on and on about various categories of supposedly fraudulent votes, adding up to a victory of “at least” 400,000 votes. When he says his famous line, “I want to find 11,780 votes” — one more than Biden’s margin of victory — the context suggests he’s talking about literally finding them, not manufacturing them, from a vast pool of improper ballots.
The specific requests during the call were made by Trump’s staff and lawyers and had to do with information-sharing and a meeting to go through in detail the Trump team’s claims of fraud.
Near the end of the conversation, a Trump lawyer named Kurt Hilbert pipes up to say four categories of allegedly improper votes add up to 24,149 votes, enough “to change the results or place the outcome in doubt.” He says the Trump team believes the numbers are accurate, having had three or four experts look at them, but it wants to vet them with the secretary of state’s office. “We would like to sit down with your office,” he says, “and we can do it through purposes of compromise and just like this phone call, just to deal with that limited category of votes. And if you are able to establish that our numbers are not accurate, then fine.”
The call ended with an agreement that Raffensperger’s lawyers would be in touch with Trump’s lawyers.
Now, you might say that this interpretation of the call misses the forest for the trees and is far too lawyerly, but this is exactly the kind of close reading elicited by a criminal trial.
Once a political impropriety is charged as a crime, it enters a realm where fine-grained questions of law and intent become paramount. And the court of law isn’t like the January 6 committee where evidence can be presented without contradiction by any pro-Trump advocates in an extended prosecutorial brief. As a figure in the political realm, Trump no longer deserves the benefit of the doubt; as a criminal defendant, he is entitled to one.
In our system, we have a mechanism for punishing transgressions that are grave abuses of power, yet not crimes. It is called impeachment.
In many ways, as my National Review colleague Andy McCarthy has pointed out, the January 6 committee hearings are belated impeachment hearings, making up for the House not conducting extensive hearings in advance of Trump’s second impeachment. The timing was not propitious. Perhaps Trump would have gotten impeached and convicted if there had been a vote the night of January 6. As it turned out, the process was too much of a rush, at the same time it was too late to address Trump’s conduct while he was still in office and catch the very brief window of shocked outrage among Republican elected officials.
The January 6 committee is now seeking, in effect, to indict Trump for an impeachable offense.
A prosecutor is not the U.S. House or Senate, though. It is not the role of the law-enforcement system to try to belatedly dole out punishment for constitutional enormities or presidential dereliction of duty. One side using prosecutions as a tool of political accountability or vengeance (depending on your point of view) only invites retaliation by the other side and an escalatory spiral that wouldn’t be good for our politics or the law.
Trump’s ultimate jury is those Republican voters who aren’t the hard-core Trump base, but aren’t Never Trumpers, either. The people who have to be convinced that it is time for him to go voted for him twice, like him, disdain his enemies, distrust the mainstream media, and feel deep gratitude that he dispensed with Hillary Clinton and nominated three conservative Supreme Court justices. Anything that pushes them toward Trump serves his purposes, and anything that detaches them from him diminishes his power.
I thought the January 6 committee wouldn’t have any chance of reaching this cohort. Instead, by revisiting the insanity of the post-election period and sucking Trump into responding, the committee has seemingly enhanced the sense of Trump fatigue among these voters, at least at the margins. Perhaps an indictment of Trump would have the same effect, but it’s more likely that it would push fence-sitting Republicans toward him in reaction to a prosecution they’d perceive as unfair and abusive.
The January 6 committee’s audience of one should hold his fire.