Good and Bad Reasons to Prosecute a Former President

Posted in: Criminal Law

The news that the federal government has indicted Donald Trump reminded me of 2008. After President Barack Obama was elected, and for some years thereafter, there was a lot of chatter about prosecuting former President George W. Bush, Vice President Dick Cheney, and various officials in the Bush administration for their role in the post-9/11 torture scandals.

Because of my work in this realm, I was often asked to weigh in on this debate. I was lead counsel in Rasul v. Bush (2004), which gave Guantanamo prisoners the right to challenge their detention in federal court, and in Munaf v. Geren (2008), which established the right of U.S. citizens to challenge their detention by the United States, even if they were held in a foreign war zone. I also represented, and still represent, Abu Zubaydah, the first person cast into a CIA black site and the only person subjected to all the so-called “enhanced interrogation techniques.”

Because of this history, I think people expected me to endorse prosecutions, but I didn’t. I certainly agreed that a crime had been committed, but contrary to what some people imagine, that’s the first question a prosecutor should ask, not the last. The overwhelming majority of crimes are not prosecuted, and the mere fact that my client and many others had been illegally tortured did not, by itself, warrant a criminal prosecution of either those who tortured him or those who set that torture in motion.

But why not? If Bush administration officials had committed a crime that inflicted grave injuries, why not prosecute them? The answer helps us understand the important differences between then and now. The prosecution of Bush, et al. would have been a mistake, but the prosecution of Donald Trump is unfortunately the right thing to do.

To begin with, I am an abolitionist. I do not have much faith in the ability of the criminal legal system to solve social problems, and I think that the extravagant amount of time, energy, and money lavished on the carceral state would, as a rule, be better spent on fixing criminogenic environments and dismantling violent ideologies. This means I am reflexively skeptical of claims that a particular prosecution is needed to achieve some broader social good. The same day that the federal government indicted Trump, for instance, The Washington Post ran a lengthy article lamenting that the many hundreds of prosecutions following the January 6 assault on the U.S. Capitol have done almost nothing to dampen support for extremist, right-wing ideologies. The only thing that surprises me about this finding is that someone could have expected otherwise.

Bringing this perspective to the Bush administration, I believed—and still believe—the most serious problem with the torture scandal was not with the torture per se, but with the mindset within the administration, and the structural pressures bearing down on it, that made torture not only defensible but desirable. Mine is the classic abolitionist orientation: I focus attention not on the conduct itself but on the entire universe of internal and external conditions that create it. It’s not that the conduct is unimportant. On the contrary, it’s desperately important; torture is a grievous moral and legal wrong, as I have insisted repeatedly. It’s just that you’re not likely to bring this conduct to an enduring end by prosecutions alone, as the January 6 prosecutions show so well.

Granted, I recognize an occasional place for prosecutions. Sometimes they’re the only way to create something akin to accountability. I didn’t have a problem, for instance, with the prosecution of the three men who chased down and fatally shot Ahmaud Arbery in Santilla Shores, Georgia. As I wrote elsewhere, I don’t think they should have been sentenced to life imprisonment, and I think the purpose of punishment is not to cast out but to bring back, but the moral obligation I feel to work toward a world without prisons does not stand in the way of their imprisonment. It’s just that I have no illusion that sending them to prison will make the slightest dent in the economic, political, and social conditions that led them to believe it made sense to grab guns and hunt down a young Black man engaged in perfectly innocent behavior. To me, changing those conditions, and the ideology that supports them, is a more important social goal than imprisoning three more people.

I also opposed criminal prosecutions in the torture scandal because all the information I saw indicated that the putative defendants, at least at the highest level, had the best interests of the country at heart. Don’t misunderstand: I think they were morally and legally wrong and have spent more than two decades fighting against what they did in every forum available to me. But the record as it was known to us in 2008 simply did not support an inference of bad intent. On the contrary, it pointed unequivocally to the conclusion that torture emerged out of a sincere belief on the part of senior administration officials that it was both legal and necessary.

Needless to say, this view was not widely shared within my circle. I remember appearing on NPR with my friend Michael Ratner, the Executive Director of the Center for Constitutional Rights and my co-counsel in Rasul. Michael had no patience with my musings about motive and insisted Bush and Cheney should be prosecuted. On another occasion, I recall debating my friend Phillippe Sands, the British human rights lawyer, who was of the same view as Michael. I carefully explained my reservations about any prosecution and Phillippe, with characteristic incisiveness, waived them aside and said, “that all goes to mitigation.” But I believed the facts demanded that we understand and learn rather than condemn and punish.

This is why I supported some version of a truth and reconciliation process. I had in mind something that would have taken the widest possible look at how and why torture became U.S. policy. Like a Sentinel Event Review that takes place after organizational accidents, which I have written about before, the goal would have been to examine the origin and execution of the policy, as thoroughly as possible and without blame or recrimination, even to the point of providing immunity from criminal prosecution in order to secure the most complete picture, and then to use that record to undertake a sober national discussion about what happened—a discussion worthy of a mature democracy. I considered that vastly superior to any prosecution, even though my client was a victim of the crime.

Yet none of these considerations apply when it comes to the federal charges against former President Trump. There is certainly no national reckoning that needs to take place with respect to the wrongful retention and concealment of classified documents. The charges against the former President do not present the occasion for sober reflection about a contentious national policy so much as a prosecutorial response to purely personal—indeed, garden variety—misdeeds. Trump allegedly took highly sensitive national security documents he shouldn’t have taken. Then, rather than simply cooperate with the government and give them back (as he was repeatedly advised to do by his lawyers and as President Biden and former Vice President Mike Pence did), he allegedly conspired to prevent their return and lied about it. You don’t need a truth commission for that.

Nor can we make the same mitigating excuses about Trump’s motives. If he had cooperated with the government and returned the documents way back in 2021, we could have said that he, like Biden and Pence, may have simply made a housekeeping mistake. But at least if the allegations are true, he went out of his way to conceal the records and thwart the investigation. In a very real sense, the indictment is not about taking the documents but about repeatedly obstructing the attempt to retrieve them. We don’t know why he did it (and I sure don’t understand why he would), but the record at this point certainly doesn’t paint a picture of a man acting for the good of the country.

I also opposed the prosecution of Bush-era defendants because the case would have been extraordinarily and undeniably divisive. Given that I thought it was much more important to learn from our nation’s mistakes than to prosecute those who made them, I didn’t think it was worth courting this division.

Trump’s prosecution will likewise be divisive. There’s certainly no denying that. (Of course, we’re already riven over Trump and it’s hard to see how the prosecution will make it worse.) And this divisiveness is why I find the prosecution unfortunate. It would be infinitely better if the country did not have to endure this case. Yet, if the allegations are true, I find myself wondering what the alternative could have been. The administration spent more than a year negotiating with former President Trump for the return of these documents. All he had to do was return them. Instead, he (allegedly) hid them and lied about it. As Senator Mitt Romney rightly observed, Trump “brought these charges upon himself.”

Maybe Trump had a good reason for what looks like self-deluded pigheadedness. Maybe it was all a misunderstanding. Maybe he can honestly say he would never have misused any of these documents and that he would never betray the country. Maybe he can even say he acted with the best of intentions, though I don’t see how.

Maybe. But at this point, that all goes to mitigation.

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