{"id":35199,"date":"2022-08-27T04:05:29","date_gmt":"2022-08-27T04:05:29","guid":{"rendered":"https:\/\/cjstudents.com\/?p=35199"},"modified":"2022-08-27T04:05:29","modified_gmt":"2022-08-27T04:05:29","slug":"if-prosecuting-trump-sets-a-dangerous-precedent-so-does-letting-his-crimes-slide","status":"publish","type":"post","link":"https:\/\/cjstudents.com\/index.php\/2022\/08\/27\/if-prosecuting-trump-sets-a-dangerous-precedent-so-does-letting-his-crimes-slide\/","title":{"rendered":"If Prosecuting Trump Sets a \u2018Dangerous\u2019 Precedent, So Does Letting His Crimes Slide"},"content":{"rendered":"

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America is grappling with an unprecedented choice: Should we, or should we not<\/a>, indict an ex-president<\/a>?<\/p>\n

The Jan. 6 Committee<\/a> has shown a ton of evidence that former President Donald Trump and various accomplices committed conspiracy to defraud the United States when he tried to stay in power after losing re-election. The FBI search of Mar-a-Lago\u2014and Trump\u2019s many shifting, contradictory excuses<\/a>\u2014indicate he likely committed felonies regarding the removal and concealment of national defense material, and obstruction of justice.<\/p>\n

The legal answer, the one from rule of law, is straightforward. Prosecutors have ample evidence of serious criminal activity. The government has a legitimate interest in deterring a repeat of these crimes (especially the coup-related ones). No one is above the law, not even the person who was once the most powerful in the world.<\/p>\n

But the political answer is more complicated.<\/p>\n

Whatever the Department of Justice (DOJ) decides, it will set precedent, provoke public reactions, and shape history.<\/p>\n

While the MAGA right will defend Trump no matter the evidence<\/a>, some centrist voices who acknowledge Trump\u2019s wrongdoing still oppose indictment to preserve \u201cdomestic tranquility<\/a>.\u201d Even if well-intentioned and entirely by-the-book, they argue, a Democratic administration bringing charges against the most recent Republican president (one likely to run again), would be counterproductive, inflaming an already tense situation.<\/p>\n

I\u2019ve argued that this relies too much on guessing<\/a> highly uncertain political outcomes. If prosecuting Trump would set a dangerous precedent, so would letting his crimes slide. We can\u2019t know what will happen, so we should follow the law and let the chips fall where they may.<\/p>\n

But even if we say U.S. law enforcement should prioritize political impact, the \u201cdomestic tranquility\u201d argument fails on its own terms.<\/p>\n

Public Legitimacy<\/strong><\/p>\n

Rule of law, Damon Linker astutely points out<\/a>, is not an automatic process. It\u2019s \u201ca set of complex institutional procedures and behavioral norms around matters of law enforcement,\u201d one that requires public legitimacy. If following the letter of the law undermines Americans\u2019 faith in public institutions, it would damage the rule of law more than uphold it.<\/p>\n

If Trump is indicted, Republican leaders would denounce it, issuing \u201cinflammatory statements,\u201d Linker warns in The New York Times<\/em><\/a>. They\u2019d call the FBI and DOJ the \u201cdeep state,\u201d and claim prosecution is \u201cmotivated by rank partisanship and a drive to self-aggrandizement.\u201d Charging Trump, he argues, would end up \u201cconvincing most Republican voters that appeals to the rule of law are invariably a sham.\u201d<\/p>\n

But how many? And how much more convinced?<\/p>\n

Republican politicians and media have been attacking public confidence in institutions for years, and will continue doing so whether or not Trump faces charges. To grant this reaction a veto over law enforcement, there ought to be strong evidence that prosecution would damage American institutions\u2019 overall public legitimacy. And there isn\u2019t.<\/p>\n

On the FBI search of Mar-a-Lago, a Politico\/Morning Consult poll<\/a> found that 49 percent of American voters believe it was due to evidence of a crime, compared to 39 percent who say it \u201cwas conducted mostly to damage Trump\u2019s political career.\u201d<\/p>\n

