The approaching anniversary of the January 6 insurrection and the intensifying work of the House Select Committee investigating the uprising have spurred new calls to indict and prosecute high-ranking Trump administration officials and the former president himself. Those now urging such actions argue that letting Donald Trump off the hook for inciting violence and for obstructing a congressional proceeding would be severely damaging to the rule of law. It would violate the simple proposition that no person is above the law.
Based on what we now know, there appears to be ample reason for Attorney General Merrick Garland to launch a criminal probe of Trump. But even if such a probe turned up evidence to justify prosecution, it is not clear that it would be wise for him and the Biden administration to initiate that process. Meanwhile, local prosecutors can make their own judgments about the former president’s criminal culpability.
Ironically, the case for prosecuting Trump was raised last February by none other than Republican Senate Minority Leader Mitch McConnell. Explaining why he voted against convicting Trump during his second impeachment trial, McConnell said that “impeachment was never meant to be the final forum for American justice.”
Instead, he noted that “We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.”
Speaking about January 6, McConnell went on to say that “Former President Trump’s actions that preceded the riot were a disgraceful, disgraceful dereliction of duty. Trump,” he concluded, “is practically and morally responsible for provoking the events of the day.”
South Carolina Senator Lindsay Graham joined McConnell in saying to those calling for Trump’s impeachment that the right way to respond was through conventional legal means. “If you believe he committed a crime,” Graham said, “he can be prosecuted like any other citizen; impeachment is a political process.”
A month before McConnell and Graham talked about prosecuting Trump, Washington, DC’s Attorney General, Karl Racine, who is responsible for enforcing DC’s criminal laws, had already been doing so. He noted that local law “makes illegal the statements of individuals that clearly encourage, cajole, and otherwise, you know, get people motivated to commit violence.” Racine speculated that Trump could be charged with “a misdemeanor, a six-month-in-jail maximum” for his role on January 6.
More recently The Boston Globe’s Editorial Board urged Attorney General Merrick Garland to abandon this country’s “longstanding reluctance to prosecute former leaders.”
While recognizing what it called “legitimate concerns about the justice system being used to settle political scores,” the Globe concluded that there “is only one way left to restore deterrence and convey to future presidents that the rule of law applies to them.” The Justice Department, it said, can only do so “by indicting and prosecuting Donald Trump for his conduct in office.”
The Globe rightly described the events of January 6 as “an extreme abuse of power that few ever imagined a president would commit. A commander in chief tried his very best to subvert democracy. He attacked his own country….Allowing him to go unpunished would set a far more dangerous precedent than having Trump stand trial.” Again invoking rule of law rhetoric, the Globe argued that prosecuting Trump would “make clear…that no person, not even the president, is above… [the law].”
This month New York Magazine added its voice to the chorus, similarly arguing that upholding the rule of law required prosecution of the former president. Columnist Ryan Cooper also advised Attorney General Garland to “take the rule of law and Trump’s manifold crimes seriously now. File charges tomorrow, and keep him out of office forever.”
Paradoxically, these repeated incantations about the rule of law frankly add little to the case for prosecuting Trump.
The rule of law does not require that a prosecutor move forward even when there is probable cause to do so.
The concept of the rule of law is a capacious one, made up of multiple and sometimes even conflicting norms and values. But, however one thinks about the rule of law, it does not mean that every violation of the law, indeed even the most serious ones, must be met with a criminal prosecution.
Federal law accords prosecutors enormous latitude in deciding who or what to investigate, indict, and bring to trial. So long as there is no evidence of vindictive or selective prosecution, courts have rarely interfered when a prosecutor decides not to do so.
Then-Attorney General Robert Jackson might have been exaggerating when he said, in 1940, that the “prosecutor has more power over life, liberty, and reputation than any other person in America.” But he was certainly correct in observing, simply and matter-of-factly, that “[h]is discretion is tremendous.”
Longstanding Supreme Court precedents support Jackson’s view.
As the Court explained in a decision almost a half-century ago, “So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”
Figuring out what to do about Trump is really more about prudence, wisdom, and statesmanship than it is about fidelity to the rule of law. Even when faced with enormous wrongs, the most conscientious legal officials cannot avoid balancing interests that are often complex.
Here the dictum about hard cases making bad law seems apt.
Reasonable people, including some of the nation’s most acute legal minds, have reached different conclusions in what is undoubtedly one of the thorniest cases to come down the pike in a long time. I understand those differences and feel torn about the wise thing to do.
I recognize that, while not all the evidence is in, there is the strong case that if Trump’s actions are not prosecutable, then there would be nothing a president can do that would justify indictment after they leave office.
As The Boston Globe editorial explains, “It cannot be the case that there is no line — no hypothetical act of presidential criminality that would not rise to the level of seriousness that merits setting aside our qualms (about prosecution). And if one accepts that there is a line, it’s hard to imagine Donald Trump didn’t cross it. ”
There are in fact good reasons to worry that a decision not to prosecute the former president would mean, as New York Magazine observed, that “Elite political impunity would continue unabated, and the Justice Department’s failure would incentivize even more high-level government misconduct in the future.”
Yet I worry that going forward with even a well-grounded prosecution of Trump would almost certainly turn him into a martyr, fuel a furious attack on the Biden Justice Department for using prosecution as a political weapon, spur violent outbursts, and plunge this country ever closer to the abyss which it seems to be fast approaching.
“An investigation and potential indictment and trial of Mr. Trump,” Eric Posner warns, “would give the circus of the Trumpian presidency a central place in American politics for the next several years, sucking the air out of the Biden administration and feeding into Mr. Trump’s politically potent claims to martyrdom. Mr. Trump will portray the prosecution as revenge by the ‘deep state’ and corrupt Democrats.”
This difficult judgment does not mean that Attorney General Garland should do nothing.
He can serve justice by building on the work of the House committee and helping to fully develop the facts of what Trump did in the lead up to and on January 6. Garland should present those facts clearly, logically, and with irrefutable documentation. And he should do what McConnell and Graham suggested in February by citing chapter and verse the numerous federal criminal laws that Trump violated.
The Attorney General can and should make a record for history to judge. Our country has a long tradition of coming to understand past abuses only after a considerable period of time. Establishing a record of Donald Trump’s crimes would make such a future reckoning possible, and it would give less oxygen to the former president’s immediate wish to dominate the headlines, rile up his most ardent supporters and whine about how unfairly he has been treated.
This may not satisfy all those who want to see Trump brought before the bar of justice. But this may be one of those instances when the thing that we are justified in doing is not necessarily the wisest thing to do.