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Police outside of Mar-a-Lago in West Palm Beach, Florida, on Tuesday Aug. 9, 2022, the day after the FBI searched Donald Trump’s estate. <\/p>\n<\/div>\n<\/figcaption><\/div>\n

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Joe Cavaretta\/South Florida Sun Sentinel via Getty Images<\/h4>\n<\/p>\n<\/div>\n<\/figure><\/div>\n

A majority of Democrats and an 11-point plurality of independents say the search was legitimate. By contrast, 69 percent of Republicans think it was politically motivated, while 16 percent say evidence of a crime. But there\u2019s no reason to think that the 16 percent will change their mind if it\u2019s prosecuted, nor that the 69 percent will respect the rule of law more if it\u2019s not. Maybe indictment would push the 15 percent who answered \u201cdon\u2019t know\/no opinion\u201d to turn against law enforcement, but it could easily be the opposite. Or no net change.<\/p>\n

A 2022 Gallup study found confidence in major U.S. institutions<\/a>, including the criminal justice system, at the lowest point since its survey began in 1979. The reasons go far beyond scrutiny of Donald Trump. One reason is rich and powerful people getting away with crimes, while regular people land in jail. Making Trump immune to prosecution would likely reduce Americans\u2019 confidence in rule of law more than indicting him would.<\/p>\n

In The Washington Post<\/em>, Jason Willick<\/a> goes further, arguing that President Joe Biden should pardon Trump to \u201cpartially preempt\u201d the claim that \u201cDemocrats want to suppress and criminalize their opposition.\u201d<\/p>\n

But there\u2019s little reason to think pardoning Trump would restore Republicans\u2019 confidence in rule of law. If large parts of the right already believe that federal law enforcement is hopelessly biased, and a big reason for this is seeing Trump as a victim, that belief isn\u2019t likely to change. Not least because it\u2019s based on lies.<\/p>\n

For example, Russia conducted a big anti-American intelligence operation in 2016 aimed at helping Trump defeat Hillary Clinton. Members of the Trump campaign, such as campaign chair Paul Manafort<\/a>, were \u201cwittingly or unwittingly\u201d involved. The FBI counterintelligence investigation began July 2016<\/a>, over a month before the FBI received the \u201cSteele Dossier,\u201d and a 2018 Inspector General investigation<\/a> found the Russia probe had legitimate predicates and no evidence of political bias. <\/p>\n

That certainly doesn\u2019t mean the FBI handled it perfectly or that every media speculation was right. But if anyone believes the whole thing was a \u201choax\u201d and Donald Trump a persecuted victim\u2014or that the Jan. 6 assault on the Capitol was nothing more than a \u201cpeaceful protest<\/a>\u201d\u2014they\u2019re already gone, and putting Trump above the law won\u2019t bring them back.<\/p>\n

If anything, it could make it worse. When Trump avoids consequences for apparent wrongdoing, his apologists use it as a defense. After all, if he actually did these crimes, if they weren\u2019t just making it up, why didn\u2019t they charge him?<\/p>\n

If the DOJ indicts Trump, some Americans who already think rule of law is a sham will become more convinced, but I doubt there would be many of those who\u2014until now\u2014had kept their faith, but would change their mind over a Trump indictment.<\/p>\n

Beat Him At the Ballot Box<\/strong><\/p>\n

The argument against indictment is partially about electoral politics. \u201cIt\u2019s imperative we set aside the Plan A of prosecuting Mr. Trump,\u201d Linker argues<\/a>, and go with Plan B, \u201callowing the political process to run its course.\u201d Under this logic, the only way to address the problem of Trump\u2019s criminality is to defeat him in an election (again).<\/p>\n

The broader question of America\u2019s political future, including the challenge to liberal democracy posed by Trumpism, will be primarily decided by elections. But that\u2019s a terrible argument against enforcing the law\u2014 because it\u2019s not mutually exclusive.<\/p>\n

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\u201cIf large parts of the right already believe that federal law enforcement is hopelessly biased, and a big reason for this is seeing Trump as a victim, that belief isn\u2019t likely to change.\u201d<\/p>\n<\/div>\n<\/div><\/div>\n

Prosecutors can indict, and Trump can run for president. Under the law, he\u2019s presumed innocent unless convicted in court. Only some of the potential charges could end up barring him from holding public office, and the likelihood that these cases are fully resolved before November 2024 are virtually nil. Whether charged or not, he can run, Republicans can nominate him, and Americans can vote for him.<\/p>\n

The electoral argument against holding Trump legally accountable boils down to a prediction that indictment will boost his chances in 2024. I think it\u2019s wrong to base law enforcement decisions on political guesses, but if you think they should take precedence, prosecution is more likely to hurt Trump\u2019s chances than help.<\/p>\n

\u201cAs we\u2019ve seen in the aftermath of the Mar-a-Lago search,\u201d Mona Charen writes in The Bulwark<\/a>, \u201cgiving Trump a colorable case for \u2018persecution\u2019 by the Democrats is a huge gift.\u201d<\/p>\n

Is it? Who is it helping him with?<\/p>\n

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\u201c…the United States definitely should not put Trump above the law out of a misguided sense that making him unaccountable would somehow lower his political standing.\u201d<\/p>\n<\/div>\n<\/div><\/div>\n

Remember which voters are most likely to decide elections. Not committed Trumpists, who may get angrier, but can vote only once. Nor other partisan Republicans, who might say they\u2019d prefer a different nominee, but will turn out to vote GOP regardless. We\u2019re talking about independents, swing voters, and occasional voters who tend not to follow politics closely.<\/p>\n

These voters, on balance, think being under indictment is bad, not good. It signals to the general public that the alleged criminal really did do something wrong\u2014that it wasn\u2019t just political bluster, and the feds actually have a case. If a fraction of the 16 percent of Republicans who think the Mar-a-Lago search was motivated by evidence of a crime feel validated by a prosecution and switch to anti-Trump, that could swing elections.<\/p>\n

One person who apparently believes this is Donald Trump. He made the impression of criminality central to his 2016 campaign against \u201cCrooked Hillary.\u201d In office, he abused power trying to extort Ukrainian President Volodymyr Zelensky<\/a> into manufacturing an investigation of Joe Biden.<\/p>\n

As Trump understands, many Americans, especially occasional and swing voters, perceive \u201cin legal trouble\u201d as more serious than \u201cdenounced by political opponents.\u201d Under indictment is not a good look to most who aren’t already on board.<\/p>\n

If we must put it terms of electoral politics, the DOJ charging Trump would likely inflame the base, and garner creative excuses from anti-anti-Trump pundits, but reduce his appeal to independents and swing voters. Any boost in Republican mobilization would likely be matched or exceeded on the Democratic side\u2014as seen in record 2020 turnout. By contrast, putting Trump above the law would still motivate Republicans, maybe even more than indictment would, while deflating the Democrats\u2019 base.<\/p>\n

That leaves the Republican primary. As Josh Barro argues<\/a>, it\u2019s absurd for Republicans who\u2019d like their party to get a new standard-bearer to demand that non-Republicans solve their Trump problem for them. And it\u2019s never been plausible either.<\/p>\n

There\u2019s no path for an anti-Trump Republican, as the ostracization of Rep. Liz Cheney shows. So that means Trump would have to gracefully retire from public life\u2014no sign of that\u2014or a pro-Trump candidate would have to beat him. But no one hoping for that has been able to explain how it could actually happen. There\u2019s just the insistence that if Democrats, mainstream media, Congress, and federal law enforcement ignored him, he\u2019d disappear<\/a>.<\/p>\n

It\u2019s never been more than fantasy, a way for those with fondness for the pre-Trump GOP to tell themselves it\u2019s coming back, and for anti-anti-Trumpers to absolve themselves of responsibility. No Trump-aping alternative is winning the Republican nomination with an argument like \u201cDonald Trump was a great president, and won in 2020, but the election was rigged, and now they\u2019re persecuting him, which is just like persecuting you, but don\u2019t vote for him, vote for me.\u201d<\/p>\n

America shouldn\u2019t charge Trump because it might hurt his electoral chances. That would be wrong. But the United States definitely should not put Trump above the law out of a misguided sense that making him unaccountable would somehow lower his political standing.<\/p>\n

Violence and Institutional Threats<\/strong><\/p>\n

It\u2019s true that an indictment would anger Trumpist Republicans, and though they\u2019re a minority, their reaction could be so negative that it harms the country more than enforcing the law helps. Though the \u201cinjustice\u201d of letting Trump\u2019s crimes slide would be \u201cagonizing,\u201d argues Mona Charen<\/a>, \u201cjustice may have to be sacrificed on the altar of order.\u201d<\/p>\n

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Pro-Trump protesters in front of the U.S. Capitol Building on January 6. The mob later stormed the Capitol, breaking windows and clashing with police officers. Five people died as a result.<\/p>\n<\/div>\n<\/figcaption><\/div>\n

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Photo by Brent Stirton\/Getty Images<\/h4>\n<\/p>\n<\/div>\n<\/figure><\/div>\n

Trump\u2019s self-coup attempt already damaged the American order. The GOP\u2019s subsequent choice to rally around Jan. 6<\/a> shows it\u2019s getting worse. This year, various Republican candidates lying about 2020\u2014and claiming the power to reject 2024 results\u2014won swing state primaries, including for positions that oversee elections<\/a>.<\/p>\n

No one should bow before Republican threats to launch bad faith investigations in retaliation for an indictment. They were vowing to do that already<\/a>, using the Russia investigation and Trump\u2019s two impeachments as rationalization.<\/p>\n

As for political violence, the threat is real<\/a>, but talk of \u201ccivil war\u201d is overblown. The likely risk is of sporadic, smaller-scale attacks\u2014like this month\u2019s attempted assault on the FBI field office in Cincinnati<\/a>\u2014or worse, mass shootings. The government keeps a much closer watch on explosive material since the 1995 Oklahoma City attack, but bombings can\u2019t be ruled out. That\u2019s quite serious, but it\u2019s something for law enforcement and counterterrorism to address\u2014not a good reason to refrain from enforcing the law. Those who\u2019d lash out if Trump is indicted would probably lash out if he loses another election too.<\/p>\n

If any Americans are determined to be violent on behalf of Donald Trump\u2014I really hope they\u2019re not, and that anyone considering it chooses otherwise, but if this is the case\u2014then it\u2019s probably better they try it now, against harder targets that can respond, like the FBI, rather than against, say, election workers counting votes in 2024.<\/p>\n

This situation can get worse, no question. But giving Trump de facto permission to break electoral and national security laws will not stop the slide.<\/p>\n

Time to Take a Stand<\/strong><\/p>\n

\u201cDuring the Trump years, the system passed its stress test,\u201d writes Damon Linker. \u201cWe have reason to think it would do so again.\u201d<\/p>\n

That\u2019s what this is, though: the system defending itself.<\/p>\n

The American people voted him out, but he wouldn\u2019t peacefully transfer power.<\/p>\n

American institutions\u2014courts, military, and though it was a close call, Congress\u2014overcame Trump\u2019s scheming, upheld the rule of law, and got him out of office. But he kept lying, plotting, and committing more crimes. In response, prosecutors filing charges in criminal court based on evidence acquired in a well-predicated, legally authorized federal investigation is what passing this ongoing stress test would look like.<\/p>\n

This is the moment for the institutions of Constitutional democracy to make their stand. Trump\u2019s bluff must be called. Ours is a government of laws, not of men.<\/p>\n

Jan. 6 was the warning. The United States doesn\u2019t have to wait for another.<\/p>\n<\/div>\n